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Dhunde Chaudhri Vs. the Municipal Board and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1925All699
AppellantDhunde Chaudhri
RespondentThe Municipal Board and ors.
Excerpt:
- sulaiman, j.1. this is a plaintiff's appeal arising out of a suit for an injunction restraining the municipal board of kunch from interfering with the plaintiff's construction on a certain piece of land. the plaintiff had given notice under section 178 of the municipalities act to the municipal board for sanction to build upon it.2. the municipal board, for reasons which are not material to consider, refused to grant sanction to build upon this piece of land. the plaintiff feeling himself aggrieved by that order appealed to the district magistrate who confirmed it.3. he then instituted the present suit and alleged that the land on which he wanted to build being his own land and not a street, the municipal board had no right to refuse permission or prevent him from building upon it. the.....
Judgment:

Sulaiman, J.

1. This is a plaintiff's appeal arising out of a suit for an injunction restraining the Municipal Board of Kunch from interfering with the plaintiff's construction on a certain piece of land. The plaintiff had given notice under Section 178 of the Municipalities Act to the Municipal Board for sanction to build upon it.

2. The Municipal Board, for reasons which are not material to consider, refused to grant sanction to build upon this piece of land. The plaintiff feeling himself aggrieved by that order appealed to the District Magistrate who confirmed it.

3. He then instituted the present suit and alleged that the land on which he wanted to build being his own land and not a street, the Municipal Board had no right to refuse permission or prevent him from building upon it. The Municipal Board took up the position that the land was in fact a street within the meaning of the Act and also that they had full power to refuse the sanction and therefore the claim was barred under Section 321 of the Municipalities Act.

4. The Court of first instance dismissed the suit on the ground that the land is a street within the meaning of the definition of that word given in the Act, and also that in view of Section 321 of the Act the claim was not maintainable. The lower Appellate Court has confirmed that decree on the ground that the land in dispute is a street within the meaning of the Act. It seems to me that it was quite immaterial so consider whether the land belonged to the plaintiff or not and whether it was a street within the meaning of the Act. Under Section 87 of Act No. 1 of 1900 there was a proviso which limited the power of the Board to refuse to sanction the erection or re-erection of a building. That proviso has been cut out from Section 180 of the new Act which corresponds with the old Section 87. A refusal to sanction therefore cannot now be said to be ultra vires. A notice under Section 178 had been given by the plaintiff. It was nowhere suggested that such a notice was not necessary. Notice under Section 178 having been given, the Municipal Board exercised its discretion under Section 180 of the Municipalities Act of 1916 in refusing to sanction the building. The plaintiff's only remedy, if he fait aggrieved by that order, was to appeal to the District Magistrate under Section 318. If the order of the Municipal Board was illegal he might have asked the District Magistrate to refer the point to the High Court. This was not done, The District Magistrate has confirmed the order of the Board. That order is now final and cannot be questioned in any other manner or by any other authority. Section 321 is quite clear on this point. The only relief which the plaintiff claimed is a relief for an injunction restraining the Municipal Board from interfering with his construction. It is obvious that in substance he wants the refusal to grant the sanction to be set aside by a Civil Court. A suit of this nature is not maintainable.

5. I may mention that there was no relief claimed as regards the title to the land or the character of the plaintiff's possession over it. As the suit fails on the preliminary point, all questions of title will of course remain open.

6. The appeal is accordingly dismissed with costs including fees on the higher scale.


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