BANARSI DAS Vs. MUNICIPAL BOARD OF AMROHA

JUDGEMENT

(1.) This is the plaintiff's appeal. His house abuts on a blind lane. He constructed a cornice projecting from the front wall of his house and over this lane. The Municipal Board gave a notice to the plaintiffs to remove the cornice. The plaintiff disputed their right to issue such notice and instituted the suit, out of which this appeal has arisen.

(2.) The Court of first instance decreed the suit, but a learned Subordinate Judge on appeal dismissed it. He held that maintenance of the suit was barred having regard to the provisions of Section 321 of the Municipalities Act, 1916. He also held that the Municipal Board were within their right in issuing the notice and that the lane in question was a public street within the meaning of Section 2, Clause 19 of the Municipalities Act.

(3.) In this Court it has been contended that the suit is not barred and that the finding of the Court below that the lane was a public street was not justified. There can be no doubt that the jurisdiction of the Municipal Board to issue a notice under Section 211 of the Municipalities Act would depend on whether or not the projection complained of overhangs a street. Where a projection does not overhang a street, but overhangs a private piece of property it may very well be urged that Municipal Board has no jurisdiction to pass an order and that if an order is passed without any jurisdiction that order may be called into question in a Civil Court. The reason for this opinion is absolutely clear. The Municipalities Act was never meant to destroy private right that may exist in property. All that it seeks is to regulate the comfort and health of the public or portion of the public by restricting their rights to do as they please with respect to their own property. As an abstract question of law therefore I hold that the suit would be maintainable provided the lane over which the projection hangs be not a street or a public street within the meaning of Section 2 of the Municipalities Act.