P L D 1950 Sind 112 (PLP)

CONSTANTINE, J.‑

In 1914 the plaintiff's were granted permis sion to put up a balcony by the Municipal Corporation of the City of Karachi, in exercise of its powers under the Bombay District Municipal Act, then in force. In about 1942, the Municipal Corporation sought to revise the annual fee imposed in the per mission hence the suit by the plaintiffs. The plaint proceeded on the ground that the permission Constituted a contract, but it. appears from the judgment that during the course .of the trial, the learned judge was of the opinion that the levying of an annual fee for permission to put a balcony, was ultra wires of the Act, and that both sides proceeded to deal with this view of the case, and the arguments before us pro ceeded mainly on this point. Two main questions arise for determination :‑ (1) Whether under the District Municipal Act the Municipality was empowered to charge an annual fee for permission to put up a balcony ; and (2) And if so, whether the Municipality is at liberty to enhance the amount of the fee. Our decision on both the points are in the affirmative. Section 113 of the District Municipal Act empowers the Municipality to give "written permission to the owners or occupiers of buildings in public streets to put up verandahs, balconies or rooms to project from any upper. storey thereof " Section 70 (1) states " When permission is given ... for putting up any projection the Municipality may charge a fee‑ for such permission. Section 46 provides that the Municipality may make or may from time to time alter or rescind rules in respect of various matters ; and clause (i) of section 46 refers to the fees to be charged for permission granted under section 70 (i) and the times at which and the mode in which the same shall be levied or recovered and shall be payable " Rules made under section 46 (i) are contained in Appendix G of the Karachi Municipal Rules and by‑laws. Clause (e) of the Schedule of fees in the Appendix G is as under :‑ Permission to put up Open verandahs or balconies projecting from buildings An annual fee of 4 per cent on the market value to be fixed by the managing committee in their soloing discretion of the ground covered by such open verandah or balcony. Accordingly in 1914, the plaintiffs' predecessor in title was issued a permission, the relevent clause of which is that the annual fees payable for the balcony under Appendix (1) of the Municipal Rules will be paid in advance each year. The appendix referred to is appendix G quoted above. The next stage is that in 1929 an amendment to Appendix G was made by which the market value was to be fixed by the Managing Committee every three years, and the balconies already an existence were to be charged with those rates after the lapse of the first period of three years. Then some considerable correspondence ensued between the Municipality and the plaintiffs in which the Municipality appeared to change its view from time to time on the question, whether it had the power to enhance the fees. The learned trial judge was of the opinion that .the words " putting up " referred to a single act, and did not include by implication " keeping up ", and that annual fees involved a conception of levying fees for the continued use of a projection and were therefore ultra vires: We think this view of the matter is not correct. If the argu ment that merely "putting up", as opposed to "keeping up" were intended by the Act, were carried. to its furthest conclusion, the result would be absurd. The argument lay after a balcony was once constructed the Municipality' would be able to treat it as a nuisance or trespass : for the permission according to the argument does not extend to keeping up the balcony.. The truth is that the words. " put up " have been used in the Act as a compendious expression for 66 putting up and keeping up . It is to be observed that in subsection (2) of section 113, a person putting up a balcony) without permission ‑may be punished with further fine for every day on which he continues to fail or neglect to remove the balcony, if once convicted under this section. We were referred in this connection to the judgment of Constantine, J. in Alcock Ashdown F Co. Ltd. v. The Municipal Corporation of Karachi, reported in A. I. R: (1948) Sind, 4, in which‑it was held that the Municipality was not empowered to charge a recurring annual fee for newly establishing a factory. That case is distinguishable, because the establishing of a factory is an act permitted by the general law, whereas the erection of a balcony over land belonging to another without his consent is actionable ; and secondly, because the Municipal Act in one section dealt with newly establishing factories, while in another section it dealt with carrying on trades. In this case. there is no reference to any continuing act by way of differentiation. The learned judge contrasted the ` use ' in subsection (2) of section 70, with the words ` putting up ' in subsection (1) ; but the ` use.' referred to is the use of makers and slaughter houses, which belong to the Municipality. The learned judge was inclined to think that there was no reasonable justification 'for levying an annual fee based on the market value of the land, as the land was still in use as a road, and the Municipality had not been deprived of the use of it, and the value of it in no way had been diminished, and they had suferred no loss by the existence of the balcony. The Muni cipality, however, as a trustee and owner of Municipal lands like any other owner, is presumably at liberty to recover payment for parting with any of its. Proprietorial rights, when the legislature provided that the Municipality should be entitled to recover fees from the owners of building who put up ions over Municipal lands, the reason for this appears to be not so much that they put up a projection, but because in keeping up the projection they make use of Municipal land. The next question is whether the Municipality was entitled to revise the fees. The learned Judge held that no contract existed between the parties, and we think that that is correct, since the permission was granted in exercise of the powers granted by the Act. , It is true that the original person to whom per mission was given endorsed upon the permission that he would abide by its terms. But the Act speaks of giving permission, and authorizes the Municipality to levy fees, and to for fees by rules. The legal effect and consequence of the permission is governed by the Act and not by the law of contract. Section 46 states that the Municipality may from time to time alter or rescind rules, but not so as to render them incon sistent with the Act. Clause (3) of the permission has been quoted above. The annual fees under the appendix were to be 4 per cent. of the market value to be fixed by the Managing Committee. Market value is a thing which fluctuates, and we think that clause (3) did not forbid re‑assessment of market value by the Committee, or lead the guarantees to believe that the fees would never be en hanced if the market value rose. Thus the alteration of the rules was reasonable in its application to existing permissions. The judgment with which we have dealt occurred in S. No. 33; 1943 ; in the suit now under appeal the order was that it had been agreed by all the advocates concerned that the judg ment in S. No. 33/1943 would cover the judgment in connected suits. The appeal in S. No. 33/1943 itself has been settled, and this appellate judgment, therefore,, will apply to the appeal in suit Nos. 138/43, 139/43, 141/43; 140/43, 188/43, 189/43, 105/,43 and 96/43. The result is` that the appeals are allowed with costs, and the decrees in the above suits set aside, and the suits dismissed with costs. THADANI, J.--I agree. A.H Appeals allowed