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Mulji Tribhovan Sevak Vs. the Dakor Municipality - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 170 of 1921
Judge
Reported in(1922)24BOMLR178
AppellantMulji Tribhovan Sevak
RespondentThe Dakor Municipality
Excerpt:
.....the one month, refusing to give permission, there would clearly be nothing inconsistent in the right of appeal or revision referred to in section 36, sub-section (2); on the other hand, the present contention would deprive an applicant of this right. in fact i think the legislature has clearly indicated in another part of the act its intention to allow such interference with the power exercised by a delegate under section 96. section 136g authorises a municipal commissioner to pass orders under section 96 and this is not one of the powers which can only be exercised with the previous approval of the municipality under proviso (a) to that section. in my opinion it amounted to an appeal, and as it was made on the very day on which the order was passed, it was clearly within the time..........appeal, i think that the case fell within the revisional authority of the municipality under the rules. rule 42 in general terms subjects every delegation of the municipality's executive functions, power or duties, to the general control of the municipality, and this rule cannot be limited to executive functions, as opposed to powers of the kind referred in section 96, in view of the provisions of rule 45 which speak of executive functions involved in the exercise of a power conferred on the municipality. it was, therefore, competent, in my opinion, for the municipality to pass their order suspending the proceeding of the building and subsequently to revoke the permission granted by the public works committee. it is a case which can be held to fall under rule 49, read with rule 70,.....
Judgment:

Norman Macleod, C.J.

1. I think the question referred to the Full Bench should be answered in the affirmative. There can be no doubt that a Municipality has appellate and revisional powers over orders passed by the Managing Committee, or by a Committee appointed under Section 28 or 29, other than orders under Sub-section 3 of Section 65, which powers are to be exercised in accordance with the rules framed under Section 46. Whether those powers have been properly exercised is a question which must be decided in each case on its merits.

Shah, J.

2. I would answer the question referred to the Full Bench in the affirmative, subject to the qualification that the cancellation or revocation is otherwise consistent with the provisions of Section 96 of the Bombay District Municipal Act of 1901.

3. In the present case the power to deal with notice under Section 96 is delegated to the Public Works Committee and the delegation is subject to revision and appeal as provided by Section 36(2) and the rules of the Dakor Municipality framed under Section 46 of that Act. So far as the General Board of the Municipality can exercise the power vested in them, consistently with the provisions of Section 96, undoubtedly that body may do so. It may be that owing to the lapse of time or anything that may have happened in consequence, of the leave granted by the Committee or any other reason there may be difficulty in the way of exercising those powers effectively. But the Municipality have the legal right to exercise the powers of revision and appeal within the limits allowed by the statute and the rules thereunder.

4. Having regard to the terms of Rule 58, which prescribes the period of limitation for appeal by the party affected to whom the order complained of has been delivered orally or in writing, I am not clear that in the present case an appeal by a person to whom no such order was communicated is provided or contemplated. But rule 55 provides for appeals against the decisions or orders of delegates generally and where a party is injuriously affected by an order even though it may not be communicated to him orally or in writing, it would be open to him to appeal to the Municipality. In the absence of any specific rule as to the parties who may appeal, it is not possible to say that the neighbour in the present case had no right to appeal. It is really for the Municipality to consider whether they will entertain an appeal from a third person, when an order is passed under Section 96 by any delegated authority. They would have to consider whether an appellant has sufficient interest in the order to make his appeal competent. This question is not of any practical importance as in any case the Municipality have the power to revise the order of their own accord. The difficulty may really arise in making a proper order so as to satisfy the requirements of Section 96 which does not in terms contemplate and provide for a second order under Sub-section (2). That, however, is a matter to be considered by the Municipality in the first instance while making an order in revision or appeal, and by the Court so far as necessary if the dispute arises between the Municipality and the party, with reference to the facts of the case.

5. As regards the decisions of this Court which have been referred to in the referring judgments I think that on their own facts they are distinguishable from the present case; and in those cases, so far as I can see, the result could not have been different in spite of the provisions of Section 36(2). However that may be, if and so far as they purport to lay down any general rule which conflicts with the statutory powers of the General Body of the Municipality to modify the orders of their delegates or any Committee, they cannot be followed.

6. While thus the Municipality had the power to modify the order of the Public Works Committee the question as to whether the cancellation is in accordance with the provisions of Section 96 must he considered with reference to the facts of the present case. The plaintiff gave notice under Section 96 on the 12th March to build an upper storey over the portion of his Khadki which belonged to him. The Public Works Committee of the Municipality granted him leave on the 22nd March under Section 96, Sub-section (2). His neighbour, Chunilal, made an application on the same day complaining of the permission granted by that committee. The General Board made a provisional order on the 5th April restraining him from building. Ultimately the General Board cancelled the leave on the 7th May. The plaintiff had not commenced to build before this date or even before the 5th April. It is not necessary to consider whether the provisional order of the 5th April would be within the scope of Sub-section (3) of Section 96. The orders contemplated by that sub-section are those made before any order under Sub-section (2) is made. On the other hand it was made within a month of the application and in exercise of the revisional powers which the Municipality had under the rules. It is not necessary to decide this point as the plaintiff had not commenced to build before or after that date. The final order was made within two months of the date of the application. No doubt it is an order which cancels the permission granted but it is not suggested on the facts of this case, and having regard to the nature of the proposed building and the objections to it, it can hardly be suggested that the order is not within the powers of the Municipality under Section 96, Sub-section (2). I do not say that it is open to the Municipality under Sub-section (2) to prevent all building by the owners on their respective lands, nor do I desire to express any opinion as to whether the Municipality can properly take into consideration the disputes between neighbours as to easements in deciding whether the permission asked for should be granted or not. All that it is necessary to decide is whether the final order of the Municipality is open to any such objection as would necessitate the interference of the Court with the discretionary powers of the Municipality in a matter which is primarily committed to its care by the Legislature. I do not think that the refusal of the Municipality to let the plaintiff build in this case transgresses the limits of their discretion under the Act.

7. At the same time it is possible that in consequence of the lapse of time or the owner proceeding to act under the first order, which he might be entitled to do if so minded, the revocation may not be effective. It seems to me that having regard to the scheme of the section, the detailed provisions as to various matters connected with the newly proposed building and the element of uncertainty and hardship which conflicting orders purporting to be made under Sub-section (2) are apt to involve and the difficult questions which they are likely to give rise to, it is desirable that the position of the Municipality and the persons desirous of building may be defined by the Legislature so that the General Body exercising revisional or appellate powers and the persons who want to build may know definitely their respective positions after an order is made by a Committee or any other authority under Sub-section (2) which is subject to revision or appeal against the person proposing to build. The usual case in which the person proposing to build wants a modification of the order of the Committee presents no difficulty. But the difficulty might arise in cases where the General Board of the Municipality seek to modify or cancel the order already made in his favour under Sub-section (2) of Section 93, apparently as no time limit is prescribed within which the General Board may pass orders under Section 96(2) in appeal or revision against the person who has already got leave to build from the Committee.

Fawcett, J.

8. In my opinion the question referred to the Pull Bench should be answered in the affirmative.

9. There is no doubt, and it has not been disputed, that the power of making orders under Section 96 of the Bombay District Municipal Act III of 1901 could be delegated by the Municipality to its Public Works Committee. That is a Committee appointed under Section 29 of the Act, and it follows that the provisions of Sub-section (2) of Section 36 of the Act cover the order passed by the Public Works Committee, on the 22nd March 1917, giving the appellant the permission he had applied for, unless there is such an inconsistency between this general enactment and the particular enactment regarding new buildings in Section 96 as would make it incumbent upon the Court to apply the ordinary rule of construction in such a case. This is 'wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.'

10. This is the rule laid down by Romilly M.R. in Pretty v. Solly (1859) 26 Beav. 606, 610, the leading case on the subject.

11. It is contended by Mr. Thakor for the appellant that there is such an inconsistency. His contention is that, in as much as this power had been delegated to the Public Works Committee, it was the mouthpiece of the Municipality, and an order by it giving permission under Sub-section (2) of Section 96 amounted to an order by the Municipality, which having been once given could not be revoked, in accordance with the decision of this Court in the three cases mentioned in the referring judgments. So far as those cases go, it is clear that Section 36 was not considered in connection with the point there decided and there is no reason to suppose that the provisions of that section had been brought to the notice of the learned Judges who gave those rulings. This is confirmed by the fact that in the first of these cases, Emperor v. Kareem Ranjan (1916) 19 Bom. L.R. 65 Batchelor J. in giving the judgment of the Court expressly guarded himself by saying: 'If, however, words clearly importing such a power of subsequently overriding the permission were discoverable in the Statute, there would be no alternative but to give effect to them. No such words are, however, discoverable.' This overlooks Section 36, Sub-section (2), an enactment which purports to empower the Municipality under certain conditions to override any order given by the Managing Committee, and it would, therefore, presumably have affected the decision in Emperor v. Kareem Ranjan, had it been brought to the Court's notice.

12. I cannot myself find anything in Section 96 which would justify our holding that the Legislature intended that an order by a delegated authority under Section 96 should be final, and not subject to modification by the Municipality. What Mr. Thakor mainly relies on is the provision under which, if no orders are issued by the Municipality within one month from the receipt of the notice, the applicant has a right to proceed with his proposed building. This, he says, gives the applicant a right to build with which the Municipality cannot interfere, and he argues that the provision in rule 58 of the Municipal Rules, allowing a period of thirty days for appeal, conflicts with the provisions I have just mentioned. It may be that in the particular case where no orders had been passed within a month, of the notice, there would be no right of appeal or revision. There would in fact be no order to revise or appeal against. But the present case is on a different footing. There had been an order by the Public Works Committee within the month, and also an order by the Municipality suspending the carrying on of the work under Sub-section (3), Clause (a), and the case does not, therefore, fall under Sub-section (4) of Section 96. Also in a case where the Committee passes an order within the one month, refusing to give permission, there would clearly be nothing inconsistent in the right of appeal or revision referred to in Section 36, Sub-section (2); on the other hand, the present contention would deprive an applicant of this right. Nor is there any other provision in Section 96 which has been shown to be inconsistent with this right of appeal or revision. In fact I think the Legislature has clearly indicated in another part of the Act its intention to allow such interference with the power exercised by a delegate under Section 96. Section 136G authorises a Municipal Commissioner to pass orders under Section 96 and this is not one of the powers which can only be exercised with the previous approval of the Municipality under proviso (A) to that section. Then under Section 186M the Municipal Commissioner may delegate his powers under Section 96 to a Municipal officer or servant, Section 96 not being one of the excepted sections specified. Under Sub-section (2) the exercise or discharge by the delegate of the powers delegated to him under Section 96 is made subject to such conditions and limitations, if any, as may be prescribed in the order of delegition, and also to control and revision by the Municipal Commissioner. This gives the Municipal Commissioner clear power to override a permission which may have been given by the Municipal officer or servant, to whom the powers had been delegated. Similar provisions are contained in the Bombay City Municipal Act. Under Sections 345 and 346 (1) the Commissioner may pass orders approving or disapproving of a proposed building or work, and under Section 68 he can delegate this power to a Municipal officer, in which case the powers are to be exercised or performed or discharged under the Commissioner's control and subject to his revision. Therefore there is nothing incongruous in the Municipality exercising a similar right of control and revision over acts of a Committee to whom powers under Section 96 have been delegated. In my opinion, in cases where an order is passed by such a Committee, the words 'the Municipality' in Section 36 must be read as 'the Committee subject to the provisions of Section 36, Sub-section (2).' In so reading it, each of the two sections has its proper scope and the Court follows the general principle that due effect should be given to every part of a statute.

13. Then the question arises whether in this particular case the order passed by the Municipality was one which complies with the requirements of Sub-section (2) of Section 36, that is to say, was it passed in the exercise of authority given to it as a revisional or appellate body under the rules of the Municipality in force under Section 46 of the Act In this particular case the application of Chunilal, which was made to the Vice-President and by him submitted to the Municipality, complains of the order granting permission to the appellant and asks for its revocation by the Municipality. In my opinion it amounted to an appeal, and as it was made on the very day on which the order was passed, it was clearly within the time allowed by Rule 58.

14. Mr. Thakor contended that it could not be considered as an appeal because Chunilal was not a party to the proceeding, the main question under Section 96 being between the appellant and the Municipality. But I do not think there is anything in Rules 55 to 58 which justifies this narrow construction of the word 'appeal.' Rule 58, Sub-rule (1), speaks of the party affected by the order appealed against, and unless the word 'party' is to be read in the narrow sense of a party to a suit or legal proceeding, it clearly covers the application of Chunilal, who as a neighbour was affected by the order complained of. In my opinion the word 'party' in Rules 56 and 58 does not mean anything more than 'person' [as it often does, cf. Stroud's Judicial Dictionary, under the Heading 'Party']; and it would clearly be giving considerable limitation to the right of appeal to read the rules otherwise. Thus, suppose a Committee has given permission to the owner of a building in a public street to put up a balcony projecting from his upper storey, and supposing the owner of the neighbouring building considers that this projection will be an obstruction to the safe and convenient passage along the street, is he not to be considered a party affected who should have a right of appeal asking the Municipality to override the permission, in accordance with the provisions of Sub-section (3) of Section 113 I think the answer should be in the affirmative, and that the appeal contemplated in the rules is practically one given to 'any person deeming himself aggrieved' by the order complained of. As an analogous case, reference may be made to Section 269 of the Public Health Act of 1875 (38 & 89 Vic. c. 55) giving a right of appeal to such a person from any order including an order of the kind now under consideration, passed by an authority under that Act.

15. But even supposing that the application cannot properly be considered as an appeal, I think that the case fell within the revisional authority of the Municipality under the rules. Rule 42 in general terms subjects every delegation of the Municipality's executive functions, power or duties, to the general control of the Municipality, and this rule cannot be limited to executive functions, as opposed to powers of the kind referred in Section 96, in view of the provisions of Rule 45 which speak of executive functions involved in the exercise of a power conferred on the Municipality. It was, therefore, competent, in my opinion, for the Municipality to pass their order suspending the proceeding of the building and subsequently to revoke the permission granted by the Public Works Committee. It is a case which can be held to fall under Rule 49, read with Rule 70, i.e. the Vice-President, in the absence of the President, brought this question to the notice of the Municipality as an instance in which the Public Works Committee seemed to have erred in the exercise of its functions. But, even supposing that the case did not fall under that rule, the Municipality, as a revisional authority with a right of general control under Rule 42, could, I think, legally interfere with the order of the Public Works Committee. Rule 42 expressly confers this power upon the Municipality, and therefore is excepted from the limitations contained in Rule 54. There is nothing in the rules, which shows that it was intended that the Municipality should not be able to Act in revision on their own motion, independently of any initiation by the President or the Vice-President under Rules 49 and 50. Rule 42 shows this by using the words 'in particular' when referring to the provisions of Rules 43 to 55, which imports that the reference was without prejudice to the right of general control previously mentioned. Therefore, in my opinion, the General Body could legally act on its own motion or on the application of a person injuriously affected by the order of the Public Works Committee, and the order of revocation was legal.


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