Orissa High Court
Puri Municipality vs Debidutta Ramaniranjan Patnaik on 27 February, 1997
Equivalent citations: 1997(II)OLR211, 1997 A I H C 3825, (1997) 2 ORISSA LR 211
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT Dipak Misra, J.
1. Defendant is the appellant challenging the appellate Judgment affirming the Judgment passed by the Munsif Puri in O.S. No. 40 Decided on 27th February, 1997. of 1973-I, a suit for declaration of title, confirmation of possession and permanent injunction.
2. The respondent as plaintiff instituted the aforesaid suit putting- forth his case that Ac.0.025 1/2 decimals of land under Provincial Settlement Plot No. 79, Khata No. 36 corresponding to Current Settlement Plot No. 408 of mauza Dandimal Sahi, Puri Town, originally belonged to the father of one Raghunath Das, who was the recorded owner. The plaintiff purchased the same from him by a registered sale deed dated 18.11.1972 and took over possession. The defendant, namely the Puri Municipality, has no manner of right, interest or possession over the same, but had issued a notice No. 682 dated 8.2.1973 in Encroachment Case No. 1 of 1973 to plaintiff's father to demolish a pucca wall said to have constructed encroaching an area of Ac.0.021 1/2 decimals under the aforesaid khata and plot. It was also mentioned in the said notice that drastic action would be taken on failure of compliance of the notice. Plaintiff's father complained against this before the Executive Officer, Puri Municipality. Thereafter another notice No. 683 dated 8.2.1973 was issued in U.C. Case No. 2 of 1973, which was served on plaintiff's father calling upon him to demolish the wall. There was a proceeding under Section 273-A of the Orissa Municipal Act against plaintiff's father. Apprehending that Municipality might take the law into its own hands and trespass over the purchased land and demolish the wall falsely purporting to act under the provisions of the Orissa Municipal Act, the suit was filed claiming that the plaintiff had not violated the provisions enjoined under Sections 263 and 264 of the Orissa Municipal Act.
3. The defendant filed its written statement resisting the claim of the plaintiff by pleading, inter alia, that the suit property appertains to Municipal Town Survey Settlement Plot No. 826 and it was previously leased out to the ex-Ruler of Talcher in the year 1911 for a period of 30 years. After expiry of the lease period, it was again leased out to him for a period of 20 years. After expiry of the lease, the ex-Ruler had delivered vacant possession to the Puri Municipality. Since then it is being used as a garbage depot. As the father, of the plaintiff started constructing a pucca wall on the eastern boundary and dug earth, on the north and south sides of the municipal land for construction of plinth, the Municipality sent notice on 8.2.1973 in Encroachment Case No. 1/73 in exercise of powers under the Act Another notice was also sent on 8.2.1973 in U.C. Case No. 2 of 1973 as the father of the plaintiff contravened the provisions of the Orissa Municipal Act by constructing at that place. Notice was also sent to demolish the wall. It is the further case of the defendant that neither the ancestors of the father of the plaintiff, nor the plaintiff's vendors are the recorded landlords of the suit property. In fact, the suit land stands, recorded in the name of Raja Saheb of Talcher under the Municipality in Municipal Town Survey Record of Rights, 1918. The defendant is in long-standing undisturbed continuous possession over the suit property from 1911 upto 5.2.1973 when the father of the plaintiff made the aforesaid construction within the knowledge of all and thus the defendant has matured a valid title over the suit property. It was further pleaded that since the vendor of the plaintiff was not in possession over the suit property, it should not have been settled under Sections 6 and 7 of the Orissa Estates Abolition Act in favour of the vendor of the plaintiff and that the formalities and requirements of the Orissa Estates Abolition Act had not been duly complied with and, therefore, the settlement under Sections 6 and 7 of the Orissa Estates Abolition Act is without jurisdiction. It has also been put-forth by the defendant that the plaintiff's suit is not maintainable as no notice under Section 349 of the Orissa Municipal Act has been served on the defendant prior to the institution of the suit.
4. The learned Munsif on the basis of the pleadings framed 5 issues and came to hold that notice under Section 349(1) of the Orissa Municipal Act is not a pre-condition to file the suit of the present nature. He has further reached a finding that the plaintiff has got right, title and interest as well as possession over the suit property and the question of acquisition of title over the suit property by adverse possession by the defendant does not arise. It was also held by the Court of first instance that the suit is not barred by limitation and the plaintiff being the owner in exclusive possession and having not encroached upon any land of the Municipality and not constructed any wall unauthorisedly the notice issued to him to demolish the wall is bad in law and does not come within the mischief of Section 279-A of the Orissa Municipal Act. A finding was also returned that the plaintiff had not violated any of the provisions of Sections 263 and 264 of the Orissa Municipal Act. Answering all the Issues in favour of the plaintiff, the trial Court decreed the suit.
5. In appeal at the instance of the defendant, the lower appellate Court affirmed the finding of the trial Court with regard to acquisition of right, title and interest and possession over the suit property by the plaintiff. It also affirmed the finding that no notice under Section 349 of the Orissa Municipal Act was necessary. Accordingly, the appeal was dismissed.
6. This Court while admitting the Second Appeal has formulated the substantial question of law to be decided in, the appeal as under :
"The substantial question of law involved in this case is whether the suit is maintainable in the absence of notice under Section 349 of the Orissa Municipal Act on the appellant ?"
Mr. S. Mohanty, the learned counsel for the appellant, has addressed this Court relating to the said contention only. Mr. A. K. Mohanty, learned counsel for the plaintiff-respondent supporting the impugned Judgments contended that in a suit of the present nature, notice under Section 349 of the Orissa Municipal Act is riot essential.
7. To appreciate the rival contentions, it is necessary to refer to Section 349 of the Orissa Municipal Act, which reads as follows :
"349. Notice of action against municipal council (1) No suit or other legal proceedings shall be brought against any municipal councillor, the Chairman, Executive Officer, any councillor, officer or servant, in respect of any act done or purporting to be done in execution or intended execution of this Act or any rule regulation bye-law or order made under it or in respect of any alleged neglect or default in the execution of this Act or any such rule, regulation, bye- law or order, until the expiration of two months next after notice in writing, stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and name and place of residence of the intended plaintiff and place of residence of the intended plaintiff has been left at the office of the municipal council, and if the proceeding is intended to be brought against any such Chairman, Executive Officer, councillor, officer, servant or person, also delivered to him, or left at his place of residence, And unless such notice be proved, the Court shall find for the defendant.
(2) Every such proceeding shall, unless it is a proceeding for the recovery of immovable property or for a declaration of title thereto, be commenced within six months after the date on which the cause of action arises or in case a continuing injury or damage, during such continuance or within six months after the ceasing thereof.
(3) If any municipal council or person to who notice is given under Sub-section (1) shall be fore the proceeding is commenced, tender amends to the plaintiff and if the plaintiff does not in any such proceeding recover more than the amount to tendered, he shall not recover any costs incurred by him after such tender. The plaintiff shall also pay all costs incurred by the defendant after such tender.
(4) No suit or other legal proceeding shall be brought against the Chairman, the Executive Officer or any councillor, officer or servant of a municipal council or any person acting under the direction of a municipal council, or such Chairman, the Executive Officer, councillor, officer, or servant in respect of any act done, in execution or intended execution of this Act or any rule, regulation, bye-law or order made under it or in respect of any alleged neglect or default on his part in the execution of this Act or any such rule, regulation, bye-law or order, if such act was done, or if such neglect or default was made in good faith; but any such proceeding shall, so far as it maintainable in a Court, be brought against the municipal council except in the case of suits brought under Section 375".
This Court in the case of B. Baliarsingh and Anr. v. Bamdev Mishra and Ors., AIR 1971 Orissa, 191, while dealing with Section 349 of the Orissa Municipal Act has held that in a suit against municipality for declaration of title and recovery of possession on cause of action of alleged trespass, notice is unnecessary as trespass is not an act done or purported to be done in execution or intended execution of the provisions of the Act or the Rules. In the said case the municipality had served notice on the plaintiff to remove an alleged obstruction to the sweeper's passage and when the plaintiff failed to comply with it, steps were taken to get the same removed by the employees. A plea was taken by the municipality that its action being within its competence in view of the provision contained in Section 344 of the Act, it was an act done or purported to have been done in execution or intended execution of the provisions of the Act and, therefore. Section 349( 1) is attracted and the service of a notice was mandatory requirement. Repealing the aforesaid submission of the municipality, this Court held as follows :
"........I agree with the lower appellate Court that the relief of declaration of title and recovery of possession being based on the cause of action of the alleged trespass by the municipality on his private rights, service of a notice under Section 349( 1) of the Act is not a precondition for maintainability of the suit..............."
Recently, this Court in the case of Puri Municipality v. Sradhamani Devi. AIR 1986 Ori.92, interpreting Section 349(1) of the Orissa Municipal Act came to hold that in a suit for declaration of title and permanent injunction by the owner, notice under Section 349(1) is not necessary: In the said case, Puri Municipality through its authorities threatened to enter into the suit land by breaking open the fence raised by the plaintiff therein for which she was compelled to file the suit for declaration of title, confirmation of possession over the suit land and for permanent injunction. This Court after referring to Section 349 held as follows :
"A bare reading of Section 349(1) of the Act makes it clear that requirement of a notice of a contemplated suit was applicable only in those cases where plaintiff claimed damages or compensation ' or in respect of acts done in execution or intended execution of the provisions of the Act, Rules, Regulations, Bye-laws or Order made under it, The question whether notice is necessary would depend not on whether the cause of action arose in tort (sic) or contract or any other branch of law but on whether the act complained of was done or purported to have been done directly under the Act or Rules or Regulations or Bye-laws or Order. Section 349 is not applicable in a suit for possession of land as it is not an action for anything done or purporting to have been done in pursuance of the Act. Where the claim of the Municipality is based on a private right, the plaintiff who may be injured by the exercise of that right can sue without previous notice just as he might sue any other individual. It was held in S. Baliarsing and Anr. v. Bamdev Misra and Ors. 1971 (1) CWR 415 (AIR 1971 Orissa 291) that relief of declaration of title and recovery of possession, being based on the cause of action of alleged trespass by the Municipality on his private rights, service of a notice under Section-349(1)of the Act is not a pre-condition for maintainability of the suit. Requirement of notice of a contemplated suit was applicable only in those cases where plaintiff's claim related to wrongful acts committed by any Municipal Councillor the Chairman; Executive Officer, any Councillor, Officer or Servant in respect of any act done or purporting to be done in execution or intended execution of the Act or any rule, regulation, bye-law of order made under it. The acts must be in the exercise or honestly supposed exercise of their statutory powers, that is to acts done by the Commissioner, "colori offici". Section 349(1) of the Act makes it imperative on the part of the plaintiff to serve a notice before institution of the suit in respect of act done in execution or intended execution of the provisions of the Act, Rules, Regulations, Bye-laws etc. The impugned acts involved in the case at hand are not of such nature as to attract application of Section 349(1)as they cannot be brought under the umbrella of acts or purported acts contemplated under the provision. In Manohar Ganesh v. Dakor Municipality, ILR 16 Mad, 296 it was held that notice was required in case of actions for possession of land brought against a municipality. It was observed by Faroli C.J. that a suit for possession of land is not an action for anything done or purporting to be done in pursuance of the Act Ranade, J. made this point clear when he observed that where the claim of the Municipality is based on a private right, the plaintiff who may be injured by the exercise of that right can sue without giving previous notice just as he might sue any other individual.
From what has been discussed above, it is clear as day that when there is an alleged act of trespass, no notice under Section 349 of the Orissa Municipal Act is necessary. However, in the case in hand, the prayers (b) and (c) of the plaint are significant. Prayers (b) and (c) are quoted below :-
"(b) Let it be further declared that the South-eastern boundary wall put by the plaintiff to demarcate his purchased portion out of the rest of the area of Plot No. 79 does not come under the mischief of Section 273-A of the Orissa Municipal Act and the notices No. 683/UCC 2/73 dated 8.2.1973 and No. 682 dated 8.2.1973 issued by the defendant and any subsequent action if any, taken thereunder are ultra vires and illegal.
(c) The defendant be restrained by an order of interim injunction not to pursue both the proceedings started by them under the aforesaid notices and he be restrained permanently to give effect to the aforesaid notices and not to come over the purchased land of the, plaintiff or touch his said compound wall and disturb the possession of the plaintiff in the suit land with the wall."
In view of the aforesaid prayers and in view of the challenge in the suit, I am of the considered opinion that it is not a case of alleged trespass, but an action purported to be taken under the provisions of the Orissa Municipal Act. A suit, for quashing of notices issued under Municipal Act is not maintainable without complying with the provisions enjoined under Section 349 of the Act. I, therefore, conclude and hold that the present, suit filed by the plaintiff is not maintainable, In such view of the mater, the plaintiff's suit is bound to fail.
8. In the result, the Second Appeal is allowed and the suit filed by the plaintiff is dismissed. However, there shall be no order as to costs throughout.