Abdul Qayum Khan () v. City Board Of Mussoorie And Others (S).

Mukerji, J.:— This is a reference by the learned District Magistrate of Dehradun under the following circumstances. In Mussoorie, which is within the jurisdiction of the learned Magistrate, a gentleman described as the Raja Sahib of Amawan put in an application before the Municipal Board for permission to make certain additions and alterations to a house which he had purchased. This house was known as Cecil Hotel and apparently was used as a hotel before the purchase. Adjacent to the building purchased by the Raja of Amawan is a house, known as the Ivy Cottage, which is owned by one Sardar Abdul Qayum Khan, a political detenue. That building has been obtained on lease by one Sardar Bhagat Singh and is being used as an hotel and has been called “The Grand Indian Hotel”. The Raja Sahib of Amawan, among other alterations, constructed a bath room at the north-west corner of his house. The estate owned by the Raja Sahib of Amawan, it appears, is on a much higher level than the estate of Ivy Cottage. The Raja Sahib of Amawan, to obtain further room for his building, has constructed the bath room on certain girders and it now hangs out in the air supported on girders. The result is that to some extent the added building (the bath room) hangs over the Ivy Cottage estate. The Municipal Board of Dehradun having granted sanction to the construction, the Political Officer, who looks after the interest of the political detenue Sardar Abdul Qayum Khan, took up the matter and lodged an appeal on behalf of the Sardar before the Magistrate. The objections that were taken to the grant of the sanction were three-fold. The first objection was that the Raja Sahib of Amawan had been permitted by the City Board to make a construction on the land of the appellant. The second point was that the proposed bath rooms, if constructed, would injuriously and materially affect the appellant's buildings. The third point was that the grant of sanction was opposed to law and equity and contrary to principles of sanitation.

So far as the first point was concerned, the learned Magistrate held that if any land of the appellant had been encroached, upon, that was a matter for the civil court to decide.

On the question of sanitation the learned Magistrate considered the arguments, from different points of view. It appears that one of the bye-laws framed by the Municipal Board of Mussoorie was bye-law No. 23 and was meant to be a bye-law framed under 3 section 298, list II, sub-list I clause (j). The idea therefore in framing the bye-law was the avoidance of overcrowding in houses and inhabited sites. The bye-law lays down that no building shall be erected or re-erected outside bazaar areas in such a manner that any portion of it would be less than fifty yards from any other building, etc. It is a fact that the bath room complained of (we are concerned only with one particular bath room, although the Raja built several) was less than fifty yards from one of the buildings on the estate, Ivy Cottage. The learned Magistrate considered how far the question of sanitation was affected by the construction of the bath room. He is of opinion that the Municipal Board could depart from the bye-law, but for good reasons. He held that there was sufficient justification for the Board to depart from the bye-law and to give the Raja permission to construct the bath room. The learned Magistrate held that the sanitation of the locality was not affected by the existence of the bath room and as a matter of fact the sanitation was likely to improve by the introduction of a sanitary bath room in place of an old kind of service bath room. The learned Magistrate says in paragraph 3 of his order of reference, referring to the breach of rule No. 23, that he accepts the explanation of the Municipal Board that the sanction had been given, by the full Board. Then he says that it was pointed out to him that the building did not constitute a new building but was merely an addition and alteration to an existing building, and this argument was also accepted by the Magistrate. Then he considered the question of sanitation and concluded by saying, “I see” therefore no reason for taking any exception to the Board's order sanctioning infringement of the distance rule on the ground that the proposed additions and alterations will improve “the sanitation of the locality.”

Now a rule which is meant to avoid overcrowding must be treated as a rule designed for the betterment of sanitation and to avoid want of it. The whole scheme of the Municipalities Act discloses the fact that the power of the Municipal Board to grant or withhold sanction to a building is confined to the questions of sanitation and, to some extent, uniformity, of buildings where they abut on a road. The points on which bye-laws may be framed are enumerated under section 298 and they show this design. I need not dilate on the point. A cursory perusal of the list will show that the Municipal Board is not given in it any authority to encroach on the private rights of the inhabitants, except for the purpose of benefit to the public in general. For this reason, all other questions of private rights have been left to be determined by the courts (see section 184 of the Municipalities Act). The decision of the Municipal Board or of the appellate authority (Collector or the Commissioner as the case may be) is final under section 321 of the Act. It is impossible to believe that a decision on a question of private rights could have been given finality where the decision is arrived at without hearing evidence or where the decision is arrived at by a body of men not specially trained in law respecting private rights.

The learned Magistrate, therefore, found himself unable to decide that he should interfere with the sanction granted by the full Board to the Raja of Amawan, on the simple ground that the bath room “detracted from the value and amenities of the appellant's property”. Now, what the learned Magistrate meant by “detracting from the value and amenities of the appellant's property” is explained by himself, at another place in his judgment. He found that the bath room was exceptionally prominent and unsightly, vide paragraph 4 of the judgment. As I have said, there were three bath rooms. With two of these the Magistrate had no quarrel, and the third one, he found, jutted right out above a portion of the appellant's Ivy Cottage estate. Then he says, “What does appear to concern me, however, is that in my opinion no sane man can possibly doubt that the existence of this hideous new bath room right above the entrance door and over the annexe of Ivy Cottage must injuriously affect the value of appellant's property”. Being unable to decide whether the ground on which the existence of the bath room is objected to is one of the grounds on which the Municipal Board and therefore the appellate authority might lawfully interfere with the construction, the learned Magistrate has made this reference.

I am clearly of opinion that, having regard to the general scheme of the Municipal Act, and the finality of the orders passed by the Municipal-Board and its appellate authority, it is not open to either of them to disallow a proposal to erect a building on the ground that it is hideous in its appearance and would therefore injuriously affect the value of a neighbour's property. In such matters the parties should be left to seek their own remedy in court, and the Municipal Board or its appellate authority should not take upon itself the duty of disallowing a construction on the ground that it “detracted from the value and amenities of a neighbour's property.”

I would answer the reference accordingly. I may mention before leaving the subject that in my opinion it is not open to the High Court to question the District Magistrate's decision that the bye-law No. 23 has been properly disregarded or departed from.

Bennet, J.:— This is a reference by the District Magistrate of Dehradun under section 319(1), Municipalities Act, U.P Act II of 1916, for a direction as to whether he should consider certain matters in hearing an appeal under section 318 from an order of the City Board of Mussoorie. Section 298 of the Municipalities Act prescribes in List II, “Further bye-laws for a Hill Municipality, Heading I, Sanitation and prevention of disease”, that bye-laws may be made for “(j) preventing overcrowding in houses and inhabited sites”. United Provinces Gazette of May 4, 1918, page 419, shows that under this section the Municipal Board of Mussoorie made the following bye-law under section 298, List II, heading I, clause (j):—

“23. No building shall be erected or re-erected outside bazar areas in such a manner that any portion of it would be less than (a) fifty yards from any other building, and (b) fifteen yards from the boundary of the estate on which it is to be erected: Provided that (1) nothing in this bye-law shall apply to bona fide repairs or minor additions and alterations to an existing building and (2) nothing in clause (a) shall apply to a building intended as an outhouse as regards its distance from any building which it is intended to serve or from any other outhouse.

Note (1).—An outhouse is a building detached from the main building and used as kitchen godown, stabler, servants quarters or for a like purpose.

(2) The distance shall be estimated in a bee line from the nearest point of the existing building or boundary to the nearest point of the proposed building.”

This is the rule as it was published and confirmed by the Commissioner. The District Magistrate states: “Relaxation of these rules can however be allowed by the full Board during the season for special reasons to be recorded.” We have not been shown in the Gazette the authority for this statement, and the Magistrate ought to verify it. Assuming that it is correct, the question is, what is the nature of the special reasons which should be considered by the Board or the Magistrate in allowing relaxation of the rule? The answer to this question is found in a consideration of the purpose of the rule. The purpose of the rule is shown by the words used in the section which authorises the Board to make the rule. Those words are quoted above and are “sanitation and prevention of disease, preventing overcrowding in houses and inhabited sites.” Anything, therefore, which would come under these three heads, sanitation, prevention of disease, overcrowding, is a matter which should be considered by the District Magistrate in this appeal.

The exact matter referred has not been definitely expressed as an issue by the District Magistrate. The appellant is the owner of premises formerly known as Ivy Cottage. The respondent is the City Board of Mussoorie. The appeal is against an order of the Board of the 11th of March, 1930, sanctioning the application of the Raja, of Amawan to add certain-latrines to the upper storey of his premises which adjoin Ivy Cottage. As to distance the Magistrate finds that “a plumb line dropped from the furthest corner of this new bath room would just about reach the eaves of Ivy Cottage on the Raja's side, and the distance from the apex of the projecting triangle AA on the Raja's ground level to the ridge of Ivy Cottage roof is 19 feet, while it is also 19 feet from the apex to the eaves of Ivy Cottage on the Raja's side”. Bye-law 23 is therefore clearly infringed as it lays down that the distance should be fifty yards, that is 150 feet, whereas the distance here is only 19 feet; and the bath room is on the boundary instead of being fifteen yards from it. The owner of Ivy Cottage made an appeal starting his objections as follows:—

“3. That the proposed bath rooms etc., if constructed, will, in any case, injuriously and materially affect the appellant's buildings.

4. That the aforesaid grant of sanction is opposed to law and equity and contrary to principles of sanitation.”

In paragraph 3 of his referring order the Magistrate appears to deal with paragraph 4 of the grounds of appeal, and it was argued for the respondent, Raja of Amawan, that the system of flushed latrines with a waste pipe was a more sanitary system than the system of sweepers, and the Magistrate accepted that argument.

In paragraph 4 of his referring order the Magistrate considered ground 3 of appeal, and apparently what he desires to know is whether this is a ground which he is entitled to consider. No doubt section 184 of the Municipalities Act provides that a sanction by a Board shall not prevent any person claiming his rights in a civil court if his property is damaged by the building sanctioned. But section 318 lays down that “any person aggrieved” by any order such as the present may appeal to the District Magistrate. The rule is framed for the purposes of sanitation, prevention of disease, and prevention of overcrowding in houses and inhabited sites. It is open to the appellant to show that relaxation of the rule would adversely affect his premises in regard to any of these three matters, and if he succeeds in showing this, then it will be for the District Magistrate to consider whether under those circumstances the rule should be relaxed or not. For example, the Magistrate mentions that instead of making the bath rooms project by adding them to the existing building, the Raja could have installed the flushing system in his existing bath rooms. It is open to the Magistrate to consider whether these projections tend to overcrowding in houses and inhabited sites, and whether sanction should be refused on that ground. In regard to the argument that the objection of the appellant should not be heard because it is based on interference with his private rights, I would point out that the very basis of the bye-law in question involves a question of private interest. The bye-law says that the re-erected building shall not be within fifty yards from any other building. It is natural that the person to object would be the owner of the other building. It is also natural that he should object on the grounds that his building was “injuriously and materially affected.” For it is his building which is in question his is the building within the fifty yards limit, and not other building in the neighbourhood generally. The question of whether the bye-law should or should not be relaxed must be considered from the point of view of his building and how it will be affected, for it is the only building which will be affected by the relaxation of the bye-law.

Overcrowding is a very general term. The bye-law, in laying down a limit of fifty yards, could not mean overcrowding in the sense in which it is used in a densely populated city. The bye-law is one which may be framed by Hill Municipalities only. It appears to me to mean that houses should be at such distances from each other that one house is not injuriously affected by another house.

Sanitation is also a wide term. It is a mistake to consider sanitation as equivalent to drainage, systems. The confusion is possibly due to the fact that shopkeepers who sell and erect water closets euphemistically describe themselves as sanitary engineers, whereas not long ago they were more simply known as plumbers. Sanitation is derived from the Latin word sanitas which means the science of health. The question therefore is not merely whether in the abstract one system of latrine is better than another system. The matter is wider, and I think that the health of the inhabitants of Ivy Cottage is a question which may be considered. As to the question of the additions being hideous and unsightly, section 180 of the Municipalities Act gives the Board an absolute discretion to refuse to sanction any work, subject to the provisions of any bye-law: “Subject to the provisions of any bye-law, the Board may either refuse to sanction any work…” Bye-laws may be made under section 298, List IA (f) prescribing “the type or description of buildings” which may be erected, and under A(h)(i) prescribing the “method of construction” for erection, re-erection or alteration of holldings. There is no limitation that these bye-laws must only deal with buildings which about on a road. If there are any bye-laws in this Municipality on the point, those bye-laws would regulate the discretion of the Board and of the District Magistrate. If there are no bye-laws on the point, discretion is not limited. In my opinion therefore this point is also one which may be considered by the District Magistrate in this appeal. Then there is the argument that a Municipal Board is not competent to decide the question of whether the bye-law should not be relaxed because the house of the objector is adversely affected. In the present case the erection was of latrines, and systems of latrines have been considered, and the argument is that a Board can only consider such matters as systems of latrines from the point of view of the neighbourhood generally. But the bye-law in question does not refer to latrines, it refers to buildings generally and alterations of buildings. Let us suppose that a person proposes to add an ordinary room, not a latrine, to his building, and that the proposed room would be within fifty yards of an existing building. The Board is asked to relax the fifty yards rule. What matters are there for the Board to consider, except the question as to whether the existing building would be adversely affected from the point of view of overcrowding and health?

A further development of the argument is that a Municipal Board is composed, it is said, of persons without legal training and therefore unfit to decide such questions. It appears to be sufficient reply to this to point out that the Municipalities Act is an Act for local self-government and that the principle of local self-government is that the inhabitants and not experts-should decide their local affairs.

In dealing with this reference, I have endeavoured to elucidate the principles to be deduced from the language of the Municipalities Act. I leave it to the District Magistrate to say how far he has already come to a decision on the grounds of appeal, as it is obviously easier for him to know on what matters he has already made up his mind, and whether he intended any of his observations to be a final decision, or whether he was merely indicating on what points he desired guidance.

By the Court.—In this reference the members of this Court have not been able to agree. We, therefore, direct that with the permission of the Hon'ble the Chief Justice, the case be laid before a third Judge for opinion. When the opinion is expressed, the case will come back to us for sending down an answer to the officer concerned. Our order is in accordance with clause 27 of the Letters Patent.

The matter was then laid before Sen, J., who delivered the following opinion.

Sen, J.:— This is a reference by the learned District Magistrate of Dehradun under section 319(1) of the United Provinces Municipalities Act (II of 1916).

Two learned Judges having differed in their opinion this matter has been referred to me under clause (27) of the Letters Patent.

On the 9th of October, 1928, the Raja Bahadur of Amawan, who owns a house at Mussoorie now known by the name of “Amawan palace,” applied to the Municipal Board of Mussoorie for sanction to add to the existing building three bath rooms and a verandah. Accepting the recommendation of the Public Works Committee, the Board granted the sanction on the 25th of October, 1928. This sanction was renewed by the Board on the 25th of February, 1930, and the 11th of March, 1930, with some minor alterations.

Not far apart from the Raja's house, on a lower level, is the house called “Ivy Cottage” which belongs to Sarclar Abdul Qayum Khan, an Afghan detenue. He, through the Assistant Political Officer, preferred an appeal to the District Magistrate of Dehradun against the resolution of the Municipal Board dated the 11th of March, 1930, and challenged the propriety of the sanction upon the following grounds:—

(1) The land belonging to the Sardar had been encroached upon as the result of the constructions.

(2) The constructions aforesaid were opposed to principles of sanitation.

(3) The sanction granted by the Municipal Board contravened the Municipal bye-law No. 23 which had been framed in pursuance of section 298, List II, heading (I), clause (j) of the Municipalities Act and which had the force of law.

(4) The value and amenities of the objector's property were seriously affected by the constructions complained of.

The Raja appears to have availed himself of the sanction and the constructions have already been put up.

The District Magistrate saw no reason to interfere with two of the bath rooms. We are not concerned with them in this reference.

Controversy appears to have hovered round the third bath room which was located at the north-west corner of the Raja's house. This bath room overhangs the Ivy Cottage, is supported on girders and projects right into space from the main building.

The learned District Magistrate refused to go into the question of proprietary title raised in the appeal on the ground that such boundary disputes were, matters for the decision of the civil courts and did not concern him. He arrived at a clear and definite finding that the sanction accorded by the Municipal Board relating to this bath room did not offend against any principles of sanitation, and that, as a matter of fact, the bath room, as constructed, was calculated to improve the sanitation of the locality. He also held that the construction did not contravene the provisions of bye-law 3 No. 23 referred to above.

The bye-law provides that “No building shall be erected outside bazar areas in such a manner that any portion of it should be less than (a) fifty yards from any other building, and (b) fifteen yards from the boundary of the estate on which it is to be erected; provided that (1) the full Board (but not the Public Works Committee) may during the season, that is from April 1 to October 31, for special reasons to be recorded, exempt any such building from the operation of clauses (a) or (b); this discretion shall not be exercised with reference to building on the Mall between Clarence House and the Library; (2) nothing in this bye-law shall apply to bona fide repairs to an existing building; and (3) nothing in clause, (a) shall apply to a building intended as an outhouse as regards its distance from any building which it is intended to serve or from any other outhouse.”

In allowing this bath room to be constructed, the Board had no doubt contravened the distance rule set out above. But it was within the competence of the full Board during the season to relax the rigour of the distance rule in any particular case for special reasons to be recorded in writing. As the Board had accorded the sanction on the 25th of October, 1928, before the close of the season, upon the ground that the projected bath room was calculated to improve the sanitation of the locality, the learned District Magistrate came to the conclusion that the resolution of the Board was within its competence and was justified on grounds of sanitation.

In arriving at the aforesaid findings the learned Magistrate had so far no doubts and he was faced with no difficulties.

All the three bath rooms appear to possess a common feature—“They are exceptionally prominent and unsightly.” The District Magistrate was of opinion that it was not fair on the part of the Municipal Board to have allowed the Raja to build this unsightly projection; for, in putting up this construction, the Raja appears to have been inspired by “a sublime disregard for all interests but his own,” “in order to secure a little additional space and keep his new bath room clear of the fabric of his main building.” The learned District Magistrate observes; “While rejecting all his (Sardar Abdul Qayum Khan's) other points, therefore, I am of opinion that the value and amenities of appellant's property are undoubtedly affected injuriously by this new bath room at the north-west corner…”

The point referred to this Court has been very clearly and concisely formulated by the District Magistrate in the following terms:— “The question for determination now is whether in dealing with this appeal under section 318(1) of the U.P Municipalities Act, II of 1916, I, as District Magistrate, am entitled to consider a point of this kind, which is after all a matter of opinion, or whether it is not one which should be left to the civil courts. The section says that any person Aggrieved by an order of the Board under section 180(1), such as has been passed in this case, may appeal to the District Magistrate. The appellant is undoubtedly aggrieved as I have shown above, but I am doubtful whether after accepting the legality of the Board's procedure and the validity of the reasons given by it for allowing a deviation from its distance rules on sanitary grounds, I should be acting within the intention A the section if I disallowed this north-west bath room on the ground that it detracted from the value and amenities of the appellant's property.”

Under section 319 of the Act, the reference is to be restricted to the point on which doubt is entertained by the court of appeal. It is not open to this Court to probe into the legality and propriety of the findings of the learned District Magistrate on other points on which he does not entertain any doubt and about which he has made no reference. He had no doubt whatsoever that the question of title between the parties should be left for the decision of the civil court, that the bath room in dispute was not open to challenge upon any sanitary ground and that the resolution of the Board did not offend against but was in accord with the provisions of bye-law No. 23.

Having regard to the scheme and policy of the Municipalities Act and the bye-laws framed thereunder, it is patently clear that the intention of the legislature was not to arm the Board with any power to investigate into the private rights of individuals or to unduly encroach upon the said rights except upon the grounds of public health, public safety or public convenience. The duties and functions of the Municipal Board have been enumerated in sections 7 and 8 of the Act. It was not within the contemplation of the Act that the Board should investigate into the right, title and interest of property holders before sanctioning any work of which notice had been given to the Board. The sanction accorded does not affect any title to property or produce any legal effect beyond the purview of section 184. Where, therefore, the resolution passed by a Municipal Board is not open to objection or criticism upon any ground of public health, public safety or public convenience and is not opposed to the provisions of the Municipalities Act or of any bye-law framed under the Act, the District Magistrate is not competent in the exercise of his appellate jurisdiction under section 318 of the Municipalities Act to turn down the resolution or set aside the sanction or direct the removal of the constructions upon the mere ground that the constructions in dispute affect injuriously the value and amenities of the appellant's property. The appellant is a person aggrieved in a large sense, but his grievance is not one which can be attended to by the appellate court upon grounds of public health, public safety and public convenience. He must, if he so chooses, seek his remedy in the ordinary civil-courts. Although the Municipalities Act is an Act for local self-government, it was not and could never have been the intention of the legislature to invest the Municipal Board or the appellate authority under the Act with power to pronounce decisions upon disputes relating to private rights between private individuals or about the amenities relating thereto. This is my opinion on the reference.

On receipt of the third Judge's opinion, the original Bench sent the following answer to the reference:—

It is not open, to the District Magistrate to disallow the North-west bath room of the applicant to be constructed (the applicant being the Raja of Amawan) on the ground that it detracted from the value and amenities of the appellant's property.