1. On the 17th December 1892, the Vice-Chairman of the Hooghly and Chinsurah Municipality wrote and sent to the plaintiff in this suit the following notice:
Sir,---By a resolution of the Commissioners at a general meeting held on the 9th September last your prayer to allow the sajah to be made was disallowed. I therefore request that you will be good enough to remove the iron brackets put up against your house within eight days from the date of receipt of this letter, otherwise necessary steps should he taken for their removal.
2. I understand and I have specially asked the question that no other notice was sent by the defendants to the plaintiff.
3. The first question which we have to decide is whether, having regard to the terms of Section 204 of Bengal Act III of 1884, the Municipality were justified, under the circumstances of this case, in giving a notice, which admittedly the above document purported to be, under that Section. The Municipality admit that they considered they were entitled to act, and that throughout they have purported to act, under the statutory powers vested in them under that Section. I may say, before I refer to the Section, that I have entertained grave doubt whether the plaintiff has not been premature in bringing this suit, inasmuch as beyond sending the above notice, the Municipality have done nothing. When he instituted the suit he had suffered no damage. If he had good reason to believe that if he did not remove the brackets, the Municipality would do so, his proper course, to my mind, would have been to have come to the Court and asked for an injunction to restrain them from so acting, upon the ground that their threatened action was ultra vires. In such a suit the question of ultra vires could have been decided. If the plaintiff's view were correct, the service of the notice was a mere brutum fulmen, and he might have put it behind the fire. Inasmuch, however, as in both the lower Courts the Municipality have allowed the question to be fought out upon its merits, and both parties desire to have the decision of this Court upon the point of law involved, by putting, perhaps, a somewhat liberal construction upon Section 42 of the Specific Relief Act, I think that, as the parties desire it, the case ought now to be decided upon its merits, and that exception ought not now to be taken as to whether or not the plaintiff was premature in bringing this suit, or as to its form.
4. Now Section 204, so far as it is material for the purposes of our decision, provides as follows: ' The Commissioners may give notice in writing to the owner or occupier of any house requiring him to remove or alter any projection, encroachment or obstruction erected or placed against or in front of such house which may have been so erected or placed after the date on which the District Municipal Improvement Act, 1864, or the District Towns Act, 1868, or the Bengal Municipal Act, 1876, as the case may be, took effect in the Municipality.'
5. The contention of the plaintiff is, that if the projection be only caused by restoring a portion of an old building, which has been pulled down with the object of its being rebuilt, Section 204 does not apply, and that, Section 204 only applies to cases of a new erection causing a new projection and not to the case of a projection which is merely a substitution for a projection previously existing(sic)d
6. Now the findings of fact in the Court below, so far as they are material for the present purpose, are these: The Subordinate Judge, as to the second point, which was whether the projection which the defendant ordered to be removed was a new one or is to be regarded as such, says this: 'I am of opinion that the plaintiff has proved by his own deposition, as well as by the evidence of most of his witnesses, that the old verandah of the plaintiff s house existed for a period of more than thirty years, and it was pulled down about two years ago in order to rebuild it in its former position on iron brackets, and that the iron brackets were affixed in the same month.' Again, he says in another part of his judgment: ' I am of opinion that the plaintiff .has proved that the old and new projections respectively were exactly of the same dimensions, and that the old sajah was 11 feet and 6 inches in length, and 3 feet 6 inches in breadth;' and again he finds as a fact: 'It has been already shown that it has been proved by the evidence of the witnesses of both sides that the projection in question existed since long before any Municipal Act came into operation in this town, and it has been proved by the evidence of the plaintiff's witnesses that the old sajah was pulled down about two years ago, and that the iron brackets were affixed within one month from the time the old sajah was pulled down for the purpose of rebuilding it in its former position, so the projection was not a new one.'
7. Upon these findings of fact, we, sitting here on second appeal, must take it that the brackets which the Municipality claimed to have removed were placed for the purpose of supporting a new verandah in substitution for the old verandah which had been in existence long before any Municipal Act came into operation affecting this district, and that it was intended to be of the same dimensions as the old verandah.
8. The point, then, which we have to decide is whether Section 204 applies only to the case of a projection which is caused by a building which is new, that is, erected after the passing of the Acts referred to in the Section, or whether it applies to the case of a projection forming part of a building which is merely in substitution for an old building which had existed upon the same site before the passing of the Acts mentioned in the Section. In my opinion it would be too narrow a construction of the Section to hold that it applied to the case of a new building erected in substitution for an old building, which was in existence before the date of the Acts mentioned in the Section. If, in point of fact, the new projection is, as in this case, part of a new building erected in the place of an old building which admittedly was in existence before the date of the Acts mentioned in the Section, and merely in substitution for that old building, I do not think that the case comes within Section 204 of the Act. I think the words 'which may have been so erected or placed,' must mean erected or placed for the first time.
9. This view, I consider, receives support from the provision made in Section 233 of the same Act, which provides for compensation being made in the case of a projection ordered to be pulled down by the Municipality in those cases where the projection existed before the coming into operation of the Municipal Acts referred to in that Section. Though I am not prone in construing Acts of the Indian Legislature to refer to cases decided in the Courts of England upon the construction of certain English Acts of Parliament, I feel that the view I entertain upon this case receives support, so far as the principle is concerned, from the case of Lord Auckland v. Westminster Local Board of Works (1872) L. R. 7 Ch. App. 597 which, as I understand that decision, in effect decided that the powers conferred by the 75th Section of the Metropolis Management Amendment Act which, in principle, is more or less akin to the Sections I have referred to of Bengal Act III of 1884, did not apply to the case of a new building which was merely a substitution for an old building, which had previously existed upon the same site. The authority of that case is not, in my judgment, impaired by the more recent case of the London County Council v. Pryor. L. R. (1896)1 Q. B. D. 330. The two cases are quite reconcilable.
10. Upon these grounds I think that the judgment of the Court below was right. There is something in that judgment about 'a prescriptive right.' I say nothing about that. I do not at present appreciate its bearing upon the question we have to decide. The appeal fails and must be dismissed with costs, but I think the decree---the precise form of which has not been given to us,---ought to be confined to a declaration that the Municipality are not entitled under Section 204 of the Act to require the plaintiff to pull down the brackets in question, and that the plaintiff is entitled to re-erect the same. I understand the plaintiff's claim for damages has been abandoned.
1. I am of the same opinion. The question raised before us is, whether the order passed by the Municipal Commissioners upon the plaintiff to pull down a verandah which projected over a public road was; (sic)legal and ultra vires.
2. The facts found are, shortly, these---that the verandah in question had been in existence for upwards of thirty years; that it was pulled down by the plaintiff for the purpose of building a new verandah in its place; and that the verandah intended to be rebuilt was exactly of the same dimensions as the old verandah. And it was admitted in the course of the argument that the Commissioners in issuing notice on the plaintiff had proceeded under Section 204 of Bengal Act III of 1884. That being so, the question reduces itself to this, namely, whether the projection in question was one that was erected or placed in front of the plaintiff's house after the dates mentioned in Section 204 by reason of such projection being the re-erection of an old projection on the site of the old projection. There is no dispute that the old verandah had been in existence from before those dates; but the contention on behalf of the appellant has been that, as the old verandah had been taken down and a new one was going to be erected in its place after the Bengal Municipal Act had come into operation, the case must be held to come within the scope of Section 204.
3. I do not think that this contention is sound. Though, literally speaking, the new projection was put up after the dates mentioned in Section 204, reading Section 204 with Sections 206 and 233 of the Act, I think that the law makes a clear distinction between a new projection or a projection put up for the first time after the dates mentioned in Section 204, and a projection which had been in existence from before, and which was being reconstructed.
4. In the case of old existing projections, the law in Sections 206 and 233 makes provision for the award of compensation, whereas in the case of projections put up after the dates mentioned in Section 204, no such provision is made; and the intention of the Legislature seems, from a comparison of the three Sections to which I have just referred, to be to limit the power conferred upon the Municipal Commissioners under Section 204 to cases where projections are put up for the first time.
5. In making this observation I must guard against its being supposed that a projection erected on the site of an old one should always be treated as a continuation of it, notwithstanding that the interval that may have elapsed between the removal of the old structure and the erection of the new one was long enough to raise a presumption that the old structure had been intended to be finally removed, and any intention to rebuild had been abandoned completely at the time.
6. But it is unnecessary to say more upon this point, because no question as to the abandonment of an intention to rebuild could arise in the present case, it having been found by the Court below that the new structure was put up shortly after the old one bad been taken down for the purpose of being rebuilt.
7. The view I take receives some support from the case of Lord Auckland v. Westminster Local Board of Works(1872) L. R. 7 Ch. App. 597.