VITHAL DHONDDEV RAIKAR Vs. ALIBAG MUNICIPALITY

JUDGEMENT

(1.) In this case the plaintiff applied to the Municipality of Alibag on the 1st of December 1913 for permission to build a privy on his own land. The permission was granted by the Municipality on the 22nd of December. On the 8th of January 1914, the Municipality gave a notice to the present plaintiff requiring him not to build the privy until a further order was made. The plaintiff gave notice to the Municipality on the 22th of June of the present action and on the 7th of July 1914 filed the suit for the cancellation of the order of the Municipality dated the 8th of January 1914 based on a resolution of the Managing Committee of the 6th January and for a declaration that he had a right to construct the privy the also prayed for a perpetual injunction restraining the defendant Municipality from preventing the plaintiff in the work of constructing the privy, and for damages.

(2.) The trial Court allowed the plaintiff s claim holding that the second order was beyond the powers of the Municipality and that the permission granted on the 22nd of December was good. Accordingly, a decree was passed in favour of the plaintiff. The Municipality appealed from that decree. The learned Assistant Judge who heard the appeal came to the conclusion that the order of the 8th of January 1914 was within the powers of the Municipality and that it was binding upon the plaintiff. the was, however, of opinion that having regard to the preparation which the plaintiff had made by way of commencing the work he was entitled to damages of Rs. 2. The decree of the trial Court was reversed on the main point and affirmed as to damages.

(3.) The present appeal is preferred by the plaintiff against that decree, and it is contended on behalf of the plaintiff that the second order made by the Municipality is ultra vires. It seems to me, on the facts of this case, that the first order made by the Municipality granting permission to the plaintiff to build the privy was a final order under Sub-section (2) of Section 96 of the Bombay District Municipalities Act. The subsequent order which purports to be provisional in its character is not referable to Sub-section (3) of that section. In the first place, it was not made within a month from the receipt of the notice given to the Municipality under Sub- section (1). Secondly, it did not purport to specify any period not exceeding a month. And indeed, from the omission of the Municipality to pass any further order after communicating this order to the plaintiff up to June 1914, it seems clear that though in form the second order was provisional in substance it was a cancellation of the permission already granted and practically a prohibition to the plaintiff against building the privy. But taking the order to be what it purports to be in form, it is clear that it is not covered by Sub-section (3) because it is not a provisional order of the character contemplated by that sub-section. It was, in fact, made after the order granting the permission under Sub-section (2). There is no other provision of the Act to which we have been referred on behalf of the Municipality as saving this order.