HAKIM MOIN UDDIN Vs. SHIEKH ABDUS SAMAD

JUDGEMENT

(1.) This is a defendant's appeal against the order of remand passed by the learned civil Judge. The plaintiff-respondent brought a suit against the-defendant- appellant for a perpetual injunction to restrain the defendant from working his flour-mill in house No. 104 in mohalla Khalifa Mandi, Allahabad. The plaintiff's house is No. 126 and adjoins the defendant's house No. 104. The defendant set up a flour-mill with a 45-50 H.P. engine in house No. 104 in September 1931 with the permission of the Municipal Board. An appeal was filed by the plaintiff against the grant of permission by the Municipal Board to the defendant but it was rejected. Thereafter the defendant set up his mill and worked it for sometime. The plaintiff has stated his case in para. 4 of his plaint as follows: The vibrations, sound and smoke o? the defendant's mill have rendered the plaintiff's house uninhabitable. They have created a great nuisance, and affect the health adversely. The plaintiff's house has been cracked at different places on account of the vibrations, and all sorts of losses and mental and physical troubles were and are caused to the plaintiff.

(2.) The defendant's chief contention was that he had set up his machine with the permission of the Municipal Board and the civil Court had therefore no jurisdiction to try this suit. The trial Court found in favour of the defendant and dismissed the suit holding that it was barred by Section 321, Municipalities Act. On appeal the learned civil Judge found that the suit was not barred and remanded the suit to the trial Court for decision. Against this order of remand the present appeal has been filed. The only question for consideration in this appeal is whether the suit is barred by Secs.245 and 321, U.P. Municipalities Act. Section 245 lays down: (1) If it is shown to the satisfaction of a board that any building or place within the limits of the Municipality which any person uses or intends to use as factory or other place of business of the manufacture, storage, treatment or disposal of any article, by reason of such use, or by reason of such intended use, occasions or is likely to occasion a public nuisance, the board may at its option require by notice the owner or occupier of the building or place, (a) to desist or refrain, as the case may be, from using, or allowing to be used, the building or place for such purpose, or (b) only to use, or allow to be used, the building or place for such purpose under such conditions or after such structural alterations as the board imposes or prescribes in the notice with the object of rendering the use of the building or place for such purpose free from objection.

(3.) The defendant applied for permission for the setting up of his machine and the permission was granted to him on certain conditions. An appeal against the order of the Municipal Board granting permission to the defendant was filed by the plaintiff under Section 318, Municipalities Act, but it was dismissed. Section 318 lays down: (1) Any person aggrieved by any order or direction made by a board under the powers conferred upon it by Secs.180(1), 186, 205(1), 208, 211, 222(6), 241(2), 245, 278 and 285, or under a bye-law made under a heading G of Section 298, may within 30 days from the date of such direction or order, exclusive of the time requisite for obtaining a copy thereof, appeal to such officer as the Local Government may appoint for the purpose of hearing such appeals or any of them, or, failing such appointment to the District Magistrate : provided that if, in the latter ease, the District Magistrate be himself a member of the board, the appeal shall lie to the Commissioner (2). The appellate authority may, if it thinks fit, extend the period allowed by Sub-section (1) for appeal. (3) No appeal shall be dismissed or allowed in part or whole unless reasonable opportunity of showing cause or being heard has been given to the parties.