SHEIKH JORHAWAN Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for a declaration that the plaintiffs have a right to set up door-leaves or a gate in the eastern wall of an enclosure newly constructed and to build a house on the open space inside the enclosure. The suit is in substance to challenge the refusal of the Municipal Board of Gorakhpur to grant permission to build the constructions or to put door-leaves in an archway.

(2.) The suit has been dismissed by both the Courts below on the preliminary ground that it is barred under the provisions of Section 321 of Act No. 2 of 1916.

(3.) It appears that the plaintiffs applied to the Municipal Board for permission to build an enclosure round their land and to make certain constructions. They also wanted to have door-leaves set up in the entrance on the west side. A report was called for by the Building Sub-Committee which recommended the granting of the application partially. The Board however by its resolution refused to grant any sanction to build on the open space inside the enclosure and also granted permission to build the western wall provided an open entrance is left on that side. The plaintiffs appealed to the District Magistrate who confirmed that order. Another futile attempt was made to move the Commissioner, but he declined to interfere. After their failure the plaintiffs have instituted the present suit. I propose to consider separately (1) the refusal of the Municipal Board to grant sanction to make constructions on the land and (2) their granting sanction to build the western wall subject to there being an open archway. As regards the Board's refusal to grant sanction to build, I am of opinion that the suit is not at all maintainable. Under Section 180, sub-Cl. (1), the Board has, subject to the provisions of any bye-law, power either to refuse to sanction any work of which notice has been given under Section 178 or may sanction it absolutely or subject to certain directions. It cannot be denied that in this case a notice under Section 178 had been given by the plaintiffs to the Municipal Board. Acting on the supposition that the land sought to be built upon was a part of a graveyard the Board refused to grant sanction. It is immaterial whether the reasons for the refusal were sound or not. The Board had power to refuse the sanction. Its refusal was by no means ultra vires. The remedy of the appellants, of which they availed, was to move the Magistrate under Sec. 318. The Magistrate confirmed the order of the Board so far as the refusal to build the house was concerned. That order is final and cannot be questioned in any other manner or by any other authority at all. It is noteworthy that under Section 87, Act No. 1 of 1900, which was the section corresponding to the present Section 180, there was a proviso that the Board shall not refuse to sanction the erection or re-erection of such buildings except on certain grounds. No such proviso is to be found in Section 180. This obviously means that the Board now has a wider power to refuse sanction. Whether the refusal was proper or improper, it cannot be questioned in a civil Court.