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The Corporation of Madras Vs. Mohan Lal Sowcar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in30Ind.Cas.683
AppellantThe Corporation of Madras
RespondentMohan Lal Sowcar and ors.
Cases ReferredMothe Achayya Garu v. Municipal Council of Ellore
Excerpt:
madras city municipalities act (iii of 1904), sections 3, clause (27), 248(1) - erection of sunshade overhanging drain--drain, if part of 'public street'--powers of president. - .....see mothe achayya garu v. municipal council of ellore 4 ind. cas. 828 we think that the word projection' itself and the context imply that the thing which is indicated by that word must project into or over the space covered by the public street. the sunshade in question admittedly does project over the drain space and hence it is a 'projection' which the president is entitled to remove after notice. we are unable to accept the view of the learned city civil judge that if the sunshade does not interfere with the repairing and proper management of the' drain, the president is not empowered to have it removed. the words of section 248(1) do not fetter the president's powers in this respect and only require that the thing ordered to be removed should be a 'projection' as.....
Judgment:

1. The finding of the lower Court that the plaint land (Exhibit DD) belongs to the plaintiff subject to certain rights in the Municipality, cannot and is not seriously attacked by the appellant's learned Vakil. Under the definition of 'public street' in Section 3, Clause 27, of the Presidency Municipalities Act, the space covered by the drains is included in the public street vested in the Municipality. The sunshade of the plaintiff's house overhangs this drain space forming part of the public street. Section 248(1) of the Act empowers the President to give notice to the owner of any building 'to remove any projection made against or in front of such building in any public street.' Assuming without deciding the phrase 'in any public street' in the section qualifies the word 'building' and not the word 'projection' see Mothe Achayya Garu v. Municipal Council of Ellore 4 Ind. Cas. 828 we think that the word projection' itself and the context imply that the thing which is indicated by that word must project into or over the space covered by the public street. The sunshade in question admittedly does project over the drain space and hence it is a 'projection' which the President is entitled to remove after notice. We are unable to accept the view of the learned City Civil Judge that if the sunshade does not interfere with the repairing and proper management of the' drain, the President is not empowered to have it removed. The words of Section 248(1) do not fetter the President's powers in this respect and only require that the thing ordered to be removed should be a 'projection' as construed above.

2. We, therefore, modify the decree of the learned City Civil Judge by directing the deletion of the following words from that decree, (a) from the words 'either to direct' up to 'plan or', (b) the words 'or the sunshade' and (c) the paragraph begining 'and it is ordered and decreed'. The parties will bear their respective costs in this appeal.


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