MUNICIPAL BOARD Vs. SHIAM LAL

JUDGEMENT

(1.) This is an appeal by the defendant Municipal Board of Moradabad arising out of a suit brought by the plaintiff for a perpetual injunction against it restraining the defendant from demolishing certain constructions made on the east side of the plaintiff's shop adjoining a public road. The Municipal Board had issued notices under Secs.186 and 211, U.P. Municipalities Act (Act 2 of 1916) for the demolition of these constructions. The present suit was accordingly instituted by the plaintiff to prevent the Board from getting them demolished in pursuance of the said notices. The Board inter alia pleaded that the civil Court had no jurisdiction to entertain this suit. The trial Court held that there were various fatal objections to the suit and it was not maintainable, and accordingly the Court dismissed the suit. On appeal the learned Judge has reversed the decree. His opinion is that the civil Court has jurisdiction to entertain a suit of this nature when the Municipal Board has acted without jurisdiction. As regards the notice issued under Section 186, the learned Judge is of the opinion that inasmuch as the Board had previously on account of its omission to reply to the plaintiff's reminder granted sanction by implication, it had no jurisdiction to revoke it and issue notice contrary to such implied sanction. As regards Section 211, the learned Judge has come to the conclusion that the site over which the projections are had ceased to be a public street or lane inasmuch as in 1928 the Board had granted sanction to the plaintiff to construct a chabutra or platform on it and that accordingly the Board acted with-out any jurisdiction in issuing a notice under that section.

(2.) It seems to us unnecessary to consider the second point or to consider whether a part of the public street could cease to be such street merely because permission was given to have a small chabutra from 1 to 2 feet in height constructed on the side of it, because it seems that the civil Court has no jurisdiction to go behind the notice issued by the Board under Section 186. On 4th February 1932, the plaintiff had filed a vague and incomplete application for sanction to make certain constructions under Section 178 of the Act. It did not contain any detailed specification, nor did it contain any sketch plan. The application merely stated that a map will be filed later, and sanction was asked for in accordance with the map to be filed. The sketch plan which is required by the bye-laws was ready later and was signed by the draftsman on 13 February 1932, and it may be taken that it was filed in the Municipal Board's Office on that date. It is therefore obvious that the application for sanction was actually not complete until 13 February 1932. Without waiting for one full month the plaintiff sent a second notice on 12 March 1932, drawing the attention of the Board to his previous application. There was some delay in replying to this notice. No reply was sent to the plaintiff within 15 days of 12 March 1932; but on 29 March 1932, the Board finally refused to grant sanction. There was again some delay in communicating this refusal to the plaintiff, which has not been explained, but the plaintiff admittedly was definitely informed by the Executive Officer on 13 April 1932, that the sanction had been refused. Whether he had started the constructions earlier or not, it is a fact that he continued the constructions till after 13 April 1932, and the disputed constructions were completed some time later in that month. When the plaintiff persisted in the work of constructions, the Board issued another notice on 14 April 1932, calling upon him to stop the constructions, and that notice was again renewed on 1 May 1932; but the plaintiff paid no heed, with the result that the District Magistrate was approached by the Municipal Board, and he on 19 May 1932, issued an order under Section 144, Criminal P.C. prohibiting the plaintiff from carrying on the constructions any further. This was followed by a notice under Secs.186 and 211 issued by the Board on 1 June 1932. The present suit was filed on 9 July 1932, to challenge the last mentioned notice.

(3.) The first question to consider is whether it is at all open to a civil Court to impugn the validity of a notice issued by a Municipal Board under Section 186 of the Act. Section 178 requires that there should be a notice of the intention to erect a building within the limits of the Municipality. Section 179 requires certain plans and specifications to be supplied, and then Section 180 provides for sanction. Section 185 lays down that if there is any illegal erection or alteration of a building in contravention of the provisions of Section 180, or of any order of the board refusing sanction or any other directions, the offender will be liable upon conviction to a fine. Then Section 186 lays down: The board may at any time by written notice direct the owner or occupier of any land to stop the erection...of a construction...in any case where the board considers that such erection...construction...is an offence under Section 185.