RAGHUNANDAN PRASAD Vs. THE MUNICIPAL BOARD PILKHUWA

JUDGEMENT

(1.) This is a plaintiff's second appeal against the judgment and decree of first Civil Judge, Meerut. The plaintiff is the owner of six shops standing in a line. The said shops were constructed with the permission of the respondent -Municipal Board. A Chabutra and a Chhajja over the municipal drain was also constructed with the respondent's permission. One step in front of every shop for entering into the shop was constructed on the municipal road without the sanction of the Municipal Board. The step is one foot and eight inches long and one foot and two inches broad. The President of the Municipal Board issued notice u/S. 211 of the Municipalities Act requiring the plaintiff to remove the step which was an encroachment over the municipal road. The suit out of which this appeal arises was then filed by the plaintiff -appellant for an injunction restraining the defendant from removing the step, which was constructed for entering the shop. According to the plaintiff, the defendant was not entitled to the removal of the step in suit, and there was an implied permission to construct the step. It was stated that on account of the enmity of the Chairman with the plaintiff's family and on account of factionism, the impugned notice was given. The Municipal Board contested the suit. The trial court dismissed the plaintiff's suit holding that the Municipal Board had power to remove the encroachment of this type and that a suit for an injunction was not maintainable. In appeal, the lower appellate court confirmed the decree of the trial court; hence this second civil appeal.

(2.) It is not disputed that the disputed "step" has been made without the express sanction of the Municipal Board. Learned counsel for the appellant has contended that the sanction was implied when the sanction for the construction of the Chabutra which is three feet high was given. His contention is that for entering on the Chabutra which is three feet high, a step was essential and the sanction of the Chabutra contemplated the sanction of a step. He has further stated that similar steps are in existence in the adjoining shops and the notice to the plaintiff is malafide action of the president. The Municipal Act contemplates an application for sanction of a construction and an owner is only authorised to make construction after a valid sanction. A Sanction cannot be implied when no application or prayer is made for the construction. A person who has made unauthorised construction also cannot take advantage of the laches of the Municipal Board in not serving notice u/S. 211 of the Municipalities Act to other persons who had made similar unauthorised constructions. The contention of the learned counsel for the appellant, therefore, that similar steps are in existence in the adjoining shops has no force.

(3.) It has next been contended by the learned counsel for the appellant that u/S. 211, the notice should be in the name of the Board and the notice by the President of the Board is illegal. The notice is Ex. 1 on record and has been issued by the President of the Board. The notice directs the plaintiff to remove the encroachment within 15 days from the receipt of notice failing which action was to be taken against him u/Ss. 210 and 307 of the Municipalities Act. S. 211 of the Municipalities Act reads as under: - -