Skip to content


Poonamchand and anr. Vs. the Municipal Board and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 858 of 1964
Judge
Reported inAIR1965Raj98
ActsRajasthan Municipalities Act, 1959 - Sections 170(12), 210 and 300
AppellantPoonamchand and anr.
RespondentThe Municipal Board and anr.
Appellant Advocate C.M. Lodha, Adv.
Respondent Advocate C.L. Agarwal, Adv.
DispositionPetition dismissed
Cases Referred(Kailash Chandra v. District Judge
Excerpt:
- - as the municipal board was satisfied that the construction made by the petitioners was not in accordance with the permission granted to them, it ordered the demolition of the objectionable construction by its resolution dated 20-8-63, and due effect was given to the same immediately by demolishing the alleged objectionable construction. sub-section (11)--whoever begins, continues or completes the erection or re-erection of, or any material alteration in, a building or a part of building or the erection or re-erection of any projecting portion of building in respect of which the board is empowered by section 166 to enforce a removal or set-back or the construction or enlargement of a well without giving the notice required by sub-section (1) or in contravention of any provision of.....order1. this is a writ petition under article 226 of the constitution directed against an order of the revenue appellate authority, kota, dated 6-5-64, whereby in exercise of its revisional powers under section 300 of the rajasthan municipalities act, 1959, hereinafter to be called the '1959 act', it set aside an appellate order of the collector, jhalawar and restored that of the municipal board, jhalawar, by which the board had ordered the demolition of two shops alleged to have been constructed by the petitioners in bada bazar, jhalawar, in contravention of the permission granted by the municipal board.2. the petitioners were the owners of three shops in what is known as the bada bazar in the town of jhalawar. they wanted to construct two bigger shops in place of the three shops and,.....
Judgment:
ORDER

1. This is a writ petition under Article 226 of the Constitution directed against an order of the Revenue Appellate Authority, Kota, dated 6-5-64, whereby in exercise of its revisional powers under Section 300 of the Rajasthan Municipalities Act, 1959, hereinafter to be called the '1959 Act', it set aside an appellate order of the Collector, Jhalawar and restored that of the Municipal Board, Jhalawar, by which the Board had ordered the demolition of two shops alleged to have been constructed by the petitioners in Bada Bazar, Jhalawar, in contravention of the permission granted by the Municipal Board.

2. The petitioners were the owners of three shops in what is known as the Bada Bazar in the town of Jhalawar. They wanted to construct two bigger shops in place of the three shops and, therefore, they applied to the Municipal Board on 18-6-63 for granting them permission for the same and by its order dated 15-7-63, the Municipal Board granted the permission for the construction subject to the conditions imposed by its aforesaid order. Here, in the present writ petition, we are concerned with one condition which is alleged to have been contravened and it was to the effect that the petitioners shall maintain the existing distance of 4 feet between the proposed shops and the payed public drain on their eastern side, which was adjacent to the road leading to Dhan Mandi. The petitioners constructed the shops, but the Board was informed that in doing so the petitioners had not maintained the existing distance of 4 feet between the proposed building and the paved public drain and had made an encroachment on the municipal land. As the Municipal Board was satisfied that the construction made by the petitioners was not In accordance with the permission granted to them, it ordered the demolition of the objectionable construction by its resolution dated 20-8-63, and due effect was given to the same immediately by demolishing the alleged objectionable construction.

Feeling aggrieved by the order of the Municipal Board, the petitioners went up in appeal to the Collector, Jhalawar, under Section 170(12) of 1959 Act, and the learned Collector by his judgment dated 19-3-64 held that there was no breach of the conditions of permission on the part of the petitioners and accordingly he reversed the order of the Municipal Board dated 20-8-63, and he permitted the petitioners to re-construct their shops in accordance with the permission of the Municipal Board. The Municipal Board felt aggrieved by this order of the Collector and consequently it filed a revision application before the Revenue Appellate Authority, Kota, who having heard the arguments of the parties, set aside the order of the Collector and restored that of the Municipal Board. The order of the Revenue Appellate Authority is challenged before us mainly on the following three grounds:

(1) That under Section 170(14) of the 1959 Act the order of the Collector passed in appeal was final and consequently it could not have been interfered with by the Revenue Appellate Authority. Thus, the case of the petitioners is that, revision before the Revenue Appellate Authority under Section 300 of the 1959 Act was not at all competent;

2. That on merits the order of the Collector was correct and the Revenue Appellate Authority was not justified in interfering with it;

3. That the Municipal Board had not heard the petitioners before ordering the demolition of the construction and, therefore, the principles of natural justice were violated by the Board.

3. The writ petition has been opposed by the municipal Board, Jhalawar,. and it is urged on its behalf that the construction made by the petitioners was in clear contravention of the permission granted by the Municipal Board inasmuch as the petitioners had not left a clear span 4 feet wide between their building and the public drain on the eastern side adjacent to the road leading to the Dhan Mandi as required by the Board's order. It is, therefore, submitted that the Municipal Board was within its authority in ordering the demolition of the objectionable construction. As regards the alleged lack of jurisdiction in Revenue Appellate Authority it is stated that Section 300 of the 1959 Act is wide enough to Invest that authority with the powers to interfere with the orders of the Collector passed under Section 170(12) of the 1959 Act, notwithstanding that such orders of the Collector have been characterised as final. According to the non-petitioner No. 1, the word 'final' should only result in denying any further right of appeal to a party, but it could never (sic) from the revisional jurisdiction of the Revenue Appellate Authority under Section 300 of the 1959 Act.

4. The principal question that falls to be considered is one of proper interpretation of Section 170, sub-sections, and of Section 300 of that Act. In other words, the question to be directly answered will be about the scope of Section 300 of the 1959 Act, and in particular, whether the revisional jurisdiction conferred thereunder could legitimately extend to an order passed by the Collector under Section 170(12) of the 1959 Act. Section 170 of the 1959 Act enacts elaborate provisions relating to erection of buildings in municipal areas, how permissions are to be asked for and granted, what action the Municipal Board can take for any construction in contravention of the permission, and what are the further remedies of an aggrieved party against the orders of the Municipal Board. Sub-section (1) of Section 170 of the 1959 Act provides that before beginning to erect a new building or new part of a building, or to re-erect or make, a material alteration in a building, tile person intending to erect or re-erect the building shall give notice of his intention to the Municipal Board.

Sub-section (6) provides for giving of permission by the Board and for imposition of condition, if any, in doing so. Clause (c) of Sub-section (6) forbids that works shall not be proceeded with, unless and until all questions connected with the respective location of the building and any publie street have been decided to the satisfaction of the Board. Sub-section (10) empowers the Chairman and the Executive Officer and other specified persons to inspect the work with a view to seeing that it conforms to the permission given by the Board. Sub-section (11) empowers the Board to order demolition of a building constructed in contravention of the permission. Sub-section (12) provides for filing of appeals against orders passed under Sub-section (6) or Sub-section (11) to the Collector. Sub-section (14) declares that the order of the Appellate Authority shall be final. It will be necessary only to reproduce three sub-sections of section 170 of the 1959 Act, as they alone are material for the present purpose.

'Sub-section (11)--Whoever begins, continues or completes the erection or re-erection of, or any material alteration in, a building or a part of building or the erection or re-erection of any projecting portion of building in respect of which the board is empowered by section 166 to enforce a removal or set-back or the construction or enlargement of a well without giving the notice required by Sub-section (1) or in contravention of any provision of this section or of an order of the board made under Sub-section (6) or Sub-section (7) shall be liable on conviction to a fine which may extend to two hundred rupees and the board may at any time by written notice--

(a) direct the owner or occupier to stop the erection, re-erection or alteration of building or any projecting portion thereof, or of any part of such building or projecting portion or the construction enlargement of a well, and,

(b) require such building, projecting portion, alteration or well to be demolished.'

'Sub-section (12)--Any person aggrieved by an order of a board under Clause (a) or Clause (b) or Clause (a) of Sub-section (6) on Clause (a) or Clause (b) of Sub-section (11) may, within thirty dayse from the date of such order, exclusive of the time requisite for obtaining a copy thereof, appeal to the Collector and no such order shall ho liable to be called in question otherwise than by such appeal.'

'Sub-section (14)--The order of the appellate authority shall be final.'

Section 300 which empowers the authority, authorised in this behalf to call for the records and thereafter interfere with the orders passed under the Act, may also be reproduced.

'Section 300--Power to call for records--(1) In the case of a city the officer or authority authorised in that behalf by the State Government and in the case of any other municipality the Commissioner may, for the purpose of being satisfied as to the correctness, legality or propriety of any order passed under this Act by a Commissioner or a Collector or other officer appointed by the State Government in that behalf, call for the relevant records and may, in doing so, direct that pending the examination of the records, such order shall be held in abeyance.

2. On examining the records the officer or authority authorised as aforesaid or the Commissioner may reverse or modify such order.'

In order to get at the intention of the legislature in enacting Section 170(14) and Section 300 of the 1959 Act, it will be useful to examine the previous state of the law. In some (nine) of the covenanting states constituting the united state of Rajasthan there were municipal laws providing for the constitution of the municipalities, their powers and functions and other connected matters. Steps were taken on the formation of Rajas than to evolve a uniform pattern of municipal administration in the new state. As a first step. an Act to provide for & secure uniformity on the forum for municipal appeals pertaining to the cities of Rajasthan was passed in April, 1950. It was known as the Rajasthan City Municipal Appeals (Regulation) Act, 1950. The definition of the term 'city' as given in that Act was a very limited one and it embraced only the cities of Jaipur, Jodhpur, Bikaner, Udaipur, Kota and Alwar, though power was reserved in the Government to declare any other town to be a city, by a gazette notification. Section 3 of this Act provides that notwithstanding anything contained in any Municipal law, wherever such law provides for a Municipal appeal, the appeal shall lie to the Commissioner. Section 4 abolished the second appeals and provided as follows:

'Section 4. Second municipal appeals and revisions.--(1) Notwithstanding anything contained in any municipal law, no municipal appeal shall lie from any order passed in appeal under Section 3:

Provided that the Government may, of its own motion or on the application of a Municipal authority or of any aggrieved person call for the record of any case for the purpose of satisfying itself as to the correctness, legality or expediency of any order passed by a Commissioner or a Municipal authority and may pass such orders therein as the Government may consider fit and reasonable.'

So far as the municipalities other than the municipalities in cities were concerned the Rajasthan State enacted the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1931) heninafter to be referred as '1951 Act'. Thus, for the town municipalities there was one unified law, but for cities the laws of the erstwhile covenanting states continued to be in force subject to the modification regarding the forum of appeal as indicated above. In 1959 the municipal administration was completely unified with the passing of Rajasthan Municipalities Act, 1959, which applied both to cities as well as the towns. The only tiling that survived the change was the nomenclature. The City Municipalities came to be designated as Municipal Councils whereas the Town Municipalities remained to be known as Municipal Boards. Now the provision corresponding to Section 170 of the 1959 Act was Section 108 of the 1951 Act and its material provisions ran as follows:

'Section 108 (6)--Whoever begins or makes and building or alteration or addition without giving the notice required by Sub-section (1) or without furnishing the plan or affording the information above prescribed or, except as provided in Subsection (4), without awaiting or in any manner contrary to, such legal orders of the municipal board as may be issued under this section or contrary to the provisions of Sub-section (4) or (5) or in any other respect contrary to the provisions of this Act or of any by-law in force thereunder, shall be punished with fine which may extend to two hundred rupees, and the municipal board may--

(a) direct that the building, alteration or addition be stopped, and

(b) by written notice, require such building alteration or addition to be altered or demolished as it may deem necessary.'

'Section 108(8)(a)--Any person aggrieved by an order of a municipal board under Clauses (b) and (o) of Sub-section (2) or Clause (a) or (b) of Subsection (6) may, within 30 days from the date of such order, exclusive of the time requisite for obtaining a copy thereof, appeal to such officer as may be appointed or authorised by the Government in this behalf; and no such order shall be liable to be called in question otherwise than by such appeal.

(b) Any person aggrieved by an order passed in appeal under Clause (a) may, within 30 days from the date of such order, exclusive of the time requisite for obtaining a copy thereof, apply to the Government for revision of the order, and no such order shall be called in question otherwise than by such application.

(c) The appellate authority or the revising authority, as the case may be, may, if it thinks fit. extend the period allowed by Clause (a) for appeal or by Clause (b) for revision, respectively.

(d) The order of the revising authority conforming, setting aside or modifying the order passed under Clause (b) shall be final.

(e) No order passed by any officer or authority shall be modified or set aside in appeal or revision under this sub-section until the appellant or the applicant, as the case may be, and the municipal board have had a reasonable opportunity or being heard.

Explanation.--The expression 'to erect a building' throughout this chapter Includes--

(a) any material alteration, enlargement or reconstruction of any building;

(b) the conversion into a place as human habitation of any building not originally constructed for human habitation;

(c) the conversion into more than one place for human habitation of a building originally constructed as one such place;

(d) the conversion of two or more places of human habitation into a greater number of such places;

(e) such alterations of the Internal arrangements of a building as affect its drainage, ventilation or other sanitary arrangements, or its security or stability; and

(f) the addition of any rooms, buildings or other structures to any building.

And a building so altered, enlarged reconstructed, converted, or added to shall, for the purpose of this Chapter, be deemed to be a new building.' The provision corresponding to Section 300 in the 1951 Act was Section 210, which ran as follows:

'Section 210--Power of Government to call for records.--(1) The Government may, for the purpose of satisfying itself as to the correctness, legality or propriety of any order passed by a Divisional Commissioner, Collector or any other officer appointed or authorised by the Government under this Act, call for the connected records and may in doing so direct that pending the examination of the records such order be held in abeyance.

2. On examining the records the Government may reverse or modify the order of a Divisional Commissioner, Collector or any oilier officer appointed or authorised by the Government under this Act as it deems fit.'

5. Now, a bare comparison of the provisions of Section 170 Sub-sections (31), (12) and (14), with the corresponding provisions namely, Section 108 Sub-sections (6) and (8) will show that while there is no material difference between Sub-section (11) of Section 170 of the 1959 Act and Sub-section (6) of Section 108 of the 1951 Act, there is a vital difference between Sub-section (8) of Section 108 of the 1951 Act and Sub-sections (12) and (14) of the 1959 Act.

6. (1) While under the 1951 Act the appeal against an order of a Municipal Board lay before an officer that may be appointed or authorised by the Government for the purpose, under the 1959 Act, such appeal lies to the Collector.

(2) While under Sub-section (8) of Section 108 of the 1951 Act there was no finality conferred on orders passed in appeal, Sub-section (14) of Section 170 of the 1959 Act makes the order of the Appellate Authority final.

(3) There was u right to rile a revision to an aggrieved party against an order passed in appeal as provided by Sub-section (8) (b) of Section 108 of the 1951 Act, but there was no corresponding right reserved to a party under the 1959 Act.

6a. So far as the power of Interference with the various orders passed under the two Acts were concerned, there was no material difference between Section 210 of the 1951 Act and Section 300 of the 1959 Act, the only difference being that while under the 1951 Act revisional power was exercisable by the Government, under the 1959 Act the revisional power is exercisable by such officer as may be authorised by the Government in this behalf. If we thus took at the three enactments namely, the Rajasthan Citv Municipal Appeals (Regulation) Act, 1950, the end the 1959 Act, we find that the apparent desire of the legislature was, on the one hand, to do away with second municipal appeals, at the same time it had provided for the revisional powers of the Government. Under Section 4 of the Rajasthan City Municipal Appeals (Regulation) Act, 1950, it could be invoked by the Government of its own motion or on the application of a municipal authority or of any aggrieved person. Under the 1951 Act, though a right was conferred under Sub-section (8)(b) of Section 108 on an aggrieved person to file a revision before the Government, Section 210 was independently there and that empowered the Government to call for the records for the purpose of satisfying itself as to the correctness, legality or propriety of any order passed by the Commissioner, Collector or any other officer under the Act and to pass sueh orders as the Government thought fit.

When Section 170 Sub-sections (12) and (14) were enacted in this background we are led to think that while, on the one hand, the legislature intended to make the orders passed in appeal final, it had at the same time no desire to curtail or diminish in any manner the revisional powers of the appropriate authority. What it really intended to do away with, in our view, was the right of the parly to agitate the matter further after the appeal was decided by the Collector. The corresponding provisions of 1951 Act clearly conferred a right on an aggrieved party to challenge an appellate order by a revision. Though, this right of approaching the superior authority was termed as 'revision' it really conferred a right on a party which was more or less in the nature of a second appeal. In evolving a uniform pattern of municipal administration in the year 1959 the legislature had to take note of the existing pieces of legislation which differed in some respects. One was governing the city municipalities in which there was no second appeal in municipal matters available to an aggrieved party though Government could be approached in revision.

Under the 1951 Act, however, a clear right in the favour of an aggrieved parly was there. In trying to unify the two sets of laws the legislature, therefore, has clearly done away with the right of an aggrieved party to agitate the mailer further after the decision of an appeal, but when i! retained, on the other hand, the provisions similar lo the proviso of Section 4 of the Rajasthan City Municipal Appeals (Regulation) Act, 1950, or for that matter similar io those contained in Section 210 of the 1951 Act by enacting Section 300 of the 1959 Act, we are led to believe that the legislature had no intention whatsoever lo impair the revisional jurisdiction of a superior authority in providing that the orders of the Collector shall be final, although what it really intended to achieve was that the aggrieved party shall have no right lo go further. The preamble of the 1959 Act shows that it is a law to consolidate and amend the law relating to municipalities in the State of Rajasthan and in construing the Act which is in the nature of a consolidating measure we should not presume that the legislature intended to affect any substantial changes in the pre-existing law. According to Craies consolidation is the reduction into systematic form of the whole of the statute law relating to a given subject (vide page 361 of Craies on Statute Law, sixth edition). The following passage from page 361 will be useful:--'The consolidation merely places together in a later volume of the statute-book enactments previously scattered over many volumes. Where a consolidation Act has repealed and re-enacted any provisions of a former Act, references in any other Act to the provisions so repealed are, unless a contrary intention appears, to be construed as references to the re-enacting provisions. But it must not be forgotten that it is almost inevitable that in process of consolidation the re-arrangement of the former Acts and the modernisation of the language should to some extent alter the law. And often a consolidation Act is not a statute merely collecting into one chapter an original or principal Act with subsequent collecting amendments and modifications but involves the co-ordination and simplification of former enactments. Now as a result of the Consolidation of Enactments (Procedure) Act, 1949, in the process of consolidation there may be made such corrections and minor improvements as may be fudged expedient, being amendments of which the effect is confined to resolving ambiguities, removing doubts, bringing obsolete provisions into conformity with modern practice or removing unnecessary provisions or anomalies which are not of substantial importance and amendments designed to facilitate improvement in the form or manner in which the law is stated and including such transitional provisions as may be necessary in consequence of such amendment.

The courts will lean against any presumption that a consolidation Act was intended to alter the common law. In Nolan v. Clifford, (1904) 1 CLR 429 speaking of the Crimes Act, 1900 (No. 40), of the New South Wales, Griffith C. J. said: 'This is described to be an Act to consolidate the statutes relating to criminal law. There is nothing to indicate that the Legislature intended to make any substantial alteration in the law. It is intituled an Act to consolidate the statutes. There is nothing to suggest that they intended to make an important alteration in the common law on a matter materially affecting the liberty of the subject.' And Barton J., in concurring, added: 'By the construction we are now placing on It (section 9 of the Act), the ordinary purpose of a consolidating Act is preserved, and it will not be wrested from its declared objects and applied to others, by which process an amendment would be placed in a statute where the public and the profession would not be to the least degree on their guard to look out for it.'

'One has to begin (said Evershed M. R. in 1958) 'by the consideration that Judicature Act is a consolidating Act and one does not look for substantial changes in the law......in a consolidating Act': and of the Trustee Act, 1925, Romer L. J. said: 'It is a consolidation Act.... It is, therefore, extremely unlikely to say the least of it, that it effected any substantial change in the pre-existing law.'

7. We may next refer to the following passage in Maxwell on Interpretation of Statutes eleventh edition, at page 23:

'If an Act is intituled an Act to consolidate previous statutes, the Courts may lean to a presumption that it is not intended to alter the law and may solve doubtful points by aid of such presumption of intention rejecting the literal construction. And, even where the Act is 'to amend and consolidate the Law of Bankruptcy,' Chitty, J. holds it reasonable to infer that the legislature intended the law to stand.'

8. Again the very wide language used in Sectioin 300, namely, 'if the Court being satisfied as to the correctness, the legality or propriety of any order passed under this Act' shows that the revisinal jurisdiction conferred under Section 300 cannot be taken to be curtailed or cut down merely because the order under Section 170(12) is characterised as final. We enquired from Shri C.M. Lodha, the learned counsel for the petitioners as to on what kinds of orders Section 300 could possibly operate. He invited our attention to, in al 8 sections in 1959 Act namely, Section 139 read with Section 143, Sections 162 (5), 164 (5), 165 (5), 170 (12), 235 (4), Section 241, Sub-sections (4) and (6), and Section 248 (5), wherein it has been stated that such order shall be final. It is only Section 219, Sub-section (4) where an appeal is provided, but there is no declaration that such an order is final. Under this section a Chairman of Municipal Board is empowered to impose a penalty which may extend to a fine of Rs. 5 in cases relating to dust, dirt, clung, ashes, etc., and such orders have been made appealable to the Collector. These orders of the Collector have not been declared to be final.

Mr. Lodha argues that there is at least one provision on which Section 300 could operate. We regret our inability to accept this contention. If there would be only one provision in the whole Act against which powers under Section 300 were exercisable by superior authority, then it would not have been necessary to couch Section 300 in such wide term in which the legislature chose to frame it. It would be like keeping a big cannon for hunting and shooting a hare. Shri Lodha then referred to Sections 22, 285 and 298(1) under which the Collector could pass orders and they could, according to him, be subject matter of revision under Section 300 of the 1959 Act. Section 22 empowers the Collector to pass certain orders regarding electoral rolls such as date on which electoral rolls are to come into force, correction of any existing entries in the rolls and other connected matters. Section 285 empowers the Collector to suspend execution of orders of the Board in certain contingencies, but he is then and there required to report the matter to Government for orders. Section 296 (1) relates to disputes between a Municipal Board and one or more local authorities and Collector is to deal with them. Having considered these three provisions we are not satisfied that Section 300 was enacted for the purpose of dealing with such matters.

9. Lastly, Mr. Lodha submitted that Section 170, Sub-sections (12) and (14) are special provisions relating to permission for construction of Buildings and in comparison to them Section 300 is a general provision and the general provision must yield to the special and the latter should be given its full effect. Having considered this matter as well, we are not satisfied that this will be a correct approach. The Municipal Act provides for a variety of matters as have been covered by the various sections enumerated above and in its own way each topic can be treated as a special provision, if Shri Lodha's argument were to be accepted, and we can eliminate almost every provision of the Act by characterising it as a special provision vis-a-vis Section 300. To our mind the only proper way to reconcile the two Sections is to hold that, beating in mind the preexisting state of law the legislature intended to take away the right of a party to agitate the matter further when it enacted that the order of the Collector shall be final, but it had no intention to curtail or diminish the revisional jurisdiction of the superior authority which was kept intact in wide form as was obtaining under the previous law. This interretation could alone result in giving a harmonious construction to the two sections.

10. We may now refer to the cases cited by Shri C. L. Agarwal, learned counsel for the non-petitioners bearing on the interpretation of Section 115 of the Civil Procedure Code. In a case involving consideration of the provisions of Rangoon Rent Act, wherein a decision given under Section 18 of that Act was declared to be final, the Full Bench of the Rangoon High Court observed, Mohamed Ebrahim Molla v. S. R. Jandass, AIR 1923 Rang 94 (FB), as follows:

'As regards the 1st Judge of the Court of Small. Causes, he also acts as a judicial tribunal to revise the order of the Controller. In disposing of references he is directed by Section 23 to follow as nearly as may be the procedure laid down in the Civil Procedure Code for the regular trial of suits. It is open to him to take further evidence and to call for further documents to enable him to deal fully with the matter. It is true that the power is conferred on the 1st Judge of the Court of Small Causes and not upon any Judge of that Court, and that the power is not conferred, as it is in the Calcutta Act, in the oase of premises situate outside Calcutta, on the principal Civil Court of original Jurisdiction in the district. But that alone is not sufficient to show that he is merely a persona designata appointed for a special purpose, or to show that he is acting merely in a ministerial or administrative capacity. He will decide questions of civil rights in the same manner as a Court exercising civil jurisdiction would do, and in my opinion ha must be regarded as a Civil Court and as a Court subordinate to this Court. Section 18 no doubt provides that his decision shall be final, but there is nothing to show that this expression is used in any other meaning than its ordinary legal meaning, viz., that his order shall not be appealable. In the case of Balkaran Rai v. Gobind Nath Tiwari, (ILR 12 All 129 FB) it is said : 'Where the legislature has used the term final for other purposes and without intending that the decision, decree or order, to which it is applied shall not be appealable, it has been careful to express its intention, of which Explanation IV in Section 13 of the Code of Civil Procedure is an example.' The matter is fully aonsidered in that authority.'

10a. In dealing with a oase arising out of U. P. Encumbered Estates Act in which Section 45 (5) provided about the finality of order, a Division Bench of the Allahabad High Court observed in a ease reported as Ashraf v. Salth Mal, AIR 1938 All 47, as follows:

'The word 'final' in Section 45 (5) of U. P. Encumbered Estates Act, only means 'not subject to appeal'. It does not mean final in the sense that the power of revision of High Court under Section 115, Civil P. C., is also shut out.'

It placed reliance on the Rangoon Full Bench Case, AIR 1923 Rang 94 (FB), referred to above. The same view was taken by a Pull Bench of that High Court in a case reported as Shah Chaturbhuj v. Shah Mauji Ram, AIR 1938 All 456.

11. The Madras High Court has also taken the same view in Parthasarathi Naidu v. Keteswara Rao, AIR 1924 Mad 561 (FB).

12. The Nagpur High Court, in dealing with the provisions of Payment of Wages Act, has adopted the same reasoning in the case reported as Shrinivas Laxmanrao v. Supdt. Govt. Printing Press, Nagpur, AIR 1945 Nag 94, and agreed to the Rangoon and the Madras view.

The Madhya Pradesh High Court in dealing with a case arising under the Houses and Rents Act had reviewed quite a large number of previous decisions and observed (Kailash Chandra v. District Judge, Bhopal, AIR 1963 Madh Pra 218) as follows:

'Section 12 also says that the decision of the Appellate Court shall be final. This only means that the decision of the Court of the District Judge is not appealable. It does not imply that it is not open to revision under Section 115'.

13. It is true that all these were oases dealing with the revisional jurisdiction of the High Court under Section 115 of the Civil Procedure Code, but to our mind, they render considerable help in construing the term 'final' used even in statutory provisions relating to municipal administration under the 1959 Act. Section 300 of the 1959 Act, or for that matter Section 210 in the 1951 Act occur under the chapter XII relating to control. The scheme of that chapter in both the enactments seems to be that while, on the one hand, the municipalities are given autonomy in a limited sense by the preceding chapters, so far as the daily working is concerned, by this chapter control is left to be exercised by superior authorities. It was perhaps thought necessary by the legislature that there should be uniformity in the working of munielpalities in certain essential matters. In order to see that they work efficiently without transgressing the limits of the power confided in them the legislature has enacted the provisions of chapter XII. In this context the powers under Section 300 are necessary to keep effective supervision over the working of the municipalities. The legislature, therefore, could not have intended that this power should not be effective and to our mind, an undue narrow interpretation of provision of Section 300 will result in making that power almost illusory.

13a. Having given our due consideration to the matter, therefore, we are satisfied that the Revenue Appellate Authority was acting with jurisdiction when it entertained the revision. In our view, the revisional jurisdiction conferred by Section 300 of the 1959 Act could properly extend to cover orders of the Collector passed under Section 170 (12) of the Act and there has been no error or illegality by the Revenue Appellate Authority in exerche of this power.

14. Turning now to the grounds Nos. 2 and 3, taken by the learned counsel, we may observe that the question whether the condition of the permission granted by the Board was, or was not contravened, is one of fact and we are not persuaded to deal with it in exercise of our extraordinary jurisdiction. As regards the lack of hearing on the part of the Municipal Board, before ordering the demolition of the construction, the learned Revenue Appellate Authority observed that two notices were given to the petitioners, one on 9-8-1983, and another on 14-8-1963. The learned Revenue Appellate Authority further observed that thereafter it was the duty of the petitioners to appear before the Municipal Board and convince it as to how they had acted within the scope of the permission. According to the learned Revenue Appellate Authority, the petitioners had not cared for these notices. In the circumstances we are unable to say that no opportunity was given to the petitioners to explain their conduct before the Board ordered the demolition of the construction.

15. To the result we hold that there is nosubstance in the writ petition; consequently wehereby dismiss ft with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //