TRIBHOVAN CHUNILAL Vs. AHMEDABAD MUNICIPALITY

JUDGEMENT

(1.) The finding of the lower appellate Court in this case is that the plaintiff has erected the balcony in dispute contrary to an order issued by the Municipality under a bye-law framed under the Bombay District Municipal Amendment Act (Bombay Act II of 1884).

(2.) It is contended (or the plaintiff in this second appeal that as the balcony abuts on a private, not a public, street, the Municipality has no right to interfere with it. It is admitted for the Municipality that the building of which the balcony is a part abuts on a private street. The balcony is a projection of the building and must be taken to be a part of the building itself. "A projection from a building means a part of a building projecting or jutting out; it means a prominence extending from building in the sense of coming out from the building as part of the building:" per Bruce, J., in Hull V/s. London County Council (1901) 1 K.B. 580 at p. 588. The only question, therefore, is whether the order was within the jurisdiction of the Municipality under the provisions of the Bombay District Municipal Act of 1873. Mr. Justice Batty has held that it was not. Mr. Justice Aston has taken the contrary view. The second appeal has, under these circumstances, been referred to me for disposal under Section 575 of the Code of Civil Procedure.

(3.) The contention of the Municipality is that its order "falls properly within Section 33 of the Act. The first clause of that section says: "Before beginning to erect any building, or to alter externally or add to any existing building, the person intending so to build, alter or add, shall give to the Municipality notice thereof in writing." By such notice he is required, among other things, to furnish to the Municipality "all information they may require regarding the limits, design, and materials of the proposed building." Clause 2 of the section says that "within one month after receiving such notice the Municipality may in writing issue such order not inconsistent with this Act as they think proper with reference to such building." Clause 3 says that if any person erect such building "without the notice, or without affording the information above prescribed, or in any manner contrary to the legal orders of the Municipality issued within the period above said or in any other respect contrary to the provisions of this Act," he shall be liable to a certain penalty and "the Municipality may, by written notice, require such building to be altered or demolished as they may deem necessary."