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Ata Karim Vs. Municipal Board and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad
Decided On
Reported inAIR1929All756a
AppellantAta Karim
RespondentMunicipal Board and anr.
Cases ReferredIn Mannua v. Emperor
Excerpt:
.....318, but it is by no means equally clear that a suit would not lie for an injunction to compel a municipal board to grant the plaintiff a license for carrying on a particular trade upon a particular spot provided always that the plaintiff was prepared to take out the license subject to all the conditions prescribed by the bye-laws and could satisfy the court that the municipal board had refused the license for reasons wholly unconnected with the public health, safety or convenience. section 178, municipalities act clearly indicates that, the municipal board was to have the controlling voice not only in cases of the erection of a new building or new part of a building but also in cases where a building was sought to be re-erected or a material alteration was intended to be made in an..........confines itself within its statutory powers, such exercise of the powers cannot be questioned in a civil suit; fremin v. lewis 4 myl. cr. 249 and abdul aziz v. municipal board of pilibhit [1905] 2 a.l.j. 222.5. it may also be conceded that where the municipal board acted under cover of a statutory enactment but illegally and in excess of its statutory powers, any person aggrieved by the said act was competent to seek his remedy such as was open to him under the general law except so far as the general law was restricted, limited or controlled by statutory enactment.6. the plaintiff had applied to the board for permission to erect or to re-erect a building within the meaning of section 178, municipalities act. section 180 of the act provides as follows:(1) subject to the provisions of any.....
Judgment:

Sen, J.

1. This is an appeal by the plaintiff in a suit in which the following relief was prayed for: The plaintiff prays that the Municipal Board be ordered not to offer any sort of interference and not to restrain the plaintiff from making constructions in respect of the mosque in question, shown in the annexed map, and not to enforce the District Magistrate's order, dated 12th September 1927, for the demolition of the said mosque.

2. The plaintiff came into Court on the allegation that he owned a mosque in mohalla Danrya in ward Chandiana within the Municipal limits of Fatehpur, that the mosque being in a dilapidated condition, he applied to the Municipal Board for leave to re-erect the mosque on 6th June 1927, that the Municipal Board granted him permission on 2nd July 1927, that later on, two persons namely, Amar Nath clerk to B. Bans Gopal Vakil and one Basdeo made an application in the Court of the District Magistrate by way of an appeal and that the District Magistrate by his order dated 12th September 1927, allowed the appeal and directed that the Municipal Board should pull down the portion of the mosque which had been built up afresh.

3. The suit was originally directed against the Municipal Board of Fatehpur. The Court of first instance dismissed the suit on the ground that having regard to the provisions of Section 318 and Section 321, United Provinces Municipalities Act (Act 2 of 1916, Local), the suit was misconceived and that the civil Court had no jurisdiction to entertain the suit. The lower appellate Court has affirmed this decision. It is contended by the plaintiff in second appeal that the civil Court had jurisdiction to entertain the suit as brought.

4. There can be no manner of doubt that the suit launched by the plaintiff was a suit of a civil nature and that under Section 9, Civil P.C., the Court had jurisdiction to entertain all suits of a civil nature excepting suits of which their cognizance was either expressly or impliedly barred:

If a Municipal Board assumes a power or authority which the law has not given, its action can be challenged by a suit in a civil Court but if it confines itself within its statutory powers, such exercise of the powers cannot be questioned in a civil suit; Fremin v. Lewis 4 Myl. Cr. 249 and Abdul Aziz v. Municipal Board of Pilibhit [1905] 2 A.L.J. 222.

5. It may also be conceded that where the Municipal Board acted under cover of a statutory enactment but illegally and in excess of its statutory powers, any person aggrieved by the said act was competent to seek his remedy such as was open to him under the general law except so far as the general law was restricted, limited or controlled by statutory enactment.

6. The plaintiff had applied to the Board for permission to erect or to re-erect a building within the meaning of Section 178, Municipalities Act. Section 180 of the Act provides as follows:

(1) Subject to the provisions of any bye-law, the Board may either refuse to sanction any work of which notice has been given under 3. 178 or may sanction it absolutely or subject to (a) any written directions that the Board deems fit to issue in respect of all or any of the matters mentioned in the sub-head (h) of heading A of Section 298, or (b) a written direction requiring the set back of the building or part of a building to the regular line of the street etc.; (3) should the Board neglect or omit for one month after the receipt of a valid notice under Section 178 to make and deliver to the person who has given such notice an order of the nature specified in Sub-section (1) in respect thereof, such person may by a written communication call the attention of the Board to the omission or neglect, and if such omission or neglect continues for a further period of 15 days, the Board shall be deemed to have sanctioned the proposed work absolutely. (4) Provided that nothing in Sub-section (3) shall be construed to authorize any person to act in contravention of this Act or of any bye-law. (5) No person shall commence any work of which notice has been given under Section 178 until sanction has been given or deemed to have been given under this section.

7. It was, therefore, not competent to the plaintiff to commence the construction of the building in dispute without being armed with the sanction within the purview of Section 180 of the Act.

8. Section 318 of the Act provides as follows:

Clause (1). Any person aggrieved by any order or direction made by a Board under the powers conferred upon it by Sections 180(1) and 186... or under a bye-law made under heading G of Section 298, may within 30 days from the date of such direction or order exclusive of the time requisite for obtaining a copy thereof, appeal to such officer as the Local Government may appoint for the purpose of hearing such appeals or any of them, or failing such appointment to the District Magistrate: Provided that if, in the latter case the District Magistrate be himself a member of the Board, the appeal shall lie to the Commissioner.

9. It was in pursuance of Section 318 of the Act that Basdeo appealed to the District Magistrate. It is not questioned in appeal to this Court that the District Magistrate was not the proper forum for the appeal. Section 321 provides that:

No order or direction referred to in Section 318 shall be questioned in any other manner or by any other authority than is provided therein.

Clause (2). The order of the appellate authority confirming, settling aside or modifying any such order or direction shall be final provided that it shall be lawful for the appellate authority, upon an application and after giving notice to the other party, to review any order passed by him in appeal by a further order passed within three months from the date of his original order.

10. The District Magistrate as the appellate authority under Section 318 having set aside the order of the Municipal Board according permission to build, the order of the District Magistrate was final under Clause (2), Section 321. The policy of the legislature seems to have been to give a finality to the orders promulgated by a municipal authority in pursuance of definite statutory provisions. In Mannua v. Emperor [1919] 17 A.L.J. 976, Piggott, J., observes as follows:

Under the United Provinces Municipalities Act (Act 2 of 1916) the jurisdiction of the civil Courts is limited by the provisions of Sections 318 and 321 of the said Act. I have no doubt that under these sections the only remedy of a person who considered himself aggrieved by a bye-law made under Section 298 of the Act heading G (which is the heading dealing with offensive and dangerous trades) would be by way of appeal to the higher authority referred to in Section 318, but it is by no means equally clear that a suit would not lie for an injunction to compel a Municipal Board to grant the plaintiff a license for carrying on a particular trade upon a particular spot provided always that the plaintiff was prepared to take out the license subject to all the conditions prescribed by the bye-laws and could satisfy the Court that the Municipal Board had refused the license for reasons wholly unconnected with the public health, safety or convenience.

11. The plaintiff contends that his application to the Municipal Board was not for the erection of a building but for there-erection of the mosque which at one time existed on the plot in dispute and that under the terms of the Municipal bye-laws neither the Municipal Board nor the District Magistrate in appeal was competent to forbid the construction of the building or to direct the demolition of such portion of the mosque as had already been re-erected. The bye-laws framed by the Municipal Board of Fatehpur are not before me. I am not in a position to say whether the Fatehpur Municipality intended to make a distinction between the erection and re erection of a building which was sought to be made by any citizen. It does not, however, seem to square with common, sense that any restrictions sought to be imposed by the Municipal Board as regards the erection of a building could have been intended to be limited to a building which was intended to be put up for the first time upon the site and were not intended to be extended to the cases of re-erections of buildings. Section 178, Municipalities Act clearly indicates that, the Municipal Board was to have the controlling voice not only in cases of the erection of a new building or new part of a building but also in cases where a building was sought to be re-erected or a material alteration was intended to be made in an existing building. The learned advocate for the appellant has not been able to show that the act of the District Magistrate in either entertaining the appeal of Basdeo or in directing the demolition of the portion which had already been built was either ultra vires or in any way in excess of his statutory authority. Under Section 186, Municipalities Act the Board was competent at any time by a written notice to direct the owner or occupier of any land to stop the erection, re-erection or alteration of a building or part of a building or the construction or enlargement of a well thereon etc. It appears that the powers of the Court of appeal in this respect were not different from the powers which were possessed by the Municipal Board itself. I have not the slightest doubt in my mind that the case has been properly decided by the Courts below that the suit is misconceived and that the civil Court had no jurisdiction to entertain the suit or to grant the reliefs prayed for in the plaint. The result is that this appeal is dismissed with costs.


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