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Rahas Bihari Lal Minor Through L. Sital Pershad Vs. the Municipal Board - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1916All361; 35Ind.Cas.222
AppellantRahas Bihari Lal Minor Through L. Sital Pershad
RespondentThe Municipal Board
Excerpt:
u.p. municipalities act (i of 1900), sections 87,88, 52 - erection without permission--notice--civil suit, maintainability of--remedy. - - sub-clause 3 of clause 3 of section 87 distinctly gives a right to the municipal board to impose conditions as to the building or re-building of a sandas. the case must also fail on the merits, as the municipal board was within its rights in giving the plaintiff a qualified permission as to the re-building of the house......however, says that he received no permit pass and in june 1912 he sent a reminder to the municipal board but received no reply. he waited for a month and receiving no acknowledgment of his reminder also, he started building the house and completed it in a few months. the municipal board issued a notice on the 26th may 1913, which was received by the plaintiff on the 3rd june 1913, asking him to demolish the three constructions, viz., a chhajja, a sandas and a tora with an antiya. the plaintiff ignored the notice and was consequently prosecuted by the municipal board more than once and was fined. he remained obstinate and did not carry out the instructions contained in the notice of the municipal board. on the 16th july 1914 the plaintiff instituted the suit, out of which this.....
Judgment:

Rafique, J.

1. The facts which have given rise to this appeal are as follows:--The plaintiff, who is a minor, made an application to the Municipal Board of Cawnpore on the 11th November 1911, stating that he was the owner of a house in Mohalla Butcher khana, which he wanted to pull down and rebuild according to the old plan and on the old foundations and asked for permission to do so. He submitted a plan of the house also with his application. In the month of January 1912 the application of the plaintiff was granted and according to the finding of the Court below the permit pass together with the approved plan was made over to the father of the plaintiff in February 1912. The plaintiff, however, says that he received no permit pass and in June 1912 he sent a reminder to the Municipal Board but received no reply. He waited for a month and receiving no acknowledgment of his reminder also, he started building the house and completed it in a few months. The Municipal Board issued a notice on the 26th May 1913, which was received by the plaintiff on the 3rd June 1913, asking him to demolish the three constructions, viz., a chhajja, a sandas and a tora with an antiya. The plaintiff ignored the notice and was consequently prosecuted by the Municipal Board more than once and was fined. He remained obstinate and did not carry out the instructions contained in the notice of the Municipal Board. On the 16th July 1914 the plaintiff instituted the suit, out of which this appeal has arisen, against the Municipal Board of Cawnpore for issue of a perpetual injunction restraining it from interfering with the three constructions mentioned above and for a declaration that the plaintiff is entitled to keep and maintain the said three structures in their present state. He also prayed that Rs 100 as damages should be awarded to him for mental worry and a further sum of Rs. 100 for expenses incurred by him in the criminal prosecutions by the Municipal Board. The latter raised various pleas in defence. It was urged that the suit was not maintainable in the Civil Court and that the Board was within its right in issuing the notice of 26th May 1913. The claim to damages was denied. The learned Munsif dismissed the claim and his decree was affirmed on appeal.

2. The plaintiff has come up in second appeal to this Court. He contends that his suit is cognisable by a Civil Court and that the notice issued by the Municipal Board is ultra vires and not binding upon him. I think that both the contentions are untenable in view of the finding of the Courts below. The plaintiff made the application presumably under Section 87 of the Municipalities Act for permission to re-erect his house on the old foundations. He attached a plan with his application, in which the sandas and chhajja were shown but the tora with the antiya was not shown. The Municipal Board granted permission to re-build the house with the exception of the chhajja and the sandas. The plan submitted by the plaintiff was returned to him with the correction by which the sandas and the chhajja were struck out. Both the Courts have found that the permit pass with the corrected plan was, as a matter of fact, made over to the plaintiff's father at the end of January or the beginning of February 1912. The finding is one of fact and must be accepted. It has also been found that the tora with the antiya did not exist in the old house and was not shown in the plan submitted with the application of the 11th November 1911. The tora with antiya was, therefore, a new construction. According to Section 87 of the Municipalities Act every person who intends to erect or re-erect any house which abuts or adjoins a public street, must first give notice in writing of his intention to do so to the Municipal Board and the latter might either refuse to sanction the said building or may sanction it absolutely or with certain reservations. Under Section 88 of the same Act no one can build a structure overhanging or projecting into any street without the sanction of the Municipal Board. The Municipal Board could under Section 87 of the Act impose restrictions as to sandas and under Section 88 as to chhajja. The contention for the plaintiff is that Section 87 is only applicable to that part of the building which abuts on and overhangs a street. I do not agree with this interpretation. The language of Section 87 in Clause (a) is quite clear. It is to the following effect:-'Any building abutting on or adjoining a public street, or any public place or property vested in Her Majesty or in the Board.' A building may adjoin a public street and yet may not overhang or project into it. Sub-clause 3 of Clause 3 of Section 87 distinctly gives a right to the Municipal Board to impose conditions as to the building or re-building of a sandas. It is in evidence, and has been found as a fact by the Courts below, that the Municipal Board refused permission to the plaintiff to re-build the sandas and the chhajja. They then served a notice upon him in which no section was mentioned and which was served on the plaintiff on the 5th June 1918. The plaintiff under Section 52 of the Act could have contested the notice by way of appeal to the Commissioner. He could not bring a regular suit in the Civil Court for contesting the validity of that notice. In fact the contention of the plaintiff is that the notice was not valid inasmuch as it does not fall either under Section 87 or Section 88 of the Act and, therefore, the present suit was maintainable in a Civil Court. As I have held that the notice by the Municipal Board was partly under Section 87 and partly under Section 88, it was a valid notice and the only remedy open to the plaintiff was that laid down in Section 52 of the Act. The same reasoning applies to the torn with the antiya which is a new structure and about which the Municipal Board could have withheld permission under Section 88. In my opinion the finding of the learned Judge of the lower Appellate Court that the suit is not maintainable in the Civil Court, is correct. The case must also fail on the merits, as the Municipal Board was within its rights in giving the plaintiff a qualified permission as to the re-building of the house. The appeal fails and is dismissed with costs, including in this Court fees on the higher scale.


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