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Bhaguji Baloba Kir Vs. the Alandi Municipality - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number First Appeal No. 176 of 1930
Judge
Reported inAIR1937Bom37; (1936)38BOMLR1098; 166Ind.Cas.925
AppellantBhaguji Baloba Kir
RespondentThe Alandi Municipality
DispositionAppeal dismissed
Excerpt:
bombay district municipal act (bom. iii of 1901), section 96 - erecting building without permission-notice by municipality under section 96 (3) not necessary-prosecution under section 96-acquittal-malicious prosecution-suit against municipality.;to establish an offence under section 96 of the bombay district municipal act, 1901, all that is necessary is to show that the accused had begun a construction, or started altering an existing construction, or added to it or reconstructed it, without giving a notice thereof in writing to the municipality as required by sub-section (1). the municipality is not bound to give notice to the accused under sub-section (3) of section 96 before starting the prosecution.;in a suit for malicious prosecution the plaintiff has to prove (1) that he was..........of a new structure. no description of the structure complained of was given in the complaint. in evidence the prosecution tried to prove what the structure was. from the judgment it appears that the magistrate was not in a position to make up his mind as to whether the notice prior to the prosecution related to the structure already existing or to a new structure or whether the earlier notice related to a structure already existing and the later notice to the structure which was new, and as he felt some doubt, he gave the benefit of it to the accused.3. the only material question, in our opinion, is whether there was a foundation for the prosecution. in other words whether there was reasonable and probable cause as far* as the municipality was concerned for instituting the prosecution.....
Judgment:

Rangnekar, Ag. C.J.

1. This is an appeal in a suit for malicious prosecution brought by the appellant against the Alandi Municipality and its President. The circumstances which led to the prosecution are briefly these. The plaintiff who is a contractor was possessed of a Dharmashala on the road between Alandi and Poona. This Dharmashala was completed in about 1923 under the management of his agent, one Chavan. Then it appears that at that time a katcha shed standing on wooden poles with roof covered by corrugated iron sheets was left standing adjoining the plot and was used as a store-room for timber and other materials. In 1926, as the evidence shows, the plaintiff's agent wanted to run a business of motor bus between Alandi and Poona. For this purpose he required a garage and he started utilizing the tin shed already standing for that purpose and putting up another shed which is shown on the plan as 'B.' Admittedly no permission for either extending the so-called flimsy shed or putting up another shed adjoining it ,was taken from the Municipality. In November, 1926, the Municipality acting on the report made by its officers issued a notice to the plaintiff asking him to stop the work which he had commenced and was doing until the matter was thoroughly investigated. It is the plaintiff's case that he accordingly stopped the work. Thereafter the Municipality launched a prosecution against the plaintiff in April, 1927, under Section 96 of the Bombay District Municipal Act, 1901. The prosecution resulted in an acquittal of the plaintiff who thereupon filed the present suit.

2. Now in a suit for malicious prosecution the plaintiff has to prove, (a) that he was prosecuted by the defendant, (b) that the defendant acted without; reasonable and probable cause, (c) that he acted maliciously, and (d) that the criminal prosecution terminated in the plaintiff's favour. No suit for malicious prosecution, however malicious, will lie unless the criminal proceedings were instituted without reasonable and probable cause. Reasonable and probable cause means a genuine belief based on reasonable grounds that the proceedings are justified. The learned Judge held that the plaintiff has. failed to discharge the onus of proof that lay on him and dismissed the suit. In appeal it is contended before us that the finding of the lower Court that there was no reasonable and probable cause for the prosecution should not be accepted, and for this reason. It is said that the prosecution was in respect of a structure which was already existing before the notice of November, 1926, was served on the plaintiff, and the prosecution realising the weakness of their case sought to improve it by serving another notice in August, 1928, during the pendency of the prosecution with regard to a structure which admittedly was a new structure and for which no permission was sought. In our opinion the record does not support this contention. It is clear from the evidence that the prosecution was instituted in respect of a new structure. No description of the structure complained of was given in the complaint. In evidence the prosecution tried to prove what the structure was. From the judgment it appears that the Magistrate was not in a position to make up his mind as to whether the notice prior to the prosecution related to the structure already existing or to a new structure or whether the earlier notice related to a structure already existing and the later notice to the structure which was new, and as he felt some doubt, he gave the benefit of it to the accused.

3. The only material question, in our opinion, is whether there was a foundation for the prosecution. In other words whether there was reasonable and probable cause as far* as the Municipality was concerned for instituting the prosecution against the plaintiff. Section 96, Sub-section (5), of the Bombay District Municipal Act, prescribes the offence. It says :-

Whoever begins any construction, alteration, addition or reconstruction -without giving the notice required by Sub-section (1) or without furnishing the document... shall be punished with fine which may extend to one thousand rupees.

4. To establish, therefore, an offence under this section all that is necessary is to show that the accused had begun a construction, or started altering an existing construction or added to it or reconstructed it, without giving a notice thereof in writing to the Municipality as required by sub-section (1); and the question whether a wrong notice, assuming that the notice in this case was wrong, was given by the Municipality or not seems to us to be entirely immaterial. The scheme of Section 96 of the Act is briefly this.. Sub-section (1) requires a person intending to erect a building or to alter or add to an existing building to give notice to the Municipality thereof in writing. Under Sub-section (2) the Municipality has the power to give permission to erect according to the plan, etc., submitted under Sub-section (1) or to impose certain conditions as to level, drainage, location of the building, etc. Under Sub-section (2 A) the Municipality may revoke the permission given and give fresh permission and may direct that until all questions as to location have been decided, the work shall not be proceeded with. Then comes Sub-section (3) which provides that before any orders under Sub-section (2) are issued, the Municipality may within one month from the receipt of such notice either (a) direct that the work shall not be proceeded with for a period not longer than one month from the date of such order, or (b) may demand further particulars.

5. It will be seen, therefore, that the Municipality is not bound to give the notice under Sub-section (3). No doubt a Municipality ordinarily would give such a notice, but whether it does or not, in our opinion, the offence is complete under Sub-section (5) as soon as a person begins any construction, alteration, addition or reconstruction without giving the notice required under Sub-section (!). The evidence clearly shows that the plaintiff did begin to erect a new structure within the meaning of Sub-section (5).

6. In our opinion issue No. 1 raised by the learned Judge was entirely irrelevant, but it does not affect the merits of the case. I think I need not discuss the matter any further. After hearing everything that could have been said by Mr. Abhyankar on behalf of the appellant, we are satisfied that the decision of the Court below is correct and the appeal must be dismissed with costs.

Tyabji, J.

7. I agree. There is no evidence of malice on the part of the Municipality : Chaganlal Sakerlal v. The President, Thana Municipality I.L.R. (1931) 56 Bom. 135 : 34 Bom. L.R. 143.


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