BAI FATMA Vs. RANDER MUNICIPALITY

JUDGEMENT

(1.) THE plaintiff being the owner of a house in Rander applied to the Municipality for permission to rebuild it on the 25th of April 1911. THE Municipality in reply to her application on the 5th of June 1911 prescribed conditions presumably under Section 96(2) of the District Municipal Act. THE permit was granted to her subject to conditions noted on the back for pulling down the building and building a new building on the land by keeping a space so as to leave a width of road 14 feet and a half on the south side of the building in pursuance of the order passed by the Managing Committee on the 6th of May 1911, and the first condition of the permit is that " For the improvement of the said road you must leave on that side a space in length...and in width 14 feet and build the house : and the 7th condition states: "As your building stands on the public road you should take precaution to see that the water from your roof does not fall upon persons passing by that way."

(2.) NOW the public road at the time of the permit was considerably less than 14 feet, namely 8 feet 4 inches. The power of the Municipality under the section to prescribe the location of the building is given in relation to any street existing or projected as they think proper . They have prescribed the location of the building in relation, not to the existing street, but to a street which may come into existence in the future. But we do not think that on the admitted facts it can be said that there is a projected street 14 feet in width, for there is no regular line determined either for the existing street or for the future as contemplated in Section 92. The permit clearly shows that the first condition is not for the purpose of sanitation or for the purpose of ventilation, but simply for the improvement of the street by widening it, and the object is to get a set-back which cannot be obtained under Section 92, because the condition--contemplated in that section do not yet exist. The result is that if the condition of the permit were complied with the plaintiff would have to give up or keep vacant and unproductive a considerable portion of her land, and the Municipality would have the opportunity of paying compensation for it at any time they might feel disposed to do so, which would be contrary to the provisions of Section 92 which contemplate that when a set-back is determined upon compensation shall be paid to the owner. The case is very similar \.q-Queen-Empress v. Veeram-mal (1892) I.L.R. 16 Mad. 230. We think that the plaintiff is entitled to the relief which she prays, namely an injunction restraining the defendants from pulling down the building, or any portion thereof or from putting in force their notice of the 12th of September 1911. The defendants must pay the costs throughout. The decree of the lower appellate Court is set aside.