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Ramju Vs. Municipal Board and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil First Appeal No. 29 of 1964
Judge
Reported in1970WLN718
AppellantRamju
RespondentMunicipal Board and anr.
DispositionAppeal dismissed
Cases ReferredPashupati Pratap v. District Board
Excerpt:
rajasthan town municipalities act, 1951 - sections 28 and 44--rules not framed--whether building committee is not properly constituted.;the constitution of committees and delegation of functions to them is not made to depend upon the framing of rules under section 44 of the act. section 28 is quite independent of section 44. section 44 gives power to municipal boards to make rules for the purposes mentioned under that section. this is only an enabling provision and does not take away the powers of the municipal board which it otherwise enjoys under the other provisions of the act. the constitution of the building committee, therefore, by the board cannot be said to be invalid merely because it had not framed rules under section 44 of the act.;the building committee was properly..........of the verandah on the ground that the passage to his house was obstructed by the verandah. the building committee of the municipal board on 1958, passed on order for demolition of seven feet of verandah from the door of defendant no. 2, and further ordered that the plaintiff may be granted a patta for the land under the remaining verandah at double the prescribed rate. on 31st december, 1959, the executive officer of the board issued an order for demolishing the verahdah in accordance with with the order dated 19th june, 1958. plaintiff in this suit has challenged the legality of the order dated 19th june, 1958, and has prayed that the the municipal board may be restrained from taking any steps for demolition of the verandah in pursuance of the said order. it is alleged that the.....
Judgment:

C.B. Bhargava, J.

1. This is a plaintiff's appeal against the judgment and decree dated 7th April, 1964, of the District Judge, Bhilwara, in a suit for injunction.

2. Plaintiff owns a house, in Ward No. 6, Bhilwara, and in frount of that house, he constructed a verandah 27' x 8' in the year 1953. It is not ditputed that the said verandah was construtted without giving and notice to the Municipal Board, Bhilwara, or obtaining its permission. It is also not disputed that in January, 1957, a complaint was filed by the Municipal Board against the plaintiff in a criminal court, and on his admission that certain construction had been raised without obtaining permission of the Muncipal Board, a fine of Rs. 21/- was imposed upon him. Thereafter, plaintiff's brother Ismail who was impleaded as defendant No. 2 made an application to the Municipal Board for demolition of the verandah on the ground that the passage to his house was obstructed by the verandah. The building Committee of the Municipal Board on 1958, passed on order for demolition of seven feet of verandah from the door of defendant No. 2, and further ordered that the plaintiff may be granted a patta for the land under the remaining verandah at double the prescribed rate. On 31st December, 1959, the Executive Officer of the Board issued an order for demolishing the verahdah in accordance with with the order dated 19th June, 1958. Plaintiff in this suit has challenged the legality of the order dated 19th June, 1958, and has prayed that the the Municipal Board may be restrained from taking any steps for demolition of the verandah in pursuance of the said order. It is alleged that the plaintiff is the owner of the land over which the verandah has been constructed and (1) that he is in its possession from the time of his fore-fathers (2) that the Building Committee which passed the order was not validly constituted because the Municipal Board nad not framed any rules for its constitution as required by Section 44 of the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1951, hereinafter referred to as the Act) which was then in force; (3) that the Building Committee had no power to pass orders regarding demolition of buildings and (4) that the Resolution of the Building Committee dated 19th June, 1958, was a mere recommendation and not a final order and was not executable.

3. The suit was contested by the Municipal Board as well as Ismail. It was stated that plaintiff was not the owner of the land in dispute and he had himself submitted an application for obtaining Bapi Patta of the land from the Municipal Board, that under Section108(6) of the Act.TheMunicipalBoard,or for that mattar, the Building Committee to whom the power of the Board had been delegated was quite competent to pass orders for demolition of the verandah which had been constructed without the permission of the Board, that the Building Committee was properly constituted and the Board had power to constitute the Committee under Section 28 of the Act, which is quite independent of Section 44 of the Act, and that the order dated 19th June, 1958, was not a mero recommendation so far as the order demolition is concerned, but is a final order so far as the Building Committee is concerned. Bar of limitation was also pleaded in as much as the suit had been filed after the expiry of a period of six months provided under Section179(2) of the Act.

4. On these pleadings, the lower court framed the following issues:

1. Whether plaintiff's application Ex. A-1 does not preclude him from claiming his title to the site of the disputed varandah on the grounds noted below and whether these grounds are true:

(a) The documentary evidence in proof of title was not available with plaintiff then; and

(b) The application was preferrad in the circumstances that plaintiff had been fined by the Magistrate per order, copy whereof is Ex.9 and he apprehended the danger of demolition of his structure to his utter loss.

2. In case Ex. A-1 be found to be no bar to the claim of title, whether the site of the verandah belongs to plaintiff and he has been in use and occupation thereof since long and defendant No. 1 cannot set up its title to it?

3. In case title of the site in question he found to vest in the plaintiff, whether the Verandah in dispute deserves to be maintained in spite of the fact that it has been constructed on a site abutting on the public thorough-fare without obtaining previous permission of the Municipal Board and it is not liable to be dismantled under Section108 Sub-section (6) Clause (b) of the Rajasthan Town Municipalities Act?

4. Whether the Municipal Board Bhilwara delegated to the House Building Committee its power to be exercised under Section 108 Sub-section 6 Clause (b) of the R.T.M. Act and it was competent in this behalf without seeking approval of the Government in this behalf?

5. Whether the finding of the building committee, certified copy whereof is Ex. 1 on record, is tantamount to an order and is enforceable as such?

6. Whether the Executive Officer of the Municipal Board Bhilwara was competent to pass order dated 31.12.68 for demolition of the verandah in question and to execute the same?

7. Whether defendant No. 2 without having recourse to the competent civil court was justified to have a protion of the verandah left vacant for his own use or convenience by approaching to the Municipal Board and the Building Committee or Board was competent to consider defendent No. 2's case and adjudicate upon the civil rights of plaintiff and defendant No. 2 by resolving demolition of the portion of the verandah.

8. What shall be the relief?

9. Is the suit within limitation?

10. Is the plaintiff's suit not maintainable because he failed to file an appeal against the order dated 19.6.58 and it, therefore, became final.

Both parties led evidence in support of the issues and the learned District Judge on a consideration of the evidence came to the finding that the plaintiff have failed to prove that he was the owner of the land over which the verandha had been constructed (2) that the Building Committee was properly constituted even though no rules had been framed by the Board under Section 44 of the Act (3) that the order dated 19th June, 1958, was a final order so far as the demolition of the verandah is concerned, and, lastly, that the suit was barred by limitation.

5. In this appeal, learned counsel for the appellant has not been able to show that the title deeds produced by the plaintiff in. the; lower court also relate to the disputed land because it is admitted that the said title deeds neither contain the measurements nor the boundaries of the land which was coneveyed under the said title deeds. Besides this, question of title in this case has no relevancy. It is admitted that for construction of a verandah in dispute, permission of the Municipal Board was necessary even if the plaintiff happened to be the owner of the land covered by the verandah. That being so, the constroversy in this Court is confined to the question whether the order dated 19th June,1958,is valid and enforceable in law and further whether the suit is within limitation.

6. The first contention of learned counsel with regard to the legallity of the order of 19th June, 1958, is that the constitution of the Building Committee which passed the order was rot legal because no rules had been framed by the Board as required by Section 44 of the Act. In my view, there is no force in this contention.

7. Under Section 28 of the Act, a Municipal Board has been empowered to constitute committees for the purpose of execising such powers, discharging such duties or performing such functions as it may delegate to them, or may appoint individual members or Committees which it may refer to them. The constitution of Committees and delegations to them is not made to depend upon the framing of rules under Section 44 of the Act. Section 28 is quite independent of Section 44 and the powers given under Section 28 may be exercised by the Municipal Board before making rules under Section 44. Section 44 gives power to Munipal Boards to make rules for the purposes mentioned. This is only an enabling provision and does not take away the powers of the Municipal Board it otherwise enjoys under the other provisions of the Act. The constitution of the Building Committee, therefore, by the Board cannot be said to be invalid merely because it had not framed rules under Section 44 of the Act.

8. In Thela Workers Union and Anr. v. Municipal Board of Kotah 1956 AIR NUC (Raj.) 4671 it was held by a Division Bench of this Court that:

The rule-making power given by Section 44(h) is an enabling power to be utilised, if necessary. The procedure for recovery of the tax is given in Chap. VIII of the Rajasthan Act, and if the Municipal Board considers that no further rules are required, they are at liberty not to make any fresh rules. The omission to frame rules under Section 44(h), therefore, does not vitiate the imposition of the tax, which is otherwise valid by due observance of the procedure required by Chap. VI of the Act.

In Durgah Committee v. State of Rajasthan : [1962]2SCR265 , a certain demand was made and objection was taken that such demand could only be made in the manner prescribed by rules required by Section 234 of the Ajmer Merwara Municipalities Regulation (No. 6) of 1925. It was held that:

If the rules are not prescribed then all that can be said is that there is no form prescribed for issuing a demand notice; that does not mean that the statutory power conferred on the Committee by Section 222(i) to make a demand is unenforceable.

Here also, the constitution of the Building Committee cannot be held to be invalid because no rules for its constitution had been framed under Section 44 of the Act.

9. It was next contended that the functions of the Board had not been properly delegated to the Building Committee and, at any rate, it had not been so done with the approval of the Government. It is true that under proviso (1) to Section 44 of the Act, no rule made or any alterrtion or rescision of a rule made by a Municipal Board under Section 44 shall have effect unless and until it has been approved by the Government. But no such restriction has been laid down under Section 28 of the Act. The said section authorises a Municipal Board to constitute committees and delegate its functions to them. The constitution or the delegation of its functions under Section 28 does not require any approval of the Government. In the present case, the Municipal Board, Bhilwara, on 8th March, 1958, constituted a building committee of three members namely Ajeetsingh, Fakhruddin find Khemchand and also delegated the same functions which had been given to the Building Committee by the last Board vide Ex. A-5. Ex.8 dated 10th July, 1955 relates to the delegation of functions to the Building Committee by the last Board By this resolution, the powers under Section 102, 104, 108(6)(b)(7), 111, 114 116(1) and 322 of the Act of 1951 were delegated to the Building Committee. However, a provision for appeal to the Board has also been made in Ex. 8. and the contentien of learned counsel for the appellant is that any order passed by the Building Committee in exercise of the functions delegated to it by the Board was not to be final but it is the order of Board on appeal which gave a finality to the order. Upon this basis, learned counsel contends that the order of 19th June, 1958, was subject to the final orders of the Board in appeal It is true that the provision regarding appeal against the order of the Building Committee has been wrongly made in this resolution. The Building Committee to which powers had been delegated by the Board exercises the same powers which the Board would have exercised if such delegation had not been made. That being so, the order of the Building Committee shall be construed as if it was made by the Board itself and therefore no appeal could lie to the Board from the orders of the Building Committee.

10. That however does not mean that the order of the Building Committee was not to be final. The mere fact that an order is appealable does not mean that it is not final so far as that body is concerned The order of the Building Committee here also was appealable in the same manner and to the same authority as an order of the Board. But no proper appeal was taken by the appellant against the order of the Building Committee. Therefore, there is no force in this contention.

11. It was also urged that from the order of the Building Committee itself it appears that it was only making a recommendation and not passing a final order. That depends upon the interpretation of the order of 19th June, 1958. The order consists of two parts: (1) where it ordered for demolition of seven feet of the verandah and (2) regarding grant of patta for the land covered by the remaining part of the verandah. So far as the first part of the order is concerned, it is final and no approval had been sought by the Building Committee. So far as the second part is concerned, probably granting of a patta was beyond the powers of the Building Committee, and, therefore, it only made a recommendation. In view of these, the impugned order dated 19th June, 1958, cannot by regarded as invalid. The Building Committee was properly constituted and it was empowered to pass order under Section 108(6) of the Act.

12. As regards the question of limitation for the suit, learned counsel contends that it is a case of continuing wrong which gives rise to cause of action every day & the suit cannot be held to be time barred even if the provisions of Section 179 of the Act are applied to it. However, it is clear that Section 23 of the Indian Limitation Act does not apply to cases where any special or local law prescribes for any suit a period of limitation different from the period prescribed therefore by the first schedule. Under Section 29(2)(a)(b) of the Indian Limitation Act, it has been clearly laid down that besides Section 4, 9 to 18 and Section 22, the remaining provisions of this Act including Section 23 shall not apply.

13. Learned counsel contended that Section 179 of the Act does not apply to a suit for injunction and relied opon the following observations from a decision in Municipal Board Bhilwara v. Bhuralal 1964 RLW 504:

Sub-section (i) speaks of no suit being institutable until the expiration of two months next after a notice in writing stating the various matters specified in the section is deliverd or left at the place mentioned therein. Then follows Sub-sections (2) & (3) which taken together on the question of limitation mean no more and no less than this that save for suits for the recovery of immovable property or for a declaration of title thereto or for grant of perpetual injunction, every suit against the Municipal board be dismissed if it is not instituted within six months after the accrual of the alleged cause of action.

14. It is pointed out that in the said decision, suits for grant of perpetual injunction have been held to be excluded from the application of Section 179. In my view, Sub-section (1) of Section 179 requires giving of two month's notice in writing before institution of suits where Section 179(1) is applicable Sub-section (2) says that very such suit shall, unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be dismissed if it is not instituted within six months after the accrual of the alleged cause of action. In this sub-section, suits for grant of perpetual injunction are not exempted like suits for declaration of title and recovery of immovable property and in Sub-section (3) which runs as follows:

Nothing in this section shall be deemed to apply to any suit instituted for grant of perpetual injunction, of which the object would be defeated by the giving of the notice, or the postponement of the commencement of the suit or proceeding.

It seems that there has been some printing mistake and instead of the words Sub-section (1)' only 'this section' has been used. Otherwise from the context it is quite clear that so far as the suit for grant of perpetual injunction is concerned, the provision of giving two month's notice has been dispensed with This is clear from Sub-section (3) itself because in the latter part it says that in suits for grant of perpetual injunction, its object would be defeated by giving of the notice, or the postponement of the commencement of the suit or proceeding. The provision of giving notice is only contained in Sub-section (1) and therefore Sub-section (3) would only refer to Sub-section (1). This error seems to have been rectified in the subsequent Municipal Act, that is the Rajasthan Municipalities Act 1959. Sub-section (3) of Section 271 which corresponds to Section 179 of the Act clearly mentions 'Sub-section (1).'

15. Learned counsel also referred to Pashupati Pratap v. District Board, Gonda 0043/1953 : AIR1953All104 . But that case does not support the appellant at all. In that case it was held that the period of six months prescribed by Section 192(3) of the U.P District Boards Act being a special period of limitation within the meaning of Section 29, Limitation Act, Section 23 of that Act had no application by reason of Section 29(2)(b) Limitation Act. However, in that case the suit was not held to be bound by limitation because it was not a case where the cause of action had accrued once and for all. There, every time a boat not licenced by him plied for hire on the Ghat, the plaintiff's right was invaded and each breach gave rise to a fresh cause of action for filing the suit.

16. Learned counsel also reffered to an unreported decision of this Court in S.B. Civil Regular Second Appeal No.256 of 1960 dated 3-9-1965. In that case also a flour-mill had been built on the land belonging to the Panchayat and the Panchayat after giving a notice to show cause why the encroachment may not be removed ordered the party who had made the constructions to vacate the land, and in the event of his not doing so imposed a recurring fine of Rs. 1/- per day on him. The learned Judge, therefore, held that the resultant injury about the imposition of fine will be continuing one and it would not be case of completed action or wrong. The suit was, therefore held to be not barred by limitation because the cause of action was continuing.

17. These cases are quite distinguishable from the facts of the present case. Here there is no recurring cause of action to the plaintiff The cause of action arose on the day when the order of demolition of the Verandah was passed by the Building Committee on the 19th June, 1958. The cause of action here is one and complete. That being so, the lower court was correct in holding that the suit which was instituted beyond a period of six months was barred by limitation.

18. It was urged that the Building Committee did not communicate its order of 19th June. 1958, to the plaintiff and therefore the period of limitation should be computed from the date on which he came to know of this order. In this connection, plaintiff's own application dated 12th July 1958 Ex. AW 1/2 shows that he had come to know of the order at least on that date because in that application he has stated that he had come to know that the Building Committee has recommended the grant of a Bapi Patta on double fees, but as he was poor and he had already been fined by the court, only single fee map be taken from him In the lower court it was admitted on behalf of plaintiff that he became aware of the order of the Building, Committee on 20th August, 1958. Even if the period of limitation is computed from 20th August, 1958, the suit was not instituted within six months. In any view of the matter the suit was barred by limitation.

19. The appeal, therefore, falls on both grounds and it is accordingly dismissed. No one has put in appearance on behalf of the Municipal Board, Bhilwara. Appearance has only been put in on behalf of Ismail but order for demolition has been passed by the Building Committee because the construction was unauthorised. In that view of the matter, no costs are allowed to Ismail.


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