H.N. Kapoor, J. - (1.) THIS is an appeal against the decree and judgment dated 21 -10 -1967 of 4th Additional Civil Judge, Kanpur, in Civil Appeal No. 16 of 1967 connected with Civil Appeal No. 88 of 1967 reversing the judgment of the Third Additional Munsif, Kanpur, dated 16 -11 -1966, in original suit No. 1212 of 1961 by which the Plaintiff's suit for a declaration that notices dated 30 -9 -1961 and 1 -9 -1961 issued by Nagar Mahapalika were illegal, arbitrary and void and not enforceable was decreed. Permanent injunction was also granted restraining the Defendants from giving effect to the said notices.
(2.) THE facts giving rise to this appeal breilly stated are as follows: House No. 89/164 -166 was originally owned by one Suraj Narain. It was purchased in 1944 by Ishtiaq Rasool, original Plaintiff who died during the pendency of the suit. There was some land appurtenant to this house, which was nazul land. Its area was given differently. Now the dispute is with regard to the 127 sq. yards and 7 sq. ft. of that land. It appears that Sohan Lal had some temporary permit from the Municipal Board for constructing house on that land. That had expired as appears from the notice dated 2 -5 -1938 given by the Municipal Board to Suraj Narain. Suraj Narain had again applied on 27 -7 -1939 for compounding the matter and issuing fresh permit. It may be stated here that this nazul land, was clearly shown in the boundary of the house which was sold to Ishtiaq Rasool. After that house was purchased by Ishtiaq Rasool, the Municipal Board sent a notice dated 14 -5 -1953 stating that Ishtiaq Rasool too might continue on the basis of temporary permit if he paid fee at the rate of -/4/ - per sq. yard for the time being. The fee was demanded from 1944. It appears that he did not take any action. Another notice dated 11 -7 -1955 (Ex. 5) was then sent to him demanding fees of Rs. 2307/10/ - for the period from 1 -4 -1944 to 31 -3 -1955 and also to show cause why action be not taken to remove his occupation from the land failing which action provided under the law was to be taken. A detailed notice was then sent on 11 -11 -1957 (Ex. 6) demanding total amount of Rs. 2439.00 as temporary permit fee. He paid some amount and made representation. On the basis of that representation a letter dated 8 -3 -1958 (paper No. 91, Ka -1) was sent to him snowing that after adjusting the amount already paid, a sum of Rs. 130/13/6 was due to him towards permit fee till 31 -3 -1958. He paid this amount. It appears that he received some more demand notices. Ex. 8 is one such notice dated 13 -3 -1959 demanding permit fee of Rs. 19/8/ - for the years 1958 -59. A money order coupon which is on the record (Ex. 18) shows that a sum of Rs. 19.50 was sent but it was refused. It does not bear the date and so it cannot be said whether this money order was sent in pursuance of that notice. The Municipal Board then sent a demand notice dated 30 -6 -1969 (Ex. 9) for Rs. 12,122/12/ as temporary permit fee for the period from 1954 to 1960. A corrected notice dated 24 -8 -1959 (Ex. 10) was sent demanding Rs. 11,990/2/ - for the period from 1 -4 -1954 to 31 -3 -1960. The Plaintiff made representation. He was then informed to apply for lease of Nazul land which was in his occupation. The matter was finally settled by letter No. 69/N/318/L, dated 16 -4 -1960 (Ex.12) sent by the Nazul Adhikari according to which the land was to be transferred on lease to Plaintiff on payment at the rate of Rs. 40.00 per sq. yard which was 5% of the market rate. This payment was to be made for period from 1 -10 -1953 to 31 -3 -1960. The total permit fee of Rs. 202/82 already deposited was to be adjusted. The Plaintiff was therefore required to deposit the balance of Rs. 1462.32 for granting lease. The Plaintiff, however, did not accept this offer. The Nagar Mahapalika, then issued the impugned notice dated 30 -6 -1961 (Ex. A 12) purporting to be issued under Section 298(2), List I -J(c) of the Municipalities Act read with Section 577 of the U.P. Nagar Mahapalika Adhiniyam 1959. It was to the effect that the Plaintiff had occupied Nazul land without payment of any permit fee or getting unauthorised occupation regularised by obtaining a lease as was offered to him by the aforesaid letter dated 16 -4 -1960. He was therefore required to remove the unauthorised occupation from the said land and vacate the notice failing which the land was to be got vacated through Mahapalika agency at his risk and cost. He was also held responsible for payment of charges for unauthorised occupation. Another notice dated 1 -9 -1961 (Ex. A 14) was sent to him under Section 560 of U.P. Nagar Mahapalika Adhiniyam, 1959 which was to the effect that the Revenue Inspector (Nazul) with necessary labour would enter in his house and take possession of the Nazul land by demolishing the encroachment on 8 -9 -1961 between 10 A.M. and 4 P.M. The Plaintiff then brought the present suit on 9 -9 -1961 challenging both these notices. The Plaintiff had alleged that the house was in existence for the last 60 years and permanent constructions were made as licensee. He also challenged that the land was Nazul land. State of U.P. was also impleaded as a party during the pendency of the suit. The trial court decreed the Plaintiff's suit mainly on the finding that the Municipal Board had issued a licence and the same should have been revoked and then suit for possession should have been brought. The Nagar Mahapalika and the State both had filed separate appeals before the lower appellate court which were decided by a common judgment dated 21 -10 -1967. The lower appellate court held that it was fully established that the land was Nazul land. It further held that both the impugned notices dated 30 -6 -1961 (Ex. A 12) and 1 -9 -1961 (Ex. A 14) were validly issued. Feeling aggrieved the Plaintiff has tiled this appeal. Only two points have been argued before me. Firstly it is was argued that issuing temporary permit amounts to giving licence and as such it cannot be said that there were encroachments on nazul land which could be removed. The other point argued was that there was waiver of those notices as during the hearing of the appeal in the lower court the offer was again renewed by the Nagar Mahapalika by sending a notice dated 1 -7 -1967 that these could be obtained by the Plaintiff on the terms already indicated in their earlier offer dated 16 -4 -1960 (Ex. 12). The first point may be considered first. The impugned notice dated 30 -6 -1961 (Ex. A/12) was under bye -laws framed under Section 298(2), List I -J(c) of the U.P. Municipalities Act read with Section 577 of the U.P. Nagar Mahapalika Adhiniyam 1959. Section 577 of the U.P. Nagar Mahapalika Adhiniyam, 1959, provided that the bye -laws made, under the U.P. Municipalities Act shall continue in so far as they were not inconsistent with the provisions of this Act. Copy of the bye -laws framed under the Municipalities Act is on the record which were published by means of notification No. 852/XXIII -12 -(a) 42, dated 9 -12 -1941. Bye -Law No. 1(c) and (d) framed under Section 298(2) List I -J(c) runs as follows: No person shall without the previous permission in writing of the Collector or the Chairman or the Executive Officer of the Board according as the property belongs to the Crown or to the Board: (c) Build upon, erect any structure, do anything upon or occupy in any manner any road, patri, street or place situated within the municipality and being the property of the Crown or of the Board or being under the control of the Board, or (d) Continue to do so after such permission has ceased to be in force or has been withdrawn. Bye -law No. 3(1) framed under the aforesaid section is as follows: The board or, where the management of a crown property has not been entrusted to a board, the Collector may instead of or in addition to prosecuting a person under paragraph 2 of these bye laws serve a notice upon any person who has contravened paragraph 1 of these bye -laws requiring him within a period of not more than seven days from the service of notice to refrain from doing anything upon, to remove anything from or any encroachment made upon, and to execute any work so as to repair the damage caused by him to any property of the Crown or of the Board or being under the control of the Board. The bye -laws are clear on the point that a person would not be permitted to build upon or occupy in any manner any place within the Municipality which is the property of the Crown, after such permission is ceased any structure made by him on such land would automatically be treated as encroachments after the permission had been withdrawn and they could be removed as encroachments. In view of such clear provisions there could be no question of first revoking the licence and then bringing a suit for possession. When the constructions were made on the basis of temporary permit given under these bye -laws, Section 60 of the Indian Easement Act too cannot have any application whatsoever. I, therefore, entirely agree with the view taken by the lower appellate court on this point.
(3.) AS regards the second point there can be no question of waiver in the present case as there was no express or implied consent of the Plaintiff to the offer which was renewed on 1 -7 -1967. The Plaintiff gave his own terms and had written back that he could accept the offer of getting the property leased provided he was required to pay at the rate of Rs. 20.00 per sq. yard & not Rs. 40.00. The matter therefore remained at the negotiation stage only and there was no waiver. The principle of waiver can be inferred from Section 113 of the Transfer of Property Act. This section provides that "a notice given under Section 111(h) is waived with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting." I also therefore, agree with the view taken by the lower appellate court on this point.;