1. In this case the plaintiff applied to the Municipality of Alibag on the 1st of December 1913 for permission to build a privy on his own land. The permission was granted by the Municipality on the 22nd of December. On the 8th of January 1914, the Municipality gave a notice to the present plaintiff requiring him not to build the privy until a further order was made. The plaintiff gave notice to the Municipality on the 22th of June of the present action and on the 7th of July 1914 filed the suit for the cancellation of the order of the Municipality dated the 8th of January 1914 based on a resolution of the Managing Committee of the 6th January and for a declaration that he had a right to construct the privy the also prayed for a perpetual injunction restraining the defendant Municipality from preventing the plaintiff in the work of constructing the privy, and for damages.
2. The trial Court allowed the plaintiff's claim holding that the second order was beyond the powers of the Municipality and that the permission granted on the 22nd of December was good. Accordingly, a decree was passed in favour of the plaintiff. The Municipality appealed from that decree. The learned Assistant Judge who heard the appeal came to the conclusion that the order of the 8th of January 1914 was within the powers of the Municipality and that it was binding upon the plaintiff. the was, however, of opinion that having regard to the preparation which the plaintiff had made by way of commencing the work he was entitled to damages of Rs. 2. The decree of the trial Court was reversed on the main point and affirmed as to damages.
3. The present appeal is preferred by the plaintiff against that decree, and it is contended on behalf of the plaintiff that the second order made by the Municipality is ultra vires. It seems to me, on the facts of this case, that the first order made by the Municipality granting permission to the plaintiff to build the privy was a final order under Sub-section (2) of Section 96 of the Bombay District Municipalities Act. The subsequent order which purports to be provisional in its character is not referable to Sub-section (3) of that section. In the first place, it was not made within a month from the receipt of the notice given to the Municipality under Sub-section (1). Secondly, it did not purport to specify any period not exceeding a month. And indeed, from the omission of the Municipality to pass any further order after communicating this order to the plaintiff up to June 1914, it seems clear that though in form the second order was provisional in substance it was a cancellation of the permission already granted and practically a prohibition to the plaintiff against building the privy. But taking the order to be what it purports to be in form, it is clear that it is not covered by Sub-section (3) because it is not a provisional order of the character contemplated by that sub-section. It was, in fact, made after the order granting the permission under Sub-section (2). There is no other provision of the Act to which we have been referred on behalf of the Municipality as saving this order.
4. The only contention urged on behalf of the Municipality is that the powers of the Municipality under the Bombay District Municipalities Act are wide, and there is nothing in the Act to restrict its powers so as to make the order invalid. I am wholly unable to accept this argument.
5. In the absence of any power to cancel the permission once granted under Sub-section (2) of Section 9G, I do not think that the order of the Municipality made on the 8th January 1914 is legal.
6. The view which I take of the powers of the Municipality is supported by the decision in Emperor v. Karcem Ranjan (1916) 19 Bom. L.R. 65. The plaintiff, in my opinion, has succeeded in establishing that the second order of the Municipality is not binding upon him and that he is entitled to act under the permission which was granted to him before this order was made.
7. As to the relief to be granted, the Municipality did not contend in the lower Courts that even if the second order wore bad the plaintiff would not be entitled to build the privy. Though the first permission in terms contains a condition that it shall not be in force after one year, I think that on the facts of this case the plaintiff is entitled to an injunction restraining the Municipality from interfering with the building of this privy. In my opinion, Sub-section 4 of Section 96 has no application to the facts of the case nor has it any bearing on the relief to be granted to the plaintiff.
8. I would, therefore, allow the appeal, set aside the decree of the lower appellate Court and restore that of the trial Court with costs throughout on the defendant.
9. The three important dates here are: 1st December, application by the plaintiff under Section 96; 19th December permission granted; and 6th January, Resolution of the Managing Committee notice whereof was given to the plaintiff on the 8th January 1914. Having regard to the decision in Emperor v. Kareem Ranjan (1916) 19 Bom. L.R. 65 it cannot in this Court be contended that the Municipality had a right by their Resolution of the 6th January 1914 to cancel the permission given on the 19th of December 1913. Nor can that Resolution of the 6th of January be justified under Section 96 (3) for it was not issued within a month from the receipt of the plaintiff's notice of the 1st December.
10. Therefore, as far as the real point is concerned, namely, as to the legality of this Resolution of the 6th January, the Municipality are, in my opinion, in the wrong. I think, he far, that both the lower Courts are really agreed. The lower appellate Court however refused to grant an injunction because it said the work was not commenced within a year which ought to be done under Section 96(4) and that accordingly, it would be improper to grant an injunction. On the other hand, it awarded damages to the plaintiff which I think it could not have done unless it was of opinion that the plaintiff was right on the merits of the case and the Municipality were wrong. Now as far as the point of commencing the work is concerned, it is a point which appears not to have been pleaded or taken in the Court of first instance. We also find that building materials were collected on the ground and workmen seem to have been employed there. I accordingly infer that there is, under all the circumstances, a sufficient commencement of the work within Section 96 (4) of the Act, and that similarly there has been a compliance with the final clause of the permission given by the Managing Committee by their resolution of the 19th December and which was communicated to the plaintiff in the formal permission of the 22nd December.
11. That being so, I think, the injunction granted by the trial Court was right. I agree, therefore, that this appeal must be allowed and that the judgment of the trial Court must be restored and that the appellant must have all his costs throughout.