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1965 DIGILAW 266 (ALL)

Bankey Lal v. Municipal Board, Aligarh

1965-08-04

D.S.MATHUR

body1965
ORDER D.S. Mathur, J. - This is a revision u/s 115 CPC by Bankey Lal, Defendant, against the order of the Additional District Judge of Aligarh, dismissing his revision u/s 25 of the Provincial Small Cause. Courts Act and thereby confirming the decree of the Judge, Small Cause Court, decreeing the suit of the Municipal Board of Aligarh, for a sum of Rs. 112.50P. towards the arrears of the Projection fee due from Bankiy Lal. 2. The Municipal Board, Aligarh, has framed Projection Byelaws u/s 298 of the U.P. Municipalities Act and fur purposes of the Byelaws the term "projection" includes a culver. The Defendant had placed stone slabs over the Municipal drain outside his house. The case of the Municipal Board is that the placing ot stone slabs amounts to the construction of a culvert and a fee as provided in the Byelaws was pay able and when the fee was not paid except for a period of one year the present suit was instituted. 3. Both the lower courts have proceeded with the assumption that the placing of stone slabs amounts to the construction of a culvert and the prescribed Projection fee was payable by the Defendant. 4. The point for consideration is whether the placing of stone slabs merely to cover an open municipal diain to enable persons to cross the drain amounts to the construction of a culvert as contemplated by the Projection Byelaws of the Municipal Board of Aligarh. 5. It may be observed at the very outset that the revisional jurisdiction of this Court is limited by the provisions of Section 115 Code of Civil Procedure; but the revisional jurisdiction of the Distuct Judge u/s 25 of the Provincial Small Cause Courts Act is not so restricted. The District Judge can exercise the revisional jurisdiction if the decision of the Judge, Small Cause Court, is not according to the law. Consequently, where the decision of the Judge, Small Cause Court, is not according to the taw and even then the District Judge declines to exercise the revisional jurisdiction it would be an instance of non exercise of jurisdiction vested in the District Judge and that would empower the High Court to entertain the revision and pass a suitable order. 6. Consequently, where the decision of the Judge, Small Cause Court, is not according to the taw and even then the District Judge declines to exercise the revisional jurisdiction it would be an instance of non exercise of jurisdiction vested in the District Judge and that would empower the High Court to entertain the revision and pass a suitable order. 6. The decision of the Judge, Small Cause Court, was based upon the implied finding that the placing of stone slabs amounted to the construction of a culvert for which Projection fee was recoverable from the Defendant. This Court can thus exercise the revisional jurisdiction if it be found that the placing of stone slabs does not amount to the construction of a culvert and no Projection fee was payable. In Municipal Board, Maunath Bhanjan v. Raghunath Prasad (1) (1953 AWR 580) covering of the municipal drain by putting a few slabs in order to enable persons to cross it without falling into the drain was held not to amount to a projection from the building; but in absence of the Projection Byelaws of the Municipal Board of Maunath Bhanjan it shall be proper to reconsider the matter keeping in mind the Projection-Byelaws framed by the Municipal Board of Aligarh and also the provisions of the U.P. Municipalities Act. 7. The rules of interpretation ordinarily applicable to statutes can also be applied to Byelaws framed under an enactment. Consequently, the title or the heading of the Byelaws cannot restrict its scope. What shall have to be considered is whether the Byelaws as framed could be framed by the Municipal Board under the provisions of the U.P. Municipalities Act? Once it is found that a fee could be imposed for a construction other than a projection the Byelaws shall be valid even though it bears the title of "Projection Bye-laws" and the construction in the ordinary meaning does not amount to a projection. 8. Section 293(1) of the U.P. Municipalities Act gives power to the Municipal Board to charge fees to be fixed by byelaw or by public auction or by agreement, for the use or occupation (other wise than under a lease) of any immovable property vested in, or entrusted to the management of the Board, including any public street or place of which it allows the use or occupation whether by allowing a projection there on pr otherwise. This Sub-section gives power to the Municipal Board to impose fees not only for permitting the construction of a projection on a public street or place but also for the use and occupation thereof. The Municipal Board can thus impose fees for the construction of a culvert on a public drain. However, the fee shall be recoverable only if fixed by the Byelaws or by public auction or by agreement. It is not the case of the Municipal Board that the fee was fixed by public auction or by agreement. Consequently, the Municipal Board could recover Projection fee for a culvert, as contemplated by the Byelaws, if constructed by the Defendant. 9. In the Projection Byelaws framed by the Municipal Board of Aligarh the word "projection" has been assigned a wider meaning to include a culvert: but the word "culvert'' has not been defined. What was contemplated by "culvert', shall, therefore, have to be determined with reference to the other provisions contained in the projection Byelaws. 10. Byelaw No. 2 makes a provision for an application for permission to erect or to reerect any protection over a street or drain on municipal and nazul land, and where a municipal drain is to be covered the application has to indicate as provided in Clause (c) thereof "...how it is proposed to cover the drain in question and where a culvert is to be built showing the exact tunnel size of the culvert." Clause (c) thus distinguishes the mere covering of an open municipal drain from the construction of a culvert. It shall be found that where an open municipal drain is being covered the applicant has to indicate how it is proposed to cover the drain; but where a culvert is to be constructed, exact tunnel size of the cuivert has to be indicated in the application. Mere covering of the municipal drain does not, therefore, amount to the construction of a culvert. In the instant case, the Defendant had merely placed stone slabs over the open municipal drain to enable persons to cross it, without reducing or enlarging the size of the municipal drain. Consequently, for purposes of the projection Byelaws in question mere placing of stone slabs on an open municipal drain shall not amount to a culvert and hence it shall not be a projection for which Projection fee shall be payable. 11. Consequently, for purposes of the projection Byelaws in question mere placing of stone slabs on an open municipal drain shall not amount to a culvert and hence it shall not be a projection for which Projection fee shall be payable. 11. It is not in dispute that the Defendant had merely placed stone slabs over the open municipal drain and as the placing of slabs does not amount to the construction of a culvert no Projection fee was payable and hence the Plaintiff's suit for the recovery of the arrears of Projection fee could not be decreed. 12. The fact that the Defendant had paid the fee for one year cannot be used against him. It cannot amount to his admission of the liability, nor can it be said that thereby the Defendant had agreed to pay the Projection fee. 13. When no Projection fee was payable by the Defendant, the suit of the Municipal Board for the recovery of the Projection fee could not be decreed. The decision of the judge, Small Cause Court, is thus erroneous and against the law and this Court can in exercise of the revisional jurisdiction set aside the decree passed by the Judge, Small Cause Court and also the order of the District Judge when he refused to set aside the decree. 14. The revision is hereby allowed with costs of all the courts and the order of the District Judge in revision and also the decree and judgment of the judge, Small Cause Court are set aside. It is further ordered that the suit of the Municipal Board of Aligarh shall stand dismissed with costs throughout.