Municipality Of Thana v. Fazal Karim

Candy, J:-

The question for decision is one of law:- whether the Municipality in granting permission to the accus­ed to erect his building could legally impose a condition that he should leave a gully of a certain dimension. The Magis­trate held that this condition was not warranted by law, and therefore acquitted the accused.

The Magistrate treated the permission as having been granted under section 96 of the Bombay District Municipal Act, 1901. It was in fact granted on 22nd February 1901 under section 33 of the Bombay District Municipal Acts, 1873 and 1884, and the repeal of those Acts by the Act of 1901 (which came into force on 1st April 1901) did not affect the validity or invalidity of anything already done under the previous Acts.

Treating the case as falling under the previous Acts, the question resolves itself into this: was the building begun or made by the accused "in any manner contrary to the legal orders of the Municipality? Mr. CkavbaX for accused con--tended that the orders were illegal, because they directed accus­ed to leave a space 1 foot 6 inches wide for a gully East and West on the north-side - and there is, he said, no provision in the Act empowering the Municipality to give such an order. But the words of section 33 are that "the Municipality may in writing issue such orders not inconsistent with this Act as they think proper with reference to such "building." It is noticeable that the orders are not strictly limited to such as are in terms in accordance with the express provisions of the Act. The section is (as has been pointed out in previous rul­ings of this Court) "perfectly general in its terms." No doubt it was held by Mr. Justice West in Nagar Valab Narsi v. The Municipality of Dhandhuka (1), that it does not follow that the Municipality could exercise the authority given to it in a capricious, wanton, and oppressive manner But in the present case it was not asserted that the order to leave a gully IV feet wide was an arbitrary or tyrannical exercise of dis­cretion. It was asserted that there was no discretion allowed by the Act and the question thus is, could the Municipality direct accused to leave a gully at all? In other words, is such an order shown to be inconsistent with the Act?

Mr. Chaubal contends that by the action of the Municipa­lity his client has been practically required to set back his house on one side, and that by section 30 the powers of the Municipality in this respect are limited as shown, in that section.

But it may be pointed out that such set-back relates to land which is forthwith deemed part of the public street, and is vested in the Municipality. The present is not such a set-back. Then Mr. Chaiibal argued that there is nothing in the Act empowering a Municipality to make passages over which the public have no right of way. But there is nothing in the Act forbidding such a thing. The intention of the Act is clearly to make the Municipality trustees for the public, especially in all sanitary matters. The Municipality by their notice of 12th May asserted that their object in requiring a gully was for the sanitary purposes of light and air- and there is nothing to contradict that allegation. If they can require all information regarding the limits &c., of the pro­posed building (sect on 33, cl. 1), there is nothing inconsistent with the Act in an order limiting the extent of the building 1901 in such a way as to pro-ride a narrow gully. Section 39, to which Mr. Chaubal referred, relates to existing house-gullies- but it does not follow that it would be inconsistent with the Act for the Municipality to insist on a house-gully being provided when any building is being erected. So long as the direction for the house-gully is not said or shown to be extravagant or arbitrary in its terms, the order issued by the Municipality cannot be deemed to be illegal.

This would equally be the case under the Act of 1901. Mr. Chaubal referred to clauses (n), (o) and (p) of section 48 of that Act, and argued fan argument with which we do not concur) that a gully is not an open space for securing a free circulation of air, and that even if it is, there are no by-laws of the Thana Municipality for ensuring ventilation. But the absence of by-laws would not necessarily make the direction for a gully inconsistent with the Act. On the contrail the inclusion of the subject of ventilation in possible by-laws shows that it is the intention of the Legislature that Municipalities should be trustees for the public in this important respect. The fact that the Municipality may make by-laws determining the information and places to be required under section 96 (section 48 (s) ) would not in the absence of such-a by-law make a requisition for information and places under section 96 illegal.

For these reasons we are of opinion that the Magistrate was wrong in holding that the order of the Municipality was illegal.

As this was the only ground given by him for acquitting accused, and as this is not an appeal by Government against the acquittal, the only order which we can pass is to set aside the order of the Magistrate and direct him to take the case on to his file and dispose of it according to law.