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Municipal Board Vs. Shiam Lal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1937All298
AppellantMunicipal Board
RespondentShiam Lal
Excerpt:
.....notice to the owner. it can hardly be contended that where the board is satisfied that there has been such a contravention and considers that the offence under section 185 has been committed and therefore issues notice under the section, it is acting without any jurisdiction, if later it turns out that the offence had not in fact been committed......some time later in that month. when the plaintiff persisted in the work of constructions, the board issued another notice on 14th april 1932, calling upon him to stop the constructions, and that notice was again renewed on 1st may 1932; but the plaintiff paid no heed, with the result that the district magistrate was approached by the municipal board, and he on 19th may 1932, issued an order under section 144, criminal p.c. prohibiting the plaintiff from carrying on the constructions any further. this was followed by a notice under sections 186 and 211 issued by the board on 1st june 1932. the present suit was filed on 9th july 1932, to challenge the last mentioned notice.3. the first question to consider is whether it is at all open to a civil court to impugn the validity of a.....
Judgment:

1. This is an appeal by the defendant Municipal Board of Moradabad arising out of a suit brought by the plaintiff for a perpetual injunction against it restraining the defendant from demolishing certain constructions made on the east side of the plaintiff's shop adjoining a public road. The Municipal Board had issued notices under Sections 186 and 211, U.P. Municipalities Act (Act 2 of 1916) for the demolition of these constructions. The present suit was accordingly instituted by the plaintiff to prevent the Board from getting them demolished in pursuance of the said notices. The Board inter alia pleaded that the civil Court had no jurisdiction to entertain this suit. The trial Court held that there were various fatal objections to the suit and it was not maintainable, and accordingly the Court dismissed the suit. On appeal the learned Judge has reversed the decree. His opinion is that the civil Court has jurisdiction to entertain a suit of this nature when the Municipal Board has acted without jurisdiction. As regards the notice issued under Section 186, the learned Judge is of the opinion that inasmuch as the Board had previously on account of its omission to reply to the plaintiff's reminder granted sanction by implication, it had no jurisdiction to revoke it and issue notice contrary to such implied sanction. As regards Section 211, the learned Judge has come to the conclusion that the site over which the projections are had ceased to be a public street or lane inasmuch as in 1928 the Board had granted sanction to the plaintiff to construct a chabutra or platform on it and that accordingly the Board acted with-out any jurisdiction in issuing a notice under that section.

2. It seems to us unnecessary to consider the second point or to consider whether a part of the public street could cease to be such street merely because permission was given to have a small chabutra from 1 to 2 feet in height constructed on the side of it, because it seems that the civil Court has no jurisdiction to go behind the notice issued by the Board under Section 186. On 4th February 1932, the plaintiff had filed a vague and incomplete application for sanction to make certain constructions under Section 178 of the Act. It did not contain any detailed specification, nor did it contain any sketch plan. The application merely stated that a map will be filed later, and sanction was asked for in accordance with the map to be filed. The sketch plan which is required by the bye-laws was ready later and was signed by the draftsman on 13th February 1932, and it may be taken that it was filed in the Municipal Board's Office on that date. It is therefore obvious that the application for sanction was actually not complete until 13th February 1932. Without waiting for one full month the plaintiff sent a second notice on 12th March 1932, drawing the attention of the Board to his previous application. There was some delay in replying to this notice. No reply was sent to the plaintiff within 15 days of 12th March 1932; but on 29fch March 1932, the Board finally refused to grant sanction. There was again some delay in communicating this refusal to the plaintiff, which has not been explained, but the plaintiff admittedly was definitely informed by the Executive Officer on 13th April 1932, that the sanction had been refused. Whether he had started the constructions earlier or not, it is a fact that he continued the constructions till after 13th April 1932, and the disputed constructions were completed some time later in that month. When the plaintiff persisted in the work of constructions, the Board issued another notice on 14th April 1932, calling upon him to stop the constructions, and that notice was again renewed on 1st May 1932; but the plaintiff paid no heed, with the result that the District Magistrate was approached by the Municipal Board, and he on 19th May 1932, issued an order under Section 144, Criminal P.C. prohibiting the plaintiff from carrying on the constructions any further. This was followed by a notice under Sections 186 and 211 issued by the Board on 1st June 1932. The present suit was filed on 9th July 1932, to challenge the last mentioned notice.

3. The first question to consider is whether it is at all open to a civil Court to impugn the validity of a notice issued by a Municipal Board under Section 186 of the Act. Section 178 requires that there should be a notice of the intention to erect a building within the limits of the Municipality. Section 179 requires certain plans and specifications to be supplied, and then Section 180 provides for sanction. Section 185 lays down that if there is any illegal erection or alteration of a building in contravention of the provisions of Section 180, or of any order of the board refusing sanction or any other directions, the offender will be liable upon conviction to a fine. Then Section 186 lays down:

The board may at any time by written notice direct the owner or occupier of any land to stop the erection...of a construction...in any case where the board considers that such erection...construction...is an offence under Section 185.

4. It is noteworthy that the section is not confined to the case where an offence under Section 185 has been actually committed in the opinion of any Court, but merely refers to the case where the board 'considers' that such erection is an offence under Section 185. If the board is satisfied that there has been such a contravention and considers that an offence has been committed, it is empowered by the section to issue a written notice to the owner. It can hardly be contended that where the board is satisfied that there has been such a contravention and considers that the offence under Section 185 has been committed and therefore issues notice under the section, it is acting without any jurisdiction, if later it turns out that the offence had not in fact been committed. The board has jurisdiction and power to issue notice where it considers that there has been such a contravention irrespective of the question whether the board's opinion is right or wrong. The learned advocate for the respondent is unable to cite before us any case of this Court under this section of the Municipalities Act which would help him. His reliance is mainly on certain earlier rulings which were given under the corresponding sections of the earlier Act. But the language of those sections was not identical with the language of Section 321, which we have now got in the new Act. Those cases proceeded on the assumption that where the board acts absolutely without jurisdiction, there is nothing to prevent the civil Court from interfering. But so far as Section 186 is concerned, the notice issued by the board cannot be considered as one issued without any jurisdiction whatsoever. Section 318 of the Act specifically provides that any person aggrieved by any order or direction made by the board under the powers conferred upon it by. Section 186 and other sections named therein may within 30 days appeal to the District Magistrate or to the Commissioner as the case may be. Section 321 then 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 is provided therein. (2) The order of the appellate authority confirming, setting aside or modifying any such order or direction shall be final,

provided that the appellate authority may review its previous order. The Legislature has accordingly laid down that the order or direction is not to be questioned in any other manner or by any other authority than the appellate authority provided in Section 318, and that the order of the appellate authority, whatever it may be, is to be final. This obviously implies that any objection to the validity of the notice under Section 186 must be raised by way of appeal to the appellate authority, and if this remedy is not availed of, then this cannot be questioned in any other manner or by any other authority and the order of the board or of the appellate Court will be final. A similar view has been expressed in a series of cases by this Court see Sheikh Jorhawan v. Municipal Board Gorakhpur : AIR1926All18 , Sheo Ram v. Sone Lal : AIR1929All912 and Municipal Board Benares v. Krishna & Co. : AIR1935All760 . Even as regards criminal prosecutions it has been laid down by this Court in several cases that the non-compliance with a notice issued under Section 186 makes the offender liable to punishment and the criminal Court is debarred from questioning the validity of such a notice see Har Prasad v. Emperor : AIR1932All673 , Baijnath Ram v. Emperor : AIR1936All56 and Ambika Prasad v. Emperor : AIR1936All693 . The case in Kashi Prasad v. Municipal Board, Benares : AIR1935All28 , is distinguishable because under Section 155 the importation of the goods would precede the decision of the Board that the goods were liable to the payment of octroi. The view taken by the trial Court that a civil Court has no jurisdiction; to entertain this claim, so far as it relates to an injunction against the Municipal Board restraining it from proceeding with the demolition of the construction as required by the notice under Section 186 of the Act is concerned, was therefore correct. In I this view it is not necessary to express any opinion on the validity of the notice-issued under Section 211. The appeal is accordingly allowed and the decree of the lower appellate Court is set aside and that of the Court of first instance restored with costs in all Courts.


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