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Allah Taala Through Jamaludding Vs. District Board of Pilibhit Through Chairman - Court Judgment

LegalCrystal Citation
SubjectProperty ;Civil
CourtAllahabad
Decided On
Reported inAIR1945All273
AppellantAllah Taala Through Jamaludding
RespondentDistrict Board of Pilibhit Through Chairman
Excerpt:
.....who was perhaps himself an unwilling, or may be an unwilling instrument of other and more powerful agencies. at page 123 which indicates that his lordship did not like 'the conscience of the criminal court' to be 'coerced' by allowing the municipal board to have the last word. mask & co :it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. it is also well settled that, even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure......civil and revenue courts was involved, a bench of this court held thatit cannot be disputed that civil courts have exclusive jurisdiction to try all suits of civil nature, unless their cognizance is either expressly or impliedly barred: vide section 9, civil p.c. it is also clear that a suit is of a civil nature if the principal question in the suit relates to a civil right. the reason for the rule that civil courts are ordinarily to decide disputes concerning civil rights is not far to seek. the determination of disputed questions of right involves adjudication of complicated questions of fact and law and it is inexpedient to leave the decision of such questions in the hands of courts presided over by officers who have had no legal training or practice: vide sukhdeo v. basdeo :.....
Judgment:

Sinha, J.

1. This is a plaintiff's appeal arising out of a suit for a permanent injunction restraining the District Board of Pilibhit from demolishing the constructions specified in the plaint. The case has had a chequered history and makes sorry reading. The facts are briefly these : The suit was brought by one Jamaluddin on behalf of the Almighty against the District Board of Pilibhit through its chairman. The endowment, in question, is a mosque called Jama Masjid. According to the plaint, the constructions in dispute were part of the mosque and had stood from time immemorial. The complaint is that the defendant wrongfully served a notice upon the plaintiff for demolition, although the con-Structions did not amount to encroachment and had been in possession of the plaintiff for over sixty years. This suit was instituted on 14th December 1934. On 26th February 1935, the District Board filed its written statement. Its case was that the constructions did amount to an encroachment. The bar of Section 188, U.P. District Boards Act (Act 10 of 1922) was also pleaded. On 13th July 1935, a further defence was taken that the suit was bad for want of notice under Section 192 of the Act. The learned Munsif, Mr. Harish Chandra, gave effect to this plea and dismissed the suit on the preliminary issue that the claim was bad for want of notice. This decree was passed on 18th July 1935. The plaintiff went in appeal and Mr. Krishna Das, the learned Subordinate Judge, in a careful judgment, dated 13th August 1936, held that ' the only relief claimed' was

an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding

and the case, therefore, did not fall within the mischief of Section 192. The plaint made it abundantly clear that the Board was threatening demolition and the only relief claimed was, therefore one of injunction. It is, indeed, surprising how Mr. Harish Chandra overlooked a feature of the case, which was almost staring him in the face. It is, however, reassuring that the appellate Court stepped in to remedy an obvious error, which, if unremedied, would have amounted to a negation of justice. An appeal was preferred by the defendant to this Court against the order of Mr. Krishna Das, which was dismissed under Order 41, Rule 11, Civil P.C. The case was transferred to the Court of the Civil Judge of Pilibhit and Mr. Mohammad Owais Karney, in an equally careful judgment, held that:

It is not proved that the plaintiff's constructions encroach upon the public road belonging to the district board; The plaintiff has been in possession of the land in suit for a long time and he must be deemed to be the owner of it.

But the suit, in his opinion, was barred by Section 188, District Boards Act. On appeal, the learned District Judge held that the plaintiff had established his title to at least a part of the land in dispute, but he shared the view of the trial Court that' the suit was barred by Section 188 of the Act. This judgment was affirmed in second appeal by a learned Judge of this Court. The plaintiff has now come in Letters Patent.

2. Before addressing ourselves to the question of law, it is necessary to decide if there was an encroachment. We have gone through the evidence and we find that, apart from the evidence led by the plaintiff, the defendant's own evidence proves the plaintiff's title. Two of its witnesses, Kanhai Lal and Gauri Shankar have admitted that the shops in dispute were built seventeen or eighteen years ago. Even Ulfat Rai, the overseer in the employment of the District Board, on whose report the order for demolition was passed, had to concede that he did not make any survey on the basis of the previous settlement map. The other witness, Budh Sen, an overseer of the Irrigation Department, who was deputed to make a survey of the locality and who stated that there was some encroachment on the public road, admitted in cross-examination that he did not take measurements from any fixed and reliable points. The plaintiff examined one Nizam Uddin, a qualified overseer of the Roorki College, who was in military engineering service at Allahabad. His evidence established that there was no encroachment and this evidence received corroboration from the report submitted by Jamuna Sahai, the Amin of the Court. Even if we rule out of consideration the statement of Nizam Uddin and the inconclusive evidence of Budh Sen and Ulfat Rai, the report of Jamuna Sahai is conclusive in favour of the plaintiff's title. We, therefore, agree with the finding of the learned Civil Judge that there was no encroachment. The next question which falls for consideration is whether Section 188 has any application. Section 95 of the Act is in these terms:

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 public road or land vested in or maintained by the board, or into, on, or over any drain, sewer or aqueduct therein.

Section 186 provides that:

Any person aggrieved by any order or direction made by a board under the powers conferred upon it by Section 95 or under a bye-law...may, within 30 days from the date of such direction or order, exclusive of the time requisite for obtaining a copy thereof, appeal to such officer as the Local Government may appoint for the purpose of hearing such appeals or any of them or, failing such appointment, to the District Magistrate.

Section 188 says that:

No order or direction referred to in Section 186 shall be questioned in any other manner or by other authority than is provided therein.

3. The learned Civil Judge was of opinion that the proper forum to which an appeal could be made by the plaintiff was in the absence of 'such officer as the Local Government may appoint,' the District Magistrate. In construing certain provisions of this Act, a reference to the U.P. Municipalities Act (Act 2 of 1916) will not be out of place. Both aim at a common purpose though the spheres of both are defined and separate. While the earlier Act governs. the rights of the people living in urban areas, the later deals with their rights in rural area, and it is for this reason that many of the provisions in both the Acts are common. Round the earlier Act has grown a volume of case law, which can throw light on the obscure corners of the later Act. Section 211, Municipalities Act, reads:

The board may, by notice, require the owner or occupier of a building to remove, or to alter a projection of structure overhanging, projecting into or encroaching on a street, or into, on or over any drain, sewer or aqueduct therein.

Section 186 of this Act provides that:

The board may at any time by written notice direct the owner or occupier of any land to stop the erection, re-erection or alteration of a building or part of a building or the construction or enlargement of a well thereon in any case where the board considers that such erection, recreation, alteration, construction or enlargement is an offence under Section 185 and may, in like manner, direct the alteration or demolition as it deems necessary of the building, part of a building, or the well, as the case may be.

Section 318 of this Act provides that

any person aggrieved by any order or direction made by a Board...may within thirty days from the date of such direction or order...appeal to such officer as the Local Government may appoint for the purpose of hearing such appeals or any of them, or, failing such appointment, to the District Magistrate.

Section 321 says that

No order or direction referred to in Section 318 shall be questioned in any other manner or,by any other authority than is provided therein.

The order of the appellate authority confirming, setting aside or modifying any such order or direction shall be final.

4. It is, therefore, manifest that Sections 211, 318 and 321, U.P. Municipalities Act, correspond respectively with Sections 95, 186 and 188, District Boards Act. The relevant provisions of the U.P. Municipalities Act came in for consideration in a large number of cases'.' A number of them held that the jurisdiction of the civil Court to decide whether there was or was not an encroachment was not ousted; a large number held otherwise, till in 1932 judicial opinion began to crystallize in favour of the proposition that the validity of a notice under Section 186 and cognate sections of the Act can only be questioned by an appeal to the District Magistrate. But in 1943, a Full Bench of this Court, in Brij Behari Lal v. Emperor : AIR1943All123 , held that Section 321, Municipals ties Act did not constitute a bar to the determination of the legality of the notice under Section 186 of that Act. Section 321, Municipalities Act, corresponds with Section 188, District Boards Act. The terms of Section 186, Municipalities Act are more stringent than those of Section 95, District Boards Act. Section 186 gives a right of notice to the municipality in any case where it considers that such erection is an offence; whereas Section 95, District Boards Act, merely gives such right if the building or projection or structure encroaches on a public road or land vested in or maintained by the Board. The word 'consider' means that it is for the Board to consider. The absence of that word means that the essential condition is that there should be an encroachment. The plaintiff is, therefore, on surer ground when he asks us to hold that Section 186 does not deprive this Court of the right to go behind the order of the Board if there is no encroachment. The matter was put very pithily, if we may say so with respect, by Collister J. at p. 117:

It seems to me that 'to consider' must mean 'to consider in good faith,' for I do not see how a Board can consider a fact to exist if it either knows that it does not exist or has reason to doubt its existence. For instance, a person may have had a house for 50 years within the municipal limits and may suddenly be served with a notice to demolish it; and, in such circumstances, it would be for the Board to show that it really 'considered' that an offence had been committed under Section 185. Other instances can be given, but it is unnecessary to do so.

5. In the case before us, the constructions were old and did not amount to any encroachment. It is abundantly clear that the appellant is a victim to party factions and has been made an object of attack at the instance of Ulfat Rai, the overseer in the employment of the District Board, who was perhaps himself an unwilling, or may be an unwilling instrument of other and more powerful agencies. We would have felt ourselves relieved of the necessity of addressing ourselves to this question in detail after the above Full Bench ease, but there are some observations in it which make it necessary for us to dwell on it at some length. There is an observation of Bajpai J. at page 123 which indicates that his Lordship did not like 'the conscience of the criminal Court' to be 'coerced' by allowing the municipal board to have the last word. Collister J., has merely hinted at it at p. 116; his observation is not so pointed. We propose, therefore, to deal with this question at some length.

6. 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. But the litigant is entitled to claim justice at the hands of the Court and also to claim that the conscience of that Court in dealing even-handed justice should not be 'smothered.' Section 9, Civil P.C. says that:

The Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

The learned Counsel for the respondent contends that Section 188, District Boards Act, constitutes an express bar and that nothing could be more definite or emphatic. This section, in providing a special forum, makes an inroad upon the jurisdiction of a civil Court. It has been held in a number of cases that the jurisdiction of the civil Court should not be lightly taken away and the law does not favour an enactment which transfers the right of adjudication 'from the Courts of law to a board of executive officers': Winter v. Attorney-General of Victoria (1875) L.R. 6 P.C. 378 at p. 380. This is also the ratio of the case in Leslie Williams v. Haines Thomas Giddy ('11) 11 I.C. 509. The matter there was exclusively within the discretion of the Government, but Lord Macnaghten in delivering the judgment of the board made it clear that

nobody, of course, can dispute that the Government or the board had a discretion in the matter. But it was not an arbitrary discretion as Pring J. seems to think. It was a discretion to be exercised reasonably, fairly and justly.

The learned Counsel has, in reply, contended that the District Magistrate, within the meaning of Section 186, District Boards Act, is not an executive officer, nor is he a Government or the Board, but is a judicial officer. A judicial officer he certainly is not, though he is a Court within the meaning of that Act. But it was a Court of summary jurisdiction and it is impossible to say, without meaning any disparagement, that his decision will inspire the same measure of confidence, as the decision of a civil Court. In a case in which the question of the rival jurisdictions of the civil and revenue Courts was involved, a Bench of this Court held that

it cannot be disputed that civil Courts have exclusive jurisdiction to try all suits of civil nature, unless their cognizance is either expressly or impliedly barred: vide Section 9, Civil P.C. It is also clear that a suit is of a civil nature if the principal question in the suit relates to a civil right. The reason for the rule that civil Courts are ordinarily to decide disputes concerning civil rights is not far to seek. The determination of disputed questions of right involves adjudication of complicated questions of fact and law and it is inexpedient to leave the decision of such questions in the hands of Courts presided over by officers who have had no legal training or practice: vide Sukhdeo v. Basdeo : AIR1935All594 .

7. We have the high authority of the Judicial Committee in Secretary of State v. Mask & Co :

It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that, even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

8. If there was no encroachment, can it be pretended that the decision of the board or the decision of the District Magistrate was 'in conformity with the fundamental principles of judicial procedure?' The evidence recorded in conformity with the rules of procedure followed in the civil Courts and a close scrutiny of it would have convinced every one as they did convince the Courts below that the decision of the board was illegal. Such faithful adherence to the rules of procedure, as is to be found in the civil Courts, is generally not found in other Courts. The result is a denial of justice such as we witness in this case. The above principle has been followed in Municipal Board of Etawah v. Mt. Ram Sri : AIR1931All670 . Say their Lordships at p. 672:

No question of title can be decided by the municipal board specially where it itself is a party, and it could never have been contemplated that the question of title should be decided under Section 318 of the Act by the District Magistrate or by the Commissioner.

9. The learned Counsel for the respondent seeks to distinguish it on the ground that, whereas that was a suit for a declaration of title, the present is a suit for injunction. This, in our opinion, is a distinction without a difference. The claim for injunction could succeed only if the appellant established his title. We, therefore, allow the appeal, set aside the decrees of the learned Judge of this Court and of the Courts below and decree the plaintiff's suit with costs in all Courts.


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