BOROUGH MUNICIPALITIES BHUSAWAL Vs. BHAIRULAL GULABCHAND

JUDGEMENT

(1.) THE plaintiff was the owner of an agricultural land S. No. 149/a situate within the municipal limits of the town of Bhusawal. The plaintiff obtained permission of the Collector for of East Khandesh to convert the land to non-agricultural use. He then divided the land into 32 building plots. He also set a part of land for construction of roads. Thereafter the plaintiff sold the Plots as building plots to various purchasers. By 1948 the plaintiff had disposed of 26 out of the 33 plots, and he was on 7-5-1947 the owner of the remaining six plots which were on the western finge of S. No. 149/a. On 7-5-1946 the Municipality of Bhusawal served upon the plaintiff a notice under Section 115 (1), Bombay Municipal Boroughs Act, 1925, calling upon the plaintiff to construct a road on the west of the six plots which were of the ownership of the plaintiff. The plaintiff was given three months' time to construct the road. The plaintiff did not comply with the notice and sold the six plots to one Prithwiraj Lakhichand on 10-6-1946. Under the sale deed Prithwiraj Lakhichand undertook to pay the cost of the constructing the road which was required to be constructed under the notice issued by the Municipality. On 17-6-1946 the plaintiff informed the Municipality about the sale of the plots to Prithwiraj Lakhichand. On 22-7-1946 the Municipality served a notice under Section 115 (1) of the Act upon Prithwiraj Lakhichand directing him to construct the road on the western finge of the six plots. Prithwiraj Lakhichand declined to comply with the requisition. The road not having been constructed in pursuance of the requisition contained in the notice issued under Section 115 (1) of the Act, the Municipality constructed the road relying upon the provisions of Section 194 (1) of the Act. It is the case of the Municipality that in the construction of the road they had to spend Rs. 3485-6-1. The Municipality sent a bill to the plaintiff for the amount spent for constructing the road and called upon the plaintiff to pay We amount. The plaintiff neglected to pay the amount. By the notice dated 11-8-1949 the plaintiff was called upon by the Municipality to pay the amount and in default of payment he was threatened with action under the Bombay Municipal Boroughs Act, 1925. The plaintiff then filed suit No. 337 of 1949 in the Court of the Joint Civil judge Junior Division, at Bhusawal, against the Borough Municipality for a declaration that he was not liable to pay the amount demanded by the Municipality, and for an injunction restraining the Municipality from recovering the same. The plaintiff contended by his plaint that he had at the date when the road, was constructed no interest in the plots which abutted on the road, and that the notice served by the Municipality upon him was not a lawful notice.

(2.) THE suit was resisted by the Municipality contending inter alia that there was no proper and valid notice served as required by Section 206, Bombay Municipal Boroughs Act, that the suit was premature, that the plaintiff was in any event liable he having been served with a notice under Section 115, Bombay Municipal Boroughs Act, to construct the road. The Municipality also contended that the plaintiff continued to be liable to carry out the requisition even though he had transferred the Plots after he was served with the notice.

(3.) THE learned trial Judge held that the Municipality could not compel the plaintiff to construct the road or to pay the cost of the road after the plaintiff had sold the plot on 10-6-1946. He further held that the suit was not bad in the absence of a valid notice under Section 206, Bombay Municipal Boroughs Act; that the suit was not premature; that it was not barred by the law of limitation; that it was not barred by estoppel; and that the plaintiff was entitled to the declaration and injunction claimed by him. The learned trial Judge accordingly decreed the plaintiff's suit, and declared that the plaintiff not being the owner of the land was not liable to compensate the Municipality for the expenses incurred for construction of the road and issued an injunction permanently restraining the Municipality from recovering the amount alleged to have been spent for the construction of the roads. Against the decree passed by the trial Court, the defendant appealed to the District Court at Jalgaon. The learned Assistant Judge who Heard the appeal confirmed the decree passed by the trial Court and dismissed the appeal. The defendant Municipality has come to this Court in second appeal.