Norman Macleod, Kt., C.J.
1. The plaintiff sued for a permanent injunction restraining the defendant Municipality from removing the disputed otla that he had raised, alleging that the defendant's notice of the 23rd October 1913 for its removal was illegal and 'ultra vires. The very simple fact appears from the evidence that the plaintiff built this otla, without obtaining permission of the Municipality under Section 96 of the Bombay District Municipalities Act, and having built without that leave, the Municipality were entitled under sub-clause (5) 'to issue a notice requiring such building or addition to be altered or removed, and under h. 154(0) they were entitled to give notice that if the plaintiff did not comply with the notice to remove, the work would be done by the Municipality at the plaintiff's costs.
2. The main question which seems to have been tried in both the lower Courts was whether the ground on which the otla was built was part of a public street or not. The first issue in the trial Court was whether the site of the otla in dispute) belonged to and a,? such had been in possession of the plaintiff. The trial Judge hold that the site did not belong to the plaintiff, nor was it in his occupation as alleged. Then ho went on to hold that it was part of the .street land not vested in the Municipality. In consequence of that finding, and the way in which the first issue was dealt with, a long discussion ensued as to whether the land on which this otla was built was part of a public street or not. The same error appears in the proceedings in the lower appellate Court, as after remarking that it had been held that the land on which the otla was constructed was not the plaintiff's land, the learned Judge went on to say 'the next question was whether the street in which the otla was put up was a public street'. The learned Judge thought as the street was not a public street the Municipality had no right to remove the otla, nor had it any right to prohibit the plaintiff from building the otla. That finding appears to me to have been due to a misunderstanding regarding the proper construction of Section 9G, which provides that a person intending (1) to begin to erect any building; or (2) to alter externally any existing building; or (8) to add to any. existing building; or (4) to reconstruct any projecting portion of a building in respect of which the Municipality is empowered by Section 92 to enforce a removal or setback, shall give notice thereof to the Municipality in writing, and shall furnish to them, at the same time if required by a by-law or by a special order to do so, certain documents and plans,
3. The Court seems to have been of the opinion that this was a question of reconstructing a projecting portion of a building in respect of which the Municipality is empowered by Section 1)2 to enforce a removal or set-back. It is quite clear that in this case the plaintiff was seeking to add to an existing building, and Section 92 does not come into the case at all. The plaintiff was bound to ask. for permission before he could build the additional .structure, and if he built without obtaining permission, he did so at his own risk. Therefore it is quite clear to me that the Municipality was justified in acting within their powers in issuing the notice of October 191M calling upon the plaintiff to remove the structure. In my opinion the appeal succeeds. The decree of the lower Court must be set aside and the suit dismissed with costs throughout.
4. I agree. The meaning of Section 96 of the Bombay District Municipalities Act apparently seems to have been misunderstood. I entirely concur in the analysis given by my Lord the Chief Justice of Clause (1) of that section. It deals with four classes of cases, and it is only in dealing with the 4th class that Section 92 comes into operation. It might of course have been a point in dispute in this case as to whether the mere making of a plinth was adding to an existing building. But as a matter of fact that contention never was raised, so we need not consider it. The plaintiff himself asked for permission to make the addition to the building, that is to say, the plaintiff himself proceeded as if Section [Hi applied/ and thereafter the Municipality also proceeded under Section 90, and it is now outside argument that in this case Section 96 is the one to apply How then it ever came to be supposed that it mattered to any-body whether there was a public street or a private street or indeed any street at all, I am totally unable to understand. The judgments of the lower Courts do not do anything to remove the obscurity of my mind as to how this question of a street over was raised. 1 suppose something was assumed by both parties before the District Judge that is not assumed here. I think, therefore, the appeal must be allowed as proposed.