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Kifayatullah Vs. Municipal Board of Ajmere - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1915)ILR37All220
AppellantKifayatullah
RespondentMunicipal Board of Ajmere
Excerpt:
.....municipalities), sections 85 and 141 - municipal board--powers of board in respect of erection of buildings--suit against municipal board--jurisdiction. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees..........that the proposed building was objectionable, it would have to be removed. on receipt of this notice kifayatullah stopped the work. on the 10th of march, 1908, kifayattullah brought a suit for recovery of rs. 30, on account of damage which he alleged he had suffered in consequence of the municipal committee having stopped the work and for a declaration that the notice was invalid. the subordinate judge gave plaintiff a decree and his decree and his decree was affirmed on appeal by the commissioner; but on an application made by the municipal committee under section 17 of the ajmere courts regulation, the commissioner has referred to this court the question whether the suit was maintainable. the contention of the municipal committee appears to be that, as it is invested by the.....
Judgment:

Chamier and Piggott, JJ.

1. This is a reference by the Commissioner of Ajmere-Merwara, under Section 18 of the Ajmere Courts Regulation I of 1877. The facts stated in the reference are that one Kifayatullah on the 23rd of July, 1907, gave the Municipal Committee of Ajmere notice in writing of his intention to re-erect-a certain building within the limits of the Ajmere Municipality and with his application submitted a certain plan. On the 2nd of October, 1907, the Municipal Committee issued a notice to Kifayatullah to the effect that he had contravened the provisions of Section 85 of the Municipal Regulation by beginning to re-erect without permission, and required him to stop the work at once and submit an application for permission to build along with a plan. He was further told not to resume building until he received the orders of the Committee, for, if the Committee found that the proposed building was objectionable, it would have to be removed. On receipt of this notice Kifayatullah stopped the work. On the 10th of March, 1908, Kifayattullah brought a suit for recovery of Rs. 30, on account of damage which he alleged he had suffered in consequence of the Municipal Committee having stopped the work and for a declaration that the notice was invalid. The Subordinate Judge gave plaintiff a decree and his decree and his decree was affirmed on appeal by the Commissioner; but on an application made by the Municipal Committee under Section 17 of the Ajmere Courts Regulation, the Commissioner has referred to this Court the question whether the suit was maintainable. The contention of the Municipal Committee appears to be that, as it is invested by the Municipal Regulation with a wide discretion in matters of this kind, no suit can be maintained in a Civil Court with regard to them. Section 85 of the Municipal Regulation lays down that every person intending to do so by rules made by the Committee in this behalf, give notice in writing of his intention to the Committee and shall, if required to do so, submit a plan showing the level at which the foundation and the lowest floor are proposed to be laid and a specification of the works intended to be constructed and the materials to be used, and shall obey all written directions consistent with the Regulation given by the Committee within one month after receiving such notice either prohibiting the re-erection or in respect of a number of other matters details in the section. An attempt was made in the court of the Commissioner to show that the notice given by Kifayatullah did not comply with the section. The Commissioner declined to allow this point to be taken for the first time in appeal and we must assume that the notice given by Kifayatullah did not comply with the section. The Commissioner declined to allow this point to be taken for the first time in appeal and we must assume that the notice given in this case complied with the requirements of the law. As we read Section 85, if the Municipal Committee wishes to prohibit the erection or the re-erection of a building, or to give directions with respect to any of the matters detailed in the section, it must issue its directions within one month after receiving the notice. In the present case the Municipal Committee allowed more that one month to elapse before communicating with Kifayatullah, and, when it did communicate with him, it did not issue a notice, as it might have done under Sub-section (2) of the section, requiring the building to be altered or demolished, but it required him to stop the work and submit a fresh application. If Kifayatullah gave a notice which did not comply with the law, it should have been regarded as no notice at all and the Municipal Committee could have required him to alter or demolish the building; but as it must be taken that the notice given was in compliance with the law, and as the Municipal Committee did not issue any directions within one month of the receipt of the notice, the Municipal Committee had no authority to take any action under Sub-Section 2 of Section 85. It was suggested that Section 141 of the Regulation barred the jurisdiction of the Civil Court in cases of this kind. That section empowers the Commissioner or the District Magistrate to suspend the action taken by a Municipal Committee or to prohibit the doing of an act which is about to be done in pursuance of or under cover of the Regulation in certain cases. It seems to us doubtful whether Section 141 was intended to apply to such cases as this. Even if it can be construed so as to cover such cases we cannot treat it as barring the jurisdiction of a Civil Court to entertain a suit for damages at the instance of a person who has been wronged by an illegal action of the Committee. In our opinion the suit was maintainable and this is our answer to the reference. Let the papers be returned.


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