Hari Swarup, J.
1. This appeal has come before us on reference by brother Gulati as in his opinion certain questions of law were involved which required consideration by a larger Bench. The appeal has arisen out of a suit filed by the appellant for an injunction to restrain the defendant Municipal Board from demolishing constructions of the plaintiff standing on land measuring 20 feet x 60 feet. The plaintiff's case was that the Authority incharge of the Garhwal Bhabar Government Estate gave him a 'Nazool' grant in respect 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, Kotdwara gave him a notice under Section 211 of U. P. Municipalities Act (hereinafter referred 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 comply with the notice dated 14th April, 1960 and demolish the constructions. Thereafter, the plaintiff filed the present suit praying for an injunction. The defence of the Municipal Board was that after the grant of 1947, the plaintiff was given a lease in respect 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 Ballabh 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 appeal 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. However, it agreed with the trial Court's finding that the rights of the plaintiff were governed not by the grant of 1947 but bythe 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. In appeal again the appellant has challenged the validity of the notice on the ground that the Executive Officer, on the relevant dates, had no power to issue the notices as the power to issue a notice under Section 211 of the Act was not contained in Schedule II of the U. P. Municipalities Act. The contention of the learned counsel for the respondent, on the other hand, is that the first as well as the second notice was issued in exercise of the powers delegated to the Executive Officer under the bye-laws framed by the Municipal Board under Section 298-J (c) of the Act.
4. 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 discharged by the Executive Officer even if it is not included in Schedule II. Under Clause (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 being under the control of the Board. Under bye-law No. 3, it was provided that no person 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 requiring removal or demolition within a specified period of any encroachment or obstruction, 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 Executive 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.
5. The notice issued by the Executive Officer on 14.4.1960 was with specifiedreference to bye-law No. 3 framed under Section 298-J (c). It was stated therein that the appellant had constructed behind his house on the public street a brick wall which had obstructed the public passage. Through the notice this particular construction only which fell on the public street was directed to be removed. The first appellate Court, on a consideration of the evidence, came to the conclusion that the construction or a portion thereof existed over a lane which was a public street within the definition of the word 'street' given in the Act. It was on this ground that the Court below held the notice to be valid. This finding of the first appellate Court is a finding of fact. It has not been shown to be perverse or otherwise bad so as to make it liable to be interfered with in second appeal. On this finding of fact, the view of the Court below that the notice issued by the Executive Officer was a valid notice cannot be held to suffer from any error of law.
6. The plaintiff had filed the suit for an injunction to restrain the Municipal Board from removing the constructions standing on the entire plot. As already seen, the notice of the Executive Officer directs the removal only of the brick wall behind the house of the plaintiff lying on the lane. The plaintiff has thus failed to prove any threat to any part of the house except the disputed wall and, therefore, his suit for the issue of an injunction in regard to the entire house is misconceived. As regards the wall standing on the street, the plaintiff has not succeeded in proving that it stands on any land belonging to him. He has thus been rightly refused the decree of perpetual injunction even in respect of the brick wall on the street. The decree of the Court below is thus in accordance with law.
7. The appeal is without merits and is accordingly dismissed with costs. The interim order is vacated.