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Memoona Bi Vs. Municipal Corporation - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 12 of 1968
Judge
Reported in1974RLR198
ActsSlum Areas Act - Sections 4; Delhi Corporation Act - Sections 446; Delhi Municipal Corpsration Act - Sections 478
AppellantMemoona Bi
RespondentMunicipal Corporation
Advocates: C.B. Lal and; K.K. Raizada, Advs
Excerpt:
.....notice may not be carried out. 446 of the corporation act bad no relevance to the demand for the amount in the present case because the demand was made pursuant to the provisions of section 5(2) of the slum act as a result of the work carried out pursuant to the provisions of section 4(i) of that act and that the provisions of section 446 had no application to such a demand and the reference in the notice of the provisions of section 446 was the result of inadvertence and that the provisions of section 452 could not, thereforee, be attracted to the demand in question. the result would be that although the suit of the appellant was not hit by the provisions of section 478 of the corporation act, the appellant would not be entitled to the injunction for the reason that the demand of the..........of section 446 were in terms invoked by the authorities in their notice of february 28, 1963, no notice, demand or requisition requiring the appellant to make the necessary repair etc. had ever been issued under the provisions of the corporation act and a reference to the earlier notices makes it clear that the officers dealing with the matter were exercising power as a competent authority by virtue of the authorisation made under the slum act and that being so, it could not be said that the demand was such as could be covered by provisions of'section 446 of the corporation act even though that section was in terms invoked and was not such a demand as could be referred for determination under section 452 of the act. (21) in the result, it could not be said that the demand made from the.....
Judgment:

H.L. Anand, J.

(1) [ON 7-11-58, the D.D.A. seat notice to appellant saying that her property had become unfit for habitation and she should carry out necessary repairs. She replied that she had applied for sanction of Corporation. Latter informed her in 1959 that sanction for repairs was not necessary. Nothing was done until 1962 and the Corporation did the said repairs and demanded the expenses from the appellant. She sued the Corporation claiming that expenses could not be claimed without reference and determination by the District Judge. The defense was that suit was barred by S. 30 of Slum Areas Act and also for want of notice U/S 478(1) of Municipal Act. Trial Court and 1st appellate court dismissed the suit and appellant filed 2nd appeal in High Court.] Para 7 onwards judgment is :-

(2) The first question raised on behalf of the appellant was that the decision of the Courts below, to the effect that the suit of the appellant was not maintainable in the absence of a notice under Section 478(1) of the Corporation Act, was based on a misconstruction of the provisions of sub-sections (1) & (3) of the said Section as also an erroneous assessment of the nature of the suit filed by the appellant aad it was contended that while on its true interpretation and meaning, Section 478 bars the institution of suits in the absence of a notice only if the suit claimed a principal relief besides one of injunction, the suit of the appellant though described as a suit for 'declaration and injunction. It was further, argued that in construing a suit to determine if it fell within the exception provided in sub-section (3) of Section 478 of the Corporation Act, it must be determined as to what was the principal relief sought in the suit and the existence of any subsidiary or other relief which was unnecessary to entitle the plaintiff to the relief of injunction, had to be ignored.

(3) The finding of the Courts below on this question was, however, sought to be justified on behalf of the respondent on the ground that the plaintiff's suit was ex-facie one 'for declaration and injunction' and clearly felt within the mi chief of sub-section (1) of Section 478 of the Corporation Act being a . suit other than the suit for a mere injunction and was beyond the scope of the saving provisions contained in sub-secticn (3) of that Section.

(4) Section 478 of the Corporation Act is in the following terms : (-)

(5) The Section clearly bars the institution of any suit against the Corporation or against any municipal authority or officer or any person acting under the order or direction of the authority of such officer 'in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation, or bye-law made there under, 'until the expiration of two months after notice in writing had been left at the municipal office or in the case of an officer, employee or person unless such notice had been delivered to him or left at his office or place of residence and lays down certain other requirements with which we are not concerned in the present case. Sub-section (3) is an exception to the rule contained in sub-section (1) of Section 478 and exempts from its operation suits in which '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 institution of the suit.'

(6) On a plain reading of sub-section (1) of Section 478, it becomes obvious that the bar as incorporated in sub-section (1) would operate only if the suit in question was in respect of any act done or purported to have been done in pursuance of the Corporation Act or any rule, regulation or bye-law made there under and would have, thereforee, no application if the subject matter of she suit was not any act which may have been done or claimed to have been done in pursuance of the Corporation Act or any rule, regulation or bye-law made there under.

(7) In the present case, the case of the respondent has throughout been that the Corporation or the other municipal authorities or officers who issued the notices to the appellant from time to time were not acting pursuant to any provision of the Corporation Act or any rule, regulation or bye-law made there under but were acting in the administration of the Slum Act and that being BO. it could not be said that the subject matter of the suit was any act of the Corporation or any other municipal authority or any officer of the Corporation or any person authorised by them pursuant to the provisions of the Corporation or the rule, regulation or bye-law made there under and that being so, the suit of the plaintiff was clearly beyond the scope of sub-section (1) of Section 478 of the Act and did not, thereforee, require any prior notice of it to the authorities mentioned in that sub-section.

(8) Even otherwise, the suit of the appellant clearly fell within the exception provided for in sub-section (3) of the said Section.

(9) SUB-SECTION (3) lays down two conditions which must be satisfied before its application could be attracted to a suit, namely : (a) The relief claimed in the suit must only be on; of injunction. (b) the object of the suit would be defeated by the giving of the notice or the postponement of the instituton of the suit.

(10) In order to determine if the only relief claimed in the suit is one of injunction it is necessary to look to the substance of the plaint and not confine attention merely to its form. If the plaint in its pith and substance is one for injunction it would not cease to be so merely because the plaint may have been described as being one for 'declaration and injunction' and there are references in the relief clause to a declaration even though no declaration as to any legal character, title or right is claimed and the injunction sought did not depend on or flow from the declaration.

(11) The plaint in the present case, though described as a 'claim for declaration and injunction' does not seek any declaration of any legal character, title or other right and a reference to the prayer clause indicates that the only declaration sought by the appellant was that the defendant is not entitled to recover Rs. 3445.36 p.' This declaration is not any different than a ground for the injunction and it could not be said that this was a declaration in respect of any title, legal character or right which would convert the nature of the suit. If that were so every suit for a mere injunction must cease to be so because the ground for the injunction is bound to be a declaration that the defendant was not entitled to act in the manner he threatens to do. The first condition for the application of sub-section (3) of the Section was, thereforee, satisfied.

(12) For the purpose of determining if the second condition for the application of subsection (3) of the Section was attracted or not, it would be necessary to find if having regard to the relief claimed in the suit and the action which is sought to be restrained it could be said that the object of the suit would be defeated by giving of the notice or the postponement of the institution of the suit on that account. It would be immaterial if in fact the threatened action which gave the cause of action for the suit was or was not in fact carried out as threatened and the only possible instance in which it could be said that the object would not be defeated is where the claim made or an action taken or threatened gives sufficient time to an aggrieved person so that within that time he could send the notice and postpone the institution of the suit because in that case, it could not bo said that the object would be defeated by giving of the notice because the time allowed to the aggrieved person in that case would be longer or co- terminus with the period of the notice. For the purpose of determining if a given suit is the one envisaged by sub-section (3) it would be irrelevant if in fact no action had been taken, although threatened, within the period for which notice is provided.

(13) The second condition was satisfied in the present case because the suit challenged the right of the Corporation to recover a certain amount and an injunction was sought with regard to the threatened act of the Corporation to make recovery and obviously if the notice was given and the suit was accordingly postponed, the necessary recovery could in the meanwhile be made by the Corporation by coercive process and it could not be said that the object of the suit would not be, defeated if the requirement of notice was to be complied with and the suit was to be postponed on that account, merely because in a given case, as in the present, the appellant, in fact, filed a suit long after the period requisite for the notice had expired and this is so because the question whether or not second condition was satisfied, has to be seen with reference to the time when the suit was filed, It was not possible for the appellant to rely on the fact that the notice may not be carried out.

(14) In the result, it must be held that the suit of the appellant was not hit by sub-section (1) of Section 478 of the Corporation Act and was in any event one which, assuming that it was within the scope of sub-section (1). was exempted from the operation of sub-section (1) by sub-section (3) of the Act.

(15) The other question that requires to be considered is as to whether it could be said that the defendant was not entitled to recover the amount in dispute without a reference to and determination by the District Judge, Delhi as envisaged by Section 446 of the Corporation Act.

(16) It was, contended on behalf of the appellant that notice of February 28, 1963 which required the appellant to make the payment of the amount in dispute ex-facie purported to be under Section 446 of the Corporation Act and that being so, it would ipso facto bring into play the mandatory provisions of Section 452 of the Act thereby making it obligatory on the Corporation -to refer the dispute to the District Judge for his decision, and that until the matter had been so referred and decided, no recovery could be made from the appellant and the appellant .would not be liable to make any such payment to the Corporation.

(17) Learned counsel for the respondent on the other hand, contended that the provisions of Sec. 446 of the Corporation Act bad no relevance to the demand for the amount in the present case because the demand was made pursuant to the provisions of Section 5(2) of the Slum Act as a result of the work carried out pursuant to the provisions of Section 4(I) of that Act and that the provisions of Section 446 had no application to such a demand and the reference in the notice of the provisions of Section 446 was the result of inadvertence and that the provisions of Section 452 could not, thereforee, be attracted to the demand in question. Learned counsel further argued that the municipal authority concerned was acting not in pursuance of any demand arising under the Corporation Act but by virtue of its appointment as competent authority under the Slum Act and that being so, the procedure referred to in Sections 446 and 452 would have no application to this demand and resort to that procedure would, thereforee, not be necessary. It was further argued that the provisions of Section 446 applied only if the amount in question was payable to or demanded by the Commissioner and that in the present case the demand was neither made by the Commissioner nor made payable to him.

(18) The provisions of Sections 445 and 452 of the Corporation Act are in the following terms :- (......)

(19) On a plain reading of these provisions it becomes clear that if there is any non-compliance with the terms of any notice, order or requisition issued to any person under the Corporation Act or any rule, regulation or bye-law framed there under, requiring the person to execute any work or to do any act, it then becomes lawful for the authority or the officer, at whose instance such an action had been taken, to take such action as may be necessary for the completion of the work at the expense of the defaulter and the amount so spent then becomes payable to the Commissioner on demand and may be recovered as arrear of tax under the Act if default is made in making the payment. Section 452, however, provides that if on such demand being made the right to demand or the amount demanded is disputed within a certain period, the Commissioner must refer the matter for determination to the District Judge, Delhi and pending such determination, further proceedings for the recovery have to be stayed.

(20) The provisions of Section 446 are. thereforee, confined in their operation to such notice, order or requisition which were issued, under the provisions of the Corporation Act or rules and regulations and it is a common case of the parties that even though the provisions of Section 446 were in terms invoked by the authorities in their notice of February 28, 1963, no notice, demand or requisition requiring the appellant to make the necessary repair etc. had ever been issued under the provisions of the Corporation Act and a reference to the earlier notices makes it clear that the officers dealing with the matter were exercising power as a competent authority by virtue of the authorisation made under the Slum Act and that being so, it could not be said that the demand was Such as could be covered by provisions of'Section 446 of the corporation Act even though that Section was in terms invoked and was not such a demand as could be referred for determination under Section 452 of the Act.

(21) In the result, it could not be said that the demand made from the appellant could not be enforced without reference to the District Judge. Delhi. The result would be that although the suit of the appellant was not hit by the provisions of Section 478 of the Corporation Act, the appellant would not be entitled to the injunction for the reason that the demand of the amount could not be made without reference to the District Judge and the suit of the plaintiff must, thereforee, fail.


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