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Mohd. Basit Ali Khan and ors. Vs. Municipal Board - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1948All112
AppellantMohd. Basit Ali Khan and ors.
RespondentMunicipal Board
Excerpt:
.....before dealing with section 211 it is necessary to point out that the section which authorises the board to give permission -where provision is made by a bye-law for the giving of such permission -to owners or occupiers of buildings to erect certain structures projecting over streets or drains is section 209. the terms as well as the limits of the permission that can be granted by the board are laid down in this section. the courts below have accepted this contention and have held that section 211 clearly authorises the board to issue such a notice even in respect of structures for the erection of which permission had been granted under section 209. the learned judge of the court below has pointed out that the proviso to the section, if anything, supports the interpretation sought to be..........and remitted the matter to the board with the direction mentioned above. accordingly the board issued a notice which was served oil 3-1-1948, purporting to be under sections 186 and 211, u.p. municipalities act (2 [ii] of 1916) requiring the plaintiffs to remove the portions shown by the plaintiffs in green colour in the plan attached to the plaint. thereupon this suit was filed. the plaint is in english and the main relief prayed for is in the following words:a permanent mandatory injunction be issued to the defendant board restraining it from taking any steps for the demolition of any constructions made in the shops nos. 2350 and 2350/1-3 situated in sabzi mandl, agra, as threatened by defendant 1 in its notice dated 17-12-1942, and served on plaintiff 1 on 3-1-1943.3. the.....
Judgment:

Verma, J.

1. There are four appellants in this second appeal. The first three were plaintiffs in the suit and the fourth was defendant 2. He was impleaded as a pro-forma defendant on the allegation that he had the same rights in the subject-matter of the suit as the plaintiffs had, out was unable to join in the suit owing to absence from Agra. He has now joined the plaintiffs in bringing this second appeal. Both the Courts below have dismissed the suit.

2. The facts, which are material for the purposes of the point that has to be decided in this second appeal, are as follows. The appellants are owners of certain buildings which are used as shops in Moh : Sabzi Mandi in the city of Agra. In the year 1937, they secured permission from the Municipal Board of Agra for putting up certain structures projecting into and encroaching on a street as well as overhanging a drain, and erected those structures. It appears that shortly afterwards the Municipal Board came to know that the plan which had been sanctioned was really in excess of the application for permission that had been filed by the plaintiffs and that parts of it were also against the bye-laws of the Board with regard to projections etc. It accordingly served a notice on the appellants in September 1938 requiring them to remove all the structures that they had erected. It may be mentioned here that these structures consist of a tin shed and what has been described as a chhalli. The notice having been issued by the Executive Officer, the plaintiffs appealed to the Board. The appeal was partly allowed in November 1941. The plaintiffs then preferred an appeal to the District Magistrate and that appeal was dismissed in May 1942. They then filed an application for review before the District Magistrate and prayed that the matter be remanded to the Municipal Board with the direction that it should issue fresh notices to the plaintiffs. The District Magistrate, in August 1942, granted this application and remitted the matter to the Board with the direction mentioned above. Accordingly the board issued a notice which was served oil 3-1-1948, purporting to be under Sections 186 and 211, U.P. Municipalities Act (2 [II] of 1916) requiring the plaintiffs to remove the portions shown by the plaintiffs in green colour in the plan attached to the plaint. Thereupon this suit was filed. The plaint is in English and the main relief prayed for is in the following words:

A permanent mandatory injunction be issued to the defendant Board restraining it from taking any steps for the demolition of any constructions made in the Shops Nos. 2350 and 2350/1-3 situated in Sabzi Mandl, Agra, as threatened by defendant 1 in its notice dated 17-12-1942, and served on plaintiff 1 on 3-1-1943.

3. The defendant board pleaded that the notice issued by it was valid, as it was in accordance with the power conferred upon the Board by Section 211 of the Act, and so could not be challenged, and, further, that the civil Court had no jurisdiction to entertain the suit. The first Court held that the notice was valid and so could not be challenged, and did not consider it necessary to discuss the question of jurisdiction. The lower appellate Court agreed with the trial Court that the notice was valid and held further that the civil Court had no jurisdiction to entertain the suit.

4. Having heard learned Counsel for the appellants, we have come to the conclusion that the decision of the Courts below is correct and must be upheld. It may be pointed out here that Section 186 of the Act has no application. That section occurs in that part of Chap. VII which is headed 'Building Regulations.' The Board, however, as has already been stated, purported to issue the notice under Section 211 also. This they were clearly entitled to do. Before dealing with Section 211 it is necessary to point out that the section which authorises the board to give permission - where provision is made by a bye-law for the giving of such permission - to owners or occupiers of buildings to erect certain structures projecting over streets or drains is Section 209. The terms as well as the limits of the permission that can be granted by the Board are laid down in this section. It is important to note that a Board has the power to give the permission mentioned in Section 209 only if provision has been made by the bye-laws of the Board authorising it to give such permission.

5. Section 211 of the Act is as follows:

The Board may, by notice, require ,the owner or occupier of a building to remove, or to alter a projection or structure overhanging, projecting into or encroaching on a, street, or into, on or over any drain, sewer or aqueduct therein.

Provided that in the case of any such-projection or structure lawfully in existence on or before the tenth clay of March, 1900, the Board shall make compensation for any damage caused by the removal or alteration, which shall not exceed ten times the cost of erection and demolition.

The contention of the plaintiffs is that, as the structures in question were shown in the plan which the Board sanctioned in the year 1937, the Board did permit the erection of those structures, whether they had actually been applied for or not, and that the permission having been thus granted and the structures having been put up in accordance with that permission, the Board was not entitled subsequently to call upon the plaintiffs either to demolish or to make any alteration in the structures which had been erected in accordance with the said permission. The Board, on the other hand, contends that, even if all the structures in question had been applied for and the Board had given permission for their erection, the law authorises a Municipal Board, after granting permission under Section 209, to issue notice subsequently to the owners or occupiers of buildings requiring them to remove or to alter structures of this character. The Courts below have accepted this contention and have held that Section 211 clearly authorises the Board to issue such a notice even in respect of structures for the erection of which permission had been granted under Section 209. The learned Judge of the Court below has pointed out that the proviso to the section, if anything, supports the interpretation sought to be put upon the section by the Board. We have no hesitation in holding that this decision of the Courts below is correct. The language of the section is clear and unambiguous and there can, in our opinion, be no doubt that the Legislature has deliberately authorised the Board to require owners or occupiers of buildings to remove or alter structures of this character, even when they have been put up in pursuance of a permission obtained from the Board. Thus, the conclusion is irresistible that the notice issued by the Board to the plaintiffs was in accordance with law and in consonance with the power conferred upon the Board by Section 211 of the Act. It may, further, be pointed out here that the Projection Bye-laws of the Agra Municipal Board, under which alone the permission relied upon by the plaintiffs could be granted, contains the following provision in para. 9:

Nothing in these bye-laws shall be construed to derogate from the power conferred on the Board by Section 211 of the Act to remove encroachments and projections over streets and drains, notwithstanding' that such encroachments and projections may have been sanctioned.

The plaintiffs must be taken to have erected these structures with a full knowledge of the fact that the Board had the power to require them subsequently, in spite of the permission which had been granted by it to remove or alter the structures so erected. The Courts below were, therefore, right in holding that the notice served by the Board in January 1943 on the plaintiffs was perfectly valid and that the plaintiffs' attack on it was groundless.

6. Chapter 10 of the Act deals with procedure and one of the parts into which that chapter is divided is headed : 'Appeals from orders of Board, and suits against the Board.' Section 318 gives to persons aggrieved by any order or direction made by a Board under the powers conferred upon it by certain sections of the Act or under a bye-law made under heading G of Section 298, a right of appeal within thirty days from the date of 'such order or direction to such officer as the Local Government, may appoint for the purpose of hearing such appeals. One of the sections mentioned in Section 318 is Section 211. Thus, any person aggrieved by any order or direction made by a Board under the powers conferred upon by Section '211, has a right of appeal to the officer mentioned in Section 318. Section 821 is as follows:

(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 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.

It is clear, in our judgment, that the decision of the lower appellate Court that the civil Court had no jurisdiction to entertain the present suit, is also correct.

7. Mr. K.B. Asthana for the appellants had cited the Full Bench case in Emperor v. Brij Behari Lal ('43) I.L.R. (1943) All. 317 and has suggested that the conclusions at which we have arrived in the present judgment are in conflict with the ruling in that case. Learned counsel's point was that our decision on the question of jurisdiction ran counter to the decision of the Pull Bench. The suggestion, however, is without foundation and appears to be' based on a misapprehension. The notice issued in the case before the Full Bench had been issued by the Executive Officer and an appeal had been made to the Board under Section 61 of the Act and the Board had dismissed the appeal whereas the notice issued in the present case was issued by the Board. Incidentally, that was at the appellants own request made in their application for review filed in the Court of the District Magistrate. Consequently, one of the questions which arose before the Full Bench was whether an appellate order made be a Board in an appeal preferred to it under Section 61 against an order contained in a notice issued by the Executive Officer was an 'order or direction made by a Board under the powers conferred upon it by' certain sections, among which is Section 186, within the meaning of Section 818 of the Act. No such question arises here, for the notice in the present case, as already stated, was issued by the Board it self. The decision of the majority of the learned Judges composing the Full Bench was that a notice under Section 186 issued by an Executive Officer is not a notice issued by the Board, that an order passed by the Board upon an appeal preferred to it under Section 61 of the Act cannot be an order under Section 186 and does not, consequently, come within Section 318 and that, therefore, the appellate order of the Board is not appealable to the District Magistrate. That does not mean that where a Board makes, not an order on appeal, but an original order and incorporates it in a notice issued by itself under Section 186, that order also is not appealable to the District Magistrate under Section 318. Thus, the conclusion to which we have come in the present case on the question of jurisdiction is in no way in conflict with the ruling of the Full Bench. The facts here are essentially different from those in Emperor v. Brij Behari Lal ('43) I.L.R. (1948) All. 317.

8. It may further be pointed out that one of the conclusions with regard to which the decision in Emperor v. Brij Behari Lal ('43) I.L.R. (1948) All. 317 was unanimous is thus summarised in the first paragraph of the head note:

A person who has been prosecuted under Section 307, Municipalities Act, is entitled to challenge by way of defence the validity of the notice issued to him under Section 186 for violation whereof he has been put on his trial.

Here again, the facts of the present case are entirely different and no question of anything said by us in the present judgment being in conflict with the decision in Emperor v. Brij Behari Lal ('43) I.L.R. (1943) All. 317 can arise.

9. The appeal is dismissed with costs.


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