AHMEDABAD MUNICIPALITY Vs. RAMJI KUBER

JUDGEMENT

(1.) On 3rd July 1903 the plaintiff, who is the respondent before us, applied to the defendant Municipality for permission to reconstruct his house, building balconies on the Southern and Eastern sides. On the 25th July 1903 the Municipality, by the written "permission note," Exhibit 33, gave the plaintiff permission to rebuild his house according to the plan submitted, but in the body of the note no reference was made to the question of the proposed balconies. This omission was, however, supplied by a postscript, which ran as follows:-"As regards the building of balconies, your application is placed before the Managing Committee for decision whether the permission should, or should not, be granted. Therefore until this permission is granted, you must not do any work in this respect." Then for a period of practically one year, i. e., until the 15th July 1904, the Municipality did nothing, having, we are informed, lost or mislaid the papers. At some time during this protracted interval the plaintiff built his balconies as proposed. This was reported to the Municipality on 15th July 1,904, and on the 4th August following that body called upon the plaintiff to remove the balconies. After an unsuccessful petition to the Municipality praying them to reconsider their decision, the plaintiff brought this suit in which he seeks for an injunction against the Municipality restraining them from removing his balconies. In the Court of first instance the suit was dismissed with costs, the Subordinate Judge s decision being based upon the broad ground that the structures had been erected although the Municipality s permission had been expressly withheld. It was inferred that the circumstances justified the application of those powers of demolition which are conferred on the Municipality by Sub-section (5) of Section 96 of the Bombay District Municipality Act, 1901.

(2.) The plaintiff appealed to the District Court, where the learned Subordinate Judge, A. P., made a decree in his favour, being of opinion that the Municipality s order of 25th July 1903 must be considered as a provisional order issued under Sub-section (3)(a) of Section 96, and, in consequence, not valid beyond a period of one month from the date of its issue.

(3.) Against this decree the present appeal is brought by the Municipality, and on their behalf it is contended that the order of 25th July 1903 should be referred to Sub-section (2), and not to Sub-section (3)(a) of Section 96. We are, however, of opinion that the order is not one which could have been issued under Sub-section (2). That sub-section provides for a variety of orders which may be passed by the Municipality ; but the only words in the sub-section which, we think, could conceivably be invoked in aid of the particular order in question are those which empower the Municipality to issue "such orders not inconsistent with this Act as they think proper with reference to the work proposed". But in our opinion an order directing an indefinite delay-in this case a delay extending to one year-is inconsistent with the Act. That, we think, is made clear by Sub-section (3) and (5) which, in allowing the issue of a provisional order, strictly limit its duration to one month, and penalise only a person who begins to build without awaiting the legal orders of the Municipality issued under Section 96. Reading the section as a whole, we have no doubt that one of the objects of the Legislature was to discountenance just the kind of unreasonable dilatoriness which this case illustrates.