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Madras High Court
Mothe Achayya Garu And Ors. vs The Municipal Council Of Ellore on 30 November, 1909
Equivalent citations: 4 Ind Cas 828
Bench: A White, K Aiyar


1. Reading Section 168(1) of Act IV of 1884 in its grammatical sense, the sub-section applies to any projection which is made in front of a building which is in a public street. We think the words “in any public street” refer to “building or land” and not to projection. It is quite clear that in Section 169 of the Act as it stood originally, the words public street had reference to buildings or land and not to verandah, balcony etc. This is equally clear as regards the section,as amended by the Act of 1897.

2. We think the pandal in question is a projection in front of a building which is in a public street within the meaning of Section 168(1) of the Act. This being so, it was within the powers of the Municipal Council to cause it to be removed. Sub-section 3 of the section gives a right to compensation to a person who has been injured by the exercise of the powers conferred by the section. We have been asked to hold that the words “lawfully made” in the sub-section mean, made under the license of the Council since the Act came into operation. We see no reason for placing so restricted a meaning on these words. We think the object of the sub-section was to give a right to compensation in cases where the making of the projection did not contravene any provision of the law. Section 138 and Section 139 of the Madras Towns Improvement Act (Act III of 187l), which are taken from Sections 69 and 70 of the English Towns Improvement Clauses Act 1847 (10 and 11 Vict. C. 34), make it clear that compensation should be recoverable in cases in which the obstruction or projection was lawfully made before the Act. There is no reason why we should put a different construction on Sub-section 3 of Section 168 of the Act of 1884.

3. In the present case the plaintiffs’ remedy, if they have acquired any right, is to recover compensation, and suit for an injunction will not lie. The suit has been rightly dismissed.

4. The second appeal is dismissed with costs.

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