ABDUL QAYUM KHAN Vs. CITY BOARD

JUDGEMENT

(1.) This is a reference by the learned District Magistrate of Dahra Dun under the following circumstances: In Mussoorie, which is within the jurisdiction of the learned Magistrate, a gentleman described as the Raja Sahib of Amawan, put in an application before the Municipal Board for permission to make certain additions and alterations to a hou3e which he had purchased. This house was known as Cecil Hotel and apparently was used as an hotel before the purchase. Adjacent to the building purchased by the Raja of Amawan, is a house known as Ivy Cottage, which is owned by one Sardar Abdul Qayum Khan, a political detenue. That building has been obtained on lease by one Sardar Bhagat Singh and is being used as an hotel and has been called " The Grand Indian Hotel." The Raja Sahib of Amawan, among other alterations, constructed a bathroom at the north-west corner of his house. The estate owned by the Raja Sahib of Amawan, it appears, is on a much higher level than the estate Ivy Cottage. The Raja Sahib of Amawan, to obtain further room for his building, has constructed the bathroom on certain girders and it now hangs out in the air supported on girders. The result is that to some extent the added building (the bathroom) hangs over the Ivy Cottage estate. The Municipal Board of Dohra Dun having granted sanction to the construction, the political officer, who looks after the interest of the political detenue Sardar Abdul Qayum Khan, took up the matter and lodged an appeal on behalf of the Sardar before the Magistrate. The objections that were taken to the grant of the sanction were threefold. The first objection was that the Raja Sahib of Amawan had been permitted by the City Board to make a construction on the land of the appellant. The second point was that the proposed bathrooms, if constructed would injuriously and materially affect the appellant's buildings. The third point was that the grant of sanction was opposed to law and equity and contrary to principles of sanitation.

(2.) So far as the first point was concerned, the learned Magistrate held that, if any land of the appellant had been encroached upon, that was a matter for the civil Court to decide.

(3.) On the question of sanitation the learned Magistrate considered the, arguments from different points of view. It appears that one of the bye-laws framed by the Municipal Board of Mussoorie was bye-law No. 23 and was meant to be a bye-law framed under Section 298, list 2, sub-list (i) Clause (j). The idea therefore in framing the bye-law was the avoidance of overcrowding in houses and inhabited sites. The bye-law lays down that no building shall be erected or re- erected outside bazar areas in such a manner that any portion of it would be less than 50 yards from any other building, etc. It is a fact that the bathroom complained of (we are concerned only with one particular bathroom, although the Raja built several) was less than 50 yards from one of the buildings on the estate, Ivy Cottage. The learned Magistrate considered how far the question of sanitation was affected by the construction of the bathroom. He is of opinion that the Municipal Board could depart from the bye-law, but for good reasons. He held that there was sufficient justification for the Board to depart from the bye-law and to give the Raja permission to construct the bathroom. The learned Magistrate held that the sanitation of the locality was not affected by the existence of the bathroom and, as a matter of fact, the sanitation was likely to improve by the introduction of a sanitary bathroom in place of an old kind of service bathroom. The learned Magistrate says in para. 3 of his order of reference, referring to the breach of Rule 23, that he accepts the explanation of the Municipal Board that the sanction had been given by the Pull Board. Then he says, that it was pointed out to him that the building did not constitute a new building, but was merely an addition and alteration to an existing building, and this argument was also accepted by the Magistrate. Then he considered the question of sanitation and concluded by saying: I see therefore no reason for taking any exception to the Board's order sanctioning infringement of the distance rule on the ground that the proposed additions and alterations will improve the sanitation of the locality.