Emperor v. Gafur Daud Bohra Accused.

Patkar, J.:— It is urged in support of this appeal that balconies and eaves form part of a building according to the decision in Tribhovan v. Ahmedabad Municipality(1), and that whether the street is a private street or a public street the municipality has power to act under Section 96 of the Bombay District Municipal Act, 1901, according to the ruling in Viramgam Municipality v. Bhaichand Damodar(2). Further, reliance is placed on the judgment of Fawcett, J., in the case of Ahmedabad Municipality v. Manilal(3), where it was held that Section 113 of the Municipal Act, did not restrict the general powers conferred on a municipality by S. 96.

2. It is conceded on behalf of the accused that S. 96 would apply to balconies or eaves and other projections of a house which form part of a building and that notice is necessary under S. 96, but it is argued on behalf of the accused that the order passed by the municipality prescribing the height at which the eaves should be erected is not legal as it does not fall within Cl. (2), S. 96. In Viram-gam Municipality v. Bhaichand Damodar, it was held that if an otla was constructed without permission under Section 96 of the Bombay District Municipal Act, 1901, the municipality could remove it even if it was on a private street land.

3. In the present case the accused gave notice under Section 96 of the Bombay Act 3 of 1901. The only question is whether the order of the municipality fixing the height of the eaves at twelve feet is a legal order. The case of Ahmedabad Municipality v. Manilal relates to a balcony (Dakhli) to the second story of a house abutting on a public street and projecting to a greater extent than that prescribed by the permission given by the municipality under Section 33 of the Bombay Act 6 of 1873. In the present case the eaves do not project beyond the limit fixed by the permission granted under S. 96, Act 3 of 1901, but are built at a lower level than that prescribed by the permission granted under Section 96 of the Bombay Act 3 of 1901, and that the building abuts on a private street and not a public street. The case of Tribhovan v. Ahmedabad Municipality relates to a balcony put by a parson to his house abutting on a private street and constructed in defiance of the orders issued by the municipality under Section 33 of the Bombay Act 6 of 1873. The wording, however, of Section 33 of the Bombay Act 6 of 1873, is very wide. Under Section 33, Clause (2) of the Bombay Act 6 of 1873, the municipality had power within one month from receiving the notice to issue such orders not inconsistent with the Act as they may think proper with reference to such building. cl. (2), section 96 of the present act is restrictive in its terms. Under that clause the municipality have power to issue orders not inconsistent with the Act and (1) may give permission to erect or alter or add to the building according to the plan and information furnished; or (2) may impose in writing such conditions as to level, drainage, sanitation, materials, or to dimension and cubical contents of rooms, doors, windows and apertures for ventilation, or with reference to the location of the building in relation to any street existing or projected, as they think proper or (3) may direct that the work shall not be proceeded with unless and until all questions connected with the respective location of the building and any such street have been decided to their satisfaction. It does not appear in this case that the height at which the eaves were to be erected was mentioned in the plan or in the information furnished.

4. It is suggested in support of this appeal that by the application discretion was entrusted to the municipality to prescribe the height, and that the report of the secretary and the permission fixed the height at twelve feet. It does not appear that the accused left the matter to the discretion of the municipality, nor does it appear that in the plan or in the information furnished the height was mentioned to be twelve feet. It is not suggested that the municipality entered in the plan the height at which the eaves were to be built. It would, therefore, follow that the municipality had no right to insist on having the eaves built at the height of twelve feet unless it was so mentioned in the plan or in the information furnished. The regulation of the height at which eaves should be erected does not fall within the wording of the second part of this clause, for the second part is restricted to level, drainage, sanitation, material or to the dimensions and cubical contents of rooms, doors, windows and apertures for ventilation or with reference to the location of the building and does not refer to the height at which eaves have to be erected. It is conceded that the order of the municipality does not fall under the second part of this clause. Assuming, therefore, that S. 113 does not control the wide wording of S. 96, we think that the second clause of S. 96 does not empower the municipality to prescribe the height at which eaves should be erected. Under S. 113 power is given to the municipality to prescribe the height at which the roofs or eaves may be erected, but such projections must, according to that section, be over public streets. It is found in the present case that the street on which the eaves project is a private street and we accept the finding of the lower Court that the street is a private street and not a public street. It would, therefore, follow that S. 113, which empowers the municipality to regulate the height of the eaves, does not ripply to the eaves of the house in the present case as it abuts on a private street.

5. We think, therefore, that the orders of the municipality are not legal in prescribing the height of the eaves at twelve feet. We would, therefore, confirm the order of acquittal of the lower Court and dismiss this appeal.

6. Baker, J.:— I agree.

7. Appeal dismissed.