MUNICIPALITY OF SHOLAPUR Vs. ABDUL WAHAB SHAIK CHAND

JUDGEMENT

(1.) The question of law that has been argued in this appeal is whether the defendant, the City Municipality, of Sholapur, had the right to cancel the permission granted to the plaintiff to build on a certain plot of open ground near his house. The right to cancel the permission is claimed on the ground, first, that the sale of the plot in question is not evidenced by a writing signed and sealed as required by Section 40, Sub-section (6), of the Bombay District Municipal Act (III of 1901), and, secondly, that the plaintiff purchased the said plot subject to the condition that it was to be used for putting flower pots &c. &c.

(2.) The facts necessary to appreciate the argument are these : In January 1913 the plaintiff applied to the Municipality for the purchase of the plot of ground in question. In the application he stated as follows :-The place... may be given to me for the purpose of placing flower pots &c. &c." His neighbour Imam Mahomed joined in applying for the remaining part of the open plot. The Managing Committee of the Municipality decided to sell the land at two annas per square foot on usual terms . This sale was sanctioned at a general meeting of the Municipality as required by Sub-section (3) and by the Commissioner as required by Sub-section (2) of Section 40. The Municipality received the price of the land (Rs. 49-8-0) in November 1913 and it is now found by the lower appellate Court that the possession of the land was given to the plaintiff.

(3.) The plaintiff applied to the Municipality for permission to build on the plot in October 1914. On the 21st October he was asked to submit a plan of the proposed building : and ultimately on the 29th November the permission was granted by the Chief Officer, who had authority to do so, subject to certain directions as to windows and doors. The plaintiff appealed to the Managing Committee for a modification of the said directions. The modification applied for was allowed by the Managing Committee on the 20th March 1915. Apparently when the plaintiff commenced to build his neighbour Imam Saheb applied to the Municipality, on the 5th May 1915, complaining of the permission granted to the plaintiff. The Municipality cancelled the permission granted to the plaintiff on the 26th May 1915. Both the grounds now urged in support of the cancellation are referred to in the order communicated to the plaintiff. In terms it directed the plaintiff not to build until further orders which would be issued when the matters relating to the sale-deed and the condition as to keeping the plot open were settled. He was informed that he would be prosecuted under Section 96 if he disobeyed the orders. The plaintiff sued the Municipality for damages and injunction in respect of this order cancelling the permission already granted. The trial Court dismissed the plaintiff s suit, and the lower appellate Court allowed his claim for injunction and damages to the extent of Rs. 18 with proportionate costs.