SMT SURJOO BAI Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) This is a second appeal by Srimati Sarju Bai, plaintiff, who has filed a suit against the Municipal Board of Jhansi to restrain the board from demolishing some tapras which stand on land of the plaintiff. No one has been able to explain to me exactly what tapras are but they are a construction of an unsubstantial and possibly of a temporary nature erected by persons who sell goods of no great value. The tapras in suit are on a piece of land 332/677 in Jhansi town. The municipal board had been in occupation of this land and the plaintiff brought a suit for possession which was finally decided in her favour in the High Court in October 1936. Prom the judgment of this Court in that suit, it appears that the municipality had been in possession of part of this land from the year 1914 and of part of this land from about the year 1916 and it used to let it in small parcels by auction. It used to take rent from these tenants but this rent was rent for the occupation of the land, for, it is nobody's case that the municipal board constructed these tapras. There is nothing to show whether the person to whom any piece of this plot was leased by the municipal board held it from 1914 or 1916, as the case may be, till the year 1937. There is nothing to show whether, if tenants changed, the new comer occupied the tapra of his predecessor, whether a tenant who held for a long period occupied the original tapra from the beginning to the end and there is even no evidence to show when any tenant first erected a tapra. As rent was paid for occupation of the land the length of period for which rent was paid is not evidence that there was a tapra throughout that period. There were certainly tapras in 1937 because on 13 August, which was a day before the appellant actually took possession of the land, the municipal board issued notices for the removal of these tapras. Learned Counsel for the appellant has argued that the board did not act in good faith when it ordered the removal of these tapras and as the board had allowed tapras to remain there for a long time it could not now order their removal.

(2.) In the first place, I am not satisfied that the appellant has any cause of action. The municipal board issued notices under Section 186, Municipalities Act, to the occupiers of the tapras who had erected those tapras. There is nothing to show that the plaintiff had any right to the materials of these tapras, whatever those materials may be. Unless and until it is shown that the appellant has any right to those tapras, as opposed to the right of taking rent from persons who occupy her land, she cannot, in my opinion, be regarded as a person aggrieved in the legal sense by the action of the municipal board. Even, however, if she is a person aggrieved, she has to show that her remedy lies in a civil Court. There is no evidence to show that the occupiers of these tapras ever applied under Section 178, Municipalities Act, for permission to erect them or to re-erect them or to make material alteration. As I have said, there is no reason to believe that the rent paid by them to the municipality was for the tapras and not for the use of the land on which these tapras had been erected. I cannot presume that any one of these tapras was there from the year 1914 or 1916 till the year 1937.

(3.) Learned Counsel has argued that under Section 87, Municipalities Act of 1900 a notice for the removal of a building had to issue within a reasonable time, therefore no notice can be issued now for no offence under Section 185 can be said to have been committed when these tapras were completed before the present Act came into force. As I have said, there is no evidence to establish that any one of these tapras about which notice was issued in 1937 was erected before 1916, the date of the Municipalities Act now in force. Supposing even that no offence under Section 185 had been committed, still the action of the municipal board in issuing notices under Section 186 need not be ultra vires. Under Section 186, a municipal board can direct the alteration or demolition of a building or part of a building or of a well if it considers that the erection, re-erection, alteration, construction or enlargement is an offence under Section 185. The section does not say that the municipal board can only so act if an offence under Section 185 has in fact been committed. It is enough for the board to consider that such an offence has been committed. In the present case, the board had ample reason for believing that an offence had been committed for tapras had been erected and no notice had ever been given to the municipal board under Section 178. Whether the board was influenced in its decision to issue notices by the fact that the present appellant had succeeded in establishing her title to the land appears to me to be immaterial. If the board was entitled to issue these notices under Section 186, that is to say if it considered that an offence under Section 185 had been committed, a civil Court can not look into the reason that moved the board to take the action which under the Municipalities Act it had a right to take. It is not for the civil Court to see whether the action of the board is unreasonable or unnecessary or improper. It has to see whether the board could issue notices under Section 186, not whether it should have issued the notices. A person aggrieved by an order under Section 186 has his remedy under Section 318, Municipalities Act, namely an appeal to an officer appointed by the local Government for the purpose of hearing such appeals or failing such appointment, to the District Magistrate.