Bapna, J.—This is a second appeal by the plaintiff in a suit for declaration and injunction.

2. The appellant Jas Raj sued the Municipal Board, Bikaner on 16th July, 1947 on the allegations that he had built an overbridge to connect his two houses situate opposite to each other in Mohalla Girni at Bikaner, which was approved by the Municipal Board on 3rd February, 1945 but on complaint by Bherudan to the City Improvement Committee, the Chief Engineer, as Vice-President of the Board, passed an order for its demolition on 21st August, 1945 although the said officer had no power to do so. It was alleged that the City Improvement Committee was thereafter dissolved and its functions were vested in the Municipal Board and the said Board also gave notice on 7th June, 1947, that the overbridge be demolished within three days failing which it would be dismantled by the Board at the expense of the appellant. It was alleged that the Municipal Board had no authority to issue such notice, more particularly when the construction of the overbridge had been approved by the Municipal Board on 3rd Feb., 1945. It was prayed that the order of the Chief Engineer dated 21st August, 1945 be declared null and void and the Municipal Board be restrained from demolishing the bridge.

3. The defendant pleaded that the plaintiff had first built a wooden over-bridge and the Revenue Commissioner, who dealt with such matters, had directed its demolition on 10th December, 1942 and the same order was repeated by the Municipal Board on 1st July, 1943. It was alleged that thereafter the Municipal Board reconsidered the matter and on 3rd February, 1945, ordered that the wooden bridge may remain in the condition that existed, but prayer for grant of patta to the plaintiff was refused. It was further alleged that the plaintiff thereafter, without any permission from the Board which was necessary, and in contravention of the Boards order dated 3rd February, 1945, reconstructed the bridge in stone and mortar. The matter was considered by the authorities concerned and proper notices were issued for its demolition from time to time by competent authorities. The trial court dismissed the suit and the same judgment was upheld on appeal.

4. It was urged in this second appeal by learned counsel for the plaintiff that the matter of an over-hanging structure was dealt with by the Bikaner Municipal Act, 1923, in sec. 116 and it was the Board which was authorised to issue a notice for its removal, and such powers had never been delegated to the Chief Engineer, and the notices issued under sec. 133 were incompetent. Learned counsel for the respondent argued that the powers regarding new constructions were dealt with in secs. 130 to 133 (c) of the Bikaner Municipal Act of 1923 as amended by the Amendment Act of 1928, and those powers were delegated to the Town Planning Committee by the Bikaner Government under Notification dated 29th July, 1944. The Town Planning Committee was converted into the City Improvement Committee by Notification of 30th November, 1944 and the latter was reconstituted by the Bikaner Government by Notification dated 15th April, 1945, and under the said reconstitution, the Executive Officer of the City Improvement Committee was authorized to pass orders in the first instance and there was provision for appeal against his orders to the Chief Engineer and from the orders of the latter to the Public Works Minister. It was contended that in the present case, the actual notice of demolition Ex. D. 2 dated 20th August, 1946 was issued by the Executive Officer of the City Improvement Committee, who had power to do so. The order of 21st August, 1945 by the Chief Engineer was in the nature of an advice to the Executive Officer, and the latter may have thought it proper to consult the Chief Engineer who was his superior officer as Vice President of the City Improve-ment Committee.

5. On going through the Notification dated 16th April, 1945, it appears that while the Bika

Click Here to Read the rest of this document