Municipal Board, Rae Bareli v. Suraj Bali — 1946 DIGILAW 97 (ALL)

JUDGMENT Rayhubar Dayal, J. - Suraj Bali sued Municipal Board, Rae Bareli, for a permanent injunction to the effect that the Municipal Board was not to remove the tin and wooden sheets from his shops. The suit was decreed by the Munsif. On appeal by the Municipal Board the Civil Judge modified the decree to the effect that the Plaintiff was entitled to the injunction that the projections in suit could not be removed by the Municipal Board under the notice, Ex. 3. The Municipal Board has come up in second appeal. 2. The facts leading to the litigation are that the Municipal Board required the Plaintiff to pay fees for the projections which have been in existence from before 1900 and which overhung the public streets. The Plaintiff protested against the demand of the fees. 3. The Municipal Board issued the notice Ex. 3, to the Plaintiff on 25th May, 1943. This voice purports to be u/s 211, U.P. Municipalities Act and under projection bye-law No. 12. It alleged that the Plaintiff had constructed the projections without obtaining permission required u/s 209, and required him to remove the projections within fifteen days. It further said that if the Plaintiff wanted to retain the projections the Municipal Board could give permission on condition that the Plaintiff paid the fees according to the projection bye-laws. It required the Plaintiff to express his consent to pay the fees within fifteen days and also to pay the fees within the period. 4. The Plaintiff and others filed the objection Ex. A6 before the Municipal Board on 14th June, 1943. The objection was dismissed. The Plaintiff then filed this suit. The Plaintiff alleged in the plaint that the Municipal Board framed projection bye-laws in 1935 but it did not enforce them till 1942 when it began to issue notices to the shop keepers, that the notice Ex. 3, was legally bad, that the projection bye-law No. 12 was ultra virus of the Board and that the notice u/s 211, Municipalities Act on its basis was invalid. 5. The Municipal Board contested the suit It did not admit the period of the constructions. It further urged that the suit was not maintainable and that the Plaintiff should have appealed against the notice issued by the Board. 6. The learned Mensal held that byelaw No. 12 was ultra virus of the Board, that the notice, Ex. 5. The Municipal Board contested the suit It did not admit the period of the constructions. It further urged that the suit was not maintainable and that the Plaintiff should have appealed against the notice issued by the Board. 6. The learned Mensal held that byelaw No. 12 was ultra virus of the Board, that the notice, Ex. 3, was illegal and that the suit was maintainable. He accordingly, "as noted before, decreed the suit. 7. The learned Civil Judge did not decide the question of bye-law No. 12 to be intra virus or ultra virus of the Municipal Board. He held that the bye-law was not enforceable as it has not been previously published as required u/s 301(2) Municipalities Act. He also held the notice to be invalid as it did not offer compensation, the projections being of a period prior to 1900. He, therefore held that the suit was maintainable. 8. Three points have been urged before me for the Appellant: The first is about the validly of the projection bye-law No. 12. I an of opinion that it is not necessary in this case to decide about the validity of this bye-law, No relief is claimed by the Plaintiff with respect to this bye-law. The relief is only against the direction issued in the notice, Ex. 3, for the removal of the projections, and such direction was given u/s 211 of the Municipalities Act. I am, however, of opinion that the bye-law cannot be held to be invalid in this cafe on the ground that it was not previously published as required u/s 301(2), Municipalities Act. The validity of this bye-law was not challenged on this ground in the plaint. Learned Counsel for the Respondent has stated that this point v. as taken up by the Court itself. The point related to a question of fact and it is just possible, as urged for the Appellant, that if the question had been raised in this form the Municipal Board might have had some further material to show that there had been previous publication of bye-law No. 12. It appears from the paper 'Taluqdar' Ex. A2, that the newspaper committed mistake in publishing the bye-laws, it grouped bye-laws Nos. 11 and 12 and missed some relevant part of the two bye-laws. Bye-law No. 11 an printed is not clear. 9. It appears from the paper 'Taluqdar' Ex. A2, that the newspaper committed mistake in publishing the bye-laws, it grouped bye-laws Nos. 11 and 12 and missed some relevant part of the two bye-laws. Bye-law No. 11 an printed is not clear. 9. Section 23(5), U.P. General Clauses Act, 1904 provides that where by any United Provinces Act, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the publication in the Gazette of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been only made. 10. In view of this provision and the fact that bye-law No. 12 was published along with other projection bye-laws in the U.P. Gazette, dated the 12th January, 1935, part III, page 17, it must be held that the bye-law bad been duly made. 11. The second point urged in appeal is that the notice, Ex, 3, was not an illegal notice' it being not necessary that the notice u/s 211, Municipalities Act, should make an offer of the compensation to be paid for any damage caused by the removal of any projection lawfully in existence on or before the 10th day of March. 1900, Section 211 itself does not require that such an offer be made in the notice. Proviso to Section 211 creates the liability of the Board to pay compensation in such circumstances. It does not stand to reason that when a Municipal Board issued a notice it should make an offer of compensation. It may arise quite often, as happened in this particular case, that the Municipal Board did not consider the projection to have been in existence from before 10th March, 1900. Compensation can be agreed upon in proceedings subsequent to the compliance of the notice for the demolition or alteration of the projection etc. In fact till the projection is removed or altered it may not even be possible to know what damage would be caused by the removal or alteration and what would be the fair amount of compensation. The case reported in Emperor v. Nanna Mal (1913) 35 All. 3(sic) and Mrs. A.J.S. Joseph v. The Corporation of Calcutta (1916) 36 I.C. 8 support this view. The case reported in Emperor v. Nanna Mal (1913) 35 All. 3(sic) and Mrs. A.J.S. Joseph v. The Corporation of Calcutta (1916) 36 I.C. 8 support this view. X be cases dealt with similar provisions in the U.P. Municipalities Act, 1900 and the Calcutta Municipal Act. It may be noted that Section 341 of the Calcutta Municipal Act provided that the Corporation shall make reasonable compensation if the owner or occupier of the building proves that any such fixture was erected before a certain date or was erected after a certain date with the consent of the Municipal authorities. The Allahabad case, however, is practically on all fours with the present case. 12. I am, therefore, of opinion that the notice Ex. 3 is not bad in law on account of its omission to mention the compensation which the Municipal Board was pre pared to pay for the damage likely to be caused by the removal of these projections. 13. The Learned Counsel for the Respondent has urged that the notice, Ex. 3, is bad in law because it mentions a wrong fact that the projections had been constructed without permission required u/s 209 of the U.P. Municipalities Act and because Section 211 did not contemplate a conditional notice. I do not agree. The Municipal Board and the party concerned need not agree about certain facts. Misstatement of a fact in a notice does not render it illegal. The mistake can be pointed out in appeal and, if proved, can be set right. 14. The condition in the notice, Ex. 3, is merely a concession to the Plaintiff the concession being that the Municipal Board will give the permission for the retention of the projections in case the Plaintiff agreed to pay the fees and did pay them. Such a confessional condition does not affect the validity of the notice which was a clear notice u/s 211 for the removal of the projections. It is implied and the law allows that the party aggrieved with" the notice can approach the Board and higher authorities against it and that the Board can revise its opinion and may pass orders in favor of the applicant. If a possibility of the passing of such a favorable order is mentioned in the notice itself I see n0 reason why it should invalidate the notice. If a possibility of the passing of such a favorable order is mentioned in the notice itself I see n0 reason why it should invalidate the notice. If the notice had simply said that the projections be removed within a certain time and that if there be any objection to the notice the objection be filed within a certain period, the notice would not have been thought to be a bad notice. 15. I am, therefore, of infusion that the notice, Ex. 3, is not bad in law on account of its mentioning an incorrect fact and on account of its, giving an alternative to the Plaintiff in case he did not desire to remove the projections but desired to retain them. 16. It has been argued before me that the Municipal Board is not competent to levy fees on projections which existed before the Board's framing projection bye-laws. It has been so held in the case reported in Municipal Board Kanauj v. Manohar Lal 1946 A.W.R. (H.C.) 85 : 1946 A.W.R. (H.C.) 85. I do not consider it necessary to decide this point. 1 have already noted that this suit does not relate to any relief against a demand under bye-law No. 12. If the Plaintiff did not want to take advantage of the alternative given to him in the notice, Ex. 3, he was free to do so. If he had felt that it was not right to ask him to remove the projections on the ground that he was not prepared to pay the fees it was for him to file an appeal against a notice u/s 211, Municipalities Act. The appellate Court would have then considered the propriety and the desirability of the notice which was legally issued to the Plaintiff. The Civil Court cannot decide this question. 17. The third point urged in appeal is that the suit was not maintainable in the Civil Court. I agree with the contention Section 318 of the Municipalities Act provides: Any person, aggrieved by any order or direction made by a Board under the powers conferred upon it by Section 211. may appeal to the District Magistrate or any officer appointed by the Local Government for the purpose. 18. I agree with the contention Section 318 of the Municipalities Act provides: Any person, aggrieved by any order or direction made by a Board under the powers conferred upon it by Section 211. may appeal to the District Magistrate or any officer appointed by the Local Government for the purpose. 18. Section 321 of the Act provides: No order or direction referred to in Section 318 shall be questioned in any other manner or by any other authority than is provided therein. 19. So long as the Municipality acts within its jurisdiction to issue notice u/s 211 of the Municipalities Act the order contained in that notice cannot be questioned in the Civil Court. This is the view expressed in Municipal Board Bara Banki v. Rajab Ali (1916) 3 O.W.N. 511 and The Chairman, Municipal Board, Bahraich v. Parbhu (1909) 13 O.C. 191. The case reported in Banarsi Das Vs. Municipal Board of Amroha and Others, AIR 1925 All 234 also supports the view. The Municipal Board had jurisdiction u/s 211, Municipalities Act to ask the Plaintiff to remove the projections, and therefore the validity of this notice cannot be questioned in the Civil Court. 20. An order under the projection bye-law No. 12 is not covered by Section 318 of the Municipalities Act. It could have been questioned in the Civil Court but I repeat that this suit claims no relief against the operation of the projection bye law No. 12. The mere fact that the notice, Ex. 3, gave an option to the Plaintiff to comply with bye-law No. 12 does not invalidate the notice as I have held above and does not, therefore, suffice to establish the maintain-ability of the present suit, which is rely a suit for relief against the direction issued in the notice, Ex 3, u/s 211, Municipalities Act. 21. I am, therefore, of opinion that the notice, Ex. 3, was a good notice which the Municipal Board was competent to issue u/s 211, Municipalities Act, that it is not for the Civil Court to decide about its propriety and that therefore the Plaintiff is not entitled to the injunction sought and granted by the Courts below. 22. I accordingly allow the appeal, set aside the decrees of the Courts below and dismiss the Plaintiff's suit. I order the Plaintiff to pay the costs of the Appellant in all the Courts. 23. 22. I accordingly allow the appeal, set aside the decrees of the Courts below and dismiss the Plaintiff's suit. I order the Plaintiff to pay the costs of the Appellant in all the Courts. 23. As requested, I declare it a fit case to appeal u/s 12(2) O.C. Act.