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Jas Raj Vs. Municipal Board, Bikaner - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 139 of 1951
Judge
Reported inAIR1953Raj130
ActsBikaner Municipal Act, 1923 - Sections 116 and 133; Specific Relief Act, 1877 - Sections 54 and 56J
AppellantJas Raj
RespondentMunicipal Board, Bikaner
Appellant Advocate Chandmal, Adv.
Respondent Advocate Surya Karan, Adv.
DispositionAppeal dismissed
Excerpt:
- .....the plaintiff in a suit for declaration and injunction.2. the appellant jas raj sued the municipal board, bikaner on 16th july, 1947 on the allegations that he had built an overbridge to connect his two houses situate opposite to each other in mohalla girni at bikaner, which was approved by the municipal board on 3rd february 1945, but on complaint by bherundan to the city improvement committee, the chief engineer, as vice-president of the board, passed an order for its demolition on 21st august 1945 although the said officer had no power to do so. it was alleged that the city improvement committee was thereafter dissolved and its functions were vested in the municipal board and the said board also gave notice on 7th june 1947 that the over-bridge be demolished within three days failing.....
Judgment:

1. This is a second appeal by the plaintiff in a suit for declaration and injunction.

2. The appellant Jas Raj sued the Municipal Board, Bikaner on 16th July, 1947 on the allegations that he had built an overbridge to connect his two houses situate opposite to each other in Mohalla Girni at Bikaner, which was approved by the Municipal Board on 3rd February 1945, but on complaint by Bherundan to the City Improvement Committee, the Chief Engineer, as Vice-President of the Board, passed an order for its demolition on 21st August 1945 although the said officer had no power to do so. It was alleged that the City Improvement Committee was thereafter dissolved and its functions were vested in the Municipal Board and the said Board also gave notice on 7th June 1947 that the over-bridge be demolished within three days failing which it would be dismantled by the Board at the expense of the appellant. It was alleged that the Municipal Board had no authority to issue such notice, more particularly when the construction of the over-bridge had been approved by the Municipal Board on 3rd February 1945. It was prayed that the order of the Chief Engineer dated 21st August 1945 be declared null and void and the Municipal Board be restrained from demolishing the bridge.

3. The defendant pleaded that the plaintiff had first built a wooden over-bridge and the Revenue Commissioner, who dealt with such matters, had directed its demolition on 10th December 1942 and the same order was repeated by the Municipal Board on 1st July 1943. It was alleged that thereafter the Municipal Board reconsidered the matter and On 3rd February 1945, ordered that the wooden bridge may remain in the condition that existed, but prayer for grant of 'patta' to the plaintiff was refused. It was further alleged that the plaintiff thereafter, without any permission from the Board which was necessary, and in contravention of the Board's order dated 3rd February 1945, reconstructed the bridge in stone and mortar. The matter was considered by the authorities concerned and proper notices were issued for its demolition from time to time by competent authorities. The trial Court dismissed the suit and the same judgment was upheld on appeal.

4. It was urged in this second appeal by learned counsel for the plaintiff that the matter of an over hanging structure was dealt with by the Bikaner Municipal Act, 1923, in Section 116 and it was the Board which was authorised to issue a notice for its removal, and such powers had never been delegated to the Chief Engineer, and the notices issued under Section 133 were incompetent. Learned counsel for the respondent argued that the powers regarding new constructions were dealt with in Sections 130 to 133 (C), Bikaner Municipal Act of 1923, as amended by the amendment Act of 1928, and these powers were delegated to the Town Planning Committee by the Bikaner Government under Notification dated 29th July 1944. The Town Planning Committee was converted into the City Improvement Committee by Notification of 30th November 1944 and the latter was reconstituted by the Bikaner Government By Notification dated 16th April 1945, and under the said reconstitution, the Executive Officer of the City Improvement Committee was authorized to pass orders in the first instance and there was provision for appeal against his orders to the Chief Engineer, and from the orders of the latter to the Public Works Minister.

It was contended that in the present case, the actual notice of demolition Ex. D. 2 dated 20th August 1946 was issued by the Executive Officer of the City Improvement Committee, who had power to do so. The order of 21st August 1945 by the Chief Engineer was in the nature of an advice to the Executive Officer, and the latter may have thought it proper to consult the Chief Engineer who was his superior Officer as Vice-President of the City Improvement Committee.

5. On going through the Notification dated 16th April 1945, it appears that while the Bikaner Government constituted a City Improvement Committee and a Working Committee, and also provided for appeals against orders of the Executive Officer, there is no delegation of the powers of the City Improvement Committee to the Chief Engineer, its Vice-Chairman, or the Executive Officer who was also the Secretary of the Committee. Under Notifications of 29th July 1944 and 30th November 1944, the powers under Chapter 3 of Bikaner Municipal Amendment Act, 1928, which related to matters regarding construction, addition or alteration of buildings, were conferred on the City Improvement Committee, but unless there was further delegation of powers by the Committee to any Officer, the action of such officer cannot be held to be competent.

6. The matter, however, does not rest here. It is common ground that the City Improvement Committee was dissolved and thereafter all the functions of the Committee developed upon the Municipal Board. The executive officer of the Municipal Board issued notices of the demolition of over-bridge on 7th May 1947 and 7th June 1947, which are Exs. D-4 and D-3 in this case. In fact, they conveyed to the plaintiff that his appeals to various authorities including the Prime Minister, had been dismissed and that he should demolish the over-bridge constructed by him failing which proper action will be taken. It was urged by learned counsel for the respondent that the Executive Officer of the Municipal Board could issue such notice of his own accord under Section133 of the Act. It may be observed that the issue of notice to demolish any construction which had been made without permission of the Board is provided under Section 133 (C) and this power of the Board had not been delegated to the Executive Officer under the Schedule. The Executive Officer's powers were restricted. He could also refuse sanction or grant sanction for construction of the building under Section 133 of the Act. It was urged that the power to refuse sanction or to grant sanction implied also further action to be taken in case of construction without permission. The two sections are, however, separately found in the Act and while the power to act on behalf of the Board under Section 133 has been delegated under the Schedule, the omission to delegate the power mentioned in Section 133 (C) negatives such power of action by the Executive Officer. It may be that while the power to grant or refuse sanction may have been delegated to the Executive Officer, it may not have been considered wise to delegate to him the power to demolish a building constructed without permission.

7. The matter of overhanging structures is, however, dealt with separately under Section 116, Bikaner Municipal Act, and under Sub-section (2), the Municipal Board had power to issue notice to the owner of the overhanging structures to remove them. This power of the Board has been delegated to the Executive Officer under the schedule. The Executive Officer of the Municipality had, therefore, power independently of Chap. 3, Bikaner Municipal Act which related to constructions, additions, or alterations to buildings, to order removal of the projections and overhanging structures.

8. The point for consideration, therefore, is whether this Court should grant an injunction against the Municipal Board when the Executive Officer had the power to direct removal of the over-bridge under Section 116 (2), Bikaner Act, or the Municipal Board could now take action and issue a notice of removal of the over-bridge constructed without permission, in exercise of the powers under Section 133 (C), Bikaner Act. This leads to the question whether in the first instance, the plaintiff has any legal right vested in him to have his over-bridge kept intact. Under Section 54 Specific Relief Act, 'a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant'. Unless the applicant; therefore, has the right to have the bridge maintained, no permanent injunction can be issued to the opposite party.

It is, however, conceded that the plaintiff built the bridge in stone and mortar without permission from the Municipal Board, and the Municipal Board had power to remove the same both under Section 133(C) of the Act or under Section 116 of the Act. There being no right vested in the plaintiff to have his bridge kept intact, the Court would refuse to grant an injunction. Again, under Section 56 (j), Specific Belief Act, an injunction cannot be granted 'when the conduct of the applicant or his agent has been such as to disentitle him to the assistance of the Court'. In the present case, the plaintiff constructed the bridge contrary to the provisions of the Bikaner Municipal Act and without permission of the Municipal Board although it was incumbent upon him to obtain such permission. His conduct has, therefore, been such as would disentitle him to the assistance of the Court.

9. The plaintiff is, therefore, not entitled to any relief, the decision of the lower Court is maintained though on different grounds, and this appeal fails and is hereby dismissed with costs.


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