Brijbehari Lal vs The Chairman of the Municipality and Another

Coutts, J.—This was a suit for a declaration that the plaintiff had a right to build a verandah on to his house in the Daltangunj 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 1913 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 created on the site of an old verandah but that old

verandah had disappeared even before 1910. We have been referred to Chairman of Gaya Municipality v. Sham Lal Gupta 41 Ind. Cas. 713 : 8

P.L.J. 88 : 2 P.L.W. 190 : (1917) Pat. 388, but the circumstances of that case were entirely different to these 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 237 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 Daltangunj 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 restriction is ultra vires. This cannot be(sic.), 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 male u/s 241, I am

of opinion that it was ultra tires.

For this reason, therefore, I would pet 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 or are being constructed in contravention of a legal order of the Commissioners passed

u/s 237(1).

Macpherson, J.

I agree. The appellant fails on the first point, because in building the verandah and moms be certainly erected or re erected a house within the

meaning of the enactment. But his second contention succeeds. Appellant duly gave notice to the Commissioners u/s 237(1); the Commissioners

accorded sanction to the creation not absolutely but subject to ""written directions"" the only (sic.) 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 241 regulating ""the

creation or re erection of houses, not being huts"" is, therefore, a condition precedent to the issue of ""written directors"" u/s 237(1); no such Rules

having been made by the Commissioners of the Daltargunj Municipality, the order of the Commissioner upon the appellants, notice was not a legal

and rule"" within the meaning of that expression in Section 238(1), 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 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 findings Section 242A 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 in accordance with the plaintiff

appellant''s notice u/s 237(1).