JUDGEMENT : CHATURVEDI, J. This is plaintiff's second appeal. The plaintiffs wanted to construct a bungalow in Morar on their own land and for that purpose desired to set up a brick-kiln on it, and therefore on 21-2-1942 applied to the Municipality for permission for having a brick-kiln there. The Municipality did not grant permission and served a notice upon the plaintiffs to fill up the pits dug out for a brick-kiln and also warned them that in case of default the Municipality would itself arrange the pits to be filled up and recover the cost from the plaintiffs. The plaintiffs thereupon filed this suit asking for a declaration that the plaintiff are empowered to have a brick-kiln on their own land and for a perpetual injunction restraining the Municipality from interfering with, the right of the plaintiffs for firing bricks in their own compound. The suit was decreed by the trial Court, but on 2-5-1947, the learned District Judge, in appeal, reversed the decree and dismissed the suit on the ground that the order of the Municipal Committee not giving permission for a brick-kiln was passed under Section 136 of the Gwalior Municipal Act and the plaintiffs could have gone in appeal to the I. G. of Municipalities against it. The learned District Judge further held that the Civil Court cannot interfere in such cases and an injunction could not have been granted. 2. It is from this judgment that this second appeal has been filed by the plaintiffs, and Mr. Shiv Dayal, learned Counsel for the appellants, contends that such a case does not come within the purview of Section 136 of the Gwalior State Municipalities Act of Samvat 1993 which is applicable only to those brick-kilns which are used for the purposes of trade. The said Section runs as follows : 3. This section is based on Section 135 of toe Punjab Municipalities Act of 1891 (Act 20 of 1891) which corresponds with some alterations to Section 120 of the Punjab Municipalities Act of 1911 (No. III of 1911) which is as follows : Dangerous or offensive trades : 121. (1) No place within a municipality shall be used for any of the following purposes : Regulation of offensive and dangerous trades. (1) No place within a municipality shall be used for any of the following purposes : Regulation of offensive and dangerous trades. Melting tallow, dressing raw hides; boiling bones, offal or blood; as a soap-house, oil boiling house, dyeing-house or tannery; as a brick-field, brickkiln, pottery or lime-kiln; as any other manufactory, engine-house, store-house or place of business from which offensive or unwholesome smells, gases, noises, or smoke arise; as a yard or depot for trade in slaked lime, hay, straw, thatching-grass wood, charcoal or coal, or other dangerously imflammable material; as a store house for any explosive, or for petroleum or any inflammable oil or spirit; except under license from the Committee which shall be renewable annually; Provided that no such license shall be necessary in the case of any such premises which were used for any such purposes at the time that the Punjab Municipal Act, 1891, came into force, and were registered under that Act, and the case of brickfields, which were used at the time that this Act came into force but the owner or occupier of the brickfields so excepted shall register the same in a book to be kept by the Committee for the purpose. (2) The license shall not be withheld unless the Committee consider that the business which it is intended to establish or maintain would be the cause of annoyance, offence or danger to persons residing in, or frequenting, the immediate neighbourhood, or that the area should be for general reasons kept clear of the establishment of such business. (3) The Committee may charge fees according to a scale to be approved by the Commissioner for such licenses, and may impose such conditions in respect thereof as it may think necessary. Among other conditions it may prescribe that any furnace used in connection with such trade shall, so far as practicable, consume its own smoke. (4) The owner or occupier of any place registered under Sub-section (1) may apply to have that place licensed under this section. When any such place has been licensed, the registration of that place shall thereby be cancelled, and shall not be renewed. (4) The owner or occupier of any place registered under Sub-section (1) may apply to have that place licensed under this section. When any such place has been licensed, the registration of that place shall thereby be cancelled, and shall not be renewed. (5) Whoever, without registration or without a license, uses any place for any such purpose as is specified in this section or in contravention of the condition of any such license, shall be punishable with fine which may extend to fifty rupees, and with a further fine not exceeding ten rupees for every day during which the offence is continued." 4. A perusal of the Gwalior Section as well as the Punjab Section will lead to the conclusion that it is the trade that is to be regulated; and Section 136 requires licenses for trades specified; There are other provisions (e.g., Sections 142 and 156 in the Gwalior Municipal Act) which similarly empower Committee to regulate certain businesses by issue of certain licenses or by framing bye-laws. In municipal areas there will be very many places from which noxious smell or smoke arises, such places do not require licenses unless they are places of business. Nuisances arising from places which are not places of business are to be dealt with under other provisions of the Act (viz., Sections 159 and 185) or under byelaws framed under Clauses (4) (8) (12) 13 and 21 of Section 156 of the Gwalior Municipal Act of Samvat 1993 or under Chap. 10 of the Indian Code of Criminal Procedure. From a perusal of the said Sections of the Gwalior Municipalities Act of Samvat 1993 I am quite clear in my mind that a brick-kiln for firing bricks for the purpose of constructing one's own house does not require either a license or permission from the Municipality under Section 136 or under any other provision, of the Gwalior Municipal Act. The reference to Section 136 by the respondent Municipality and by the learned District Judge seems to be erroneous and the said section does not at all apply here. 5. I may usefully refer here to the facts in 'Emperor v. Mayandi Konan', 30 Mad 220, where Clause (n) of Section 188 of the Madras District Municipalities Act (No. IV of 1884) was construed by Mr. Justice Benson. The material portion of the section is as follows: "Offensive and Dangerous Trades. 188. 5. I may usefully refer here to the facts in 'Emperor v. Mayandi Konan', 30 Mad 220, where Clause (n) of Section 188 of the Madras District Municipalities Act (No. IV of 1884) was construed by Mr. Justice Benson. The material portion of the section is as follows: "Offensive and Dangerous Trades. 188. If Council so direct, certain trades shall not be exercised without license : (1) At any time, not being less than sixty days before the end of a financial year, the Municipal Council may notify by beat of drum and by notice in the District Gazette that, after the commencement of the following financial year, no place shall be used for any one or more of the purposes specified in the following Clauses (a) to (q), unless a license authorizing such use has been obtained from the Chairman; (a) for depositing or washing soiled clothes or; (b) for boiling paddy, camphor or oil; or (c) for melting tallow or sulphur; or (d) for storing, or otherwise dealing with manure, offal, blood, bones, rags, hides, fish horns or skins; or (g) as a soap-house, dyeing-house, dyeing yard, oil-mill, oil-press, brick-kiln, pottery-kiln or lime-kiln; or (n) for keeping together twenty or more sheep or goats or ten or more pigs or head or cattle etc." 6. The accused were prosecuted for not obtaining licenses for keeping more than 10 head of cattle. The cattle admittedly were not kept for purposes of trade and it was proved that the usual number kept was less than 10, although such number was exceeded on a particular occasion. The Bench of Magistrates held that as the cattle was not kept for purposes of trade no offence was committed. Mr. Justice Benson observed: "The words 'offensive and dangerous trades' are merely words of general description to facilitate reference, and cannot limit or control the plain words of the section which are "no place shall be used for any one or more of the purposes specified" in the section unless licensed. It is the place that must be licensed for one or more of the purposes specified." 7. It was however added that there must be; regular user of the place for keeping more than 10 head of the cattle and a mere temporary user for such purpose will not come within the purview of the section. 8. It is the place that must be licensed for one or more of the purposes specified." 7. It was however added that there must be; regular user of the place for keeping more than 10 head of the cattle and a mere temporary user for such purpose will not come within the purview of the section. 8. In 'Superintendent and Remembrancer of 'Legal Affairs Bengal v. Troilokhya Nath', 72 Ind Cas 358 : 26 Cal WN 926 : 49 Cal 1014 : AIR (9) 1922 Cal 194, the word 'Kiln' came up for construction. The material part of Section 261 of the Bengal Municipal Act (3 of 1884) applicable to that case was as follows : "Within such local limits as may be fixed by the Commissioners at a meeting, no place shall be used without a license from the Commissioners, which shall be renewable annually for any of the following purposes, namely, as a tannery, slaughter-house, or a kiln for making bricks, pottery, tiles or lime." A Division Bench of the Calcutta High Court composed of Sir Lancelot Sanderson, C.J., and Mr. justice Panton held that the words "Kiln" in the above sections refers to a structure which is of a permanent nature and does not include 'clamps' or panjas' for firing bricks. 9. On the basis of these decisions it can be held that a "brick-kiln" to attract the provisions of Section 136, Gwalior Municipal Act, must be a structure of a permanent nature and there must be regular user of it as a brick-kiln. A temporary blick-kiln for firing bricks for the purpose of constructing one's own house does not come within the ambit of this section. If it had been intended to prohibit the temporary manufacture of bricks by any means in a municipal area it would have been sufficient for the Legislature to provide that no place shall be used without a permit or license from the Municipal Committee for the purpose of making and firing bricks. If temporary brick-kilns are regarded as nuisance it is open to the Legislature to amend the Act. But as the Act stands today there is no provision which, without unduly straining the meaning of the words, requires a house-owner to seek the permission of the Municipal Committee for a temporary kiln for firing bricks. 10. If temporary brick-kilns are regarded as nuisance it is open to the Legislature to amend the Act. But as the Act stands today there is no provision which, without unduly straining the meaning of the words, requires a house-owner to seek the permission of the Municipal Committee for a temporary kiln for firing bricks. 10. Even the respondent Municipal Committee had to depend upon Section 128 for ordering the plaintiffs to fill up the pits dug out in their compound for making bricks. The said section is as follows : 11. The material part of the corresponding section of the Punjab Municipal Act of 1911 is in the following words : "Section 126.': (1) The Committee may, by notice require the owner or occupier of any building or land to repair, or put in good order any drain, privy, latrine, urinal, cess-pool, or receptacle for any filth or refuse, or to close any drain, privy, latrine, urinal or cesspool belonging thereto, etc." 12. A notice under Section 128 must be confined to the removal of insanitary defects. A notice which complains of matters other than sanitation is not a good notice and a disobedience to it is not an offence. Where a Committee objected to a cesspool because it was uncovered and passers by were likely to fall into it, it was held that action could not be taken under this section. In the case before us the question was whether the brick-kiln should be stopped or not. The question was not whether pits may be filled up or not. It was not rainy season but it was the last week of February 1942 and it is important to note that even then the concerned officer in the office of the I.G. of Municipalities wrote : "Besides excavation of earth already done for preparation of bricks will lead to .............. pools of stagnant water during rains. I cannot therefore agree with the members who have recommended the grant of permission to the applicant for carrying on an activity which is bound to be injurious to the health of the people in the vicinity.". (P. 7/2.) 13. The order of the Inspector-General of Municipalities (Mr. pools of stagnant water during rains. I cannot therefore agree with the members who have recommended the grant of permission to the applicant for carrying on an activity which is bound to be injurious to the health of the people in the vicinity.". (P. 7/2.) 13. The order of the Inspector-General of Municipalities (Mr. D.L.B. Riley), dated 25-2-1942, is in the following words : "Health Officer Lashkar Municipality is hereby ordered that under Section 204 Quanoon Municipality to take immediate action under Sections 128 136, 152 of Quanoon Municipality to get excavations on the land adjoining the premises of Mr. Kaul filled up, and to prevent the brick-kilns being set up." (P. 7/4.) 14. It may be noted that the order for filling up pits nearly four or five months before the commencement of the rainy season was absolutely unnecessary and arbitrary. Much before that time the bricks would have been ready and some of the building would have been constructed. The notice under Section 128 was clearly a pretext for preventing the brick-kiln and as such was unwarranted and unjustifiable. If Sections 128 and 136 were not applicable, surely Section 152 (which deals with the disobedience of orders) could not be held applicable to the facts of the case. The plaintiff's suit for injunction restraining the Municipality from interfering with their rights was, under the circumstance fully justifiable, and was rightly decreed by the trial Court. 15. The judgment of the learned District Judge (the first appellate Court) is based upon a misconception of the meaning of Section 136 and also the powers of a Municipality. It has to be borne in mind that a Municipality or a Corporation is a creature of the statute. It is brought into existence by, or under the authority of an express legislative enactment to have control over municipal affairs within defined local limits and can exercise such powers of legislation or regulation as are entrusted to it by the Legislature. If the order or action of the Municipal Committee is in excess of the powers conferred on it by the statute or if it acts in contravention of the provisions of the statute, the subject has his ordinary remedy to seek relief in the Civil Courts, unless their cognisance is expressly or impliedly barred. In "Frewin v. Lewis'. If the order or action of the Municipal Committee is in excess of the powers conferred on it by the statute or if it acts in contravention of the provisions of the statute, the subject has his ordinary remedy to seek relief in the Civil Courts, unless their cognisance is expressly or impliedly barred. In "Frewin v. Lewis'. (1838) 48 RR 88 Lord Chancellor Cottenham observed : "If under pretence of an authority which the law does give to corporations to a certain extent, they go beyond the line of their authority, and infringe or violate the rights of others they become like all other individuals, amenable to the jurisdiction of this Court by injunction." 16. This dictum has been followed in Courts in India 'Municipal Committee, Montgomery v. Master Sant Singh', AIR (27) 1940 Lah 377; 'Administrator, Lahore Municipality v. Muniru-d-Din', AIR (28) 1941 Lah 200; 'Administrator City of Lahore v. Abdul Majid', AIR (32) 1945 Lah 81. The law on the subject is summed up by Kerr on Injunctions (P. 572 of Edn. 6) in the following manner : "If under pretence of an authority which the law does give them to a certain extent, they exceed their authority, and assume to themselves a power which the law does not give them, the Court no longer considers them as acting under the authority of their Commission, but treats them as persons acting without legal authority." 17. I am in respectful agreement with the principles enunciated above and would hold that the jurisdiction of the civil Court was not ousted in this case in as much as the orders of the Municipal Committee to the appellants were not authorised by the Gwalior Municipal Act of Samvat 1993. The judgment and decree of the learned District Judge cannot therefore be allowed to stand. 18. Mr. Vishnu Bahadur Singh, learned counsel for the respondent, however, contends that be that as it may, the suit ought to have been dismissed on the ground that two months prior to the institution of the suit a notice was not served on the Municipal Committee which is required under the provisions of Section 48 of the Act. An issue had been framed but the trial Court found this issue in favour of the plaintiffs. The District Judge dismissed the suit on other grounds and did not express any opinion on this point. An issue had been framed but the trial Court found this issue in favour of the plaintiffs. The District Judge dismissed the suit on other grounds and did not express any opinion on this point. The relevant portion of Sub-Clause (1) of Section 48 of the Gwalior Municipal Act which closely follows Section 49 of the Punjab Municipal Act of 1911 reads as follows : "No suit shall be instituted against a Committee or against any officer or a servant of a Committee, in respect of any act done or purporting to be done in its or his official capacity until the expiration of 2 months .............. etc." I have discussed the implication of this section in my judgment in an Indore case 'Pakira v. Municipal Committee Jawad, S. A. No. 82 of 1950 and have held that if the suit relates to an order passed by the Municipal Committee which is within the scope of its powers under the Act the suit will be deemed to be a suit "in respect of any act done or purporting to be done in its official capacity." If however, the order of the Municipality is not within the scope either of its duty or of its powers under the Act, as in this case, then it will not be "in respect of any act done or purporting to be done in its official capacity" and a two months notice will not be necessary under Section 48. 19. Mr. Shiv Dayal relies on 'Arunachelam v. David', AIR (14) 1927 Mad 166, for the proposition that the words "in respect of any act purporting to be done" cover only a past act and do not include a future act; but in my opinion after the decision of their Lordships of the Privy Council in 'Bhagchand v. Secretary of State', 54 Ind App 338; AIR (14) 1927 PC 176, that case cannot be held to be good law. 20. In the case before us, I find absolutely no difficulty as it is also hit by Sub-clause 4 of Section 48 which states : Rendered in English it will be as follows : "Nothing in this section shall apply to any suit instituted for a perpetual injunction to prevent the breach of an obligation existing in favour of the plaintiff, whether expressly or by implication." 21. The corresponding portion of the proviso to Section 49 of the Punjab Municipal Act of 1911 is in the following words : "Provided that nothing in this section shall apply to any suit instituted under Section 54 of the Specific Relief Act of 1877." 22. The Gwalior State in Samvat 1993 had not enacted a Specific Relief Act. It came only in 1946 (Samvat 2002); and therefore the Gwalior Municipal Act did not refer to Section 54 of the Specific Relief Act but incorporated the provision of Section 54, Sp. R. A. in Sub-clause 4 of Section 48. The said Section 54 runs as follows : "Subject to the other provisions contained in, or referred to by, this chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication." It will be apparent that Sub-section 4 of Section 48 of Gwalior is exactly the same as the Proviso to Section 49 in the Punjab Act; and all that we have to see in such cases is whether a suit falls under Section 54 of the Specific Relief Act or not. If it is such a suit two months notice will not be necessary. There is no doubt that the suit in question is a suit instituted under Section 54 of the Specific Relief Act and two months notice was not required. 23. Mr. Vishnu Bahadur Singh, however, contends that it was purely a declaratory suit. In my opinion the contention is not well-founded. The declaration required in this case was redundant and an injunction asked for could have been granted without any declaration. It is only in suits for declaration of the plaintiff's title to the land in dispute with a prayer for injunction that the difficulty arises of separating the principal relief from the ancillary relief. In all such cases the proper question to be determined is : whether the real substance of the suit is the title to the land? or, is it a suit for injunction? vide 'Municipal Board of Benaras v. Gajadhar', 41 All 162. But where title to the land is not in dispute, there is no difficulty in this respect. In all such cases the proper question to be determined is : whether the real substance of the suit is the title to the land? or, is it a suit for injunction? vide 'Municipal Board of Benaras v. Gajadhar', 41 All 162. But where title to the land is not in dispute, there is no difficulty in this respect. The respondent had admitted that the compound where brick-kiln was to be set up in this case belongs to the appellants; consequently any declaration was not needed and an injunction was the principal relief prayed for. In my opinion, this issue was therefore correctly determined by the trial Court. 24. For reasons stated above, I would allow the the appeal with costs, set aside the decree and judgment of the first appellate Court and restore that of the trial Court. 25. KAUL, C.J. :- I agree.