S.D. Agarwal, J.
1. This is a plaintiff's second appeal arising out of a suit for an injunction restraining the respondent from realisms the circumstance and property tax amounting to Rs. 4,000/- for the assessment years 1964-65 and 1965-66.
2. On 13th May 1964 the Zilla Parishad, Mirzapur, sent a notice to the appellant demanding from the Hindustan Aluminium Corporation Ltd., Mirzapur, circumstance and property tax amounting to Rs. 2,000/- for the assessment year 1964-65. Another notice dated 13th Aug. 1964 was issued by the Zilla Parishad, Mirzapur for the year 1965-66. On 3rd March 1966 the Secretary of the Zilla Parishad demanded a consolidated amount of Rs. 4,000/- for the assessment years 1964-65 and 1965-66. Immediately thereafter the present suit was filed by the Hindustan Aluminium Corporation Ltd. for an injunction as mentioned above. The suit was filed on the ground that the appellant does not ply any truck or bus on hire within the Jurisdiction of Zilla Parishad and as such it does not carry on any business within the jurisdiction of the Zilla Parishad.
3. In defence the Zilla Parishad contested the suit on the ground that the plaintiff does carry on business of transport, bricks and construction of works in the rural area within the jurisdiction of the Zilla Parishad. It was further alleged that no objection having been raised against the assessment order the suit was not maintainable in law. A specific plea was taken to the effect that the suit was bad for want of notice under Section 257 of the U. F. Ksbettra Samitis and Zilla Parishads Adhiniyan, 1961.
4. The trial court held that the civil court had jurisdiction to try the suit. It further held that the plaintiff appellant is not liable to be assessed for circumstance and property tax and that the suit was not bad for want of notice under Section 257 of the Act and hence decreed the suit. The Zilha Parishad filed an appeal. The lower appellate court agreed with the trial court on the question that the plaintiff appellant did not carry on business in the rural area but further held that the suit was not maintainable and was barred by Section 257 of the Act. In view of the finding that the suit does not lie and that the suit was barred under Section 257 of the Act the appeal was allowed and the suit was dismissed. Aggrieved the plaintiff has filed the present appeal in this court.
5. Counsel for the appellant has challenged both the findings of the trial court. His contention is that the suit for the relief sought lies in the civil court and that the suit is not barred by Section 257 (1) of the Act. On the other hand learned counsel for the Zilla Parishad has contended that the view taken by the lower appellate court that the appellant was not carrying on business in the rural area is not a correct view on the basis of the facts on record.
6. I have heard learned counsel for the parties at length. I will first consider the question in regard to the bar of Section 257 (1) of the U. P. Kshettra Samitis and Zilla Parishad Adhiniyam 1961.
7. Section 257 (1) of the Adhiniyam lays down that no suit shall be instituted against the Parishad or its officers in respect of an act done or purported to have been done in its or his official duty until the expiration of two months next after the notice in writing has been given by the plaintiff. It is admitted on record that no such notice was given by the plaintiff appellant. The plaintiff appellant has, however, contended that Section 257 of the Adhiniyam does not at all apply to the case and in the alternative even if it applied he sought benefit of the proviso to Sub-clause (3) of Section 257 of the Act.
8. Sub-section (1) and the proviso to Sub-section (3), which are relevant for the purpose of this case, are as follows :
'(1) No suit shall be instituted against a Parishad or a Kshettra Samiti or against a member officer or servant of a Parishad or a Kshettra Samiti, in respect of an act done or purporting to have been done in its or his official capacity until the expiration of two months next after notice in writing has been, in the case of a Parishad or a Kshettra Samiti, left fit its office, and, in the case of a member, officer or servant delivered 1o him or left at his office or place of abode, explicitly stating the cause of fiction, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been delivered or left.
(3) ........ ............
Provided that nothing in Sub-section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceedings.'
9. Sub-section (1) clearly provides that no suit shall be instituted unless a notice is given in respect of any act done or purported to have been done in it or his official capacity. The appellant's contention is that since in the instant case the appellant was not carrying on business in the rural area no tax could be levied and as such it cannot be held to be an act done within the meaning of Section 257 of the Act. This argument is without any substance. In the instant case an injunction has been sought in pursuance of a notice issued to the plaintiff for the recovery of the amount of Rs. 4,000/-. This notice is admittedly issued by the Zila Parishad and the Zila Parishad purporting to act under the provisions of the Act demanded a sum of Rs. 4,000/- from the plaintiff appellant and it was thereafter that the prevent suit for injunction was filed. The words used in Section 257, Sub-clause (1) are 'act done or purporting to have been done.' Even if it is held as contended by the appellant that it is not an act done but in any case it would clearly come under the expression 'purporting to have been done' and as such the provisions of Section 257, Sub-clause (1), would clearly apply.
10. In this connection counsel for the appellant has relied on Poona Municipality v. Dattatraya : 8SCR178 . He has in particular relied on para 21 of the said decision. The Supreme Court was considering the provisions of Section 487, Bombay Provincial Municipal Corporation Act, 1949. The words used in Section 487 are entirely different from the words occurring in Section 257 of the U. P. Kshettra Samitis and Zilla Parishads Adhiniyam 1961. There the act purported to be done has to be in pursuance of or the execution or intended execution of the Act. These words are not present in the present section and as such the case of the Supreme Court is clearly distinguishable and does not apply.
11. The alternative argument of the learned counsel for the appellant that even if in any case Section 257 applies then he is entitled to the benefit of the proviso. The proviso clearly lays down that Sub-clause (1) of Section 257 will not apply where the only relief claimed is an injunction of which 'object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceedings.'
12. A similar provision came up for consideration before a Full Bench of this Court in Ahmad Raza v. Allahabad Municipality : AIR1952All711 . Bind Basni Prasad, J., as he then was, who opined for the Court, had observed as follows (at p. 713) :
'The crucial point for determination is whether the object of the suit would be 'defeated' by the giving of the notice or the postponement of the commencement of the suit. If the answer is in the affirmative then no notice was necessary, but if it is in the negative the suit must fail for want of notice. No doubt, the plaintiffs would have been inconvenienced by a delay of two months in the institution of the suit, but it cannot be said that the object of their suit would have been 'defeated' by such delay. If the impugned bye-law is illegal the plaintiffs and all members of their community can be amply compensated by damages. It is only in cases where the loss cannot be adequately compensated by damages that the provisions of Sub-section (4) of Section 326 of the Municipalities Act are attracted.'
13. Thereafter his Lordship further drew a distinction between the 'defeat of the suit' and the inconvenience to a party' and it was held that the mere inconvenience to a party cannot be held to come under the expression 'defeat' used in the section. The view of the' Full Bench, therefore, was that if a party can be adequately compensated by damages then the provision would not apply. In the instant case the suit is for an injunction restraining the Zilla Parishad from recovering a sum of Rs. 4,000/-. In case the injunction is refused then too the appellant could have recovered the amount back from! the Zilla Parisihad and as such in view of the principles laid down by the Full Bench the appellant cannot take the benefit of the proviso.
14. The appellant then relied upon Distt. Board Farrukhabad v. Prag Dutt : AIR1948All382 and Municipal Board, Mathura v. Dr. Radha Ballabh : AIR1949All301 . It may be pointed out that in both these cases the question in regard to the interpretation of an analogous provision to that of Section 257 of the Adhiniyam did not come up for consideration. Those cases were in regard to the maintainability of the suit. In the case of Municipal Board, Mathura v. Dr. Radha Ballabh (supra) however in para 4 an observation has been made that the suit being a suit for injunction the object of the suit would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceedings. In that case the injunction had been specifically sought in respect to resort to distress of property. In that para a distinction has been drawn between distress of property and a general injunction restraining the Board from recovering the Tax from the plaintiff. In the circumstances the fact of that case are entirely different. Otherwise also even if it is taken that the observation apply to the case of a similar nature as the present then too it is no longer good law in view of the subsequent Full Bench decision' of this Court in Ahmad Raza's case (supra). In the instant case since admittedly no notice was given the suit was bad for want of notice under Section 257 (1) of the Adhiniyam. In the circumstances the view taken by the lower appellate court is correct.
15. Since I have accepted the finding of the lower appellate court on Section 257 of the Adhiniyam I do not think it necessary to go into the merits of the other contentions raised on behalf of the appellant and the respondent.
16. In the result the appeal fails and is dismissed with costs.