Andhra HC (Pre-Telangana)
Religious Endowments Department vs Visakhapatnam Municipal Corporation on 26 February, 2003
Equivalent citations: 2003(2)ALD707, 2003(4)ALT701
JUDGMENT P.S. Narayana, J.
1. Heard Sri Metta Chandrasekhar Rao, Counsel representing the appellant and Sri T.S. Venkata Ramana, Counsel representing the espondent.
2. The appellant in the Second Appeal is the Religious Endowments Department represented by the its Executive Officer of Turner's Choultry - Visakhapatnam-2, and the respondent is Visakhapatnam Municipal Corporation, represented by its Commissioner-Visakhapatnam. The appellant herein had preferred the present Second Appeal aggrieved by the Judgment and Decree made in AS No. 174 of 1991 on the file of the IV Additional District Judge, Visakhapatnam where the learned Judge had reversed the Judgment and Decree of the II Additional District Munsif, Visakhapatnam in OS No. 1539 of 1987.
3. The facts in brief are as hereunder:
4. The parties are referred to as plaintiff and defendant for the purpose of convenience as arrayed in the original suit. The plaintiff instituted OS No. 1539 of 1987 on the file of the II Additional District Munsif, Viskahaptnam for declaration that the disconnection notice claiming water charges from the plaintiff-choultry bearing Door No. 28-2-41 without any assessment on the said choultry is invalid and inoperative, and for a consequential relief of permanent injunction restraining the defendant-Corporation form collection any water tax or water charges mentioned in the impugned notice and for costs of the suit.
5. It is pleaded in the plaint that that plaintiffs choultry called Turner's Choultry, is a part and parcel of the Charitable Endowment in the management of its Executive Officer at Visakhapatnam and the Raja Saheb of Bobbili sponsored the scheme for construction of a choultry for the benefit of the middle and upper class visitors and pilgrims without any discrimination of caste, creed and religion. It was also pleaded that the Raja Saheb of Chemudu Estate donated the site and the other Rajas of Bobbili, Vizianagaram etc., besides the philanthropic people of Visakhpatnam District extended their charity and got constructed the said Choultry in the Year 1890, and for so many years it was run on altruistic and laudable principles and it was a center of extraction of the outside visitors to Visakhapatnam. It was further pleaded that later on, an element of commercialism had crept into the choultry premises and it became more prominent when the Visakhapatnam Municipality used to manage the said choultry. It was also pleaded that under such circumstances the State Government though it fit to change over the management from the Municipality to the plaintiff-Endowments Department. Conseqeuntly, the then Municipality handed over the management of said choultry on 31-8-1976 to the plaintiff-Endowments Department without imposition of any conditions to pay the house tax etc., for the said choultry to the Municipality, and ever since the plaintiff-department is not paying any tax at all to the Municipality and the latter is fully aware of the altruistic purpose for which the Endowments Department is functioning for the benefit of the public, the Executive Officer is empowered to file the suit. It was further pleaded that the Defendant-Corporation stepped into the shoes of the then Municipality by operation of law, and now the said Corporation is demanding to pay water tax for the plaintiff-choultry, and therefore, the then Executive Officer of the plaintiff-Choultry addressed several letter seeking for exemption from payment of water charges and the correspondence with the defendant-Corporation is still pending and while so, the Defendant-Corporation sent the disconnection notice to the Executive Officer on 28-9-1987 threatening to disconnect or cut off water supply to the choultry, if the demand was not completed within time. The said notice is not at all bona fide and the same does not give any scope to issue Section 685 notice to the Municipal Corporation in order to take appropriate action against the illegal claim put forth by the defendant-Corporation. The tap-meters did not function by the said date i.e., 31-8-1976. No meter card was supplied not any clerk of the defendant did take the meter readings in the choultry. There was no assessment for water tax at any time. The claim of Rs. l1.817-00 by the defendant through the disconnection notice is purely a guess work not on the basis of meter reading, and hence, it is void, illegal and unenforceable. Hence, the suit for declaration that the disconnection notice claiming water charges from the plaintiff-choultry bearing Door No. 28-2-41 without any assessment on the said choultry is invalid and inoperative and for consequential relief of permanent injunction restringing the defendant from collecting any tax or water charges mentioned in the impugned notice of the defendant-corporation and for costs.
6. The Defendant-Corporation had filed a written statement taking a specific plea that the suit is bad for non-issuing of notice under Section 685 of Hyderabad Municipal Corporations Act (for short 'the Act'). The Turner's Choultry was maintained by the erstwhile Municipality because it was one of the assets of the Municipality as per A.P. Municipalities Act. The said choultry was not assessed to the property tax or water tax. Subsequently, the said choultry was handed over to the plaintiff-
Department for maintenance by the defendant, and accordingly, the plaintiff department managing the choultry by giving it to the tenants on rent and collecting the rents from them i.e., from Hotel Visakha, Post Office, Railway Booking Office and residential quarters. Thus, in all the said building is using for commercial purposes, but not for any charitable purposes and in fact the name of the building called as Choultry is only a name sake but the same is not physically used for any free purposes and the plaintiff-department is collecting rents from the occupiers of the same and except the Hotel Visakha, noboby is paying the water charges. No application is pending before the Defendant-Corporation regarding exemption for payment of water charges since the plaintiff-department using the Choultry for commercial purpose and collecting the rents and as the Corporation is supplying water to the said choultry on metering system, the levy of water charges made by the defendant and thereby the issuance of notice demanding the arrears of water charges, are strictly as per the provisions of the Hyderabad Municipal Corporations Act and hence they are legal, valid and tenable under law and since the plaintiff failed to pay the said amount in spite of several demands the defendant had to serve a notice giving sufficient time for payment of arrears of tax and in failure to do so they have no other alternative except to disconnect the tap connection under Section 360 A, B, C, D of HMC Act and the defendant -Corporation prepared a water bill as per the reading shown by the meter and hence there is no basis of imagination or illegal in levying the water charges and hence the suit is liable to be dismissed.
7. On the strength of the respective pleading of the parties, the following issues were settled:
1. Whether the plaintiff is entitled for declaration as prayed for ?
2. Whether the plaintiff is entitled for permanent injunction as prayed for ?
3. Whether the suit is bad for want of notice under Section 685 of Hyderabad Municipal Corporations Act ?
4. To what relief?
8. Before the Trial Court, on plaintiff's side PW1, was examined and Exs. A1 and A2 were marked, and no oral or documentary evidence had been adduced on behalf of the defendant. The Trial Court, on appreciation of the oral and documentary evidence, held that the demand itself is a mala fide action and no Notice under Section 685 of the Act, 1955 is necessary, and ultimately, had decreed the suit. Aggrieved by the same, the Visakhapatnam Municipal Corporation (hereinafter in short referred to as 'the Corporation', for the purpose of convenience) and preferred AS No. l74of 1991 on the file of the IV Additional District Judge, Visakhapatnam and the appellate Court had allowed the appeal without costs and aggrieved by the same, the unsuccessful plaintiff had carried the matter by way of the present Second Appeal.
9. Sri M. Chandrasekhar Rao, learned Counsel representing the appellant-plaintiff had take me through the findings recorded and had submitted that in view of the peculiar facts and circumstances, the Court at first instance was well justified in holding that the demand was a mala fide action, and hence, no notice under Hyderabad Municipal Corporations Act, 1955 is necessary, and accordingly, had rightly decreed the suit. The learned Counsel also had drawn my attention to different provisions of the Hyderabad Municipal Corporations Act, 1955 in general and Section 199 and Section 202(1)(b) and (bb) in particular and also Section 230 of the Act. No doubt, commenting on the merits of the matter, the learned Counsel pointed out that the Corporation had not let in any evidence at all in this regard.
10. Per contra, T.S. Venkata Ramana, learned Counsel representing the respondent-Corporation had drawn my attention to Section 685 of the Act, and had submitted that the issuance of the notice under the said provision is mandatory and for want of notice, definitely the suit itself is not maintainable. The learned Counsel also had drawn my attention to Section 7 of the Visakhapatnam Municipal Corporation Act, 1979, where under the provisions of the Hyderabad Municipal Corporations Act, 1955 were made applicable and extended to Visakhaptnam Municipal Corporation also. The learned Counsel submitted that in view of the same, there could not be any controversy that the suit instituted by the appellant-plaintiff is definitely not maintainable for want of notice. The learned Counsel also had drawn my attention to Section 107 of the Code of Civil Procedure and had submitted that since the appellate Court is having power to decide the matter finally, after appreciating all the facts and circumstances, even in the present case, the appellate Court had gone into the second aspect also touching the merits and demerits of the matter and had negatived the relief of the plaintiff. The learned Counsel had drawn my attention to different provisions of the Hyderabad Municipal Corporations Act, 1955, inclusive of Sections 199 and 202, and the learned Counsel had placed strong reliance on a decision in Official Trustee, Madras v. Madras Corporation, AIR (30) 1943 Madras 518, in this regard.
11. Heard both the Counsel.
12. The substantial question of law, which arises for consideration in the present Second Appeal, is as hereunder:
"Whether the suit filed by the appellant-plaintiff as against the respondent-defendant corporation is maintainable without issuance of notice under Section 685 of the Hyderabad Municipal Corporations Act, 1955"?
13. At the outset, it may be stated that all the other questions, which had been argued by both the Counsel, relate to, and those contentions touch upon the merits and demerits of the matter. Section 685 of the Hyderabad Municipal Corporations Act, 1955 reads as under:
Protection of Persons Acting under this Act against suits:--(1) No suit shall be instituted against the Corporation or against the Commissioner or a Deputy Commissioner or against any officer or servant, appointed under this Act, in respect of any act done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect of default in the execution of this Act-
(a) Until the expiration of one month next after notice in writing has been, in the case of the Corporation, left at the Chief Municipal Office and in the case of the Commissioner or of a Deputy Commissioner or of a Municipal Officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney or agent, if any, for the purpose of such suit; or
(b) Unless it is commenced within six months next after the accrual of the cause of action.
(2) At the trial of any suit;
(a) the plaintiff shall not be permitted to go into evidence of any cause of action except such as is set forth in the notice delivered or left by him as aforesaid;
(b) the claim, if it be for damages, shall be dismissed if tender of sufficient amends shall have been made before the suit was instituted or if after the institution of the suit, a sufficient sum of money is paid into Court with costs.
(3) Where the defendant in any such suit is a Municipal Officer or servant, payment of the sum or of 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, may be made with the previous sanction of the Standing Committee from the Municipal Fund."
14. It is not is dispute that no notice had been issued before the institution of the present suit. It is also not in dispute that the demand, which had been questioned in the present suit, is a demand made by the officers of the Corporations in pursuance of their discharge of duties under the provision of the Act. Section 7 of the Visakhapatnam Municipal Corporation Act, 1979 dealing with application of the provisions of the Hyderabad Municipal Corporations Act, 1955 to the Corporation, reads as under:
Application of the Provisions of the Hyderabad Municipal Corporation Act, 1955 (Act II of 1956) to the Corporation :--(1) Save as otherwise expressly provided herein, all the provision of the Hyderabad Municipal Corporations Act, 1955 (hereinafter in this Section called "the said Act") including the provisions relating to the levy and collection of any tax or fee are hereby extended to and shall apply mutatis mutandis to the Corporation and the said Act shall, in relation to the Corporation be read and construed as if the provisions of the act had formed part of the said Act.
(2) For the purpose of facilitating the application of the provisions of the Hyderabad Municipal Corporations Act, 1955, to the Corporation, the Government may, by notification, make such adaptations and modifications of the said Act and the rules and bye-laws made thereunder whether by way of repealing, amending or suspending any provisions thereof, as may be necessary or expedient and thereupon the said Act and the rules made thereunder, shall apply to the Corporation subject to the adaptations and modifications so made.
(3) Notwithstanding that no provision or insufficient provision has been made under Sub-section (2) for the adaptation of the provisions of the said Act, or the rules made thereunder any Court, Tribunal or authority required or empowered to enforce these provisions may, for the purpose of facilitating their application to the Corporation, construe these provisions in such manner, without affecting the substance, as may necessary or proper regard to the matter before the Court, Tribunal or authority.
15. In the light of these provisions, there cannot be any controversy that before the institution of a suit of this nature, notice as contemplated under Section 685 of the Hyderabad Municipal Corporations.
Act, 1955 has to be issued. In Bansilal v.
Special officer, MCH., Hyderabad and Anr., 1981 (2) ALT NRC 59, it was held that Section 685 of the Hyderabad Municipal Corporations Act, 1955 expressly provides that unless the period of one month next after the delivery of the notice expires, the institution of the suit is barred and it is a matter pertaining to the jurisdiction of the Court to entertain the suit before the , expiry of the prescribed limit and the obligation is cast upon the Court to reject the plaint where the suit appears to be barred by any previous of law and the language employed in Section 685 of the HMC Act is imperative and does not admit of any intrusion of either hardship or prejudice and in view of the unequivocal bar contained in Section 685 of the Hyderabad Municipal Corporations Act, the considerations of hardship and prejudice are not germane and the suit filed before the expiry of one month period specified in Section 685 of HMC Act is not maintainable. In Lalithraj and Ors.
v. Municipal Corporation of Hyderabad, 1987 (2) ALT NRC 6, it was held that issuance of notice under Section 685 of the Act is obligatory as a condition precedent for filing the suit. Non-compliance of the provisions of Section 685 is fatal to the maintainability of the suit because the issuance of a demand is an act done or purported to be done under the provisions of the Act. If the plaintiff wants to challenge the action of the Corporation, it must first issue notice under Section 685 of the Act and then file the suit. A bald and vague allegation that the defendant acted mala fidely in issuing the demand, cannot be treated as a specific allegation of mala fides so as to enable the plaintiff to avoid giving notice under Section 685 of the Act.
16. It may not be out of context if it is stated that there may be certain actions by the Corporation and in view of the urgency, those actions may have to be questioned in all circumstances, and in view of the immediate apprehended threat or danger, there may not be any possibility on the part of the plaintiff to wait for such a period and in view of the same, it is suggestible to have a suitable amendment to the said provision relating to the issuance of notice on the lines of Section 80(2) of the Code of Civil Procedure enabling the plaintiff to institute suits, in case of real urgency, bringing the same to the notice of the concerned Court. Be that as it may, it is suffice to state that in the present case the provisions of Section 684 of the Hyderabad Municipal Corporations Act, 1955 had not been complied with and in this view, since this Court is arriving at a conclusion that the suit is not maintainable, I am of the considered opinion that all the other aspects touching the merits and demerits of the matter need not be gone into in view of the fact that the appellant-plaintiff is not being given the relief for want of issuance of notice under the provisions of the Hyderabad Municipal Corporations Act, 1955. No doubt, the Counsel for the respondent-defendant-Corporation had placed strong reliance in the case of Official Trustee, (supra), and since this question definitely touches the merits of the matter, I am not inclined to express any opinion relating to the same.
17. In the light of the foregoing discussion, I am of the considered opinion that in the facts and circumstances of the case, the suit instituted by the appellant-
plaintiff is not maintainable for want of Notice under Section 685 of the Hyderabad Municipal Corporations Act, 1955 and it is needless to say that the appellant-plaintiff is at liberty to proceed in accordance with law, if so advised. Except making this observation, on further relief can, be granted to the appellant and in view of the above discussion, the Second Appeal is devoid of merits and the same is accordingly dismissed.
But, however, since the relief is negatived to the appellant-plaintiff on the ground of want of Notice, this Court makes no order as to costs.