Basanta Kumar Bose vs The Chairman of the Municipal Commissioner of Giridih

Das, J.—This appeal wises out of a suit instituted by the appellant against the Chairman and the Commissioners of the Giridih Municipality for a declaration that the bye-law framed by the defendant Municipality, prohibiting the creation of any boundary well within five feet of any public road is ultra vires and that the plaintiff baa an absolute right to erect his boundary wall on the edge of his land abutting on the public road.

The Court of first instance in a careful and able judgment same to the conclusion that the plaintiff was entitled to succeed. The lower Appellate Court, in a judgment which ought to be characterised as superficial and perfunctory, has come exactly to the opposite conclusion.

Before dealing with the points which arise in the appeal, I deem it my duty to record my emphatic protest against the manner in which the learned Subordinate Judge in appeal disposed of this question.

Certain cases were cited before him which it was his duty to consider and to distinguish if be could. The reasoning employed by the learned Subordinate Judge for declining to consider those cases may be given in his own word:

The judgment of the learned Munsif shows that plaintiff materially changed his case at the trial. In the plaint the plaintiff never made the case that the word "building" occuring in the bye law cannot be intended to never a bare eon pound wall of certain height and thickness aid that the prohibition contained in the bye-law was not applicable to the erection for which plaintiff sought sanction That being so, I should not be at pairs to discuss the decisions reported as Corporation of Calcutta v. Benoy Krishna Bose 7 Ind. Cas. 890 : 12 C.L.J. 476 : 15 C.W.N. 84 and Corporation of Calcutta v. Jogeswar Laha 8 C.W.N. 487 In the present case I should not enquire whether the wording "building" should be taken in its derivative sense or to mean a habitation. For the purpose of the present suit. I should hold that the bye law No. 13(i) is not ultra vires and that plaintiff is not entitled to the depuration be seeks."

Now in my opinion even if the plaintiff had, to use the expression of the learned Sub-ordinate Judge, "changed his case" as to the meaning of the word "building" or, in other words, given another interpretation to a word used in the Bengal Municipal Act, it was still the duty of the learned Subordinate Judge to consider the cases which were cited before him by the learned Pleader appearing: on behalf of the plaintiff. He could not have recourse to so frivolous an excuse for avoiding the difficulty of the position; but as a matter of fast the allegations in the plaint are as clear as they can be. These allegations are that the Municipality has passed a bye-law preventing the creation of any boundary wall within five feet of any public road without its sanction and that the bye-law in question is ultra vires and cannot operate to the prejudice of the plaintiff''s right to erect a boundary wall on the edge of his land abutting on the public road.

Coming now to the question at issue between the parties, I think that the plaintiffs are entitled to succeed. Section 217 provides that every person who intends to erect or re-erect any house not being a hut, shall give notice in writing of his intention to the Commissioners, and shall accompany such notice with a general description of the building which he intends to erect, and of the provision he intends to make in respect of drainage and latrine accommodation; and the Commissioners may, within six weeks after the receipt of such notice, either refuse to sanction the said building or may sanction the said building either absolutely or subject to any written directions which the Commissioners may deem fit to issue in accordance with the rules, if any, made u/s 241: "Provided that the Commissioners shall make full compensation to the owner for any damage which he may sustain inconsequence of the prohibition of the re-erection of any house, or of their requiring any land belonging to him to be added to the street." The expression "erect or re-erect any house not being a hut" has, for the purpose of Section 238 and Section 239, been defined in Section 241 to mean (a) any material alteration or enlargement of any building; (6) such alterations of the internal arrangements of a house as effect an alteration of its drainage or sanitary arrangement, or affect its stability. Now, in my opinion, sections 238 and 239 carry us back to Section 237 and, therefore, in order to succeed on the question that creation of a boundary wall means erection of any house not being a hut, it must be established that the erection of a boundary wall is (a) any material alteration or enlargement of any building; (b) or that it amounts to such alteration of the internal arrangements of a house as effects an alteration of its drainage or sanitary arrangements or a Sea''s its stability I do not think that it can for a moment be argued that it falls within (b). The only question is, is it any material alteration or enlargement of any building. In my opinion material alteration or enlargement of any building must mean erection of anything on a site attached to or detached from any buildings standing on it so as to filter the structure of the house with all the buildings standing on that site; see Keshub Chandra Sen v. Calcutta Municipal Corporation 7 C.W.N. 374. In my opinion it cannot be argued that erection of a wall, from its erection as part of a scheme for the erection of the house itself, does not fall within Section 237 at all and, there fore it does not fall within Section 241 quite agree that if a per on is building a house for the first time or is rebuilding it, then the boundary wall which he proposes to build, being part of the scheme of the house which he is creating or re-erecting, must fall within the scope of Section 237 and, therefore, of Section 241, In snob, a case the Commissioners may require any land belonging to the owner to be added to the street, provided that they make full compensation to the owner for any loss caused to him; but when he is neither building nor re-building the house, the erection of a boundary wall does not, in my opinion, fall within the scope of Section 237, That being so, the Commissioners had no power to frame a bye-law u/s 241 relating to the erection of a boundary wall apart from its erection as part of the scheme of erection or re-erection of the house itself. This view is supported by the decision of Mukerjee, J, in Corporation of Calcutta v. Benoy Krishna Bose 7 Ind. Cas. 890 : 12 C.L.J. 476 : 15 C.W.N. 84.

I would allow this appeal, set aside the judgment and decree of the Court below and restore the judgment and decree of the Court of first instance. Toe plaintiffs are entitled to their costs throughout.

Ross, J.

I agree.