1. On 3rd July 1903 the plaintiff, who is the respondent before us, applied to the defendant Municipality for permission to reconstruct his house, building balconies on the Southern and Eastern sides. On the 25th July 1903 the Municipality, by the written 'permission note,' Exhibit 33, gave the plaintiff permission to rebuild his house according to the plan submitted, but in the body of the note no reference was made to the question of the proposed balconies. This omission was, however, supplied by a postscript, which ran as follows:-'As regards the building of balconies, your application is placed before the Managing Committee for decision whether the permission should, or should not, be granted. Therefore until this permission is granted, you must not do any work in this respect.' Then for a period of practically one year, i. e., until the 15th July 1904, the Municipality did nothing, having, we are informed, lost or mislaid the papers. At some time during this protracted interval the plaintiff built his balconies as proposed. This was reported to the Municipality on 15th July 1,904, and on the 4th August following that body called upon the plaintiff to remove the balconies. After an unsuccessful petition to the Municipality praying them to reconsider their decision, the plaintiff brought this suit in which he seeks for an injunction against the Municipality restraining them from removing his balconies.
In the Court of first instance the suit was dismissed with costs, the Subordinate Judge's decision being based upon the broad ground that the structures had been erected although the Municipality's permission had been expressly withheld. It was inferred that the circumstances justified the application of those powers of demolition which are conferred on the Municipality by Sub-section (5) of Section 96 of the Bombay District Municipality Act, 1901.
2. The plaintiff appealed to the District Court, where the learned Subordinate Judge, A. P., made a decree in his favour, being of opinion that the Municipality's order of 25th July 1903 must be considered as a provisional order issued under Sub-section (3)(a) of Section 96, and, in consequence, not valid beyond a period of one month from the date of its issue.
3. Against this decree the present appeal is brought by the Municipality, and on their behalf it is contended that the order of 25th July 1903 should be referred to Sub-section (2), and not to Sub-section (3)(a) of Section 96. We are, however, of opinion that the order is not one which could have been issued under Sub-section (2). That sub-section provides for a variety of orders which may be passed by the Municipality ; but the only words in the sub-section which, we think, could conceivably be invoked in aid of the particular order in question are those which empower the Municipality to issue 'such orders not inconsistent with this Act as they think proper with reference to the work proposed'. But in our opinion an order directing an indefinite delay-in this case a delay extending to one year-is inconsistent with the Act. That, we think, is made clear by Sub-section (3) and (5) which, in allowing the issue of a provisional order, strictly limit its duration to one month, and penalise only a person who begins to build without awaiting the legal orders of the Municipality issued under Section 96. Reading the section as a whole, we have no doubt that one of the objects of the Legislature was to discountenance just the kind of unreasonable dilatoriness which this case illustrates.
4. Then it was argued for the Municipality that the order of 25th July 1903, even if it does not fall within Sub-section (2), certainly cannot be ascribed to Sub-section (3)(a) because the provisional orders contemplated by this latter sub-section must be passed by the Municipality 'before issuing any orders under Sub-section (2),' whereas in this case we have but a single set of orders embodied in the 'permission note' of 25th July. Even if this argument were sound, however, it would be no answer to the plaintiff, for the only result would be that the orders . would be invalid as falling outside the provisions of the Act altogether. But it appears to us that the argument is not sound. We think the true view of these orders, and the view most favourable to the Municipality, is to regard them as consisting of two distinct and severable parts. The main body of the communication may rightly be referred to Sub-section (2) inasmuch as it conveys permission to re-construct the house according to the plan, subject to certain conditions. But the question of the balconies was treated by the Municipality as a separate matter, and their order in this respect must be referred to Sub-section 3(a) if it is to be regarded as possessing any legal validity at all under the Act. It is a temporary or provisional order directing that the intended work shall not be proceeded with until the Managing Committee have come to a decision; and the only authority discoverable in the Act for such an order is Sub-section (3)(a), which provides for the issue of 'a provisional order directing that for a period, which shall not be longer than one month from the date of such order, the in tended work shall not be proceeded with.'
5. No difficulty is created by the fact that a provisional order must precede the issue of any order under Sub-section (2) because no order under Sub-section (2) was issued in regard to the balconies. It follows, therefore, that, after the expiry of one month, this order as to the balconies was spent, and under Sub-section (4) the plaintiff thereupon became entitled to proceed with the proposed work. For Sub-section (4) enacts that an applicant shall be entitled to proceed with his intended work in case the Municipality, within one month from the receipt of the notice or application, have neither passed orders under Sub-section (2) not issued under Sub-section (3) any provisional order. No orders under Sub-section (2) were passed as to these balconies, and though, no doubt, a provisional order had been issued a year previously; we cannot think that that order had, under the section, any power to restrain the plaintiff from building. For by the very nature of it as defined in Sub-section (3)(a), its operation was limited to the period of one month, and Sub-section (5), which deals with cases where an applicant is bound to await further orders, is careful to provide that such orders must be legal orders. We take it, therefore, that under the Act an applicant is not to be restrained from proceeding with his work merely because a provisional order, which is expressly limited to one month, may have been issued months, or even years, earlier. Thus, in order to avoid a plain contradiction, and to give effect to the section as a whole, we must read the words 'any provisional order' in Sub-section (4)(a)(ii) as referring only to a subsisting provisional order. There was no such order in this case, and therefore the applicant was entitled to the liberty of proceeding allowed by Sub-section (4).
6. We affirm the decree of the Court below and dismiss this appeal with costs.