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Thana Borough Municipality Vs. Akbaralli Hassanally - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 791 of 1953
Judge
Reported inAIR1957Bom34; (1956)58BOMLR636
ActsBombay Municipal Boroughs Act, 1925 - Sections 123(7) and 204; Code of Civil Procedure (CPC), 1908 - Sections 9; Judicature Act - Sections 25
AppellantThana Borough Municipality
RespondentAkbaralli Hassanally
Appellant AdvocateV.B. Rege, Adv.
Respondent AdvocateM.M. Virkar, Adv.
Excerpt:
.....common with the community at large) he may in general maintain an action against any other person who infringes it, and that without proving actual damage'.where the right infringed is a public right, the appropriate remedy is by proceedings of a public nature i......-- apart from any question of penalty -- there is a remedy by injunction, because it is a public general act prohibiting certain matters in the interests of public health and in order to preserve uniformity in the width of the public streets, and that is a matter for which the attorney-general can sue.'it was not of course held in this particular case that the local authority itself had got no right to sue, but the reasoning by which the conclusion was reached that the. attorney-general was entitled to sue is pertinent. there was an obligation even in that case not to build without the consent of the focal authority, as there was an obligation on the respondent in the present case.there is in the present case besides an obligation upon the respondent not to build in.....
Judgment:

1. The respondent in the present appeal had applied for permission to construct a new building in his Tika No. 11 C. S. Nos. 57, 58, 60 and 61 of Thana, and the permission was granted to him subject to certain conditions on 27-3-1948. On 24-8-1948 the respondent applied for permission to build one more floor on the entire chawl and to provide the building with privies.

On 13-10-1948 the Chief Officer granted permission to the defendant to construct the first floor, but told the defendant that he must construct privies on the site sanctioned on 27-3-1948 and not at any other place. Then on 10-11-1948 the respondent applied for permission to add one more floor, that is, a second floor to the above chawl and for permission to build 12 new privies at a place different from that sanctioned on the 25-11-1948.

The Chief Officer refused to give the respondent permission to do either of these things. His reason so far as the first request was concerned was that bye-law No. 20 prevented the Chief Officer from giving permission to an owner to construct 9, second floor to a building exceeding 100 feet in length. The respondent, however, persisted and started the construction of the second floor and a block of eight privies.

The appellant Municipality thereupon filed a criminal complaint against him under Section 133(7), Bombay Municipal Borough Act. But inasmuch as there was a congestion in the criminal Courts it filed simultaneously the suit from which the present appeal arises for an injunction restraining the respondent from occupying the suit building either by himself or his tenants and for a direction to the respondent to demolish the unauthorised construction.

2. The facts in this case are no longer in dispute, and the only question in the second appeal is whether the appellant Municipality was entitled to file the suit. The objection is under the rule laid down by Lord Tenterden in Deo v. Bridges (1831) 1 B Ad. 847 . He said:

'Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.'

To that rule, however, there are exceptions. The first of the exceptions is the ancillary remedy in equity by an injunction to protect a right. Another exception was mentioned at one time in England namely, that created by the Judicature Act, Section 25 Sub-section 8, which enables the Court to grant an injunction in all cases in which it is just and convenient, see Cooper v. Whittingham (1880) 15 Ch D 501.

In North London Ry. Co. v. Great Northern Ry. Co. (1833) 11 Q.B.D. 30, it was held however that the Judicature Act, Section 25, Sub-section 8, did not give power to the High Court to issue an injunction to restrain the appellant from proceeding with arbitration in a case in which no Court before the Act had the power to give any remedy thereof. It was consequently held in Devrmport Corporation v. Tozer (1902) 2 Ch. 182, that after the case of Nortli London Ry. Co. v. Great Northern Ey. Co. (C) (1880) 15 Ch. 501, was--not in favour of granting an injunction from laying down a new highway which did not comply with the requirements of the borough by-laws as to width. The local authority could not consequently maintain an action for such an injunction. -

3. On the question whether there is power in the Court to grant an injunction, it was observed in Grand Junction Waterworks Co. v. Hampton Urban Council. (1898) 2 Ch. 33, that

'the granting of an injunction in such a case is a matter which ought to be done with the greatest possible caution. I desire to add that in contests between local authorities and private owners it seems to me that that rule ought to be adhered to somewhat strictly.

In these matters as to building lines the Legislature has provided a cheap and short mode of obtaining a decision on the point in question, and it would be matter of regreat if a different and more expensive mode of obtaining a decision were to be habitually resorted to, or restored to in the absence of very special circumstances.'

4. The general rule however, may bo departed. Thus in Pasmore v. Oswald Twistle Urban Council (1898) AC 387 , Lord Macnaghten observed:

'The law is stated nowhere more clearly or I think, more accurately, than by Lord Tenterder In the passage cited by my noble and learned friend on the woolsack. Whether the general rule is to prevail, or an exception to the general rule is to be admitted, must depend on the scope and language of the Act which creates the obligation and on considerations of policy and convenience.'

5. Now while the appellant does not question these principles, it is contended on its behalf that it had to go to the court because of the congestion in the criminal Courts and secondly Section 204, Bombay Municipal Boroughs Act, 1925 empowers the appellant Municipality to sue any person who may have in any way caused or may-appear likely to cause any injury to any property, rights or privileges of the Municipality. The suit consequently falls within the purview of the remarks of Mac-naghten J. in (1898) AC 387.

6. Now, I am not impressed by the contention that the appellant was compelled to go to the Court because of a congestion in the Criminal Courts. If there is congestion in the criminal Courts, tho remedy was to move the criminal Court for an ex-pedition of the case on the ground that not only, had the respondent built in contravention of the permission which was granted to him and in spite of the refusal of the appellant Municipality to give permission to the construction of a second floor, but he had also threatened to occupy the premises along with his tenant(r) without sufficient sanitary accommodation and there was conse-quetitly likelihood of danger to the health of the persons occupying the building and possibly also to the persons in the neighbourhood.

7. But the matter can be disposed of also on more general grounds. It not being in dispute that the statute in the present case provides a remedy for the unauthorised construction made by the respondent the suit will be maintainable only if one or the other exceptions apply. Now. the first exception is the remedy by an injunction to protect a right. The appellant also argues that in this case even though it cannot possibly be said that the respondent is causing or is likely to cause any injury to property, he is causing or likely to cause an injury to the rights of the Municipality.

The contention is that legislature has conferred upon the Municipality in this case the right to regulate the construction of new buildings or repairs to old buildings, and when the respondent built without obtaining any permission from it or in defiance of the by-laws, the right of the Municipality to regulate the building construction in the town of Thana is affected, and a suit would consequently lie under Section 204, Municipal Boroughs Act.

Now, when it was observed in (1880) 15 Ch. D 501, the first of the exceptions is the ancillary remedy in equity by an injunction to protect a right. What was meant could be seen from the authority which is quoted in support of it. As a matter of fact, in England whenever there has been erected a building without obtaining permission from the local authority or in contravention of the by laws made by it, it has always been held that the local authority is not entitled to sue because none of its rights were affected. In (1902) 2 Ch. 182, Joyce J. observed:

'But an objection was raised, and it is contended on behalf of the defendants that the bylaws in question, and any similar by-laws, cannot De enforced in this court by an action on the part of the authority for an injunction, but only by the special remedies, namely, proceeding for penalties, and the removing of work done contrary to the by-laws (Nos. 97 and 98 of Plympton, and 110 and 105 of Devonport) as provided by the statute and by laws, or otherwise by an action formerly called an information on the part of the Attorney-General. It is obvious that by any breach of these by-laws the authority, as such, does not sustain any damage, none of its rights of property are interfered with, and the public alone are injured, if at all'.

It was held that consequently the local authority could not maintain the action. Similarly, in Attorney-General v. Wimbledon House Estate Co. Ltd.. (1904) 2 Ch. 34, (G), the Attorney-General sued to enforce the building line and to prevent Infringement of it. In that case the defendants had as a matter of fact been prosecuted and fined. Parwell J. then observed:

'Therp is first of all, the statutory obligation not to build without the written consent, and if that is disobeye'd -- apart from any question of penalty -- there is a remedy by injunction, because it is a public general Act prohibiting certain matters in the interests of public health and in order to preserve uniformity in the width of the public streets, and that is a matter for which the Attorney-General can sue.'

It was not of course held in this particular case that the local authority itself had got no right to sue, but the reasoning by which the conclusion was reached that the. Attorney-General was entitled to sue is pertinent. There was an obligation even in that case not to build without the consent of the focal authority, as there was an obligation on the respondent in the present case.

There is in the present case besides an obligation upon the respondent not to build in contravention of the by-laws, especially when permission to build was refused to him on the ground that the construction which he proposed to make was in such contravention. The respondent could be sued in regard to this. As a matter of fact, it was held in Attorney-General v. Wimbledon House Estate Co. Ltd., (G), that he could be sued in spite of the fact that he had been prosecuted and fined.

There may be some differences in regard to this in India because in the Bombay Municipal Boroughs Act, 1925. provision has been made for a case in which a person who builds either without the permission of the Municipality or in contravention of the permission granted continues to maintain the construction in spite of his conviction.

But that is not the point. When it was held that a suit lay the question arose as to who could sue, and it was held that inasmuch as the obligation imposed by a public general Act prohibiting certain matters in the interest of public health and in order to preserve uniformity in the width of the street, it was the Attorney-General who could sue.

8. Halsbury states the rule as to who could sue In these words (Halsbury, Vol. l, page 8).

'Wherever a person has a private 'right' (i.e. not merely a right enjoyed by him in common with the community at large) he may in general maintain an action against any other person who infringes it, and that without proving actual damage'.

'Where the right infringed is a public right, the appropriate remedy is by proceedings of a public nature i.e. indictment or an action by the Attorney-General as the guardian of nubile rights.'

Where the statute provides for a remedy other than an action, the prevailing ruling is stated in these words: (page 9)

'In general, where a penalty is imposed for the breach of a statutory obligation, no action will lie at the suit of the person injured by the breach, but where it appears that the duty is imposed for the benefit of particular persons, there arises at common law a correlative right of action in such persons If they are injured by its breach'.

Now, it is Impossible to say that in this case the obligation which was imposed upon the respondent not to build without the permission of the Municipality or to build in defiance of its by-laws was imposed for the benefit of the Municipality.

The obligation, was obviously imposed, as was pointed out in (1904) 2 Ch. 34 , in the interests of public health and in order to provide controlled development of building in municipal areas. But the obligation itself having been imposed in the interests of the general public, the Municipality could not sue. It appears -- see Advocate General of Bombay v. Haji Ismail Hasham 12 Bom LR 274 -- that Advocate General in India is entitled to sue in such cases even when the construction does not amount to a public nuisance.

9. It is true that we have got the words 'the rights of the Municipality' in Section 204, Municipal Boroughs Act, 1925. But it does not appear to me that there is any infringement of what may be called the right of the Municipality in this Section by a person building without obtaining permission from the municipality or in contravention of the permission granted by it or in contravention of the Municipality's by-laws. That does not mean that there is not conferred any right upon the Municipality when the Act requires that no one shall build without obtaining any permission from it, or in contravention of the permission granted by it.

The power conferred merely carries with it a right and it is arguable that in case any one started giving permission to other people to build in municipal areas, the Municipality could claim that its right was infringed and may maintain an action under Section 204 restraining by injunction any person from giving permission to build. But there is no right in the Municipality correlative to the obligation upon the respondent not to build without its permission or in contravention of its by-laws. That is why the Municipality could not maintain this suit.

10. The appeal must be dismissed with costs.

11. Appeal dismissed.


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