1. The defendants other than the Municipality of Dhandhuka were improperly admitted as parties to set up a case against the plaintiff which had no natural connexion with the suit as against the Municipality. Whether the added defendants had a right to an injunction or other relief against the plaintiff, on the ground of his proposed erection interfering with the access of light and air to their premises, was a question entirely different from that of whether the plaintiff had a good ground for relief against the Municipality, which had forbidden him, under Section 33 of Bombay Act VI of 1873, to go on with his proposed building. The case has been disposed of entirely by reference to the authority asserted by the Municipality and denied by the plaintiff, and we propose to limit ourselves to the contention on that point without pronouncing on the private rights and obligations subsisting or not subsisting between the plaintiff and the defendants Nos. 2-5.
2. The plaintiff being owner of the houses on each side of the passage of a khidki containing three or four other houses, proposed to build across the passage at such a height as not to interfere with the passage of those entitled to go to and fro. The municipal commissioners forbade the work, as calculated to interfere with the access of light and air to the houses inside the khidki. It is now contended that the commissioners had no right to interfere or to refuse permission to build on such a ground as this. The protection of the rights of the neighbouring householders ought, it is urged, to have been left to the householders themselves. The section, however, (Section 33 of Bombay Act VI of 1873) under which the permission of the commissioners was sought and refused, is, as the Assistant Judge has pointed out, perfectly general in its terms. It does not follow that the commissioners could, therefore, exercise the authority thus given to them in a capricious, wanton, and oppressive manner Public authorities even acting within the defined limits of their powers must not conduct themselves arbitrarily or tyrannically (see Leader v. Moxon 2 W. B1., 924 approved by Gibbs, C.J., in Sutton v. Clarke 6 Tau. 43. But the case last cited shows that public functionaries, acting within the limits prescribed by the statute which gives them authority, are not subject to a suit for thus discharging their duties according to their judgment. A public body must keep within its powers, and must use them considerately (see per Lord Blackburn in Geddis v. Proprietors of Bann Reservoir L.R., 3 App. Ca. 455 , but so acting it is safe-Dixon v. The Metropolitan Board of Works L.R., 7 Q.B. Div., 418 ). There is a further principle of great importance laid down by Lord Selborne, L.C., in Clark v. School Board for London L.R., 9 Ch. App. Ca., 122 . His Lordship says: 'It seems to me that the Legislature, in authorizing the School Board, for important public purposes, to exercise these large powers... meant to give them a discretion suitable to the nature and importance of the duties to be discharged by them.' The late Sir G. Jessel, M.R., citing this dictum in Duke of Bedford v. Dawson L.R., 20 Eq. Ca. 358 adds that 'the public body... are to be the judges, subject to this, that if they are manifestly abusing their powers... the Court will say it is not a fair and honest judgment, and will not allow it.' These cases define with clearness what discretion a public body may use and at what point the interference of the Courts is justifiable. In the present case, the Courts below have found that the order of the commissioners was not an unreasonable one. That is a question of fact rather than of law; but we concur in the view taken by the Courts below, and we do not think that the authority of the commissioners was in any way affected by the circumstance that the proposed erection might be an encroachment on private rights subjecting the plaintiff to an action by the persons injured.
3. As to the balcony proposed to be thrown out over the street, the Section (17) of the Act which vests 'streets' in the Municipality, though it gives perhaps only a limited estate, yet gives not merely the bare surface of the ground, but so much above and below it as is requisite or appropriate for the preservation of the street for the usual and intended purposes (see Coverdale v. Charlton L.R., 4 Q.B. Div., 104 and Lord Bramwell cited by Brett, M.R., in Wandsworth Board of Works v. United Telephone Company L.R., 13 Q.B. Div. 913 ). It is obvious that if the column of space standing over a street were occupied by projections, the interception of air and light would greatly impair the use of the area as a street. So far, therefore, the column of space is vested as part of its property in the Municipality, and the commissioners were justified in forbidding the plaintiff to occupy it with his balcony, and thus begin a series of encroachments which might cause serious mischief.
4. For these reasons we confirm the decree of the District Court, with costs of the Municipality as against the plaintiff.