1. This is an application for leave to appeal to His Majesty in Council under Section 110, Civil P.C. The facts, as stated by the learned counsel, for the applicant, which have not been controverted, are briefly these.
2. In 1931, the Municipal Board of Agra decided upon a scheme for the improvement of a part of the town of Agra, Mohalla Sabzi Mandi, and, in furtherance of the scheme, granted licenses to the people who owned houses or land in the Mohalla. They were to raise constructions according to the plan approved and sanctioned by the Board. One of the persons, who were granted a license was Lala Munna Lal.
3. On 17th January 1931, the Board permitted Munna Lal to make certain constructions abutting the road. They were, mostly, in accordance with the plan sanctioned by the Board, but part, of the constructions did not strictly tally with it.
4. On 19th August 1937, when the buildings were complete, the Executive Officer submitted a report and indicated the particulars, in which the sanction had been exceeded. The report of the Executive Officer, however, did not commend itself to the Municipal Board, which, by its resolution of 18th September 1937 permitted Munna Lal to maintain the constructions already made, provided he made certain alterations. The necessary alterations were made.
5. The matter, however, went to Mr. Dible, the Commissioner of the Agra division, who was of opinion that the constructions were unauthorised and that Munna Lal should be ordered to remove them under Section 211, Municipalities Act, (Local Act, 2[II] of 1916). Munna Lal, thereupon, brought a suit for an injunction restraining the Municipal Board from carrying out the order of the Commissioner. This suit was filed in the Court of the Munsif, who granted a temporary injunction. The learned Munsif ultimately decreed the suit and made the injunction permanent. On appeal the learned Civil Judge was of opinion that, while the learned Munsif was within his rights in granting a temporary injunction, no case had been made out for a permanent injunction. Mr. Dible had, meanwhile, been succeeded by Mr. Hallowes, who, after the decision of the learned Civil Judge, passed an order tinder Section 34, Municipalities Act, on 1st August 1941, prohibiting
the execution or further execution of resolutions Nos. 31 of 17th January 1931, and 19 of 17th, 18th September 1937 passed by the Municipal Board of Agra.
6. In pursuance of this order, notices were issued on 14th March 1942 and 5th September 1942 to the owners of the building. The present suit was instituted by Chhail Behari Lal, who is a transferee from Munna Lal, on 8th February 1943. He prayed for a permanent injunction restraining the municipal Board of Agra from demolishing any portion of the constructions raised by Munna Lal.
7. The defence, in the main, was that the civil Court had no jurisdiction to entertain the suit. The bar of Section 211, Municipalities Act, was also pleaded.
8. The learned Civil Judge dismissed the suit. He was of opinion that it was not open to the civil Court to go behind the order of the Commissioner. This judgment was affirmed, on appeal, by a Bench of this Court by its judgment of 17th October 1940.
93. The valuation of the suit, as also of the proposed appeal to His Majesty in Council, was and is much above Rs. 10,000 to be more precise it is Rs. 44,000. The sole question for consideration is whether the case fulfils the requirements of the third part of Section 110, Civil P.C., which says that
Where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order, the appeal must involve some substantial question of law.
10. The learned Counsel for the applicant contends that, once the resolution of the Municipal Board was carried out and the constructions were complete, neither Section 34 nor Section 211 had any application. Section 84 says:
The Commissioner, or the District Magistrate may...prohibit the execution or further execution of a resolution or order passed or made under this or any other, enactment by a board or a committee of a board....
11. Once, it is argued, the resolution was carried out and the buildings completed, there was nothing, 'the execution or further execution' of which, could or had to be prohibited. Reliance is placed on Somnath Pandya v. Municipal board Agra : AIR1944All235 . A Bench of this Court held:
Under Section 34(4), Municipalities Act, the Board is not entitled to demolish constructions which were made with the sanction of the Board and were completed before the resolution of the Board giving sanction was vacated by the Commissioner. Once the Board has sanctioned the constructions for building, the party concerned is entitled to act upon that sanction. The subsequent order of the Commissioner cannot and should not affect the constructions that have already been completed.
Section 211 says:
The Board may, by notice, require the owner or occupier of a building to remove, or to alter a projection or structure overhanging, projecting into or encroaching on a street, or into, on or over any drain, sewer or aqueduct therein.
12. Mr. Din Dayal, the learned Counsel for the opposite party, contends, in reply, that this section leaves the last word with the Board and it is not open to the civil Court to question the validity or propriety of its decision. He also relies upon byelaw No. 9 of the Byelaws of the Municipal Board of Agra, dated 22nd November 1917, described as 'Projection byelaws for the Agra Municipality. Under heading E, sub-head (c) of Section 298,' which says:
Nothing in these byelaws shall be construed to derogate from the power conferred on the board by Section 211 of the Act to remove encroachments and projections over streets and drains, notwithstanding that such encroachments and projections may have been, sanctioned.
This only preserves the rights recognised or conferred upon the Board by Section 211. It, by itself, neither gives nor takes away any power from the Board; it neither creates nor removes a bar.
13. The learned Counsel for the applicant has raised another contention. If the resolution of the Board, he argues, or the order of the Commissioner is unjustified, it is open to the Court to consider its propriety or validity. He relies upon the principle laid down by this Court in the Full Bench case in Brij behari Lal v. Emperor : AIR1943All123 .
14. The learned Counsel for the Board argues, in reply, that the ratio of the Full Bench decision was that nothing should be done which comes in conflict with the fundamental principle of the criminal jurisprudence that the accused must be presumed to be innocent unless the contrary is established. To hold that the Court cannot consider the propriety of the notice or the resolution of the Board or the order of the Commissioner amounts to a negation of that principle.
15. This aspect was present to the minds of Collister and Bajpai JJ. The latter says at page 123:
If the contention of the Municipal Board is to be accepted, the conscience of the criminal Court has to be coerced and the criminal Court cannot go into the question of the validity of the notice although it is provided in Section 307 that the notice ought to be under the provisions of the Act.
16. But in Alllah Taala v. District Board, Pilibhit : AIR1945All273 a Bench of this Court had occasion to consider the effect of the decision in the Full Bench and held that, on principle, there is no distinction between a criminal case and a civil case and it is open to a Court to consider the propriety of the order even in civil proceedings. That was a case under the District Boards Act, which also contains a provision corresponding to Section 211, At page 220 it was observed:
We do not think that the nature of the Court should make any difference. It is true that, in a criminal trial, there should be a presumption in favour of the accused and the conscience of the Court should not be 'bound' or 'coerced.' But if a criminal Court deals with the life and liberty of human beings, a civil Court has to deal with property, the means of their livelihood. There is no initial presumption one way or the other in a civil case.
17. And, lastly, the learned Counsel for the applicant argues that, in this state of authority, it cannot be said that the case does not 'involve some substantial question of law.' Cases of this character arise frequently. One of the tests laid down by this Court in Bishambhar Nath v. Md. Ubaid-ullah Khan 11 A.I.R. 1924 All. 559 is whether the question is 'a substantial question of law of general interest.'
18. If eases of this character come before Courts frequently and, if the precise question which falls for our consideration, arises in such cases, it cannot be denied that the question is a substantial question of law of general interest. I am, therefore, of opinion that the case fulfils the requirements of the third part of Section 110, Civil P.C.
19. I agree with my learned brother that a certificate should be granted in this case that the case fulfils the requirements of Section 110, Civil P.C., in other words, that the appeal involves a substantial question of law. It is not necessary for me to add to the reasons given by my learned brother for that conclusion. I have, however, felt called upon to say a few words because learned Counsel for the opposite party, namely the Municipal Board of Agra, has drawn my attention to the fact that I am a party to a decision which entirely supports his contention based on Section 211, U.P. Municipalities Act of 1916. He has even reminded me that the judgment of the Bench in that case was dictated by me. Learned Counsel state that it has not yet been reported. They have, however, given us the reference, viz., Second Appeal No. 364 of Mahomed Basit Ali Khan v. Municipal Board, Agra Reported in : AIR1948All112 , decided on 29th July 1946 and we have sent for the paper-book and have gone through that judgment. Although the facts of that case were somewhat different, learned Counsel appearing for the Municipal Board is perfectly right in contending that the decision arrived at in that case is in his favour. The question before us, however, is not whether that ruling should be followed by this Bench, but whether this Court should grant a certificate to the petitioner that the present case fulfils the requirements of Section 110, Civil P.C., in that, although this Court affirmed the decision of the Court below, the proposed appeal involves a substantial question of law. That being the point which arises for consideration, I have come to the conclusion that the petitioner's contention that, in view of all the facts and circumstances of this case, the petitioner is entitled to the certificate mentioned above, is well-founded. Although in Second Appeal No. 364 of 1944 mentioned above I took a view which supports the contention of the learned Counsel for the Municipal Board, I feel that it is highly-desirable that the question which arises in this case should be considered by a higher Court. That the question which arises is a question of law is obvious. There can also be, to my mind, no doubt as to its being a substantial question. It is also, as has been pointed out by my learned brother, one of general importance. The casa thus does fulfil the requirements of Section no, Civil P.C.
20. The application is granted and a certificate will issue that the case-fulfils the requirements of Section 110, Civil P.C.