Jagat Narayan, J. - (1.) THIS is second appeal by the plaintiffs in a suit for declaration and injunction brought by them against the Municipal Board, Baran, which was dismissed by the lower appellate court.
(2.) THE facts which have given rise to this appeal are these. THE plaintiffs own a building situated in the town of Baran abutting a street. It contains four shops abutting the road which had tin-sheds in front of them formerly. THE plaintiffs applied for permission to the Municipal Board for contracting a pucca verandah in place of these tin sheds and for constructing a Zaroka on the verandah on 22. 1. 49. By its order dated 9. 3. 49 the construction of the verandah was sanctioned, but the construction of the Zaroka was disallowed. THE plaintiff filed an appeal to the Municipal Board under sec. 318 of the U. P. Municipalities Act, 1916 which was applicable. This appeal was rejected on 31. 7. 49. THE plaintiffs filed another application on 22. 5. 50 under sec. 178 of the Act seeking permission to construct an upper storey over the verandah This permission was rejected by the Board on 29. 5. 50 under sec. 180 of the Act. In the meantime, the plaintiffs had actually started constructing an upper story over the verandah. THE Board accordingly issued notice to them asking them to demolish the construction so made by them. THE present suit was then filed by them challenging the validity of the order. Sec. 178 of the Act runs as follows: Notice of intention to errect building or make well: - (1) Before beginning, within the limits of the municipality.- (a) to erect a new building or new part of a building, or (b) to re-erect or make a material alteration in a building or (c) to make or enlarge a well, a person shall give notice of his intention to the Board. (2) the notice referred to in sub-sec. (1) as required in the case of a building shall only be necessary where the building abuts on, or is adjacent to, a public street or place, or property vested in Government or in the Board, unless by a bye-law applicable to the area in which the building is situated the necessity of giving notice is extended to all buildings. (3) An alteration in a building shall, for the purposes of this chapter and of any bye-law be deemed to be material if - (a) it affects or is likely to affect prejudicially the stability or safety or the building or the condition of the building in respect of drainage, ventilation, sanitation or hygiene, or (b) it increases or diminishes the height of area covered by or cubical capacity of the building or reduces the cubical capacity of any room in the building below the minimum prescribed in any byelaw, or (c) it converts into a place for human habitation a building or part of a building originally constructed for other purposes, or (d) it is an alteration declared by a bye-law made in this behalf to be material alteration " Sec. 180 provides that - (1) subject to the provisions of any bye-law the board may either refuse to sanction any work of which notice has been given under sec. 178 or may sanction it absolutely or subject to - (a) any written directions that the board deems fit to issue in respect of all or any of the matters mentioned in sub-head (h) of heading, A of sec. 298, or (b) a written direction requiring the set back of the regular line street prescribed under sec. 222, or, in default of any regular line prescribed under that section, to the line of frontage of any neighbouring building or buildings. (2) in the case of refusal to sanction under sub-sec. (1), the board shall communicate in writing the reasons for such refusal to the person giving notice under sec 178. (3) Should the board neglect or omit for one month after the receipt of a valid notice under sec. 178 to make and deliver to the person who has given such notice an order of the nature specified in sub-sec. (1) in respect thereof, such person may by a written communication call the attention of the board to the omission or neglect, and, if such omission or neglect continues for a further period of fifteen days, the board shall be deemed to have sanctioned the proposed work of absolutely. Provided that nothing in sub-se. . (3) shall be construed to authorize any person to a:t in contravention of this Act or of any by-law. (5) No person shall commence any work which notice has been given under sec. 178, until sanction has been given or deemed to have been given under this section. No bye-law had been framed by the Municipal Board, when the order dated 29. 5. 50 was passed. The first contention on behalf of the appellant is that the Board had no power to refuse sanction for any construction unless such bye-laws are framed. I am unable to accept this contention. The wording of sec. 180 "subject to the provisions of any bye-law, the board may either refuse to sanction any work of which notice has been given under sec. 178 or may sanction it absolutely etc. " cannot be interpreted to mean that if bye-laws are not framed no order can be passed. These words only mean that if bye-laws have been framed the order will be governed by such laws. If bye-laws are not framed even then the Board can pass an order refusing sanction in respect of any construction which is intended to be made abutting a public street or road. But the wordings of sec. 298 which confers powers upon the board to make bye-laws go to show that such refusal must be based on reasons connected with the promoting or maintaining of the health, safety and convenience of the inhabitants of the municipality and for the furtherance of municipal administration under this Act. List I given under sec. 298 enumerates the subjects on which bye-laws can be framed by the municipality. Under these bye-laws, it is open to the municipality to prescribe the number and height of the storeys of which the building may consist (A) (h) (vi ). An order of the nature passed by the Municipality is therefore one contemplated by the U. P. Municipalities Act. The contention of the appellants is that in the absence of bye-laws the power exercisable by the board would be arbitrary and on that ground, the provision of law conferring that power is void under Article 14. The mere fact that the criterion for the exercise of the power is not laid down in express words in sec. 180 of the Act is not sufficient to make the exercise of the power by the Board arbitrary. In the present case sec. 180 prescribes in the case of refusal to sanction that the Board shall communicate in! writing the reasons for such refusal. Sec. 318 provides for an appeal and sec. 321 provides for a revision against the order passed in appeal. As has already been pointed out above, the consideration by which the Municipal Board is to be guided in sanctioning or refusing permission are mentioned in sec. 298 of the U. P. Municipalities Act. It cannot therefore be said that the power conferred upon the Board under sec. 180 of the Act is uncontrolled. Next, it was contended that the order of the Board cannot be said to be based, on considerations of public health, safety and convenience and for the furtherance of municipal administration under the Act. The reason given by the Board in its order refusing permission was that they were not prepared to allow the construction as they wanted to maintain "line bandi. ' What they meant was that they want to maintain uniformity of construction in the row of the street. The evidence on record shows that opposite the building of the plaintiffs, there is a building of Madhavji Karam Chand on which there is an upper storey constructed over the verandah. There is some evidence to the effect that one building situated at some distance in the same line as the plaintiff's also has got an upper storey over the verandah. There is no evidence that these two upper storeys on the verandah were constructed with the permission of this Board. It cannot therefore be said that the order passed by the Board disallowing the Constructions of the plaintiffs over the verandah is capricious. Construction of an upper storey over verandahs in front of shops is generally not allowed in big towns. It cannot be said that the order passed by the Board is arbitrary. I accordingly find that the order passed by the Board was one which they were authorised under the law to pass and that it is not arbitrary, ultra vires and capricious. I accordingly dismiss the appeal with costs. Leave to file special appeal was sought but was refused. . ;