1. These two connected appeals raise a question whether a Municipal Board has power, under Section 267 of the U.P. Municipalities Act, to order the removal of a lat ine for the construction of which it bad previously given permision. The plaintiff's latrine is of the kind known as sandas. It originally opened or the east side of the house and was cleaned from that side. In January 1919 he applied for permission to re-construct it so that it should open on the south side of the house. This application was made under Section 178 of the U.P. Municipalities Act and permission was granted by the Public Works Committee on 15th February 1919. The proposed alterations were thereupon carried out. About eight months afterwards, a complaint was made to the Municipal Board that the latrine, as altered, gave forth a very unsavoury smell and constituted a public nuisance and a danger to the health of the persons living in the neighbourhood. The Board were satisfied after inspection by the Health Officer that this was the case and they thereupon issued notice to the plaintiff under Section 267 of the Act to close the latrine. This suit was then instituted by the plaintiff praying for a declaration that the resolution of the Municipal Board ordering his latrine to be closed was not authorised by law, and for an injunction restraining the Municipal Board from taking any steps in respect of it.
2. The suit has been dismissed by the Court below. The plaintiff appeals and pleads that the action of the Municipal Boar d was ultra vires. The appellant relies on a decision of the Bombay High Court in Municipality of Shelapur v. Abdul Wahab 61 Ind. Cas 428 : 45 B. 797 : 23 Bom L.R. 244, and argues or general grounds that very great injustice may result if it is held to be within the competence of a Municipal Board to order the demolition of a building or part of a building the erection of which it has previously sanctioned. The Bombay case is not quite on all fours with the present case as the Municipality formally revoked a sanction to build which it had previously granted. The case was, moreover, decided on a construction of Section 96 of the Bombay Municipal Act the provisions of which, though generally similar to those of the U.P. Municipalities Act, are not identcial.
3. As regards the second plea, there is no doubt that great hardship might be caused if the Municipal Board abused its powers under the Act. This must necessarily be the case whenever a public body is entrusted with wide statutory powers. At the same time, very grave public inconvenience might equally arise if a Municipal Board is held to be debarred from taking action against what is undoubtedly a nuisance because, on some previous occasion, it had sanctioned the erection of the building from which the nuisance proceeds. The case must be decided, not on general considerations but on a construction of the Municipalities Act in force in these Provinces. It is impossible to point to any provision in this Act which debars a Municipal Board from taking action under Section 267 in the interests of the public health solely because it has previously given sanction to the construction of the building in question under Section 180 of the Act. On the contrary, there is an express provision in Section 184 that no sanction shall operate as an estoppel or confer or extinguish any right or disability. It is argued on behalf of the appellant that the reference to estoppel refers only to an estoppel against a plea of title to property, but the words used are very wide and, taken in their ordinary meaning, certainly do provide that no estoppel shall be raised against a Municipal Board on the ground of its having granted any sanction under the preceding sections. It may be added that the lower Appellate Court finds as a fact that the latrine as it now exists does amount to a nuisance, and, therefore, the order complained of was intact a proper order, though the Municipal Board acted without sufficient care in originally granting sanction for the alteration of the latrine. I agree with the Court below that the notice issued by the Municipal Board was within its statutory powers and I accordingly dismiss the appeals with costs.
4. There is a deficiency of Rs. 5 on account of Court-fees due from the respondent Municipal Board in Appeal No. 1636. The decree of this Court will, therefore, not issue until this has been made good.
5. The cross-objection regarding costs was not pressed, It is accordingly dismissed, but without costs.