Batty, J.:— In this case the plaintiffs sued the Municipality of Parola to obtain a declaration that a privy built by the plaintiffs had been built in accordance with, and not in contravention of, orders issued by the said Municipality, and further to obtain an injunction restraining the defendant, the Municipality, from pulling down the taid privy.

The Municipality, in the Court of first instance, replied that the privy built was not in accordance with the orders issued, and the issue thus raised having been decided against the Municipality in that Court, objected in their memorandum of appeal to the lower Appellate Court that, under section 48 of the Bombay Act II of 1884, the suit was not maintainable, as no notice of the suit had been given as required by that section, and further contended that the permission given by them for the building had been misconstrued in the lower Court; and that as the building was not in accordance with that permission, it was liable, under the provisions of the Act, to be demolished on the requisition of the Municipality.

The lower Appellate Court confirmed the decree of the lower Court, finding on the facts that the building was not erected in contravention of the orders issued, and also that under the ruling in Shidmallappa v. Gokak Municipility no notice was required in such a case by section 48 of the Amending Act of 1884.

It has been strenuously contended for the appellant Municipality, that the rulings in Kashinath Keshav Josh v. Gangabai in Manohar Ganesh Tambekar v. Dakor Municipality, in Shidmallappa Nurandappa v. Goklk Municipality, and in, Harilal Ranechodlal v. Himat Manichhand go no further than to show that section 48 of Bombay Act II of 884 is inapplicable only in cases where the action brought is in the nature of a suit for ejectment, or is in respect of an act which does not purport to have been done in pursuance of the statutory powers conferred on the Municipality.

The wording of section 240 of Bombay Act II of 1865, on which the ruling in Sorabji Nassarvanji v. The Justices of the Peace for the City of Bombay(6) was given, clearly contemplated oases for monetary compensation for a wrongful act only. And in one of the cases therein cited Price v. Khelat(7)—it was observed on an analagous section, that probably it was intended to apply to suits for damages only. In another case Poorno Chunder Roy v. H. Balfour—also cited in Sorabji Nassarvanji v. The Justices of the Peace for the City of Bombay, Phear, J., thought “it reasonable to suppose that the section (87 of Bengal Act III of 1864) was directed solely to the cases of suits brought against the Commissioners for damages consequential on the act done by them.” The same view was taken of this section in the case of Chunder Sikhur v. Obhay Charn, where it was held that the section was “applicable only in those cases where the plaintiff claims damages or compensation for some wrongfull act done by the Commissioners or their officers, in the exercise, or the honestly supposed exercise, of their statutory powers and it was added that “the notice is meant to give the defendant an opportunity of making some pecuniary amends for the wrong, without incurring the costs of litigation.” To a similar effect is the ruling in Municipal Committee of Moradabal v. Chatri Singh.

In the case of Joharmal v. The Municipality of Ahmednagar section 86 of Bombay Act VI of 1873, repealed and replaced by section 48 of bombay Act II of 1884, was held applicable only to suits for damages; and the case Sorabji Nassancanji v. The Justices of the Peace for the City of Bombay was considered applicable as dealing with an enactment (section 240 of Bombay Act II of 1865) analogous to section 86 of Bombay Act, VI of 1873. In the case of Shahebzadce Shahumhah Begum v. Fergusson a similar view was taken of section 424 of the Civil Precedure Code as a section entitling public officers to notice when sued for damages for some wrong inadvertently committed in the discharge of official duties, the object being to give the officers or public body sued an opportunity of setting matters right, making amends, restoring what has been taken, or paying for the damages which have been done. The decision in the case of Ranchhod Varjbhai v. Municipality of Dakar dealing with section 86 of Bombay Act VI of 1873, while accepting the view that the object of the provision was to give an opportunity of tendering sufficient amends, declared that the section was not confined to an action of damages, but was applicable to every claim of a pecuniary character arising out of the acts of municipal bodies or officers, who in the bona fide discharge of their public duties may have committed illegalities not justified by their powers. This somewhat wider construction of the section, now repealed, still required that, whether the action sounded in damages or not, it must, in order to render notice necessary, be for some act done in exercise of powers conferred by the enactment. So also in Mayandi v. McQuhae interpreting section 168 of the Madras Town Improvement Act, 1871, which required notice “when a suit is brought against the Commissioners xx xx xx for anything done under the Act”, it was held that no notice was requisite in a suit to recover the balance due under a contract, for a breach of contract was not to be regarded as a thing done under the Act. This decision it may be useful to compare with that in Selmes v. Judge where the question arose on a section similarly worded, and it was held that a suit to recover back money paid on an assessment of a highway rate made under colour of the Acts 5 and 6, William IV, cap. 50, required preliminary notice, the collection, though illegal, being made in supposed pursuance of the powers thereby conferred.

The case of Midland Railway Company v. Local Board of Withington seems to go somewhat further in this direction; for there the notice was held necessary in a suit to recover back, as money had and received, sums which had been paid to the Local Board as charges for the repair by them of a road which the plaintiffs had mistakenly been regarded as responsible. Lindley, L.J observed that it had been argued that no physical power had been put in force, but that this was vicious argument, and that he could not follow it. Probably, however, the thing done under the Act in that case, which was regarded as giving the cause of action to the plaintiffs, was not the voluntary payment by them of the money, but the action of the Board in under taking the repair of the road in question at the plaintiffs' charges.

In Nagusha v. The Municipality of Sholipur it was held that, under section 48 of Bombay Act II of 1884 (the section now in question), the mere circumstance that an act done under the Act had rendered the suit necessary, would suffice to bring into operation the provisions of that section requiring notice before suit. But in that suit though one of the acts called in question may have been done under the Act, the suit was not strictly speaking an action for an act done under the Act, but on account of the continuance in possession, and assertion of title, by the Municipality, which it was impossible to regard as in pursuance of the statutory powers. The decision in the last mentioned case, therefore, having been questioned in Kashinth Keshav Joshi v. Gangabai was definitely overruled in the Full Bench case of Manohar Ganesh v. Dakor Municipality, in which though it was recognised that section 48 might apply to suits other than suits for damages, it was held that it could not apply to actions of ejectment based on title. Indeed in that case Hosking, J., pointed out that the only powers under the Act, by virtue of which a Municipality could take and retain possession of land, were coupled with special provision for compensation payable. The result of this case suggests that it is not sufficient that an act done under the statutory powers should have given occasion to the plaintiff to seek redress, but that it was further necessary that the redress sought, i.e, the action itself, should be for the act so done and for nothing further. The case of Shidmallappa v. Goknk Municipality Carries the principle a step further and rules that a suit for damages for the demolition of a wall by the Municipality in exercise of its statutory powers would require notice under section 48 of Bombay Act II of 1881, but that to recover possession of the site and to obtain an injunction against interference therewith, the plaintiff could sue without notice. In the judgment, the case of Flower v. The Local board of Low Leyton was cited as showing that an injunction is merely ancillary to the ejectment suit in respect of which notices was unnecessary.

In a still later case—Harilal Ranchodlal v. Himat — the suit was for an injunction without any prayer for ejectment, and though the Court observed that the suit was not for anything done in pursuance of the Act, it was also further stated that the sections conversant with this subject, have always been held not to apply to actions for an injunction. In support of this portion, in addition to cases above referred to the Court cited President of the Taluk Board, Sivaganga v. Narayanan. In that last mentioned case the defendant Board had called on the plaintiff to remove a wall alleged to be an obstruction, giving notice that on his default the Board would demolish it. The section referred to (section 156 of the Local Boards Act, Madras, 1884), was in its terms similar to section 48 of bombay Act II of 1884, and was held not to require notice in such a case. In the case of Flower Local Board of Low Leytun, above mentioned, the principle is more unmistakeably stated. There Jessel. M.R, observed that the real object of the action was to prevent the continuance of an intolerable nuisance which plaintiff said he had suffered through the acts of the defendants — acts which apparently depended on the exercise of their statutory powers. The sections (38 and 39, Viet., cap. 55, sec 264), requiring notice for anything done or intended to be done or omitted to be done under the provisions of this Act, it was held, was intended to apply to an action at law for damages, and its object was to give an opportunity to a local authority to make payment or tender of compensation for the damage sustained, but could not be intended to apply to a case where the local authority was improperly pulling down a house, for instance, or stopping up a sewer and if that were so, it was added, it would amount to a license to every Local Board to do what injury they pleased while the month's notice was running. This ruling has now been superseded by 56 and 57, Viet., cap. 61, sec. 1, which, instead of requiring notice, provides (in respect oft actions for damages) in clause (d), that if in the opinion of the Court the plaintiff has not given the defendant a sufficient opportunity of tendering amends before the commencement of the proceeding, the Court may award to the defendant costs.

The result of the cases above cited appears to indicate, that for the purposes of section 48 what the Court has to look to is the real object of the suit, and the section requires notice only when the suit is for an act already done or purporting to have been already done, under the powers conferred. In such case only can it be necessary for the plaintiff to give on opportunity to make amends or compensation, and in such cases, the delay, necessitated by notice is comparatively immaterial. But when the suit is not for an act already done but to prevent an act from being irremediably, irrevocably done, neither can amends be claimable, nor can delay be obligatory. It is impossible to hold that a mere notice, a requisition or a threat to do a thing in the future, even though it be issued or made under the powers is an act already done, or purporting to have been done; and there is nothing else alleged in this case that can be alleged to have been done by the Municipality. A notice, therefore, does not appear to have been made an indispensable preliminary to such a suit by section 48 of the Act.

The question whether the erection now in dispute was constructed in contravention of the conditions annexed by the Municipality to their permissions, has been decided by both of the lower Courts in the negative. If that decision can be regarded as one solely on the facts, it could not now be impugned on second appeal. If, however, it can be regarded as a question of law, it would suffice to observe that whether the Municipality purported to act under section 33 or under clause 2 of section 39 of Bombay Act VI of 1873, their orders' and direction can only be construed, so as to operate with a definite and legal effect. It has been found by the lower Courts that the orders passed could not so operate, for while on the one hand they authorized the construction of the building in question on space measuring 10 feet by 8 feet from given boundaries, they directed, on the other hand, that it should not extend beyond a certain limit which according to their contention is within the measured space to which their permission in terms extended. Their orders were, therefore according to their own contention and the facts found, inconsistent and incapable of performance; and it is impossible for them, to contend that he building which has been erected in compliance with the permission accorded, is in contravention thereof because it did not also conform to a direction utterly irreconcilable with that permission Nether the law nor any direction purporting to be made under the law can compel any person to do what is impossible; and a permission which involves a condition absolutely inconsistent with its own terms could not come within the category of legal orders. The lower Courts, however, have concurred in finding that the permission given is, in reference to the facts established, susceptible of but one interpretation, and that the building erected by the plaintiff is not in contravention of the permission so interpreted. On these grounds the appeal must be rejected and the decrees of the lower Courts must be confirmed with costs.

Fulton, J.:— I concur.

Decreet confirmed.