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Meerut Municipal Board Vs. M. Samuel and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1949All750
AppellantMeerut Municipal Board
RespondentM. Samuel and ors.
Excerpt:
- - the municipal board refused sanction, but failed to communicate it to the defendants-respondents. mask & co .the view that was expressed in that case was that the exclusion of the jurisdiction of the civil court is not to be readily inferred and that such exclusion must-either be explicitly expressed or clearly implied......to-the defendants to demolish the constructions' in dispute the defendants made an appeal to the-' district magistrate of meerut. this appeal was decided in favour of the defendants and, accordingly it was averred that the suit was barred under section 321, u.p. municipalities act. them were other-pleas, which it is not necessary to examine.4. the learned munsif, who heard the suit, came to the following conclusions : (1) that the-constructions in dispute were an encroachment on a part of the public street. (2) he, however, held that the suit was not maintainable in view of the order of the district magistrate, which was passed in favour of the defendants on an appeal under section 318, u.p. municipalities act. the municipal board went up in appeal to the civil judge who agreed with the.....
Judgment:

Sankar Saran, J.

1. This is a plaintiff's appeal arising out of a suit for demolition of certain buildings and for possession over their site. There was a further prayer for a mandatory injunction directing the defendants to construct a certain drain.

2. The plaintiff in this case is the Municipal Board of Meerut. It is their case that they are the owners of the public road which runs from the clock tower to Akhtar Masjid in the city of Meerut, and towards the east of that road there is a Municipal drain, beyond which are situate houses Nos. 334 to 348, which belong to the defendants.

3. The defence was that there was no encroachment on any portion of the public road and that the plaintiff is not entitled to have the constructions demolished. It was further alleged that the constructions were not made illegally. The sanction of the Municipal Board was deemed to have been given to the defendants under Section 180, U.P. Municipalities Act, 1916. Furthermore, when the Municipal Board gave notice to-the defendants to demolish the constructions' in dispute the defendants made an appeal to the-' District Magistrate of Meerut. This appeal was decided in favour of the defendants and, accordingly it was averred that the suit was barred under Section 321, U.P. Municipalities Act. Them were other-pleas, which it is not necessary to examine.

4. The learned Munsif, who heard the suit, came to the following conclusions : (1) That the-constructions in dispute were an encroachment on a part of the public street. (2) He, however, held that the suit was not maintainable in view of the order of the District Magistrate, which was passed in favour of the defendants on an appeal under Section 318, U.P. Municipalities Act. The Municipal Board went up in appeal to the Civil Judge who agreed with the learned Munsif; that the constructions in dispute were on a part of the public street, and did not form part of the private property of the defendants With regard to the other issue, namely, the effect of the order of the District Magistrate also which was passed by him on nth September 1937, and is on the record as Ex. C. he agreed with the view of the learned Munsif. It appears that the defendants made an application to the Municipal Board for sanctioning the constructions in dispute. This application was accompanied by a plan of the proposed constructions. The Municipal Board refused sanction, but failed to communicate it to the defendants-respondents. Under Section 180 (3) it is provided that should the Municipal Board omit after the receipt of a valid application under Section 178 for permission to build, the applicant may call the attention of the Municipal Board to this omission and if thereafter, for a further period of fifteen days, the Board omits to communicate its decision to the applicant, the Board is deemed to have sanctioned the proposed constructions.

5. The defendants-respondents observed the procedure contemplated by Section 180 (8). Thereafter they started the Constructions. The Municipal Board subsequently served a notice on the defendants to demolish the constructions. On receipt of this notice the defendants-respondents went in appeal to the District Magistrate under Section 318, U.P. Municipalities Act. The District Magistrate made a local inspection and heard the parties. Thereupon he set aside the order passed by the Municipal Board and allowed 'the constructions to remain on condition that the drain is not at any time covered in except by easily removable stone slabs as at present.'

6. Now Section 321, Municipalities Act lays down:

(1) No order or direction referred to in Section 318 shall be questioned in any other manner or by any other authority than la provided therein.

(2) The order of the appellate authority confirming, setting aside or modifying any such order shall be final:

provided that it shall be lawful for the appellate authority, upon application, and after giving notice to the other party, to review any order passed by him in appeal by a further order passed within three months from the date of his original order.

Thus there is a finality 'to the decision of the District Magistrate and the decision is deemed to be a decision of the Court as is apparent on a reference to Section 320, Municipalities Act. The only remedy of an aggrieved party is to seek review of the order passed by the District Magistrate. It does not appear that this was done in this case, and there is no doubt about the absolute finality of the decision of the District Magistrate and the civil Court has no jurisdiction to entertain a suit against the order of the District Magistrate.

7. We are supported in the view that we take by two cases of this Court, viz., Municipal Board, Moradabad v. Shiam Lal : AIR1937All298 and Chairman, Municipal Board, Jhansi v. Bhajan : AIR1937All444 . In both these oases it is laid down that the civil Court has no jurisdiction to entertain a suit in such circumstances. It is provided in Section 318, U.P. Municipalities Act that the order of the appellate authority whatever it may be, is final. Ordinarily the jurisdiction of the civil Court is not easily ousted as is laid down by their Lordships of the Privy Council in the Secretary of State v. Mask & Co . The view that was expressed in that case was that the exclusion of the jurisdiction of the civil Court is not to be readily inferred and that such exclusion must-either be explicitly expressed or clearly implied. As has been mentioned above, in this case there is explicit provision in the Municipalities Act which excluded the jurisdiction of the civil Court.

8. In this view of the matter, we are of the opinion that the appeal has no force and should be dismissed. Accordingly we dismiss this appeal, but make no order as to costs because the respondents did not put in appearance in this Court.


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