MUNICIPAL BOARD ALIGARH Vs. ASFIA BEGUM

JUDGEMENT

(1.) IT is admitted by the learned counsel for the appellant that at the relevant time when the decision to make a drain was taken, the Municipal Board stood superseded and an Adminis trator had been appointed. Section 31 of the U. P. Municipalities Act deals with the consequence of the supersession of the Municipal Board. Sub-clause (b) of that section lays down that

(2.) THUS the Administrator in the instant case had full powers of the Board which were to be performed by the Board prior to its supersession. Under Section 189 the Board had the power to construct such drain as it thought necessary and to carry those drains through, across or under any street or place, and after reasonable notice in writing to the owner or occupier, into, through or under any buildings or land: As the Board had stood superseded, the power given under Section 189 of the Act, was expressly to be exercised by the Administrator of the Municipality. He had under Section 189 the power to con struct drains for keeping the Municipality properly cleaned and drained. He had also the power to carry such drains into, through or under any building or land owned by a third party after giving reason able notice in writing to the owner or occupier thereof. A duty was however imposed upon an Administrator to give a reasonable notice in writing to the owner or occupier who was to be affected by the process of constructions of the drains. In the instant case as has already been mentioned, an Administrator had taken the decision on 26th July, 1965 that a notice under Section 189 of the U. P. Municipalities Act be issued to Hafiz Mo hammad Ibrahim the occupier for vacating the house as a Municipal drain was pro posed to be taken through the house which was being occupied by Sri Nawab Khan Painter (Ext. A- 2). The Executive Officer gave notice dated 9th August, 1955 under his signature to M/s. Hafiz Mohammad Ibrahim, Railway Road Aligarh intimating him that a public drain was to be con structed through Mohalla Sarai Rehman and as the house owned by him obstruct ed the constructions the notice was being served upon him under Section 189 of the U. P. Municipalities Act that the house in question was required to enable the Assist ant Engineer L.S.G.E.D. to construct the abovementioned drain. He was asked to get the house vacated within a fortnight. There is no indication in this notice that it was being given on the direction of the Administrator or that it had been signed for and on behalf of the Administrator or by his order. Obviously the recipients of this notice could not get any idea that it had been given by the Administrator in the discharge of his duties under Section 189 and for the exercise of his power to make the drain in question. There is no proof that the Administrator had delegated his authority to the Executive Officer to issue the notice. The Executive Officer was also not examined in the case by the defendant-appellant to state that the im pugned notice was given on the direction of the Administrator. No drain could be carried out into, through, or under any building or land under Section 189 of the U. P. Municipalities Act without giving a reasonable notice in writing to the owner or the occupier thereof.

(3.) IN the case of P. Joseph John, the notice which was given by the Chief Secretary of the State and expressed to be on behalf of the Government and giving opportunity to the petitioner to show cause against the action proposed to be taken against him was in substantial compliance with the provisions of the article. In the instant case the notice signed by the executive officer was not expressed to be on behalf of the Administrator. Under Section 189 the owner of a building could successfully object to carrying of the drain into or through his house on the ground that a reasonable notice in writing had not been given to him. Thus Section 189 confers a right also on the owner and occupier. He could insist for reasonable notice be fore his house could be affected by the proposed action of carrying a drain into his house. It also imposed a duty on the Administrator to give such notice. This provision of giving a notice in writing could not, therefore, be said to be a direc tory provision. The notice contemplated by Section 189 must be a valid notice. If no notice was given or if notice given was invalid the Municipal Board would not have the power to carry the drain through or under the premises of any person. In these circumstances the notice in the in stant case not having been signed by the Administrator or purporting to have been issued under the direction of the Adminis trator, was an invalid notice and no action could be taken on its basis. No other point is urged before me. In the result, the appeal fails and is accordingly dismissed with costs. Appeal dismissed.