Jagmohan Lal, J. - (1.) The petitioner filed a civil suit in the court of Munsif South, Lucknow, out of which this revision has arisen, against Naga Mahapalika, Lucknow, praying for a perpetual injunction restraining the Mahapalika from removing the plaintiff's stall and goods from the land in suit. He went to the court with the allegation that he was in possession of a piece of land belonging to the Nagar Mahapalika with its permission for about a year and thereafter this as well as some other land had been let out by the Mahapalika to a third person and thereupon the plaintiff removed his shop from this land which he had kept on it. That third person also after remaining in occupation for some time vacated the land. The plaintiff then re-entered on the land and set up his stall there. The Mahapalika was however threatening to take action against him by way of removal of his stall from this land under Section 296 of U. P. Nagar Mahapalika Adhiniyam, 1950 (to be hereinafter called as the Act). He challenged the validity of this action of the Nagar Mahapalika on a number of grounds. One of the pleas taken up by him was that Section 296 was violative of Art. 14 of the Constitution and as such ultra vires. His allegation was that this section gave summary power to Mukhya Nagar Adhikari for removal of any stall etc. from any public street and other places without at the same time barring the remedy of civil suit which would be available to every person including Nagar Mahapalika under the general law. One of the issues framed by the learned Munsif to cover this plea was "Whether Section 296 of the Nagar Mahapalika Adhiniyam violates Art. 14 of the Constitution ? If so, its effect - He decided this issue as a preliminary issue and answered it in the negative.
(2.) It is against that finding that this revision has been directed. Since the case has not been finally disposed of and the action of the Mukhya Nagar Adhikari under Section 296 is being challenged by the petitioner on other grounds also, this revision against a finding is not maintainable and is premature. However, I may state that on merits also this revision has no force. Secs. 295 and 296 of the Act have to be read together. They provide as follows : "295, Other prohibitions relating to streets:-(1) No person shall, except with the permission of the Mukhya Nagar Adhikari under Section 293 or 300 erect or set up any wall, fence, rail, post, stop, booth or other structure whether fixed or movable and whether of a permanent or a temporary nature, or any fixture in or upon any street or upon or over any open channel, drain, well or tank in any street-so as to form an obstruction to or an encroachment upon, or a projection over, or to occupy, any portion of such street, channel, drain well or tank : Provided that nothing in this section shall be deemed to apply to any erection or thing to which clause (c) of Sub-sec. (1) of Section 302 applies. (2) No person shall except with the written permission of the Mukhya Nagar Adhikari - (a) place or deposit upon any street, or upon any open channel, drain or well in any street or in any public place any stall, chair, bench, box, ladder, bale or other thing whatever, so as to form an obstruction thereto or encroachment thereon ; (b) project, at a height of less than twelve feet from the surface of the street, any board or chair, beyond the line of the plinth or any building over any street, or over any open channel, drain, well or tank in any street ; (c) attach to suspend from, any wall or portion of building abutting on a street, at a lower height than aforesaid anything whatever : Provided that nothing in clause (a) applies to building materials. (3) No person shall tether any animal or cause or permit the same to he tethered by any member of his family or household, in any public street and any animal tethered as aforesaid may be removed by the Mukhya Nagar Adhikari, or by any Mahapalika officer or servant, who shall deal therewith as with an animal found straying, 296. Mukhya Nagar Adhikari may, without notice, remove anything erected, deposited or hawked or exposed for sale in contravention of Act.-The Mukhya Nagar Adhikari may, without notice, cause to be removed - (a) any wall, fence, rail, post, stop, booth or other structure whether fixed or movable and whether of a permanent or a temporary nature or any fixture which shall be erected, or set up in or upon or over any street or upon or over any open channel, drain, well or tank contrary to the provisions of this Act after the appointed day ; (b) any stall, chair, bench, box, ladder, bale, board or shelf, or any other thing whatever placed, deposited, projected, attached or suspended in, upon from or to any place in contravention of this Act ; (c) any article whatsoever hawked or exposed for sale in a public place or in any public street in contravention of the provision of this Act and any vehicle, package, box or any other thing in or on which such article is placed."
(3.) The summary power of removal given to Mukhya Nagar Adhikari under Section 296 can be exercised by him only if the thing sought to be removed whether it is a wall, fence, rail, post, stall, chair, bench etc. or any article whatsoever hawked or exposed for sale, has been set up, placed, deposited. projected, attached or suspended in, upon from or to any place or street or the same is hawked or exposed in a public place or in any public street, in contravention of the provisions of the Act. Thus it is evident that this polder can be exercised by the Mukhya Nagar Adhikari then by the act complained of any provision of the Act including Section 296 is contravened. In other words, the cause of action for the summary removal arises only within the four corners of this Act and not under the general law. It is true that in respect of certain unauthorised acts provided for in Section 296 civil suit for injunction for removal of nuisance or for demolition of some encroachment can also be filed. But for those civil suits the cause of action would have to be brought within the purview of general law governing nuisances, civil trespass or some other civil wrong. In many cases, for which the summary power of removal has been given by Section 296, no civil action may lie at all. Under these circumstances, it cannot be said that two parallel remedies have been provided to Mukhya Nagar Adhikari leaving it at his sweet will as to which of these remedies would be availed of by him against a particular defaulter.;