THANA BOROUGH MUNICIPALITY Vs. AKBARALLI HASSANALLY

JUDGEMENT

(1.) THE respondent in the present appeal had applied for permission to construct a new building in his Tika No. 11 C. S. Nos. 57, 58, 60 and 61 of Thana, and the permission was granted to him subject to certain conditions on 27-3-1948. On 24-8-1948 the respondent applied for permission to build one more floor on the entire chawl and to provide the building with privies. On 13-10-1948 the Chief Officer granted permission to the defendant to construct the first floor, but told the defendant that he must construct privies on the site sanctioned on 27-3-1948 and not at any other place. Then on 10-11-1948 the respondent applied for permission to add one more floor, that is, a second floor to the above chawl and for permission to build 12 new privies at a place different from that sanctioned on the 25-11-1948. The Chief Officer refused to give the respondent permission to do either of these things. His reason so far as the first request was concerned was that bye-law No. 20 prevented the Chief Officer from giving permission to an owner to construct 9, second floor to a building exceeding 100 feet in length. The respondent, however, persisted and started the construction of the second floor and a block of eight privies. The appellant Municipality thereupon filed a criminal complaint against him under Section 133 (7), Bombay Municipal Borough Act. But inasmuch as there was a congestion in the criminal Courts it filed simultaneously the suit from which the present appeal arises for an injunction restraining the respondent from occupying the suit building either by himself or his tenants and for a direction to the respondent to demolish the unauthorised construction.

(2.) THE facts in this case are no longer in dispute, and the only question in the second appeal is whether the appellant Municipality was entitled to file the suit. The objection is under the rule laid down by Lord Tenterden in Deo v. Bridges, (1831) 1 B and Ad. 847 at p. 859 (A ). He said: "where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner. " to that rule, however, there are exceptions. The first of the exceptions is the ancillary remedy in equity by an injunction to protect a right. Another exception was mentioned at one time in England namely, that created by the Judicature Act, Section 25 Sub-section 8, which enables the Court to grant an injunction in all cases in which it is just and convenient, see Cooper v. Whittingham, (1880) 15 Ch, D 501 (B ). In North London Ry. Co. v. Great Northern Ry. Co. (1833) 11 Q. B. D. 30 (C), it was held however that the Judicature Act, Section 25, Sub-section 8, did not give power to the High Court to issue an injunction to restrain the appellant from proceeding with arbitration in a case in which no Court before the Act had the power to give any remedy thereof. It was consequently held in Devrmport Corporation v. Tozer, (1902) 2 Ch. 182 (D), that after the case of Nortli London Ry. Co. v. Great Northern Ey. Co. (C), (1880) 15 Ch. 501 (B), was--not in favour of granting an injunction from laying down a new highway which did not comply with the requirements of the borough by-laws as to width. The local authority could not consequently maintain an action for such an injunction.-

(3.) ON the question whether there is power in the Court to grant an injunction, it was observed in Grand Junction Waterworks Co. v. Hampton Urban Council. (1898) 2 Ch. 33 (E), that "the granting of an injunction in such a case is a matter which ought to be done with the greatest possible caution. I desire to add that in contests between local authorities and private owners it seems to me that that rule ought to be adhered to somewhat strictly. In these matters as to building lines the Legislature has provided a cheap and short mode of obtaining a decision on the point in question, and it would be matter of regreat if a different and more expensive mode of obtaining a decision were to be habitually resorted to, or restored to in the absence of very special circumstances. "