1. The plaintiff was the owner of an agricultural land S. No. 149/A situate within the municipal limits of the town of Bhusawal. The plaintiff obtained permission of the Collector for of East Khandesh to convert the land to non-agricultural use. He then divided the land into 32 building plots. He also set a part of land for construction of roads.
Thereafter the plaintiff sold the Plots as building plots to various purchasers. By 1948 the plaintiff had disposed of 26 out of the 33 plots, and he was on 7-5-1947 the owner of the remaining six plots which were on the western finge of S. No. 149/A. On 7-5-1946 the Municipality of Bhusawal served upon the plaintiff a notice under Section 115(1), Bombay Municipal Boroughs Act, 1925, calling upon the plaintiff to construct a road on the west of the six plots which were of the ownership of the plaintiff.
The plaintiff was given three months' time to construct the road. The plaintiff did not comply with the notice and sold the six plots to one Prithwiraj Lakhichand on 10-6-1946. Under the sale deed Prithwiraj Lakhichand undertook to pay the cost of the constructing the road which was required to be constructed under the notice issued by the Municipality.
On 17-6-1946 the plaintiff informed the Municipality about the sale of the plots to Prithwiraj Lakhichand. On 22-7-1946 the Municipality served a notice under Section 115(1) of the Act upon Prithwiraj Lakhichand directing him to construct the road on the western finge of the six plots. Prithwiraj Lakhichand declined to comply with the requisition.
The road not having been constructed in pursuance of the requisition contained in the notice issued under Section 115(1) of the Act, the Municipality constructed the road relying upon the provisions of Section 194(1) of the Act. It is the case of the Municipality that in the construction of the road they had to spend Rs. 3485-6-1.
The Municipality sent a bill to the plaintiff for the amount spent for constructing the road and called upon the plaintiff to pay We amount. The plaintiff neglected to pay the amount. By the notice dated 11-8-1949 the plaintiff was called upon by the Municipality to pay the amount and in default of payment he was threatened with action under the Bombay Municipal Boroughs Act, 1925.
The plaintiff then filed suit No. 337 of 1949 in the Court of the Joint Civil judge Junior Division, at Bhusawal, against the Borough Municipality for a declaration that he was not liable to pay the amount demanded by the Municipality, and for an injunction restraining the Municipality from recovering the same.
The plaintiff contended by his plaint that he had at the date when the road, was constructed no interest in the plots which abutted on the road, and that the notice served by the Municipality upon him was not a lawful notice.
2. The suit was resisted by the Municipality contending inter alia that there was no proper and valid notice served as required by Section 206, Bombay Municipal Boroughs Act, that the suit was premature, that the plaintiff was in any event liable he having been served with a notice under Section 115, Bombay Municipal Boroughs Act, to construct the road.
The Municipality also contended that the plaintiff continued to be liable to carry out the requisition even though he had transferred the Plots after he was served with the notice.
3. The learned trial Judge held that the Municipality could not compel the plaintiff to construct the road or to pay the cost of the road after the plaintiff had sold the plot on 10-6-1946. He further held that the suit was not bad in the absence of a valid notice under Section 206, Bombay Municipal Boroughs Act; that the suit was not premature; that it was not barred by the law of limitation; that it was not barred by estoppel; and that the plaintiff was entitled to the declaration and injunction claimed by him.
The learned trial Judge accordingly decreed the plaintiff's suit, and declared that the plaintiff not being the owner of the land was not liable to compensate the Municipality for the expenses incurred for construction of the road and issued an injunction permanently restraining the Municipality from recovering the amount alleged to have been spent for the construction of the roads.
Against the decree passed by the trial Court, the defendant appealed to the District Court at Jalgaon. The learned Assistant Judge who Heard the appeal confirmed the decree passed by the trial Court and dismissed the appeal. The defendant Municipality has come to this Court in second appeal.
4. Evidently the suit was for an injunction restraining the Municipality from enforcing compliance with the demand made on 11-8-1949 and the suit was filed on 26-8-1949. Before filing the suit the plaintiff, had not served the notice which Section 206, Bombay Municipal Boroughs Act provides shall be served before instituting a suit, for anything done or purporting to have been done in pursuance of the Act.
Evidently the municipality had made demand upon the plaintiff purporting to do so under the provisions of the Bombay Municipal Boroughs Act of 1925, and they had demanded the monies from the plaintiff. The demand was an act done or purporting to have been done under the provisions of the Act, and if the plaintiff sought to restrain the municipality by an injunction from recovering the amount claimed to be due he had in the first instance to serve a notice of the duration provided in Section 206.
But notice was not given by the plaintiff, and the plaintiff's suit must ex facie be regarded as barred by Section 206, Bombay Municipal Boroughs Act. But the Courts below held that notice under Section 206 of the Act was not necessary because the demand was invalid and illegal.
According to the Courts below the demand was illegal because at the date when the Municipality constructed the road, the plaintiff was not the owner of the plots for the benefit of which the road was required to be constructed.
The argument which appealed to the Courts below was that the obligation to construct a road under Section 115(1), Bombay Municipal Boroughs Act, is upon persons who are owners of plots abutting on the road required to be constructed; and the liability for providing the road and for paying the expenses if the road is constructed at the expense of the municipality, lies upon the person for the time being who is the owner of the plot when the road is constructed.
5. I am unable to agree with that view. Section 115(1) of the Act authorises the Municipality to require the respective owners of plots or buildings adjoining or abutting on any street or any part thereof to carry out the work in the manner and within the time specified in the notice.
Evidently the obligation to carry out the work-in the manner and within the time specified in the notice arose on the service of the notice and against persons served with the notice.
If abutting on or adjoining the road which is required to be constructed there are several lands or buildings and notice is served upon some of the owners of those buildings or lands, and not upon all the owners thereof, the obligation to carry out the work in the manner and within the time specified in the notice would arise against those persons who are served with the notice, and not against other persons who have not been served with similar notice.
By Sub-section (3) of Section 115 it is provided that if the requisition contained in the municipal notice issued under Sub-section (1) is not complied with and such work is executed by the municipality the expenses incurred shall be apportioned between such owners in such manner as the municipality may think fit having regard to the amount and value of the work already done by the owners or occupiers of the lands or buildings.
When such apportionment is made under Sub-section (3) of Section 115, the persons who were not served with the notice would also be liable to pay for costs of construction of the work done by the municipality.
6. Section 194 of the Act enables the Municipality to carry out the work which is required to be executed by the owner or occupiers of any land or building when default is made in the execution of such work, and the expenses incurred therein by the municipality, unless otherwise expressly provided by the Act, are liable to be paid by the persons by whom such work ought to have been executed, and they can be recovered in the same manner as an amount of tax recoverable under Chapter VIII of the Act.
It is evident on a plain reading of Section 115 (1) and Section 194 together, that the municipality may call upon any owner of land or building fronting, adjoining, or abutting on any street to construct a road, and if he fails to comply with the requisition, the municipality may execute the work, and the liability for the expenses carried out by the municipality rests upon those who ought to have executed the work, i.e., the persons who were by notice required to execute the work.
If a person who is required by the municipality to execute the work does not pay the expenses when demanded by the municipality, the same can be recovered in the manner provided by Chapter VIII of the Act.
7. Now the plaintiff was required by the notice dated 7-5-1946 to execute the work of constructing a road to the west of the six plots Which belonged to him. The obligation to construct the road was upon the plaintiff when notice was served upon him.
The mere fact that thereafter the property was transferred by the plaintiff to another person did not absolve the plaintiff from liability which arose by reason of service of notice under Sub-section (1) of Section 115.
It is unnecessary for me to consider the question whether the obligation can be enforced by the municipality even against the transferee relying solely upon the notice dated 7-5-1946. It is sufficient to hold for deciding this appeal, that the liability of the plaintiff was not extinguished merely because he ceased to own the plots, as owner of which he was served with the notice requiring him to construct the road.
8. I am unable to agree with the contention of Mr. Kotwal that when the plots were transferred by the plaintiff, the statutory obligation which arose by reason of the provision of Section 115(1) was also transferred to the transferee. There is nothing in Section 115 which justifies that contention.
It is true that a notice under Section 115 can only be served upon a person who is the owner of the land or building fronting, adjoining or abutting on the road required to be constructed.
If a person is not an owner of the description specified in the section, no notice can be served upon him; but that does not lead to the inference that the obligation arising as a result of the notice under Section 115 is transferred to the transferee of the land or building.
9. I am unable also to accept the contention raised by Mr. Kotwal that the liability which arises by reason of service of notice under Section 115(1) is not a personal liability, but it remains attached to the land or building and is enforceable only against the person who is for the time being owner of the land or building.
It is true that alter the municipality was Intimated by the plaintiff that he had sold the six plots to Prithwiraj Lakhmichand the municipality served a notice upon Prithwiraj Lakhmichand also requiring him to construct the road, end Prithwiraj declined to comply with the requisition.
But that does not amount to waiver of the notice which was previously served by the municipality upon the plaintiff, nor does it, render the previous notice served upon the plaintiff ineffective. The obligation which was created against the plaintiff was still enforceable even though the Municipality required the transferee Prithwiraj as the owner of the plots by a fresh notice to execute the work of constructing the road.
10. The learned appellate Judge observed in para. 8 of his judgment that Sub-section (1) of Section 115 makes it perfectly clear that the liability for levelling, paying, etc., of streets or roads--not being public streets or roads--rests upon the owners of the lands or buildings which have a frontage upon such roads or streets or which, are adjacent to or abutting upon such streets or part thereof.
He then observed that
'even at the date of the first resolution of the municipality deciding to issue notice to the owners of the various lands including S.No. 149/A and the issue of notice Ex. 35 to the plaintiff in pursuance of that resolution, the plaintiff was admittedly not the owner or occupier of some of the plots in S. No. 149/A which he had already sold away.'
He then observed that during the period of the notice Ex. 35
'the plaintiff had transferred all his remaining rights and interest either as landlord or as the owner to Prithwiraj Lakhichand.'
He went on to observe that . the plaintiff having ceased to be the owner of the lands or buildings adjoining or abutting upon the roads in S. No. 149/A was not liable to construct the roads under Section 115(1), and therefore the Municipality's action in trying to recover the amount of the cost of construction from the plaintiff was clearly illegal.'
11. I am unable to agree with the view of the learned Assistant Judge that there was any illegality in the action of the Municipality In reissuing the notice which required the plaintiff to carry out the work which he had been called upon to execute.
The assumption made by the learned appellate Judge that the liability to pave, level, etc., of streets or roads rests only upon the owner for the time being of the land or building, fronting, adjoining or abutting upon such road or street, cannot in my view be accepted.
The ability, as I have seated earlier is upon the person who is served with the notice, and not upon the person who is merely owner for the time being of the land which adjoins or abuts on the road.
If once it is held that the municipality had the right to call upon the plaintiff to execute the work and to require him to bear the costs for the work done by the municipality when the plaintiff failed to comply with the requisition the notice issued by the municipality requiring the plaintiff to bear the costs incurred by them cannot be regarded as Illegal, and the plaintiff's suit must be regarded as barred by limitation in view of the provisions of Section 206, Bombay Municipal Boroughs Act, as amended by Bombay Act 24 of 1949.
12. Mr. Kotwal contended that in any event the roads which were required to be constructed were meant for the use of an the thirtytwo plot holders and the plaintiff cold not be required to pay the entire amount of expenses Incurred for the construction of those roads.
It is unnecessary for me to consider the question whether the road which was required to be constructed was for the benefit of only the six plots which remained with the plain-tin on 7-5-1946, or it was for the benefit of all the 32 plot-holders.
It is always open to the plaintiff to make an application under Sub-section (3) of Section 115 of the Act requiring the municipality to apportion the liability for the costs of construction done by the municipality.
The plaintiff rushed to Court without even serving a notice upon the municipality as required by Section 206 and has obtained an injunction restraining the municipality from recovering the costs incurred on the plea that his liability was extinguished by the transfer of the plots in dispute.
Whether or not the plaintiff is entitled to claim apportionment of the amount of expenses incurred by the municipality is therefore a question on which I need at this stage, express no opinion.
13. Mr. Kotwal also contended that the amount of Rs. 3485-6-1 is not the amount which the plaintiff is bound to pay, and the Courts below have not considered the question whether that amount was in fact spent by the municipality on the construction of the road in question.
There again it would be open to the plaintiff by proper proceedings to challenge the claim,' made by the municipality for recovery of the amount alleged to have been spent by them. At this stage I am only concerned with the question whether the plaintiff's suit for injunction is maintainable.
As I have already held that the bill submitted by the municipality is a valid and legalbill, the plaintiff having failed to serve a noticeunder Section 206, Municipal Boroughs Act, upon themunicipality the suit filed by him is not maintainable. In that view of the case, the decreepassed by the Courts below will be set aside,and the plaintiff suit will be dismissed withcosts throughout.
14. Decree set aside.