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Thakur Govind Deoji Maharaj Vs. Municipal Board - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All110
AppellantThakur Govind Deoji Maharaj
RespondentMunicipal Board
Excerpt:
.....failure to comply with the notices, the depressions were filled up by defendant 1 and defendant 1 served the plaintiff with notices in question for the payment of the costs of the filling up of the depressions. 3. section 269 is divided into two parts, one of which deals with the removal of a nuisance from tanks and the like when for such removal the board has to acquire or provide land. the board may by notice require the owner or occupier of any land or building to cleanse, repair, cover, fill up or drain off a private well, tank, reservoir, pool, depression or excavation therein which may appear to the board to be injurious to health or offensive to the neighbourhood. the suit was brought by the plaintiff on 28th august 1933. the suit is therefore clearly time-barred......of the notices was also questioned by the plaintiff on the ground that they were issued by the medical officer to whom the board could not delegate any power under section 269 and the medical officer therefore was not competent to issue any notice under section 269. the defendant contended that the suit was time-barred, that it had full power under section 269 to issue the notices in question and that the medical officer was quite competent to do so. both the courts below have dismissed the suit. as regards the question of limitation, the trial court found that the suit was not time-barred but the lower appellate court has found that it is time-barred.2. it has been contended on behalf of the appellant that the medical officer who issued the notices was not competent to do so......
Judgment:

Ganga Nath, J.

1. This is a plaintiff's appeal and arises out of a suit brought by himj against the defendant-respondent for a declaration that the notices issued by the defendant to the plaintiff are illegal and beyond the scope of Section 269, U.P. Municipalities Act (No. 2 of 1916) and for a perpetual injunction restraining defendant 1 from issuing such notices in future and from realizing the amount of the bill No. 82 of 10th May 1933 and other bills in pursuance of the said notices. The plaintiff who is an idol is a landlord in the town and village of Bindraban where he owns considerable land. There were depressions in some plots and defendant 1 issued notices to the plaintiff to fill them up under Section 269, U.P. Municipalities Act. On the plaintiff's failure to comply with the notices, the depressions were filled up by defendant 1 and defendant 1 served the plaintiff with notices in question for the payment of the costs of the filling up of the depressions. The plaintiff's case is that the depressions being natural, defendant 1 had no power to ask the plaintiff under Section 269, U.P. Municipalities Act, to fill them up. The legality of the notices was also questioned by the plaintiff on the ground that they were issued by the Medical Officer to whom the Board could not delegate any power under Section 269 and the Medical Officer therefore was not competent to issue any notice under Section 269. The defendant contended that the suit was time-barred, that it had full power under Section 269 to issue the notices in question and that the Medical Officer was quite competent to do so. Both the Courts below have dismissed the suit. As regards the question of limitation, the trial Court found that the suit was not time-barred but the lower Appellate Court has found that it is time-barred.

2. It has been contended on behalf of the appellant that the Medical Officer who issued the notices was not competent to do so. Reliance is placed on Schedule 1 annexed to the Municipalities Act, according to the appellant, the powers under Section 269 could not be delegated under Section 112, Clause (1)(a), to the Medical Officer as there was no entry against Section 269 in Col. 3 of Schedule 1. Section 112(1) lays down:

With the exception of a power, duty or function : (a) specified in Col. 2, and against which no entry is shown in Col. 3 of Schedule 1; (b) reserved or assigned to Chairman by Clauses (a), (b) and (c) of Section 60 or by Section 61; and (c) where there is an Executive Officer, reserved to that officer by Rule 60, a Board may delegate by regulation all or any of the powers, duties or functions conferred or imposed on, or assigned to a Board under this Act.

3. Section 269 is divided into two parts, one of which deals with the removal of a nuisance from tanks and the like when for such removal the Board has to acquire or provide land. It is mentioned in Schedule 1. The other part deals with the cleansing, repairing, covering, filling up or draining off of wells and tanks etc, which applies to the present case and is mentioned in Schedule 2. Schedule 2 deals with the powers of Executive Officer. Where there is an Executive Officer, the powers mentioned in Schedule 2 which includes the power under Section 269 'to require the cleansing, repairing, covering, filling up or draining off of wells and tanks etc' cannot be delegated under Section 112. There is no Executive Officer in this Municipal Board and consequently the powers mentioned in Schedule 2 could be, and have been, delegated. The powers under Section 269 have been delegated to the Medical Officer under a bye-law framed by the Municipal Board. A right of appeal within ten days to the Board from the orders of the Medical Officer has been given to the person aggrieved. It would thus appear that the power having been duly delegated to the Medical Officer under Section 112(1), U.P. Municipalities Act, and the bye-law of the Municipal Board, he was quite competent to issue notices under Section 269 as he did and the notices issued by him were quite valid.

4. Section 269 is wide enough to cover all sorts of depressions whether natural or made otherwise. Section 269(1) lays down:

The Board may by notice require the owner or occupier of any land or building to cleanse, repair, cover, fill up or drain off a private well, tank, reservoir, pool, depression or excavation therein which may appear to the Board to be injurious to health or offensive to the neighbourhood.

5. There is nothing in it to qualify the word 'depression.' On the other hand, the word 'excavation' used along with 'depression' shows that depression may be natural because a depression caused by digging would amount to excavation. It has been contended that the plaintiff owns a number of lands and plots of different elevations, high and low, caused by vis major and natural phenomena. If the Municipal Board was to ask the plaintiff to level it, it would cost him lacs of rupees and the action of the Municipal Board would be oppressive. The Municipal Board has very rightly stated in its written statement that it is not concerned with the other lands owned by the plaintiff. Consequently the question of the possession of the plaintiff's other lands of different elevations cannot be taken into consideration in disposing of this case. The only objection that was taken by the appellant to the validity of the notices and the right of the Municipal Board to issue them under Section 269 was that the Municipal Board had no right to issue a notice under Section 269 in respect of a depression which was not caused by human agency but was natural. As already stated, there is no such distinction in Section 269 and consequently the powers of the Municipal Board cannot be restricted by any such consideration. There can be no doubt that the Municipal Board possesses very wide powers under Section 269, but they are not to be exercised for ulterior purposes or in a capricious, wanton and arbitrary manner. If they are so used, they can be controlled by the Civil Court. Where a local authority is invested with discretionary powers, a Civil Court can interfere in cases where such powers are exercised; to use the language of some of the decisions, in a 'capricious, wanton and arbitrary' manner or in an 'unreasonable' manner : see Nagar Valab v. Municipality of Dhandhuka (188) 12 Bom. 490 at p. 494, Lalbhai Tricamlal v. Municipal Commissioner Bombay (1909) 33 Bom. 334, Leader v. Moxon (1773) 2 B. 1 W. 924, Rex v. Board of Education (1910) 2 K.B. 165 at p. 168, Williams v. Giddy (1911) A.C. 381, Sutton v. Clarke (1815) 6 Taunt 29, Weinberger v. Inglis (1919) A.C. 606 and Somu Pillai v. Municipal Council, Mayavaram (1905) 28 Mad. 520. The cause of action accrued to the plaintiff on 14th October and 5th November 1932 when the notices were served on the plaintiff. The suit was brought by the plaintiff on 28th August 1933. The suit is therefore clearly time-barred. Section 326, Clause 3, of U.P. Municipalities Act lays down:

No action such as is described in Sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months after the accrual of the cause of action.

6. Clause (1) relates to suits against a Board or against a particular officer or servant of a Board in respect of an act done or purporting to have been done in its or his official capacity. The present suit is one in respect of an act done by an officer of the Board in his official capacity. Section 326 applies to the present case. I agree with the finding of the lower Appellate Court that the suit is time-barred. There is no force in the appeal. It is therefore ordered that it be dismissed with costs.


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