MUNICIPAL BOARD MAU NATH BHANJAN Vs. RAGHUNATH PRASAD

JUDGEMENT

(1.) THESE three second appeals can conveniently be decided by one judgment as the points raised in all the three cases are identical.

(2.) THE respondents in these cases are owners of certain shops in the Municipal Area of Mau. These shops were built by the side of a Municipal drain which was 2 feet 4 inches wide and 6 feet and 4 inches deep. It was dangerous for the customers coming to the shops to pass over the drain and the shop-keepers, therefore, put stone slabs on the drain to cover it up and make a passage to their shops. The appellants issued notices to the shop-keepers claiming a tax on what they called "a projection". When the appellants threatened the shop-keepers that they would realise the amount by the issue of distress warrants, the shop-beepers filed three test suits out of which these three appeals have arisen claiming an injunction against the appellants on the ground that the levy of the tax was entirely illegal and beyond the competence of the appellant Board. The suits were dismissed by the trial Court on the ground that they were barred by Section 164, u. P. Municipalities Act. On all other points the finding was in the plaintiffs' favour. On appeals by the plaintiffs the lower appellate Court has decreed the suits and against the decrees passed by the lower appellate Court these second appeals were filed. These cases were referred to a Bench by a learned single- Judge in the year 1947 but the hearing was stayed pending the decision of a full Bench of a case in which the question of jurisdiction of the civil Courts to entertain such suits was raised. The decision of the Full Bench in -- 'municipal Board, Kanauj v. Manohar Lal', air 1951 All 867 (FB) (A) does not, however, deal with the question of jurisdiction of civil courts in such matters.

(3.) THE learned counsel for the appellants has urged that the Municipal Board was entitled to levy the tax under Sections 209 and 293, Municipalities Act and under bye-law No. 8 of the Mau notified Area (now Municipal Area ). Section 209 of the Act entitled a Municipal Board, subject to any rules made by the State Government, to give permission for construction of projections, and Section 293 gives the Municipal Board a right to charge fees for such projections. The lower appellate Court has held that no sanction having been obtained under Section 209, Municipalities act to cover up the drain no fee could be levied, for the same under Section 293 of the Act. It is not necessary for us to go into that question as the cases can be decided on another ground.