JAGANNATH Vs. MUNICIPAL BOARD KOTDWARA

JUDGEMENT

(1.) THIS appeal has come before us on reference by brother Gulati as in his opinion certain questions of law were involved which required con sideration by a larger Bench. The appeal has arisen out of a suit filed by the appel lant for an injunction to restrain the defen dant Municipal Board from demolishing constructions of the plaintiff standing on land measuring 20 feet x 60 feet. The plaintiffs case was that the Authority in-charge of the Garhwal Bhabar Government Estate gave him a 'Nazool' grant in res pect of the land in dispute for construction of a house at the rent of Rs. 10/- per annum in the year 1947. The plaintiff made permanent constructions thereon at considerable expense. On 14th April, 1960, the Executive Officer, Municipal Board, Kot-dwara gave him a notice under Section 211 of U. P. Municipalities Act (hereinafter re ferred to as the Act) for demolition of the constructions. The plaintiff filed an appeal against the proposed action but the District Magistrate dismissed the appeal. The plaintiff was then asked by the Municipal Board to com ply with the notice dated 14th April, 1960 and demolish the constructions. There after, the plaintiff filed the present suit pray ing for an injunction. The defence of the Municipal Board was that after the grant of 1947, the plaintiff was given a lease in res pect of the land in dispute, except a lane, in 1955. The case of the Municipal Board was that in 1955, a number of plots were carved out with a lane in between and out of those plots, two plots Nos. 39 and 40, measuring 20 feet by 40 feet and 20 feet by 38 feet respectively were given on lease to the plaintiff Jagannath and his father Bal-labh Das. It was also alleged that there existed no construction on the lane which was provided in the new plan.

(2.) THE trial Court held that the notice issued by the Executive Officer was invalid as he had no authority to issue a notice under Section 211 of the Act at the relevant time, but on the finding that the plaintiff was given no right in the land in dispute under the new lease, dismissed the suit. The plaintiff filed an appeal. In ap peal "the Court disagreed with the trial Court in regard to its finding about validity of the notice and held that the notice issued by the Executive Officer was valid. How ever, it agreed with the trial Court's find ing that the rights of the plaintiff were gov erned not by the grant of 1947 but by the lease of 1955 and as such he had no right in the land on which the disputed construction stood. The appellate Court further held that the disputed construction amounted to encroachment over municipal land which was part of a street. The court, therefore, refused to grant the injunction and upheld the decree of the trial court.

(3.) THERE is no controversy that on the relevant dates the power to issue notice under Section 211 read with Section 60 (1) (d) of the Act had not been conferred on the Executive Officer by its inclusion in Schedule II. But under Section 60 of the Act, a function of the Board can be dis charged by the Executive Officer even if it is not included in Schedule II. Under Cl. (d) of sub-section (1) of Section 60 are included the powers which are exercisable by the Executive Officer by their inclusion in Schedule II. Under Clause (f) any power not covered by Clauses (a) to (d) can be exercised by the Executive Officer if it has been delegated by the Board to him. Under Section 298-J (c) the Board has been given the power to make bye-laws for protection from injury or interference of anything within the municipality being the property of the Government or of the Board, or be ing under the control of the Board. Under bye-law No. 3, it was provided that no per son shall without the previous permission in writing of the Municipal Board, build, dig foundation, cause to be built or erect any temporary or permanent structure on any road, patri, public place, street or land which is the property of the Committee or is under the control or management thereof or in any manner occupies such place. Under bye-law No. 4, the President or the Executive Officer may issue a notice re quiring removal or demolition within a speci fied period 'of any encroachment or obstruc tion, caused by any person in contravention of bye-law No. 3. Hence, if any case is covered by bye-law No. 3 and the building amounts to encroachment on the street, the power to issue notice under Section 211 read with Section 298-J (c) and the bye-laws framed thereunder, will vest in the Execu tive Officer by virtue of Section 60 (1) (f) of the Act read with bye-law No. 4 framed under Section 298-J (c) of the Act.