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Smt. Surjoo Bai vs Municipal Board

High Court Of Judicature at Allahabad|23 October, 1942


JUDGMENT Hamilton, J.
1. This is a second appeal by Srimati Sarju Bai, plaintiff, who has filed a suit against the Municipal Board of Jhansi to restrain the board from demolishing some tapras which stand on land of the plaintiff. No one has been able to explain to me exactly what tapras are but they are a construction of an unsubstantial and possibly of a temporary nature erected by persons who sell goods of no great value. The tapras in suit are on a piece of land 332/677 in Jhansi town. The municipal board had been in occupation of this land and the plaintiff brought a suit for possession which was finally decided in her favour in the High Court in October 1936. Prom the judgment of this Court in that suit, it appears that the municipality had been in possession of part of this land from the year 1914 and of part of this land from about the year 1916 and it used to let it in small parcels by auction. It used to take rent from these tenants but this rent was rent for the occupation of the land, for, it is nobody's case that the municipal board constructed these tapras. There is nothing to show whether the person to whom any piece of this plot was leased by the municipal board held it from 1914 or 1916, as the case may be, till the year 1937. There is nothing to show whether, if tenants changed, the new comer occupied the tapra of his predecessor, whether a tenant who held for a long period occupied the original tapra from the beginning to the end and there is even no evidence to show when any tenant first erected a tapra. As rent was paid for occupation of the land the length of period for which rent was paid is not evidence that there was a tapra throughout that period. There were certainly tapras in 1937 because on 13th August, which was a day before the appellant actually took possession of the land, the municipal board issued notices for the removal of these tapras. Learned Counsel for the appellant has argued that the board did not act in good faith when it ordered the removal of these tapras and as the board had allowed tapras to remain there for a long time it could not now order their removal.
2. In the first place, I am not satisfied that the appellant has any cause of action. The municipal board issued notices under Section 186, Municipalities Act, to the occupiers of the tapras who had erected those tapras. There is nothing to show that the plaintiff had any right to the materials of these tapras, whatever those materials may be. Unless and until it is shown that the appellant has any right to those tapras, as opposed to the right of taking rent from persons who occupy her land, she cannot, in my opinion, be regarded as a person aggrieved in the legal sense by the action of the municipal board. Even, however, if she is a person aggrieved, she has to show that her remedy lies in a civil Court. There is no evidence to show that the occupiers of these tapras ever applied under Section 178, Municipalities Act, for permission to erect them or to re-erect them or to make material alteration. As I have said, there is no reason to believe that the rent paid by them to the municipality was for the tapras and not for the use of the land on which these tapras had been erected. I cannot presume that any one of these tapras was there from the year 1914 or 1916 till the year 1937.
3. Learned Counsel has argued that under Section 87, Municipalities Act of 1900 a notice for the removal of a building had to issue within a reasonable time, therefore no notice can be issued now for no offence under Section 185 can be said to have been committed when these tapras were completed before the present Act came into force. As I have said, there is no evidence to establish that any one of these tapras about which notice was issued in 1937 was erected before 1916, the date of the Municipalities Act now in force. Supposing even that no offence under Section 185 had been committed, still the action of the municipal board in issuing notices under Section 186 need not be ultra vires. Under Section 186, a municipal board can direct the alteration or demolition of a building or part of a building or of a well if it considers that the erection, re-erection, alteration, construction or enlargement is an offence under Section 185. The section does not say that the municipal board can only so act if an offence under Section 185 has in fact been committed. It is enough for the board to consider that such an offence has been committed. In the present case, the board had ample reason for believing that an offence had been committed for tapras had been erected and no notice had ever been given to the municipal board under Section 178. Whether the board was influenced in its decision to issue notices by the fact that the present appellant had succeeded in establishing her title to the land appears to me to be immaterial. If the board was entitled to issue these notices under Section 186, that is to say if it considered that an offence under Section 185 had been committed, a civil Court can not look into the reason that moved the board to take the action which under the Municipalities Act it had a right to take. It is not for the civil Court to see whether the action of the board is unreasonable or unnecessary or improper. It has to see whether the board could issue notices under Section 186, not whether it should have issued the notices. A person aggrieved by an order under Section 186 has his remedy under Section 318, Municipalities Act, namely an appeal to an officer appointed by the local Government for the purpose of hearing such appeals or failing such appointment, to the District Magistrate.
4. In support of his argument that the appellant had a remedy in a civil Court, learned Counsel has cited Municipal Board, Moradabad v. Habibullah ('39) 26 A.I.R. 1939 All. 383. The facts of that case are that the plaintiff-respondent had applied to the municipal board for permission to make certain construction and had obtained sanction. In making the constructions he had not done anything in contravention of any directions made by the board or of any provisions of the law or of any byelaw. After the constructions had been completed, the Collector wrote to the municipal board saying that the plaintiff-respondent had made an encroachment on nazul land over a public well and directed that the encroachment should be removed at once. On receipt of this letter, a notice purporting to be under Sections 186 and 211 was issued by the executive officer of the board for the demolition of the construction. It appears that the board was well aware of the fact that it had sanctioned the construction and that the notice was issued not because the board or its executive officer believed that any offence had been committed under Section 185 but because the Collector said that there was an encroachment over nazul land. In the circumstances the board did not believe that there had been an offence committed under Section 185 so it could not issue a notice under Section 186. The decision of that case does not help the plaintiff-appellant. There is a decision of this Court by my learned brother in this appeal which is reported in Ambika Prasad v. Emperor 1936 ('36) 23 A.I.R. 1936 All. 693, which is much more to the point. In my opinion all that a civil Court has to see is whether the notice is issued about a building or a well and whether the municipal board considered that an offence under Section 185 had been committed. As it is not necessary that an offence under Section 185 should have been committed, I would go as far as to say that even if notice had been given under Section 178 and the Board had given sanction, a notice under Section 186 would not be ultra vires if the board issuing it was not aware that the board had sanctioned it. If it did not know that there had been any sanction it could very well consider that an offence under Section 185 had been committed, although in fact it had not been committed. If it knew that sanction had been given, then it could not consider that an offence under Section 185 would be ultra vires. I am of opinion that it should be presumed when a notice under Section 186 has been issued that the board considered that an offence under Section 185 had been committed and if a suit like the present one is brought in a civil Court the onus of proof that the board did not consider that an offence under Section 185 had been committed lies heavily on the plaintiff. If the plaintiff, in the circumstances of the present case, was an aggrieved person her remedy was under Section 318. These tapras are, in my opinion, buildings and there is nothing to show that the board did not consider that an offence under Section 185 had not been committed. The suit of the plaintiff and her appeal to the District Judge were properly dismissed and I would dismiss this appeal with costs.
Allsop, J.
5. I agree with the conclusion at which my learned brother has arrived. It seems to me that there is no difficulty about the law in so far as it applies to the provisions of Section 318, Municipalities Act, 1916, although there may be difficulty sometimes in applying the law to the facts of particular eases. It is quite clear that no civil Court may interfere with any order or direction of a municipality mentioned in Section 318. The orders or directions mentioned include those made by a board under the powers conferred by Section 186 of the Act. An order under that section may be passed if it appears to the board that an offence has been committed under Section 185 of the Act. It does not matter whether the offence has or has not been committed as long as the board considers that it has been committed. There have been cases where the question has been raised whether an order passed by an executive officer under Section 186 is an order by the board, but as the definition of the term 'board' includes an officer of the board where he is authorised or required to exercise any power or perform any duty, it does not seem to me that there is any difficulty about answering this question. It is true that the order of an executive officer is subject to appeal to the whole board, but if there is no appeal against this order, that order remains an order by the board within the definition of that term in the Act. When a single Judge of this Court passes a decree, it is the decree of the Court notwithstanding the fact that there may be an appeal under the Letters Patent to a Bench. If there is no appeal the order of the single Judge is the order of the Court and in the same way the order of the executive officer is the order of the board unless it is varied in appeal by the whole board.
6. On the other hand, I have no doubt that the civil Court can go into the question whether an order which purports to be under Section 186, Municipalities Act, is in fact an order under that section. The nature of a transaction cannot be changed merely by giving it a name which does not properly apply to it. A transfer which has all the characteristics of a mortgage, for instance, does not become a sale merely because the parties choose to describe it as a sale. In the same way an order which does not come within the provisions of Section 186 does not become an order under that section merely because the board or any servant of the board chooses to describe it as an order under that section. There may be an order such as that described in 1939 A.L.J. 332, which though purporting to be under Section 186 is not in fact within the , provisions of that section. That was a case in which the board had allowed a person to erect a building and it was obvious that he committed no offence under Section 185 when he erected it. The board did not purport to consider that he had committed an offence. It issued an order purporting to be under Section 186 not to preserve the amenities of the town in its administrative capacity but to enforce at the instance of the Collector the proprietary rights of the Government over some nazul land. There was an obvious confusion of thought between the functions of the board as the manager of nazul property on behalf of the Government and its functions as a board properly so-called to preserve the amenities of the town in the interests of the residents. It is possible that there may be cases where it is so obvious that there was no offence under Section 185 that nobody could possibly hold that the board really considered that there had been an offence, but this is not one of them. As my learned brother has said, the question is whether the board had a legal right to issue the notice and not whether its motives in issuing it were strictly proper. I agree that the appeal must be dismissed with costs.
7. The appeal is dismissed with costs.
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Smt. Surjoo Bai vs Municipal Board


High Court Of Judicature at Allahabad

23 October, 1942