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Sheikh Jorhawan and ors. Vs. Municipal Board - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1926All18
AppellantSheikh Jorhawan and ors.
RespondentMunicipal Board
Excerpt:
- - a report was called for by the building sub-committee which recommended the granting of the application partially. after their failure the plaintiffs have instituted the present suit......granting sanction to build the western wall subject to there being an open archway. as regards the board's refusal to grant sanction to build, i am of opinion that the suit is not at all maintainable. under section 180, sub-cl. (1), the board has, subject to the provisions of any bye-law, power either to refuse to sanction any work of which notice has been given under section 178 or may sanction it absolutely or subject to certain directions. it cannot be denied that in this case a notice under section 178 had been given by the plaintiffs to the municipal board. acting on the supposition that the land sought to be built upon was a part of a graveyard the board refused to grant sanction. it is immaterial whether the reasons for the refusal were sound or not. the board had power to refuse.....
Judgment:

Sulaiman, J.

1. This is a plaintiffs' appeal arising out of a suit for a declaration that the plaintiffs have a right to set up door-leaves or a gate in the eastern wall of an enclosure newly constructed and to build a house on the open space inside the enclosure. The suit is in substance to challenge the refusal of the Municipal Board of Gorakhpur to grant permission to build the constructions or to put door-leaves in an archway.

2. The suit has been dismissed by both the Courts below on the preliminary ground that it is barred under the provisions of Section 321 of Act No. 2 of 1916.

3. It appears that the plaintiffs applied to the Municipal Board for permission to build an enclosure round their land and to make certain constructions. They also wanted to have door-leaves set up in the entrance on the west side. A report was called for by the Building Sub-Committee which recommended the granting of the application partially. The Board however by its resolution refused to grant any sanction to build on the open space inside the enclosure and also granted permission to build the western wall provided an open entrance is left on that side. The plaintiffs appealed to the District Magistrate who confirmed that order. Another futile attempt was made to move the Commissioner, but he declined to interfere. After their failure the plaintiffs have instituted the present suit. I propose to consider separately (1) the refusal of the Municipal Board to grant sanction to make constructions on the land and (2) their granting sanction to build the western wall subject to there being an open archway. As regards the Board's refusal to grant sanction to build, I am of opinion that the suit is not at all maintainable. Under Section 180, sub-Cl. (1), the Board has, subject to the provisions of any bye-law, power either to refuse to sanction any work of which notice has been given under Section 178 or may sanction it absolutely or subject to certain directions. It cannot be denied that in this case a notice under Section 178 had been given by the plaintiffs to the Municipal Board. Acting on the supposition that the land sought to be built upon was a part of a graveyard the Board refused to grant sanction. It is immaterial whether the reasons for the refusal were sound or not. The Board had power to refuse the sanction. Its refusal was by no means ultra vires. The remedy of the appellants, of which they availed, was to move the Magistrate under Section 318. The Magistrate confirmed the order of the Board so far as the refusal to build the house was concerned. That order is final and cannot be questioned in any other manner or by any other authority at all. It is noteworthy that under Section 87, Act No. 1 of 1900, which was the section corresponding to the present Section 180, there was a proviso that the Board shall not refuse to sanction the erection or re-erection of such buildings except on certain grounds. No such proviso is to be found in Section 180. This obviously means that the Board now has a wider power to refuse sanction. Whether the refusal was proper or improper, it cannot be questioned in a civil Court. '

4. As to the question whether the Board could grant sanction conditionally, the main trouble has arisen owing to the fact that the Municipal Board of Gorakhpur has not taken the trouble to pass any bye-laws under the new Act (No. 2 1916). Under Section 87 of the old Act No. 1 of 1900, Boards are empowered to issue written directions which they may deem fit to issue in respect of all or any of the six matters mentioned therein. The written directions had to be confined to those matters and a Board would be acting ultra vires if it was issuing written directions beyond the scope of that section. Under that Act certain directions were issued purporting to be in respect of the matters enumerated in Sub-clauses 1 to 5 of old Section 87 In Direction No. 18 it was provided that the Board shall also have power to give sanction on special terms for any erection or re-erection without regard to the aforesaid rules. This obviously was beyond the scope of the authority given to Boards under Section 87, and I would have considerable doubt in holding that this direction was not ultra vires. A Board cannot exercise its extra powers by issuing directions which are not authorized by any provisions of the law.

5. Under the new Act it is perfectly open to Municipal Boards under Section 298, List 1, Sub-clauses (h)(i), to make bye-laws prescribing, with reference to the erection or re-erection or alteration of buildings or any class of buildings, the materials and method of construction to be used for external walls. Furthermore, they have power to make a bye-law under Clause (1) regulating in any manner any buildings provided for in this Act, the erection of any enclosure, wall, etc. or other structure of whatsoever kind and nature on any land within the limits of the Municipality. They could also issue directions in respect of all or any of the matters mentioned in sub-head (h) of heading (a) of Section 298. Thus if a Municipal Board were to pass the requisite bye-laws it would have very wide powers to control the constructions of buildings within the Municipal area. The unfortunate circumstance in this case is that the Municipal Board of Gorakhpur is not up to date and has not taken the trouble to pass any by-laws under the new Act. I postponed this case for a month in order to enable the learned vakil for the Municipal Board to obtain the bye-law under which the Municipal Board had professed to act. All that has been supplied to him is a copy of the general directions issued under Section 187, Act No. 1 of 1900. I have already said that Direction No. 18 went beyond the scope of the provisions of Section 87 of the old Act. Under the directions then issued the Municipal Board did not expressly lay down any direction regulating the construction of external walls. I am, therefore, unable to find any bye-law or direction which would entitle the Board to impose conditions on the building of the external wall. At the same time I must hold that the present suit is not maintainable. If the order passed by the Board was illegal then the only remedy of the appellants was to move the District Magistrate under Section 318. Section 319 provides that if any question as to the legality of the prohibition, direction, notice or order arises the Magistrate may refer the point to the High Court for decision. Section 321 then goes on to provide that no order or direction referred to under Section 318 shall be questioned in any other manner or by any other authority than is provided therein and that the order of the appellate authority confirming, setting aside or modifying any such order or direction shall be final. It is obvious that the scheme of the Act is that even if the order passed by the Municipal Board is illegal the only remedy of the person aggrieved is to move the appellate Court. If the appellate Court refers the matter to the High Court, it would abide by its decision, but if no such reference is made and an order is passed by the appellate Court that order is final and cannot be questioned in any other manner or by any other authority. It seems to me that the order passed on appeal by the District Magistrate was therefore a final order which a civil Court has no jurisdiction now to question. It has been contended on behalf of the appellants that this case raised a question of title inasmuch as the refusal of the Municipal Board was based on the supposition that the land was a graveyard. In my opinion no question of title at all arises. Even if the land belongs to the plaintiffs, the Municipal Board had jurisdiction under Section 180 of the Act to refuse to grant sanction for building a house on it. That sanction cannot now be questioned in this suit. As regards leaving an open archway in the western wall no question of title of course arises. That condition was imposed for the convenience of the public in order that they may have an access to the tombs inside. The result is that this appeal fails and is dismissed with costs including in this Court fees on the higher scale.


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