MOHD BASIT ALI KHAN Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) There are four appellants in this second appeal. The first three were plaintiffs in the suit and the fourth was defendant 2. He was impleaded as a pro-forma defendant on the allegation that he had the same rights in the subject-matter of the suit as the plaintiffs had, out was unable to join in the suit owing to absence from Agra. He has now joined the plaintiffs in bringing this second appeal. Both the Courts below have dismissed the suit.

(2.) The facts, which are material for the purposes of the point that has to be decided in this second appeal, are as follows. The appellants are owners of certain buildings which are used as shops in Moh : Sabzi Mandi in the city of Agra. In the year 1937, they secured permission from the Municipal Board of Agra for putting up certain structures projecting into and encroaching on a street as well as overhanging a drain, and erected those structures. It appears that shortly afterwards the Municipal Board came to know that the plan which had been sanctioned was really in excess of the application for permission that had been filed by the plaintiffs and that parts of it were also against the bye-laws of the Board with regard to projections etc. It accordingly served a notice on the appellants in September 1938 requiring them to remove all the structures that they had erected. It may be mentioned here that these structures consist of a tin shed and what has been described as a chhalli. The notice having been issued by the Executive Officer, the plaintiffs appealed to the Board. The appeal was partly allowed in November 1941. The plaintiffs then preferred an appeal to the District Magistrate and that appeal was dismissed in May 1942. They then filed an application for review before the District Magistrate and prayed that the matter be remanded to the Municipal Board with the direction that it should issue fresh notices to the plaintiffs. The District Magistrate, in August 1942, granted this application and remitted the matter to the Board with the direction mentioned above. Accordingly the board issued a notice which was served oil 3-1-1948, purporting to be under Secs.186 and 211, U.P. Municipalities Act (2 [II] of 1916) requiring the plaintiffs to remove the portions shown by the plaintiffs in green colour in the plan attached to the plaint. Thereupon this suit was filed. The plaint is in English and the main relief prayed for is in the following words: A permanent mandatory injunction be issued to the defendant Board restraining it from taking any steps for the demolition of any constructions made in the Shops Nos. 2350 and 2350/1-3 situated in Sabzi Mandl, Agra, as threatened by defendant 1 in its notice dated 17- 12-1942, and served on plaintiff 1 on 3-1-1943.

(3.) The defendant board pleaded that the notice issued by it was valid, as it was in accordance with the power conferred upon the Board by Section 211 of the Act, and so could not be challenged, and, further, that the civil Court had no jurisdiction to entertain the suit. The first Court held that the notice was valid and so could not be challenged, and did not consider it necessary to discuss the question of jurisdiction. The lower appellate Court agreed with the trial Court that the notice was valid and held further that the civil Court had no jurisdiction to entertain the suit.