Norman Macleod, Kt., C.J.
1. The plaintiffs are owners of a house site at Rander which is 13 feet by 120 feet. On December 11,1918, they gave notice to the Municipality of their intention to build a house on this site through their attorney Ismail Hussen Jiva, On December 23, at a meeting of Managing Committee of the Municipality at which the application was considered it was resolved that the Committee were unable to interfere with the resolution previously passed by the General Board in the matter. On March 11, 1919, the matter came before a special general meeting of the Municipality, when it was decided (Exhibit 68) that the Board was of opinion that permission could be granted on the applicants undertaking to leave off building on both sides of the land namely the east and west, that is to say, on their leaving a set-back on the east and west to the streets on which the land abutted, Accordingly it was resolved that a letter should be written to the Collector and permission should be given on receiving a reply. The Collector replied on July 25', stating that he had seen the land and agreed with Mr. Anderson's order that the land should not be allowed to be built upon except on the conditions made by him. According to those conditions 5 feet from the northern side and 5 feet from the southern side had to be left vacant, so that the owner would only be able to build on a strip 8 feet wide That was really a refusal to permit the owner to build on his land.
2. So the General Board resolve 1 on July 24, 1.919, that Ismail liussen should be informed that they could not make any alteration in the permission note granted by the General Board on July 19, 1915 That order was communicated to the plaintiffs on August 8, 1919, and it is really that order against which the plaintiffs have applied to the Court for relief. The history of the previous application for building on this land is us follows: One Fatma had given notice to build on the land in 1913 and the Municipality gave her permission, but the order passed on that application by the Municipality was cancelled by the Collector acting under the powers given him under Section 174 of the Bombay District Municipalities Act (Exhibit 53). The Collector said 'the Municipality should effect this (the prevention of excessive congestion) by requiring the landholder to leave a margin of five feet not built upon on each aide of his proposed building (which is impossible). Since he cannot do that he cannot build at all.' As a matter of fact Fatma who made the application was not the owner of the land. Then in 1915, one Mahomed Suleman Jiva, purporting to be a co-sharer in the land, had given notice to the Municipality of his intention to build, and on July 19, 1915, a resolution was passed that permission could be given or the condition that the building should be within the alignment in front, and 5 feet of space should be left open on each side, Before that order was passed Sulemau died, and it is to that order to which the Municipality referred in their letter of August 8, 1919, addressed to the plaintiffs' attorney. The learned Judge in the Court below held that the suit was barred by limitation because it was not brought within six months from the orders of the Municipality in 1913 and 1.915, and the resolutions of the Managing Committee dated December 23,1918, and of the general board dated July 24,1919. On the other issues it was held that the Collector had power under p. 174 of the Bombay District Municipal Act to suspend the permission granted by the Municipality, and that the resolution of the Municipality dated July 24,1919, adhering to its order of 1915, was not illegal and ultra vires.
3. It seems to us that the real point which lies within a very small compass has not been perceived by the District Judge. The order on the resolution of July 24, 1919, was only communicated to the plaintiffs on August 8, 1919, and from that date the plaintiffs had six months' time within which to appeal to the Court for relief, and therefore the suit was within time. It is not a suit to set aside an order of the Collector. The only order of the Collector which we have before us was made in September 1913 on the application of Fatma, who was not the owner, to build on the land. It in true that the Municipality in 1919 before passing their order referred the matter to the Collector for his advice. The Collector advised that the previous order passed by Mr. Anderson should be adhered to, and this was incorporated in the terms of the order made on the plaintiffs' application. This advice given by the Collector in 1919 could not be an order under Section 174 of the Act, which only gives the Collector power to suspend an order which a Municipality has actually made.
4. Therefore one only question in whether the order of the Municipality of August, 8 Was within their powers under Section 96 of the District Municipal Act.
5. We agree with the appellants' contention that the Municipality have no power on an application to build to pass an order which practically amounts to a refusal. They would be entitled to direct that the proposed building should be set back to a certain distance from the street, but they would not be entitled to order that on each side of the building open spaces should be left with the object of preventing the applicant from building at all,
6. On referring to the plaint we note that the land between the two streets of the east and west has been divided up into narrow strips, and it may be that the Collector thinks that in the interest of the inhabitants of the town an open space should be created in the block of building:) between the two streets. The question whether the Collector can, under the powers given to him by Section 174 of the Act, virtually deprive an owner of the use of his land without giving him compensation does not arise in this case. In any event such improvements cannot be brought about by orders passed by the Municipality under Section 96 of the Act. The Municipality must acquire the land in the proper way if they wish to create open spaces. We think, therefore, that the order of August 8 was ultra vires of the Municipality to this extent that they had no power to direct the plaintiff to set back his building on the north and south so as to prevent him building on his own land.
7. The appeal will be allowed to that extent with costs in both the Courts.