Brij Behari Lal vs Chairman Daltonganj Municipality

Coutts, J.—This was a suit for declaration that the plaintiff had a right to build a verandah on his house in the Daltongunj Municipality and for a permanent injunction restraining the Municipality from demolishing it or any part of it.

It appears that the plaintiff had an old house which he pulled down and in the year 1910 he obtained sanction to build a two-storeyed house in its place. In 1918 he applied for sanction to build the verandah in question in this suit and sanction was given with the reservation that it was not to extend towards the road beyond a certain line marked AA. in the map. The plaintiff disregarded the reservation and built the verandah. The Municipality then ordered him to demolish it and it is on account of this; order that the present suit has been brought. The suit was dismissed by the Munsif and on appeal to the District Judge that decision was upheld. The plaintiff appeals to this Court on two grounds;-

(1) that the building of the verandah is not an erection or re-erection within the meaning of Section 237 of the Bengal Municipal Act, and, therefore, no sanction is necessary, and

(2) that the reservation in the sanction is ultra vires and the plaintiff is entitled to disregard it.

So far as the first point is concerned there is no difficulty. The verandah, it is true, was erected on the site of an old verandah but that the old- verandah had disappeared even before 1910; We have been referred to Chairman of Gaya Municipality v, Sham Lal Gupta (1907) 3 P. L. J. 33=2 P. L. W. 190=141 I.C. 713= (1917), P.H.C.C. (Sup.) 338, but the circumstances of that case were entirely different to those of the present case which clearly comes within the provisions of Section 237. This contention, therefore, fails.

The second point, however, is a more difficult one and on this, I am of opinion that the appellant must succeed. Section enacts that the Commissioners

" may sanction the said building either absolutely or subject to any directions which the Commissioners may deem fit to issue in accordance with the rules, if any, made u/s 241."

In the Daltongunj Municipality no rules have been framed u/s 241 and the contention is that this being so, the Commissioners must either refuse or grant sanction absolutely and without reservation. There can, I think, be little doubt that this is so. It is urged on behalf of the respondent Municipality that if the Commissioners can sanction absolutely they can certainly sanction subject to reservation. This at first sight seems plausible, but if it were the correct view, the words " to issue in accordance with the rules, if any, made u/s 241" would be superfluous.

It is further urged that the words " if any" mean that if no rules are made u/s 241 the Commissioners may make any reservation they like. I am unable to accept this interpretation because if it were correct there would be no object in the Commissioners making rules u/s 241 and thus fettering their discretion. The question is by no means free from doubt, but in my opinion the correct interpretation of the law is that unless rules are made u/s 241 the Municipality must either grant or refuse sanction without reservation.

Lastly it is contended on behalf of the respondents that the plaintiff having accepted the sanction subject to the reservation, he is not entitled now to say that the reservation is ultra vires. This cannot be so, because if the restriction is ultra vires he is not bound by it and is entitled to disregard it; so that the whole question depends upon whether the restriction is ultra vires or not. In the present case, in the absence of rules made u/s 241, I am of opinion that it was ultra vires.

For this reason, therefore, I would set aside the decrees of the lower Courts and I would decree the suit with costs. The plaintiff-appellant will have a declaration that he is entitled to erect buildings in accordance with his notice u/s 237 (1) and the defendant will be restrained by injunction from demolishing such buildings on the plea that they have been or are being constructed in contravention of a legal order of the Commissioners passed u/s 237 (1).

Macpherson, J.:-

I agree.

The appellant rails on the first point because in building the verandah and rooms he certainly erected or re-erected house within the meaning of the enactment. But his second contention succeeds. The appellant duly gave notice to the Commissioners u/s 237 (1), the Commissioners accorded sanction to the erection, not absolutely but subject to "written directions;" the only clog on a sanction which is contemplated by that section, consists of " written directions " issued " in accordance with the rules if any made u/s 241; "the existence of rules u/s 211 regulating "the erection or re-erection of house, not being huts " is, therefore, a condition precedent to the issue of " written directions" u/s 237 (1); no such rules having been made by the Commissioners of the Daltongunj Municipality, the order of the Commissioners upon the appellant''s notice was not a "legal order "within the meaning of that expression in Section 238 (b) since, having failed to utilize the enabling Section 241, they could only either refuse or sanction absolutely. As he had not Contravened "a legal order" no action could be taken by the Commissioners against the appellant u/s 238 (1).

The provision applicable is Section 238 (2) and the Commissioners having neglected or omitted within six weeks after the receipt of appellant''s valid notice u/s 237 (1) to make and deliver to appellant any legal order, that is, an order of refusal or of absolute sanction in respect of his notice, they are deemed to have sanctioned the proposed " house " absolutely. On the above finding Section 242 (A) also has no application at all. The Commissioners have, therefore, no right to interfere with the erection of the verandah and rooms, so long as it is in accordance with the plaintiff-appellant''s notice u/s 237 (1).