1. This is an appeal by the defendant Board in a suit for a perpetual injunction restraining it from demolishing certain constructions of the plaintiff. The suit was dismissed by the trial Court but the lower Appellate Court has decreed it. The plaintiff-respondent applied to the Municipal Board for permission to make certain constructions and the Board granted the application and sanctioned the erection of the building proposed by the plaintiff. It is common ground that the plaintiff in making the constructions has not done anything which can be said to be in contravention of any directions made by the Board or in contravention of any provision of the law or of any bye-law. It is clear therefore that whatever the plaintiff, respondent has done is not within Section 185, Municipalities Act. It appears that some time after the plaintiff-respondent had completed his constructions, correspondence ensued between the Municipal Board and the Collector of the District, and ultimately on 14th June 1934 the Collector wrote to the Municipal Board saying that Habibullah had made an encroachment on 'nazul land over a public well,' and directed that the encroachment should be removed at once. On receipt of this letter a notice, purporting to be under Sections 186 and 211 of the Act, was issued by the Executive Officer of the Board on 20th June 1934 requiring Habibullah to demolish his constructions within four days from the receipt of the notice and saying that if Habibullah failed to comply with the notice, action would be taken under Section 307 of the Act. Habibullah thereupon filed the suit which has given rise to this appeal. The lower Appellate Court has held that the Board having sanctioned the application for building made by Habibullah and Habibullah having done nothing which was in contravention of the Sections of the Act dealing with Building Regulations, the Board had no power to issue any notice under Section 186. It has further held that the board had no power to issue any notice under Section 211 because here there was no 'street' involved.
2. The argument of the learned Counsel for the appellant before us is that the board had to issue the notice in obedience to the order of the Collector, and that therefore the suit was not maintainable against the Board. Reference is made to Paras. 4 and 11 of the 'instructions regarding Nazul entrusted to the management of Municipal Board,' and it is argued that these paragraphs have the force of law. In our opinion the Court below is right in holding that these 'Instructions' have not the force of law. It is clear that these 'Instructions' are not Rules made by the Government in exercise of the powers conferred by Section 296 of the Act. That being so, the argument of the learned Counsel has no force. The Court below, in our opinion, is right in holding that the plaintiff respondent is not bound by these 'Instructions.' They are merely departmental instructions and direct the Board to comply with the orders of the Collector. The Board however in complying with, the order of the Collector, must act according to law and the 'instructions' do not authorize the Board to take any action which is beyond the powers conferred on it by the Municipalities Act. As an example of what the Board could do in accordance with law, it may be mentioned that it was open to the Board to bring a properly framed suit in the Civil Court for the demolition of the constructions made by Habib Ullah and if the allegations made by the Board satisfied the Court that the Board was entitled to a decree, the suit would no doubt be decreed. The Board cannot, by issuing a notice which is not authorized by Section 186 or by Section 211, Municipalities Act, threaten to demolish the plaintiff's constructions. The notice issued by the Board being clearly ultra vires, the plaintiff was entitled to bring the suit claiming an injunction. It is well settled that the Civil Court has jurisdiction to entertain a suit of this character if it appears that the notice issued by the Board is illegal and ultra vires.
3. The next argument advanced by the learned Counsel for the appellant is that the suit is barred by the provisions of Section 321, Municipalities Act. In order that that Section of the Act may be applicable, it is necessary that the order or direction made by a Board should be under the powers conferred upon it by Section 186 or by Section 211. As we have pointed out above, the order or direction in this case is not in accordance with the powers conferred upon the Board either by Section 186 or by Section 211. The suit cannot therefore be barred by Section 321. In our opinion the decision of the lower Appellate Court on this point also is correct. Further, it may be noted that the notice in this case has been issued by the Executive Officer, In view of the provisions of Sections 60 and 61, and of Schedule 2, Municipalities Act, the bar of Section 321 cannot arise in such a case. This point has been dealt with at length in our judgment in the case of Second Appeal No. 314 of Municipal Board Moradabad v. Hafiz Banne Second Appeal No. 314 of 1935. For this reason also we are of opinion that the suit of the plaintiff-respondent was maintainable.
4. It has been argued that it was the duty of the plaintiff-appellant to implead the Secretary of State for India in Council as a defendant to the suit. In our opinion there is no force in this argument. The notice complained of was issued by the Municipal Board and it was the Municipal Board that threatened to take action under Section 307, Municipalities Act, if the constructions in question were not demolished by the plaintiff within four days of the receipt of the notice. The plaintiff was therefore entitled to bring the suit impleading the Municipal Board alone as a defendant. It is hardly necessary to point out that if the Collector had desired to take any action himself, he could have filed a suit on behalf of the Secretary of State for India in Council. For the reasons given above, we dismiss this appeal with costs.