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Municipal Board Vs. Mohd. Zaki and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1945All393
AppellantMunicipal Board
RespondentMohd. Zaki and ors.
Excerpt:
- .....for recovery of damages under section 183, municipalities act (2 of 1916), on the ground that the municipal board had by an entirely illegal order, refused the plaintiffs sanction for making constructions over certain chabutras in front of their house. the suit has been decreed by both the courts below and the municipal board of meerut is the appellant in this court. it is not necessary for me to go into this matter at any very great length. when the plaintiffs applied for sanction for making certain constructions over the chabutras, the municipal board purporting to act under section 180, u.p. municipalities act (2 of 1916), refused the sanction. under section 180, sub-section (2) the board was bound to communicate in writing the reasons for such refusal, but no such reason was given.....
Judgment:

Malik, J.

1. There is no force in this appeal. The plaintiffs filed a suit against the Municipal Board, Meerut, and two others, Phoola and Changa, for recovery of damages under Section 183, Municipalities Act (2 of 1916), on the ground that the municipal board had by an entirely illegal order, refused the plaintiffs sanction for making constructions over certain chabutras in front of their house. The suit has been decreed by both the Courts below and the Municipal Board of Meerut is the appellant in this Court. It is not necessary for me to go into this matter at any very great length. When the plaintiffs applied for sanction for making certain constructions over the chabutras, the municipal board purporting to act under Section 180, U.P. Municipalities Act (2 of 1916), refused the sanction. Under Section 180, Sub-section (2) the board was bound to communicate in writing the reasons for such refusal, but no such reason was given in the order. In the written statement filed on behalf of the board a plea was taken that the constructions, if sanctioned and built, would have interfered with the right of light and air of defendant 2, Phoola. This is a startling-defence. The Legislature, when it restricted the right of a person to make constructions on his own land without the sanction of the board, did it in the interest of the public. Every municipal board has certain building bye-laws which are framed keeping in view the sanitary and other requirements of the city. When an application for sanction is made, it is the duty of the board to see whether the proposed constructions in any way contravene the building bye-laws. If they do not, it is the duty of the board to grant the sanction. If the board, acting within its jurisdiction, has considered that certain application for sanction is against the building bye-laws and has refused the sanction it may not be possible for the civil Courts to interfere and the remedy of the applicant may only be to appeal under Section 321, Municipalities Act, to the District Magistrate. The Legislature however never intended that the municipal boards should assume the functions of the civil Courts and take upon themselves the jurisdiction to go into questions of private rights and refuse sanction on their view of the same. If Phoola had any right of easement of light and air and the proposed building in any way affected those rights, Phoola could come to the civil Court for the vindication of those rights. I have seen a tendency in the municipal boards to consider that they have a right to go into private disputes and refuse sanction on considerations which have nothing to do with the building bye-laws. This assumption of jurisdiction on behalf of the boards is most reprehensible as the decisions of the boards are generally based on reports of subordinate officers of the board whose reports may not be impartial and may have been procured for other considerations. It is a pity that in such cases, where the boards act in such a wholly illegal and high-handed manner, the claim for damages is filed only against the board and not also against the officers of the board, the result being that the damage has to be paid by the tax-payers and the members of the public. The question may have to be seriously considered in some case whether the damages should not come out of the pocket of the officers concerned. The Court below has granted only Rs. 500 as damages. I do not consider that amount at all excessive. I dismiss this appeal with costs. Leave to appeal under the Letters Patent is refused.


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