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Municipal Board, Aligarh Vs. Smt. Asfia Begum - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2525 of 1965
Judge
Reported inAIR1972All550
ActsUttar Pradesh Municipalities Act, 1916 - Sections 189
AppellantMunicipal Board, Aligarh
RespondentSmt. Asfia Begum
Appellant AdvocateB.R. Tripathi and ;K.C. Agarwal, Advs.
Respondent AdvocateS.J. Hyder, Adv.
DispositionAppeal dismissed
Excerpt:
civil - notice - section 189 of u.p. municipalities act, 1916 - defect in notice with regard to - non mentioning of boundary of house to be affected by carrying on the drain - notice not signed by administrator - notice invalid - requirement of notice mandatory - held, no action can be taken on the basis of invalid notice or where notice is not given. - - --it is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative......and to carry those drains through, across or under any street or place, and after reasonable noticein writing to the owner or occupier, into, through or under any buildings or land: as the board had stood superseded, the power given under section 189 of the act, was expressly to be exercised by the administrator of the municipality. he had under section 189 the power to construct drains for keeping the municipality properly cleaned and drained. he had also the power to carry such drains into, through or under any building or land owned by a third party after giving reasonable notice in writing to the owner or occupier thereof. a duty was however imposed upon an administrator to give a reasonable notice in writing to the owner or occupier who was to be affected by the process of.....
Judgment:

T.S. Misra, J.

1. It is admitted by the learned counsel for the appellant that at the relevant time when the decision to make a drain was taken, the Municipal Board stood superseded and an Administrator had been appointed. Section 31 of the U. P. Municipalities Act deals with the consequence or the supersession of the Municipal Board. Sub-clause (b) of that section lays down that

'when the Board is superseded, such person or persons as the State Government may appoint in that behalf, shall so long as the supersession of the Board lasts, exercise and perform, so far as may be, the powers and duties of the Board and shall be deemed to be the Board for all purposes and......'

Thus the Administrator in the instant case had full powers of the Board which were to be performed by the Board prior to its supersession. Under Section 189 the Board had the power to construct such drain as it thought necessary and to carry those drains through, across or under any street or place, and after reasonable noticein writing to the owner or occupier, into, through or under any buildings or land: As the Board had stood superseded, the power given under Section 189 of the Act, was expressly to be exercised by the Administrator of the Municipality. He had under Section 189 the power to construct drains for keeping the Municipality properly cleaned and drained. He had also the power to carry such drains into, through or under any building or land owned by a third party after giving reasonable notice in writing to the owner or occupier thereof. A duty was however imposed upon an Administrator to give a reasonable notice in writing to the owner or occupier who was to be affected by the process of constructions of the drains.

In the instant case as has already been mentioned, an Administrator had taken the decision on 26th July, 1965 that a notice under Section 189 of the U. P. Municipalities Act be issued to Hafiz Mohammad Ibrahim the occupier for vacating the house as a Municipal drain was proposed to be taken through the house which was being occupied by Sri Nawab Khan Painter (Ext. A-2). The Executive Officergave notice dated 9th August, 1955 under is signature to M/s. Hafiz Mohammad Ibrahim, Railway Road Aligarh intimating him that a public drain was to be constructed through Mohalla Sarai Rehman and as the house owned by him obstructed the constructions the notice was being served upon him under Section 189 of the U. P. Municipalities Act that the house in question was required to enable the Assistant Engineer L.S.G.E.D. to construct the abovementioned drain. He was asked to get the house vacated within a fortnight. There is no indication in this notice that it was being given on the direction of the Administrator or that it had been signed for and on behalf of the Administrator or by his order. Obviously the recipients of this notice could not get any idea that it had been given by the Administrator in the discharge of his duties under Section 189 and for the exercise of his power to make the drain in question. There is no proof that the Administrator had delegated his authority to the Executive Officer to issue the notice. The Executive Officer was also not examined in the case by the defendant-appellant to state that the impugned notice was given on the direction of the Administrator. No drain could be carried out into, through, or under any building or land under Section 189 of the U. P. Municipalities Act without giving a reasonable notice in writing to the owner or the occupier thereof.

The provision for giving a notice in writing is in my opinion, a mandatory one. It was the duty of the Administrator to give a reasonable notice in writing to the owner or occupier of a building which was to be affected by the proposed action ofcarrying a drain into, through or under his building or land as the case may be, Learned counsel for the appellant urged that compliance of this provision was made by giving the impugned notice (Ext. A-3). The validity of this notice was challenged by the plaintiff-respondent on the ground that it was not signed by the Administrator nor was the same given on the direction or order of the Administrator inasmuch as there was no indication to that effect in the notice itself. The notice was also challenged on the ground that it was vague inasmuch as there was nothing to establish the identity of the house to be affected. Neither its municipal number nor its boundary was mentioned therein. The notice also did not point out the width of the drain and the portion of the house which was to be affected. Whether the entire house was to be covered by drain or a portion thereof, was a matter left to be guessed. In my view the notice was a vague one inasmuch as it suffered from the infirmity pointed out above. It also could not be construed to be a notice given by the Administrator as required by Section 189 of the Act. The learned counsel for the appellant relied upon two decisions of the Supreme Court namely Dattatraya Moreshwar v. The State of Bombay, AIR 1952 SC 181 and P. Joseph John v. State of Travancore-Cochin, AIR 1955 SC 160. In the case of Dattatraya v. The State of Bombay (supra) it was laid down that:--

'It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done.'

2. Similarly in the case of AIR 1955 SC 160 (supra) it was laid down relying on AIR 1952 SC 181 (supra) that:--

'Clauses (1) and (2) of Article 166 are directory only and non-compliance with them does not result in the order being invalid, and in order to determine whether there is compliance with these provisions all that is necessary to be seen is whether there has been substantial compliance with those requirements.'

In the case of P. Joseph John, the notice which was given by the Chief Secretary of the State and expressed to be on behalf of the Government and giving opportunity to the petitioner to show cause against theaction proposed to be taken against him was in substantial compliance with the provisions of the article. In the instant case the notice signed by the executive officer was not expressed to be on behalf of the Administrator. Under Section 189 the owner of a building could successfully object to carrying of the drain into or through his house on the ground that a reasonable notice in writing had not been given to him. Thus Section 189 confers a right also on the owner and occupier. He could insist for reasonable notice before his house could be affected by the proposed action of carrying a drain into his house. It also imposed a duty op the Administrator to give such notice. This provision of giving a notice in writing could not, therefore, be said to be a directory provision. The notice contemplated by Section 189 must be a valid notice. If no notice was given or if notice given was invalid the Municipal Board would not have the power to carry the drain through or under the premises of any person. In these circumstances the notice in the instant case not having been signed by the Administrator or purporting to have been issued under the direction of the Administrator, was an invalid notice and no action could be taken on its basis. No other point is urged before me.

3. In the result, the appeal fails and is accordingly dismissed with costs.


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