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Municipal Corporation of Hyderabad Vs. T.V. Sarma - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 129 of 1969
Judge
Reported inAIR1972AP96
ActsHyderabad Municipal Corporation Act, 1956 - Sections 397, 399, 428, 437, 685 and 685(1)
AppellantMunicipal Corporation of Hyderabad
RespondentT.V. Sarma
Appellant AdvocateTej Rai Kapur, Adv.
Respondent AdvocateParty in Person
Excerpt:
property - permission for construction - sections 397, 399, 428, 437, 685 and 685 (1) of hyderabad municipal corporation act, 1956 - refusal of permission to construct pillar and balcony hanging to road - limitation period fixed under section 685 not applicable on suits against malicious act of municipal commissioner - failure to communicate disapproval of application for permission does not entitle applicant to proceed with proposed plan - findings of lower courts shows malicious act of commissioner - held, declaration of right for construction allowed. - - section 397 of the act clearly puts an embargo upon the construction of any balcony projecting or overhanging the street. 428 for permission to construct, the provisions of section 437 would become applicable and the failure of.....1. the respondent is the owner of the house nos. 4-4-221 and 212 situate at thanumal road, sultan bazar, hyderabad. after the purchase of the house by the respondent, during his absence, a portion of it was demolished by the staff of the municipal corporation. the respondent thereafter launched a criminal prosecution against he then commissioner, engineer. assistant engineer etc., for the demolition of the house alleging that after granting permission to build as per the sanctioned plan, the new construction was pulled down in he respondent's absence. he also filed a civil suit and a writ in the high court in connection with the demolition of a part of the suit house. ultimately the matter was compromised where under the respondent was paid compensation and various proceedings were.....
Judgment:

1. The respondent is the owner of the house Nos. 4-4-221 and 212 situate at Thanumal Road, Sultan Bazar, Hyderabad. After the purchase of the house by the respondent, during his absence, a portion of it was demolished by the staff of the Municipal Corporation. The respondent thereafter launched a criminal prosecution against he then Commissioner, Engineer. Assistant Engineer etc., for the demolition of the house alleging that after granting permission to build as per the sanctioned plan, the new construction was pulled down in he respondent's absence. He also filed a civil suit and a Writ in the High Court in connection with the demolition of a part of the suit house. Ultimately the matter was compromised where under the respondent was paid compensation and various proceedings were withdrawn.

2. The house has a first storey with balcony, which balcony he proposed to extend overhanging the road below by three feet. The balcony was to be supported by four cement concrete pillars to be constructed on the lowest three front steps of the house. As per rules of the appellant-Municipal Corporation of Hyderabad. the respondent submitted an application for construction of the balcony on 30th January, 1965 accompanied by blue print sketch of the proposed construction. The respondent was informed by the Corporation by its letter dated 3-3-1965 (Ex. A-2) that permission for proposed construction of pillars and balcony was refused as the same came on the road. The respondent thereafter gave Ex. A-3 a registered notice dated 15-4-1965 to the Commissioner of the Municipal Corporation. To this notice, the appellant by its Memo Ex. A-4 dated 31-5-1965 informed the respondent that permission for the proposed construction cannot be granted as intimated earlier by Ex. A-2. Hence the present suit by the respondent against the Corporation was filed on 23-12-1965.

3. The respondent alleged that permission to construct pillars and balcony was refused without any body from the Municipal Corporation taking the measurement as per plan submitted by him. He averred that Thanumal Street is a private street and he proposed to raise the pillars in his site. His Western neighbour had obtained permission from the Corporation for putting up balcony overhanging the road and though this was brought to the notice of the Commissioner, no tangible action was taken in that regard. The street in front of the house of his western neighbour is only 14 feet in front of the respondent's house is 18 feet in width. It was alleged that the action of the appellant-Corporation in refusing permission was mala fide. The respondent sought a declaration of his right to put up pillars and overhanging balcony and for a permanent injunction restraining the Corporation from interfering with his proposed construction and for refund of the licence fee collected by the Corporation with interest at 6 per cent per annum from the date of collection till refund.

4. The respondent in his plaint further averred that even if Thanumal Street is considered a public street, the respondent is entitled to construct in view of the provisions of Section 437 of the Hyderabad Municipal Corporation Act (hereinafter referred to as the Corporation Act. He therefore prayed for a declaration that permission for the proposed pillars and balcony must be deemed to have been sanctioned by the Corporation as per plan.

5. The Corporation in its written statement denied all knowledge of the respondent's title to the house in question and averred Thanumal Road is a public street. Permission to construct was refused to the respondent as the proposed construction was not in his site and was projecting over the street. Permission was rightly refused after spot inspection by the concerned Office who reported to the Town Planner. Allegations in the suit notice Ex. A-3 were denied and it was averred that the respondent has no cause of action. It was further averred that in any event the cause of action must be deemed to have accrued on 3-3-1965 when Ex. A-2 was communicated to the respondent and as the suit was not filed within sic months thereafter, the suit is barred by limitation under Section 685 of the Corporation Act. It was also averred that in any event as the construction was not made within one year from 30-1-1965 the date of notice of construction, the respondent is not entitled to any of the reliefs prayed for.

6. On these pleadings the trial court framed the necessary issues and held (1) Thanumal Road is a private respondent with ulterior motives and (3) the suit is within limitation. The respondent's suit therefore was decreed as prayed for except in respect of recovery of the licence fee.

7. Aggrieved by the decision. the appellant herein filed A. S. No. 35/67 which was heard by the Ist Addl. Chief Judge City Civil Court. Hyderabad. He framed the following points for consideration:

(1) Whether Thanumal Road is a public or private street?

(2) Whether the plaintiff was entitled to the permit to construct the pillars and balcony as proposed by him;

(3) Whether the suit is barred by limitation;

(4) Whether the plaintiff is entitled to the declaration and permanent injunction prayed for.

The learned Judge held (1) Thanumal Road is a private street; (2) the Corporation did not act bona fide in disapproving the application of the respondent to construct the balcony. The respondent is entitled to construct the proposed pillars in his own site and to construct the pillars as per specifications given in Ex. a-1. (3) (4) the plaintiff is entitled to a declaration and permanent injunction prayed for. In the result the decree and judgment of the trial court were confirmed and the appeal dismissed. This second appeal is filed by the Municipal Corporation of Hyderabad aggrieved by the decision of the appellate Court.

8. The learned Counsel for the appellant raised before me the following contentions:-----

(1) The provisions of section 437 of the Corporation Act are not applicable in the instant case and the respondent is not entitled to construct the balcony projecting over the street without written permission of the Commissioner irrespective of the fact whether the street is a public street or a private street.

(2) The suit is bared by limitation as it was not filed within sic months from the date of accrual of the cause of action.

(3) The finding that the Corporation did not act bona fide in refusing permission to the respondent to construct, is not based on any evidence.

As regards the third contention raised by the learned counsel for the appellant, there is a concurrent finding by both the lower courts that the Corporation did not act bona fide in refusing permission to construct to the respondent. I am not persuaded to hold that this finding of fact is not based on evidence. This contention therefore fails.

9. To appreciate the first contention raised by the learned counsel for the appellant, it is necessary to state a few facts. As already stated, the respondent had given a notice as contemplated by Section 428 of the Corporation Act for construction of pillars and balcony overhanging on the street. He did not receive any reply from the Commissioner to the aforesaid notice for more than 30 days. The period of 30 days terminated on 1-3-1965 and the Commissioner's reply that permission cannot be granted is dated 3-3-1965. According to the provisions of Section 438 of the Corporation Act if within 30 days after receipt of notice under Section 428, the Commissioner fails, to intimate in writing to the person who has given the said notice, his disapproval of the building which the said person proposes to erect, the said person may at any time within one year from the date of the delivery of the notice to the Commissioner proceed with the said building in accordance with his intention as described in the notice. In view of this provision, the contention of the respondent is that he became entitled to construct the pillars and balcony in accordance with the plan accompanying and the notice dated 30-1-1965. The appellant's contention s that any construction that may be made under Section 437 of the Corporation Act has to be made so as not to contravene any of the provisions of the Corporation Act or any bye law made thereunder. Under the provisions of Section 397 of the Corporation Act there is a prohibition for erecting, setting up or adding any structure of fixture which would over-hang, jut or project into any street except as provided for in Section 399 of the said Act. Section 399 empowers the Commissioner to give a written permission on such to give a written permission on such terms as he shall in each case thinks fit to the owner or occupier of any building abutting on any street to put up a verandah, balcony or other structure projecting from any story over or across any street or portion thereof. It is argued by the learned counsel for the appellant that combined reading of Ss. 397 and 399 shows that unless there is written permission by the Commissioner to construct a balcony projecting over any street or portion of a street, any such constructions would be in contravention of the provisions of the Corporation Act. Any construction that can be made by virtue of the provisions of Section 437 of the Act has to be made so as not to contravene any of the provisions of the Act. A combined reading of Sections 437, 397 and 399 of the Act would mean that even though a person has become entitled to make construction under Sec. 437 of the Corporation Act he would not be entitled to construct any balcony overhanging the street without the permission of the Commissioner as any such construction would be in contravention of the Corporation Act. In my opinion the contention raised by the learned counsel for the appellant has force. The provisions of Section 437 of the Act are very clear and according to that provision, any construction can be made so as not to contravene any provisions of the Corporation Act. Section 397 of the Act clearly puts an embargo upon the construction of any balcony projecting or overhanging the street. unless written permission is given by the Commissioner under section 399 of the Corporation Act. Any such construction without the written permission of the Commissioner would be in contravention of the Act. The deeming provision of Section 437 will not be applicable in such cases.

10. The learned counsel for the respondent contends that he provisions of Ss. 397 and 399 are not applicable where a balcony is to be constructed overhanging or projecting on a private overhanging or projecting on a private street. This contention cannot be accepted for the word used in both the sections is 'street' and not 'public street.' The Corporation Act defines 'public street' as any street over which the public have a right of way and 'private street' as street which is not public street (Vide clauses 46 and 42 of Section 2 of the Corporation Act. It is not necessary to refer to the other provisions of the said two clauses). The Corporation Act also in Cl. 52 of Section 3 defines the word 'street'. It has to be noted that the definition of 'private street' and 'public street' is a limited definition and not an inclusive definition as the definition of the word 'street'. Evidently the intention of the legislature was to include private street and public street within the definition of the word 'street'. It is therefore clear that the use of the word 'street' in Sections 397 and 399 makes those two sections applicable to any street irrespective of the fact whether it is a public street or a private street.

11. It was then argued, by the learned counsel for the respondent that the only provision, in the Corporation Act for obtaining permission whether it be under Section 399 or other sections, dealing with construction of buildings, is Section 428. In order to obtain permission for construction of a balcony overhanging a street, reference can be made only to Section 428 of the Corporation Act. Having given notice under S. 428 for permission to construct, the provisions of Section 437 would become applicable and the failure of the Commissioner to reject the notice within 30 days of the receipt of the notice, would be tantamount to written permission under S. 399 of the Corporation act. There is no reference to Section 399 in S. 437 of the Act. I am of the opinion that unless specific written permission is obtained under Section 399 of the Act. the owner of the house would not be entitled to construct a balcony projecting or overhanging any private or public street on the ground that notice under Section 428 of the Corporation Act was not disapproved by the Commissioner within 30 days from the receipt of such notice and because of such failure, he had become entitled to construct under the provisions of S. 437 of the Corporation Act.

12. The next question that arises for consideration is whether the suit is barred by limitation. In this context it is necessary to state a few dates. The suit was filed on 23-12-1968. The Commissioner had replied to the respondent that the permission cannot be granted on 3-3-1965. Her sent the suit notice addressed to the Commissioner on 15-4-1965 to which a reply was given on 31st May 1965. According to the appellant the period of limitation of six months prescribed in Section 685 started from 3-2-1965 the date on which the Commissioner refused permission to the respondent. Calculating the period from that date and excluding the period from that date and excluding the period of one month prescribed by Section 685 (1) (a) the suit is barred by limitation. The learned counsel for the respondent tried to argue that the period of limitation started from 31st May 1965 when a reply was given to him to his suit notice that permission cannot be granted to construct as proposed by him. He wanted to deduct the period of notice of one month served on him on 15-4-1965. This would show that his suit was within six months from 31-5-1965. Obviously this calculation of the learned counsel for the respondent is incorrect. The period of one month prescribed in the notice can only be taken into account if such a notice is given after the cause of actin has arisen. Admittedly according to the learned counsel for the respondent if the cause of action had arisen on 31-5-1965 the period of one month prescribed for notice cannot be taken into account as notice was given prior to 31-5-1965, Calculating the period of six months from 31-5-1965, the suit will be barred by limitation. It was then argued by the learned counsel for the respondent that the cause of action in his case is a continuing cause of action and every refusal by the Commissioner would give him a new cause of action. In support of his contention he relied upon two decisions; one of this Court viz. Commr. for Hindu Religious and Charitable Endowments v. K. N. N. Chatram. : AIR1960AP535 and Annasami v. Adivarachari, AIR 1941 Mad 81 (FB) but the aforesaid authorities do not help the respondent because there was no fresh attack on his right after the reply to the suit notices sent by the Commissioner on 31-5-1965.

13. The main argument advanced by the learned counsel for the respondent to show that the suit is not barred by limitation is that the provisions of Section 685 of the Corporation Act are not applicable in the instant case. He puts his case thus; Clauses (a) and (b) of the sub-section (1) of S., 685 of the Corporation Act are disjunctive and it is sufficient if any of the conditions prescribed by the two clauses is fulfilled. The argument is that if a notice is given under Cl. (a) of the said sub-section./ Cl (b) which prescribes a period of six months is not applicable. If no notice is given under Cl. (a) the suit is to be brought within sic months as prescribed by Cl. (b). Alternatively it is argued that Section 685 is applicable only to cases where the suit is brought against any act done in execution or intended execution of the Act. It is argued that in the instant case, the suit is not in respect of any act done in pursuance of execution or intended execution of the Corporation Act; but it is a suit for a declaration that the respondent is entitled to construct and for a permanent injunction restraining the appellant from interfering with the proposed additions. The contention is that it is a suit to restrain the Corporation from taking action in future and therefore Section 685 is not applicable. It is also argued that assuming the suit is in respect of any act done in pursuance of the execution or intended execution of the Act. such as act should be a bona fide act on the part of the Commissioner. If the act is done maliciously, such an act is not done in pursuance of execution or intended execution of the Act.

14. It has therefore to be determined whether Section 685 of the Corporation Act is applicable to the case before me. Section 685 reads:

'(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 of execution or intended execution of this Act or in respect of any alleged neglect or 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 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 or his attorney or agent, if any for the purpose of such suit; or

(b) unless it is commenced within sic months next after the accrual of the cause of action.

(2) At the trial of any such suit_____

(a) .........................................?

It has to be decided whether before any suit is instituted against the Corporation as provided for in sub-section (1) it is necessary to satisfy the two conditions or the satisfaction of any one of the conditions prescribed in Cls. (a) and (b) of that sub-section would be sufficient. It has to be noted that Cls. 9a) and (b) are separated by the use of the word 'or'. The word 'or' is generally used in a disjunctive sense and giving the natural meaning of the word 'or' the sub-section, it is argued.

Satisfaction of any one of the conditions prescribed in Cls. (a) or (b) would be sufficient to bring the suit under sub-section (1) of S. 685 of the Corporation Act.

It is argued by the learned counsel for the appellant that though the word 'or' is sued, it has to be read as 'and' in view of the obvious intention of the legislature in enacting Section 685 (1) of the Corporation Act. The provision that a suit cannot be filed until the expiration of one month next after notice in writing has been given to the Corporation or the Commissioner, as the case may be, is intended to give an opportunity to the Corporation or the Commissioner to consider the claim of the party and in case such a claims found valid and tenable, meet the claim instead of the party being driven to a court of raw. The object in prescribing the short period of limitation of six months for filing suits against the Corporation or the Commissioner as the case may be is that all claim against the Corporation or the Commissioner, should not hang fire against the Corporation for the period prescribed under the general law of limitation. Usually the cases that may arise under Section 685 are cases where public convenience or public benefit is involved and if such suit are allowed to be brought against the Corporation within the ordinary period of limitation, there would always be the apprehension that any action taken by the Corporation or the Commissioner may be set at naught by an order of the court after a sufficiently long period. In order to obviate the difficulties that may arise if the ordinary period of limitation is applied, a shorter period of limitation has been prescribed in Cl. (b) of sub-s. (1). Considering the object of enacting Cls (a) and (b) of sub-section (1) it is obvious that the legislature intended that both these clauses should apply to a suit that may be brought under sub-section (12) of S. 685 of the Corporation Act. To give effect to the obvious intention of the legislature, the word 'or' has to be read as 'and'.

15. It is settled law that the word 'or' can be read as 'and' and the word 'and' can be read as 'or' where it is necessary to do so in order to give effect to the intention of the legislature. The Supreme Court in Mazagaon Dock Ltd. v. Commr. of Income-tax and Excess Profits Tax. : [1958]34ITR368(SC) laid down the proposition that the word 'or' has to be read as 'and' to give effect to the intention of the legislature. A Full Bench of the Madras High Court has held in P. V. Rayarappa v. P. Kelappa, AIR 1918 Mad 1026 (FB) that the word 'and' can be read as or where it is necessary to do so in order to carry out the obvious intention of the legislature.

16. A provision similar to S. 685 of the Corporation Act came up for consideration before the Calcutta High Court in Sadhiram Atoi v. Kunja Behari Banerjee. AIR 1936 Cal 715. The provisions which the learned Judges of the Division Bench considered was S. 82 (2) of the Assam Land and Revenue Regulation., 1886 which reads:

'A suit to annual such a suit shall not be entertained upon any ground unless that ground has been specified in an application made to the Commissioner or Chief Commissioner under Section 79 or unless it is instituted within one year from the date of the sale becoming final under Section 80.'

The question arose whether the two conditions prescribed in the section have been made disjunctive by the use of the word 'or'. It was contended on behalf of the appellant that on the appearance of the word 'or' in the aforesaid subsection. it should be held tat if one of these conditions is satisfied, his appeal would be competent. This contention was rejected by the learned Judge as not well founded. The learned Judges observed:

'The two conditions are so different in their nature that it is impossible to maintain that if only one of the conditions is fulfilled, an appeal should be competent. One of these conditions is that the ground to be taken in the appeal must be one which has been specified in the application made to the Commissioner or Chief Commissioner under Section 79 and the other is that the suit to be instituted within one year from the date of the sale becoming final under Sec. 80. The word 'or' as it appears in this subsection, must, in our opinion, be regarded having been used in the sense of 'and' in our opinion, the sub-section means that unless both conditions are specified, the suit would not be maintainable.'

It is argued by the learned counsel for the respondent that the principle laid down in Shadiram v. Kunja Behari. AIR 1936 Cal 715 is not applicable. He contends that the two conditions laid down in Cls. (a) and (b) of sub-section (1) of S. 685 of the Corporation Act are not different in their nature. The argument has no force. The conditions laid down in Section 82 sub-s. (2) of the Assam Land and Revenue Regulation, 1886 are in pari materia with the conditions laid down in Cls. (a) and (b) of sub-sec. (1) of S. 685 of the Corporation Act. To my mind the principles enunciated in the above-said Calcutta case is equally applicable to the interpretation of S. 685 (1) of the Corporation Act.

17. In therefore hold that both the conditions prescribed in Cls (a) and (b) of sub-section (1) of S. 685 of the corporation Act have to be satisfied in case of a suit to which Section 685 of the Corporation Act is applicable.

18. The next question for consideration is whether the present suit is in respect of any act done in pursuance of execution or intended execution of the Corporation Act. I am not concerned with the further provision in that sub-section which deals with suits in respect of any alleged neglect or default in the execution of the Act. A plain reading of the section shows that it is applicable to acts which had been done by the Corporation or the Commissioner before the act done' clearly shows that the act should have been done prior to the institution of the suit. Further the suit has to be in respect of any act done which makes it abundantly clearly that the act should have been done before the filing of the suit. The meaning to be given to the expression 'any act done' came up for consideration before the Bombay High Court in Municipality of Parola v. Lakshmandas Suparubhai, (1901) ILR 25 Bom 142. Section 48 of the District Municipalities Act (Bombay Act II of 1884) which the learned Judges considered was in the following terms:-----

'No action shall be commenced against the Municipality .................................for anything done or purporting to have been done in pursuance o this Act ..................without giving to such Municipality............... one month's previous notice in writing of the intended actin and of the cause thereof, nor after three months from the date of the act complained of.'

In the case before the learned Judges, the plaintiffs sued the Municipality at Parola to obtain a declaration that a certain building erected by the plaintiffs had been built in accordance with and not in contravention of the orders issued by the said Municipality and further to obtain an injunction restraining the Municipality from pulling down the said building. The Municipality inter alia raised the question that the suit was not maintainable in view of the provisions of Section 48 of the Bombay Act II of 1884 as no notice of the suit had been given as required by that section. After referring to the decisions cited before them, the learned Judges observed at page 150:----

'The result of the cases above cited appears to indicate, that for the purposes of Section 48 what the court has to look to is the real object of the suit, and the section requires notice only when the suit is for an act already done or purporting to have been done, under the powers conferred. In such cases only can it be necessary for the plaintiff to given an opportunity to make amends or compensation, and in such cases, the delay necessitated by notice is comparatively immaterial. But when the suit is not for an act already done, but to prevent an act from being irremediably, irrevocably done, neither can amends be claimable nor can delay be obligatory. It is impossible to hold that a mere notice, a requisition or a threat to do a thing in the future, even though 8t be issued or made under the powers, is an act already done, or purporting to have been done, and there is nothing else alleged in this case that can be alleged to have been done by the Municipality. A notice, therefore, does not appear to have been made an indispensable preliminary to such a suit by Section 48.'

Reliance was also place on : AIR1962Pat273 which has been referred to on page 4524, Vol. 6 of Bihar Local Acts. Section 508 of the Patna Municipal Corporation Act, 1951 Provides;-----

'No suit shall be institute against the Corporation ......................in respect of any act done in pursuance of execution or intended execution of this act .................................until the expiration of one month next after notice in writing...............................'

The question before the Patna High Court arose in a suit in which the relief sought against the Corporation was a declaration of title and no relief was sought for in regard to any act done in pursuance of the execution or intended execution of the Act, and so for as the main defendants were concerned, it was a suit for injunction restraining them from or in any way interfering with the possession of the plaintiff. It was held that if it related to any act at all, it was in regard to those which were threatened to be done in future; and not in regard to those already committed in the past and therefore the section did not apply.

19. The learned counsel for the appellant argued that the expression 'any act done' takes in also a threat to do a future injurious action. In support of his contention he relied upon a decision of the Division Bench in superintending Engineering, Bezwada v. C. Ramakrishnayya, AIR 1920 Mad 723. In the aforesaid case the threat to do the future injurious the suit for injunction was filed because such a threat was conveyed in the notice. This decision does not apply tin the instant case as there is no notice by which any threatened action against the respondent has been communicated to him.

20. A plain reading of the section shows that the suit must be in respect of anything already done in execution or intended execution of the Act.

21. It has therefore to be seen whether the respondent's suit is for anything already done under the Act or is in respect of anything which the Corporation or the Commissioner is likely to do in future. It is argued by the learned counsel for the appellant that the respondent in his plaint has referred to the two letters of the Commissioner dated two letters of the Commissioner dated 3-3-1965 refusing permission to the Respondent to construct and the reiteration of that position in the letter of the Corporation dated 31-5-`965 issued in reply to the suit notice of the respondent. It is because of these two letters that the respondent filed a suit for declaration that he was entitled to construct and for a permanent injunction restraining the Corporation and the Commissioner from any way intervening in his proposed addition. Had it not been, it is contended, for the aforesaid two letters of the Commissioner the respondent would not have filed this suit. This suit therefore is in respect of an act done by the Commissioner and that act is refusing permission to the respondent to construct a balcony. In reply it is contended by the learned counsel for the respondent that the suit has been brought by the respondent in order to restrain the Corporation from pulling down the structure that he has become entitled to put in view of the provisions of S. 437 of the Corporation Act. Though reference has been made to the letters of the Commissioner dated 3-3-1965 in the suit no reliance is claimed in regard to or in respect of those letters.

22. To resolve the question as to whether his suit is in respect of any act done, it is necessary to refer to the plaint. The respondent after referring to the notice given by him under Section 428 of the Corporation Act on 30-1-1965, refers to the letter of the Commissioner dated 3-3-1965, in para 3 of his plaint. In para 4 of the plaint he avers that the road is a private street and that permission has been refused to him without taking any measurements and is also a mala fide action on the part of the Corporation. In para 5 reference is made to the registered suit notice dated 15-4-1965 given by the respondent and the appellant's reply to it dt. 31-5-1965. After referring to this, the respondent states in the plaint:-------

'The plaintiff is entitled to seek a declaration and in consequence of the declaration for an injunction restraining the defendant corporation from interfering with the plaintiff's additions of the pillars and balcony to H. N.4-4-211. 212, as per the plan herewith filed.'

In para 7 he states that if the appellant were to pretend that the street is a public one, then under Section 437 of the Act. It should be deemed that permission has been granted to the respondent to construct and that the respondent is entitled to pray for a declaration that permission is deemed granted and for a consequential permanent injunction. In para 8 with deals with cause of action the respondent states;----

Cause of action for this suit arose by 1-3-1965 when the proposes additions to his building were deemed to have been sanctioned if the defendant were to claim the street as a public one and thereafter from day to-day; one 3-3-1965 which date his refusal bears ether if the street were private or public when the defendant's memo refusing permission was issued; on 15-4-1965 when the plaintiff issued a notice of suit to the defendant and on 31-5-1965 when the defendant gave a reply ..............................'

The prayers in para 9 of the plaint are:

'(1) For declaration that the permission for the proposed addition of pillars and balcony to H. N. 4-4-211, 212 must be deemed to have been sanctioned as per the plan herewith filed and in consequence of the said declaration, for a permanent injunction restraining the defendant corporation from interfering with the proposed additions, if the street is contended by the defendant to be a public one and if not, alternatively, for a declaration that the defendant is bound to grant permission as per plan and a consequential permanent injunction restraining defendant from interfering with plaintiff's plan as prayed for;

(ii) ............................................................

(iii).........................................'

It is argued by the learned counsel for the appellant that in para 8 which deals with cause of action, the respondent has specifically referred to the letters dated 3-3-1965 and 31-5-1965 which clearly shows that the suit is in respect of those letters. I do not agree with this contention of the learned counsel for the appellant. On a reading of the whole of the plaint, it becomes clear that the suit is for a declaration of the respondent's right to construct and for an injunction restraining the Corporation and the Commissioner from interfering with the proposed additions. These two relief are not in any manner based upon any act done by the Commissioner or the Corporation. The respondent rightly or wrongly claims that such a right has arisen to him because of the provisions of Section 437 of the Corporation Act and is apprehensive that if a permanent injunction is not granted against he Corporation and the Commissioner, they will pull down any construction that the respondent may make. It is clear that the main purpose of the suit is to restrain the Commissioner or the Corporation from pulling down the construction that may be made by the respondents. There is no notice by the Corporation or the Commissioner that they proposed to demolish the construction that has been or that may be made. The suit is to restrain the Corporation from doing a future act and such a suit to my mind is not governed by the provisions of Section 685 of the Corporation Act.

23. In the alternative it is argued by the learned counsel for the respondent that assuming without admitting that the suit is for an act done in the execution or intended execution of the Corporation Act, Section 685 is not applicable as the act done in the instant case has been held to be a malicious aft by both the lower Courts. The only act done is refusing permission to the respondent to construct and both the courts have held that the refusal of permission to construct is a mala fide act of the Commissioner. I have already held that this finding of a fact cannot be gone into or interfered with in the second appeal. It therefore remains to be seen whether the expression 'act done' is also applicable to cases where it is held that the act done is a malicious act.

24. The learned counsel for the respondent in support of his contention that the provisions of Section 685 are not applicable to malicious act, relied upon the following decisions.

25. Rachordas Moorarji v. Municipal Commr. for the City of Bombay. (1901) ILR 25 Bom 387. Sudha Mukhi Debi v. Chairman of Commrs. of Tollygunge Municipality, AIR 1934 Cal 148, Nagar Mahapalika v. D. G. C. Kapoor, 1965 All LJ 773 and Masulipatnam Municipality v. Krishna Rao, : AIR1964AP360 .

26. The plaintiff in (1901) ILR 25 Bom 387 sued to recover certain town duties which he had paid on importing grain and sugar; but which under Section 195 of the City of Bombay Municipal Act (Bombay Act III of 1888) he was entitled to have refunded on exporting them. As the claim for refund was rejected he filed the suit. Section 527 of the Bombay Act III of 1888 prescribes that one month's notice shall be given of any suit intended to be brought in respect of any act in pursuance of execution or intended execution of the Act and in respect of neglect or default in the execution of the Act. Article 2 of Schedule II of the Limitation Act (15 of 1877) prescribed a period of 90 days from the date of the act or commission complained of for such a suit. Due notice of the suit was given; but the suit brought in pursuance of it was filed six months after the act complained of. The defendant. Municipality admitted the amount claimed and the plaintiffs' right to be repaired; but defendant the suit on the ground that the Municipal Commissioner had no authority to discharge a claim which was not legally enforceable ----the suit being barred by limitation. The Bombay High Court on the Original Side held that the person seeking protection of the Act. 'cannot claim that his conduct has any relation to the 'execution of the act' if he knowingly and intentionally acts in contravention of its provisions.'

27. The Calcutta High Court in AIR 1934 Cal 148 held that no notice under Section 363 of the Bengal Municipal Act, 1884 was necessary as Sec. 363 'is applicable to those cases where the plaintiff claims damages or compensation for some act done in the exercise or honestly suppose exercise of statutory powers.'

28. The Allahabad High Court in 1965 All LJ 773 considered the question where the suit was barred by limitation as it was notified within six months next after the accrual of the cause of action within Section 329 (1) of the U. P. Municipality Act, 1916. The suit was for an injunction restraining the Municipality from enforcing notices whereby the Municipality sought to re-asses certain house. It was held that:------

'There was no raison d'etre for the revised assessment which was on the face of it, arbitrary and unreasonable. The said assessment could not therefore, be regarded as an act done or purporting to have been done in exercise of the powers conferred under Section 147 and the bar of S. 326 would not operative.'

29. A Division Bench of the Court in : AIR1964AP360 was considering the words 'intended execution' in Section 350 (1) of the Madras District Municipalities Act 5 of the Madras District Municipalities Act 5 of 1920. The provisions of Section 350 (1) of the madras Act 5 of 1920 are:----

'No suit for damages or compensation shall be instituted against the Municipal council be instituted against the Municipal council in respect of any act done in pursuance of execution or intended execution of this Act ................................till the expiration of one month after a notice has been delivered .........................' In may be borne in mind that the act complained of. if malicious or wrongful, could not have been done in the execution of the Act. The question is whether it was done in the intended execution of the Act and it is sought to be contended that the words 'intended execution' have got a similar meaning as the words 'purported execution.' It 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. The word 'purporting' means intending to seem which almost implies that though it is a case of not being directly according to law, one may still intended to appear that it is according to law.'

After referring to the cases cited before them, and applying the tests laid down in those cases to the fact of the case before them, the learned Judges held that the Municipality acted maliciously and 'as such it cannot be said to have been performed in the intended executions within the meaning of Section 350'. Thus the Division Bench in this case has very clearly laid down that where the Municipal Authority had acted maliciously, the act of the Municipal Authority cannot be said to have been preferred in the execution or intended execution of the Act within the meaning of Section 350 of the said Act.

30. The learned counsel for the appellant contended that the expression 'any act done in execution or intended execution of the Act.' is equally applicable to malicious acts. Even if an act is done maliciously, it is an act done by the person concerned and therefore the provisions of section 685 are attracted. He relied upon a decision in Kirby v. Simpson (1854) 10 Exch 358 where the question was whether the Justice of Peace was entitled to notice of action as required by an Act of Parliament. The allegation was that the defendant in doing the act complained of acted as a Magistrate for it alleged that the defendant had maliciously instigated the plaintiff's matter to make a complaint before him as a justice of the peace, maliciously convicted the plaintiff of the offence charged and willfully and without sufficient cause issue his warrant of commitment. Parke, B, held that upon the allegation made by the plaintiff, it clearly appears that the defendant acted as Justice of the Peace and as such he was entitled to notice of action as required by the Act of Parliament. The aforesaid decision was rendered in the particular circumstance of the case and cannot have a general application.

31. Reliance was also placed on a Full bench decision of the Madras High Court in Koti Reddi v. Subbiah, AIR 1918 Mdd 62 (FB) where it was held that where a public officer acts mala fide in the discharge of his duties , he is entitled to notice under Section 80. Civil P., C. Wallis, C. J. in his opinion compared the expression 'any act purporting to be done by such public officer in his official capacity.' occurring in Sec. 80, Civil P. C. with the expression 'done or intended to be done under the provisions of this act' in section 264 of the Public Health Act. The learned chief Justice observed that the word 'purport' according to Concise Oxford Dictionary means 'to be intended to seem' and that the words 'purporting to be done' are wider than 'done of intended to be done under the provisions of this Act' in S. 264 of the Public Health Act. Relying upon the expression 'purporting to be done:' the learned Chief Justice held that a notice is necessary even if an act is done mala fide by a public offer in the discharge of his duties. Sadasiva Aiyar, J. observed at page 70 that:----

'An act done by a public Officer would 'purport' to be an act done in his official capacity not only if it was property and rightly done by him in such capacity and within his powers but also if it has such a reasonable resemblance (though a false or pretended resemblance) to a proper and right act that ordinary persons could reasonably conclude from the character of the act and from the nature of his official powers and duties nature of his official powers and duties that it was done in his official capacity.

But if the act done is so outrageous and extraordinary that no reasonable man could detect in it any resemblance to any act which the powers of such an officer could allow him to do on the facts as represented and declared by such officer his mere allegation that he did the act in his official capacity would not suffice.'

He further observed that:---------------

'The English decisions construing expressions like 'done in pursuance of' or 'done under the authority of' or 'an act in execution of a public officer' or 'done in execution or intended execution of his office' and so on are not only of very little use but only tend in my opinion t confuse the mind in the interpretation of the expression 'purported to be done': used in section 80. Civil P. c.'

Spencer, J. observed:---------

'Purporting' literally means 'holding out;' and neither 'profess' nor 'pretend' in an exact synonym for it .....................................the word 'purporting' coves a profession by acts or words or by appearance of what is true as well as of what is not true.'

The learned Judge observed that when it is the intention of Government to protect official and judicial acts done by public servants in good faith, the legislature makes use of the words, 'good faith.' 'But in section 80, Civil P. C. there is no qualification that the act must be done in good faith to entitle the officer concerned to notice.'

32. It is argued by the learned counsel for the appellant that as the provisions of Section 80, Civil P. C. and Section 685 of the Corporation Act are similar, it should be held on the basic of this decision of the Full Bench that the words 'any act done in execution or intended execution of the Act in S. 685 of the Corporation Act. also cover malicious act done by the Corporation or the Commissioner. A reading of the opinions of the three learned Judges of the Full Bench clearly shows that the decision has been rendered don the expression 'purporting to be done' used in S. 80, Civil P. C. Two of the learned Judges have pointed the distinctions between the expressions purporting to be done and 'done or intended to be done.' It has been held that the expression 'purporting to be done' is a wider expression that the words 'done or intended to be done.'

33. The learned counsel for the appellant also referred to a decision of the Bombay High Court in Vithoba Babji v. Sholapur Municipality, AIR 1947 Bom 241 which is a decision under Section 206 of the Bombay Municipal Boroughs Act, (8 of 1925). That section reads:--------

'No person shall commence any suit against the municipality for anything done or purporting to have been done in such municipality two months previous notice in writing of the intended suit and of the cause thereof. nor after six months from the date of the act complained of.'

The learned Judges held that there was no material difference between the wordings of section 80, Civil P. C. and section 206 of the Bombay Act and therefore held that a notice was necessary. This decision is again based on the words 'anything done or purporting to have been done in execution of the Act.' which, as already stated, have been distinguished by the Full Bench of the Madras High Court from the wording 'done or intended to be done in the execution of the Act.'

34. It is also argued by the learned counsel for the appellant that as the Division Bench of this Court in Mohd. Hasam v. Hyderabad Municipal Corpn, Air 1968 Andh Pra 102 and a Single Judge in Municipal Corpn. of Hyderabad v. Syed Mahboob Ahmed. (1967) 1 Andh WR 148 have held that the provisions of Section 447 of the Hyderabad Municipal Corporation act 36 of 1960 which correspond with Section 685 of the Corporation Act, is substantially the same as Section 80, Civil. P. C. Section 685 of the Corporation Act must be interpreted in the same manner as S. 80, Civil P. C. in AIR 1958 Andh Pra 102 argument was advanced before the learned Judge that the provisions of Section 447 of the Hyderabad Municipal Corporation Act, 36/50 are not applicable to a suit for declaration and injunction and reliance was placed upon a decision prior to the decision of the Privy Council in Bhachand v. Secretary of State. AIR 1927 PC 176. It was argued that S. 80, Civil. P. C. was not applicable to suits for declaration and injunction and therefore Section 447 also did not apply to suits for declaration and injunction. The learned Judges relying upon the decision of the Privy Council in AIR 1927 PC 176 held that Section 80, Civil P. C. is applicable o all forms of action and all kinds of relief. After observing that section 447 of the Hyderabad Municipal Corporation Act was substantially the same as section 80, Civil. P. C. the learned Judges held that notice under S. 80, Civil. P. C. was necessary in the case for declaration and injunction. From a reading of the judgment it is evidence that no argument was advanced before the learned Judges in regard to use of the words 'any act done in execution or intended execution of the Act.' The argument proceeded on the assumption that the provisions of Section 447 of the Hyderabad Municipal Corporation act 1950 and Section 80, Civil. P. C. were substantially the same and it was argued that a Section 80, Civil P. C. had been held not to be applicable to suits for declaration and injunction it should be held that Sec. 447 of the Corporation Act was also not applicable to suits for declaration and injunction. It is on this assumption that the learned Judges proceeded and held that the Privy Council P. C. was applicable to all kinds of suits including the suits for declaration and injunction Section 447 of the Hyderabad Municipal Corporation Ac was also applicable to such suits. The decision does not interpret the words 'act done in execution or intended execution of the Act.'

35. In (1967) 1 Andh WR 148 it was argued that Section 447 of the Hyderabad Municipal Corporation Act, 1950 was limited only to suits for compensation and damages and was not applicable to a suit for injunction restraining the Corporation from enforcing a particular action and from auctioning the piece of land secured in their favour. The learned Judge after referring to the provisions of sections 225 and 447 observed that section 447 was not limited to suits for damages or compensation and that a suit for recovery of damages was on of the suits contemplated under that section. A reading of decision shows that no arguments were advanced on the construction of the words 'act done in execution or intended execution of the Act.'

36. The aforesaid two decisions in my opinion do not apply to the interpretation of the words 'act done in execution or intended execution of the Act.' As already stated a Division bench of this Court in : AIR1964AP360 considered the corresponding provisions of Section 350 (1) of the madras District Municipalities Act and held that 'the act done in execution or intended execution of the Act' does not include malicious act. The decision in : AIR1964AP360 deals with the specific question before ;me and I am bound by that decision.

37. On a review of the decisions cited before ;me I am of the opinion that Section 685 (1) of the Corporation act does not apply to any mala fide act of the Corporation, Commissioner or any other Officer.

38. In the instant cases it has been held by both the lower courts that the Commissioner acted maliciously infusing permission to the respondent to construct, the provisions of section 685 (1) of the Corporation Act are not applicable. The provisions of Section 685 of the Corporation act are also not applicable as the suit is not in respect of 'an act done in execution or intended execution of the Act.' It is not disputed that the suit is within limitation if the general law of limitation is applied. The second contention therefore of the learned counsel for the appellant that the suit is barred by limitation fails.

39. The learned counsel for the respondent argued that the omission on the part of the Commissioner to disapprove the plans sent alone with the notice under Section 423 of the Corporation act is not an act done in execution or intended execution of the act. In order that an omission should be an act done, it has to be an illegal act. If the omission can be considered as an illegal omission, it must be shown that the official concerned had omitted to discharge some official duties imposed on him in public interest. The non-discharge of that duty must amount to an illegality. Failure on the part of the Municipality to discharge its disabilities (six) will not ordinarily become illegal omission. Such omission does not entail any penal consequence for the public official responsible for it. For the aforesaid proposition he relied upon Amalgamated Electric Co. v. Ajmer Corporation, : [1969]1SCR430 , I need not consider this aspect of the case, as the learned counsel for the appellant has not argued that the omission on the part of the Commissioner to disapprove the plains submitted by the respondent along with his notice under Section 428 an act done or that the suit is in respect of that act. The aforesaid decision of the Supreme Court refers to Section 80, Civil P. c and to section 233 of the Ajmer Marwara Municipalities Regulation. That section prohibits institution of the suit against the Committees in respect of any act purporting to be done in its official capacity until expiration of one month next after notice in writing has been delivered or received at the office of the Committee. The Supreme Court observed that the aforesaid section is the exact re-production of Section 80, Civil P. C I have already pointed out the difference between section 80, Civil P. C. and S. 685 of the Corporation Act. So this decision does not help the appellant.

40. The decision on the first contention raised by the learned counsel for the appellant does not help the appellant as both the lower courts have held that the permission to construct was refused male fide. The respondent is therefore entitled to a decree as prayed for by him.

41. In the result the second appeal is dismissed with costs. Leave granted.

42. Appeal dismissed.


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