Andhra HC (Pre-Telangana)
Notified Area Committee vs Vannala Babu on 5 March, 2003
Equivalent citations: 2003(4)ALD790, 2003(6)ALT179
Author: B. Seshasayana Reddy
Bench: B. Seshasayana Reddy
JUDGMENT B. Seshasayana Reddy, J.
1. The appellant is the defendant in O.S.99/83. The respondent filed the suit seeking permission to sue as an indigent person and claimed a sum of Rs. 18,600/- with 12 per cent interest towards costs incurred by him in reconstructing the house demolished by the appellant herein. It is the case of the respondent/plaintiff that he is owner and possessor of the house bearing No. 2-3-188 situated at Boddigadda, Kothagudem town (within the notified area of the appellant/ defendant committee) and the said house was assessed to tax. The appellant seemed to have given a show-cause notice dated 31-10-1979 directing him to give explanation as to why his house should not be demolished since same was constructed unauthorizedly, the appellant herein seemed to have started demolishing the house within one hour after serving the notice on the wife of the respondent on 12.12.1979 and as such the respondent filed a suit O.S.262/79 on the file of District Munsif Court, Kothagudem seeking permanent injunction restraining the appellant herein from inteifering with his possession and enjoyment of the suit schedule house. Ultimately the Trial Court while granting permanent injunction seemed to have observed that the appellant herein demolished the house illegally and high handedly and as such the respondent herein is entitled for damages and the said judgment has become final. Basing on the observations made by the learned District Munsif, the respondent herein laid the present suit claiming damages. The principal and the foremost contention raised by the appellant herein is that the suit is barred by limitation in the light of Section 369 of A.P. Municipalities Act, 1965 (hereinafter referred to as Act) whereunder any person aggrieved by any action or order of the municipal authorities have to file a suit within six months from the date of cause of action. The Trial Court framed the following issues:
(a) Whether the defendant has demolished the building of the plaintiff either in the manner set out in the plaint or otherwise? If so, whether the said demolition was affected in exercise of the powers conferred on the Notified Area Committee under the A.P. Municipalities Act and rules made thereunder as alleged by the defendant or whether it is wrongful and tortuous as alleged by the plaintiff?
(b) Whether the plaintiff is entitled to recover the damages? If so, on what counts and to what amount?
(c) To what relief?
2. On behalf of the respondent/ plaintiff, PWs.1 to 4 were examined and Exs.A-1 to A-35 and C-1 to C-3 were marked and on behalf of the appellant/ defendant, DWs.1 and 2 were examined and no document was marked. On considering the evidence and on hearing the Counsel for the respondent/ plaintiff and appellant/ defendant, the learned Senior Civil Judge, Kothagudem held that the appellant/ defendant demolished the house of the respondent/plaintiff without any manner of right and that the amount claimed by the respondent/plaintiff as damages is fully justified and thereby decreed the suit of the plaintiff as prayed for. Aggrieved by the judgment and decree, the defendant has filed the appeal.
3. The appeal was heard by a learned Single Judge who referred the matter to the Division Bench for an authoritative pronouncement on the issues framed by him which are as follows:
(a) Whether a distinction can be drawn in between bona fide acts and mala fide acts for the purpose of applying Section 369(2) of Andhra Pradesh Municipalities Act, 1965 ?
(b) Whether the general provisions of the Limitation Act can be applied to such actions despite the specific provisions under Section 369(2) of Andhra Pradesh Municipalities Act, 1965?
(c) Whether the view expressed in The Commissioner and Special Officer's case (supra) (1986 (1) An.WR 302) and also Palakole Municipality's case (supra) (1997 (5) ALD 571) can be said to be binding in view of the decision in Masulipatnam's case (supra) ?
4. From the pleadings the only issue to be answered by this Court would be that from what date the limitation starts i.e., either the date of demolition of the building or the date of the judgment of the Court below in O.S.No. 262/79 wherein the action of the defendants was declared as illegal, highhanded and unauthorised. In view of its importance, Section. 369 of the Act is extracted as under:
"Section 369: Institution of suits against municipal authorities, officers and servants :--(1) No suit for damages or compensation shall be instituted against the Council, any municipal authority, officer or servant, or any person acting under the direction of such Council, municipal authority, officer or servant, in respect of any act done in pursuance or execution or intended execution of this Act or any rule, bye-law, regulation or order made under it or in respect of any alleged neglect or default in the execution of this Act, or any rule, bye-law, regulation, or order made under it, until the expiration of three months after a notice has been delivered or left at the municipal office or at the place of abode of such officer, servant or person, stating the cause of action, the relief sought and the name and the place of abode of the intending plaintiff and the plaint shall contain a statement that such notice has been so delivered or left.
(2) Every such suit shall be instituted within six months after the date on which the cause of action arose or in a case of a continuing injury or damage, during such continuance or within six months after the ceasing thereof.
(3) Where the defendant in any such suit is the Chairperson the Commissioner or a municipal officer or employee, payment of the sum or any part of any sum, payable by him in, or in consequence of the suit whether in respect of costs, charges, expenses, compensation for damages or otherwise, shall be met from the municipal fund."
A reading of the above section makes it clear that no suit for damages or compensation can be filed against the Municipal Council for any of its actions or its officers in respect of any act done in pursuance or execution or intended execution in giving effect to the provision of the Act and any suit for damages by an aggrieved person/persons has to be laid within six months from the date on which the cause of action arose after giving notice of at least three months to the Municipal Council. To put it aptly Section 369 of the Act is a comprehensive provision prescribing limitations for the suit for damages or compensation against the Council, municipal authority, officer or servant. A question came up for consideration in Machilipatnam Municipality v. Krishna Rao, , whether the words "intended execution" in Section 350 of Hyderabad District Municipalities Act would cover the case of a person who though his act may be wrongful, nonetheless is purporting to exercise his power under the provisions of the Act which in pan materia the same as Section 369 of the Act A Division Bench of our High Court held that the Act does not protect a public officer who, while rightly apprising the facts, takes a mistaken view as to his legal obligations, and executes or intends to execute some function, which has no duty to execute. On the other hand, if a public Officer makes an honest mistake of fact and does that which it would be his duty to do if his view of the facts are correct, he is acting in "intending execution" of a duty within the meaning of this section and his acts are protected under the provision of the Act. To put it aptly if the municipal authorities have acted maliciously, their acts cannot be said to have been performed in the intended execution of the act within the meaning of Section 350 of the Act and as such the limitation prescribed in clause (2) of Section 350 of the Act will not apply to a suit for damages filed against municipality for malicious act.
5. The Madras High Court in T.D. Karupanne Pillai v. F.W. Haughton, 70 Mad.LJ 695 (AIR 1936 Mad 547), while interpreting Section 350 of the Madras District Municipalities Act held that a clear distinction has to be drawn between bona fide acts and mala fide acts for the purpose of applying Section 350 of the said Act and further held that no notice is necessary under Section 350 of the said Act as the act was not done in pursuance of the execution or intended execution of the act or any rule or by law, within the meaning of the section. The Apex Court ill Dev Singh v. Hyderabad Municipality, , held that no notice under Section 447 of Hyderabad Municipal Corporation Act is necessary when the suit has nothing to do with any act done or purported to be done in pursuance of execution or intended execution of the provision of the Act. From the ratio laid down from the above three decisions it is clear that the provision of Section 369 of the Act can be pressed into service by the municipality only when acts purported to be done by the Council or its subordinate in carrying out the purpose of the act legally and bona fidely and if the act is considered to be a mala fide one, this section has no application.
6. In the case on hand, the District Munsif in O.S.262/1979 categorically held that the action of the municipal authorities in demolishing a portion of the suit schedule house is illegal and high- handed and that finding has become final. In the light of the above legal position we have no option except to hold that the provisions of Section 369 of the Act cannot be pressed into service by the municipal authorities. The first point referred by the learned Single Judge is accordingly answered.
7. Admittedly the show-cause notice was given on 12.12.1979 and the appellants herein demolished a portion of the building on the same day. As the respondent/plaintiff herein is fully aware of the fact that the action of the officials of the Corporation is a high-handed one, he would have filed a comprehensive suit seeking a declaration that the action of the council is a mala fide one and as such he is entitled for compensation for the loss sustained by him due to the high-handed action of the respondents. But, unfortunately he choose to file a suit for permanent injunction and the Court below decreed the suit. Subsequently the respondent herein gave legal notice for which he did not receive any reply from the municipal authorities. Having waited for three months he laid the suit on 28-2-1983 claiming damages. It is true from the date of judgment in O.S.262/79, the suit was filed within six months but the well-settled principle is that the limitation starts from the date on which the cause of action arise. We feel it apposite to refer the relevant portion of the plaint with regard to the cause of action which is as under:
"Cause of action for the suit arose from 12.12.1979 when the house was demolished by the defendant and subsequently on 30-9-1982 when the District Munsif Court gave the judgment in O.S.262/ 1979. On 20-11-1982 when a registered notice was issued to the defendant on 22.11.1982 when the defendant received the notice and subsequently it arose from Kothagudem within the jurisdiction of Honourble Court."
From the above it is seen that the respondent/plaintiff in the suit is conscious of the fact that the cause of action for filing the suit for damages has arisen on 12.12.1979 but he tried to justify his action in filing the suit on the ground that cause of action arose on the date on which i.e., 30-9-1982 the trial Court gave a declaration in OS. 262/79 that the action of municipal authorities is an illegal one. The law is very clear on this aspect, no person need to wait for a declaration from a Court that the action of a particular officer is an illegal one. It is the duty of the person who alleges that the action of the municipality is illegal and to prove the same he need not wait for a declaration from the Court or any other forum. Further the time prescribed in Section 369 of the Act need not be adhered to by him since Section 369 of the Act is not applicable in cases of 'mala fide action or illegal action. Since the Municipalities Act did not refer to the period of limitation for prosecution of the officials of the Corporation for their malicious acts, we have to rely upon the provisions of Limitation Act. Article 113 of the Limitation Act, 1963 the residuary clause, the limitation for any suit for which no period of limitation is provided elsewhere in the schedule is three years from the date when the right to sue accrues. The words "right to sue" means a right to seek relief, i.e., a right to prosecute under law, to obtain the relief by means of legal procedure.
8. In this case the cause of action for claiming damages by the respondent/ plaintiff arose on 12.12.1979 and since the respondent/plaintiff filed the suit on 28.12.1983 i.e., after the period of three years, we hold that the suit filed by the respondent/ plaintiff is barred by limitation. We are supported in our view by a Full Bench decision of Lahore High Court in Mohd.Sadaat Ali v. Lahore Corpn, AIR (32) 1945 Lahore 324, which has taken a similar view under Article 36 of the Limitation Act of 1908. Likewise the Division Bench of our High Court in Machilipathnam Municipality case cited held that when there is failure, or non-performance of a duty by a public body and when it has not executed any particular act, Article 2 of Limitation Act, 1908 has no application and it is only Article 36 of the Limitation Act which would apply. Article 36 of Limitation Act, 3908 has been omitted from the Limitation Act, 1963 and the suit which was formerly covered by Article 36 will now be covered by residuary provision i.e. Article 113 of the Act of 1963. Accordingly point No. 2 is answered stating that the period of limitation starts from the date on which cause of action arises, but not from the date on which the Court declared the action of the municipality as illegal.
9. Coming to the third point in the Commr. and Special Officer v. Shaik China Bakshi, 1986 (1) AWR 302, the issue that arose for consideration was that whether the action of the municipality in issuing a notice under Land Encroachment Act is a valid exercise of power or not. The facts of the case are that the municipality initiated proceedings under the Land Encroachment Act by claiming that the land is a Government land. Questioning the action of the municipality the owner of the land filed writ petition in this Court. This Court while disposing of the writ petition gave liberty to the petitioner to file a civil suit objecting encroachment proceedings. But he did not choose to file any suit questioning the action of the municipality. In those circumstances, the suit schedule house was demolished. Thereafter he filed a suit under Section 192 of the Municipalities Act claiming damages against the municipality and the question that arose for consideration in that suit was whether the suit has to be filed within six months as contemplated under Section 369 of the Act for claiming compensation under Section 192 of the Municipalities Act, or whether he can file a suit under the general provisions of the Limitation Act. This Court answered the issue as under:
"8. In the instant case, the issue is whether there is encroachment on the Government land. It is pertinent to consider that when the action was initiated under the Land Encroachment Act, it was observed in the writ petition by this Court that the petitioner is at liberty to file a civil suit objecting to encroachment proceedings. As the plaintiff has not chosen to take any action by filing a suit or otherwise, the notices under the Land Encroachment Act have to be considered as valid. In view of the fact that the plaintiff has not filed any suit, the municipality initiated the action for demolition considering that there is an encroachment and in view of the encroachment, the permission for construction is not valid. Therefore, the action taken by the defendant-municipality comes within the purview of the provisions of the Act or in any event, the action was made purporting to be under the provisions of the Act under the bona fide impression that there was encroachment and the permission granted by the Ponnur Panchayat for construction on such encroached land is illegal and invalid. It must be stated that the claim for damages is maintainable under Section 192 and it is true that there is no prescription of limitation under Section 192. But, Section 369 takes care of all the suits claiming for compensation or damages as against the municipality and the claim for compensation under Section 192 either expressly, or by implication is not taken out of the purview of Section 369.
From the above it is seen that the learned Judge held that the action taken by the municipality comes within the purview of the Act. Since the act of the municipal officials were held to be valid and is intended to carry out the purport of the Act, this Court ruled that he has to file a suit within six months from the date of cause of action under Section 369 of the Act which is a comprehensive one. The facts of that case have nothing to do with the facts of the case on hand. In Palakole Municipality, Palakole v. B.Sachidananda Rao, 1997 (5) ALD 571, it is held that a suit for damages for illegal demolition of building has to be filed within six months from the date of demolition. From the judgment it is no where seen that the learned Judge declared that the action of the municipal authorities is mala fide. In fact that issue has not come up for consideration in that decision. If once the Court has not declared the action of the municipal council or its officers as an unauthorized one, there will not be any difficulty in holding that any suit for claiming damages has to be filed within six months as contemplated under Section 369 of the Act. On the other hand the case Machilipatnam Municipality, cited is an authoritative pronouncement on the issue of limitation when the acts of the municipal council or its officers did not fall under the purview of the Act and they are either malicious or highhanded acts. Hence, we hold that absolutely there is no conflict between the view expressed in The Commissioner and Special Officer's case and Palakole Municipality's case and the view expressed in Masulipatnam case. Accordingly the third point is answered.
10. In the result, we hold that limitation for any suit claiming damages for wrongful acts of the municipal authorities is governed by Article 113 of the Limitation Act, 1963, but not under Section 369 of the Act. Since none of the provisions of the Limitation Act envisage this situation, any suit claiming damages has to be filed only under residuary in Article 113 of the Limitation Act wherein the limitation is prescribed as three years from the date of cause of action. Since the suit is filed beyond three years from the date of cause of action i.e., the demolition of the suit schedule building unauthorisedly, the claim for damages by the plaintiff has to be negatived. Accordingly the appeal is allowed setting aside the judgment and decree passed OS. 157 of 1983 on the file of Subordinate Judge, Kothagudem, and consequently the suit filed by the respondent/plaintiff stands dismissed. In the circumstances of the case both the parties are directed to bear their own costs throughout.