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Sarapalli Tayaballi Vs. the Municipal Corporation of the City of Ahmedabad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1964)5GLR550
AppellantSarapalli Tayaballi
RespondentThe Municipal Corporation of the City of Ahmedabad
Cases ReferredAbdullahuyan v. The Government of Bombay
Excerpt:
- - 1. this second appeal raises a short but interesting question of law relating to the construction of section 224 of the bombay provincial municipal corporations act 1949 (hereinafter referred to as the act). the facts giving rise to the litigation are few and may be briefly stated as follows. the learned trial judge held that it was a condition precedent to the exercise of power under section 224 that the private street should be levelled metalled flagged or paved sewered drained channelled and made good to the satisfaction of the municipal commissioner and since in the present case the private street was only levelled and drained and not metalled paved channelled or lighted it was not competent to the municipal commissioner to declare it as a public street and the action of the.....p.n. bhagwati, j.1. this second appeal raises a short but interesting question of law relating to the construction of section 224 of the bombay provincial municipal corporations act 1949 (hereinafter referred to as the act). the facts giving rise to the litigation are few and may be briefly stated as follows.2. the plaintiff is the owner of certain land bearing survey no. 978 and situate in raikhad ward ahmedabad. the land consists of a strip between two opposite rows of houses and connects at its ends two mohallas known as vahorwad and khatriwad. the land is used for the purpose of passage by the occupants of the houses abutting on the land for the last over 25 years. the land is a private street within the meaning of section 2(47) of the act. at one time the plaintiff contended that the.....
Judgment:

P.N. Bhagwati, J.

1. This second appeal raises a short but interesting question of law relating to the construction of Section 224 of the Bombay Provincial Municipal Corporations Act 1949 (hereinafter referred to as the Act). The facts giving rise to the litigation are few and may be briefly stated as follows.

2. The plaintiff is the owner of certain land bearing survey No. 978 and situate in Raikhad Ward Ahmedabad. The land consists of a strip between two opposite rows of houses and connects at its ends two Mohallas known as Vahorwad and Khatriwad. The land is used for the purpose of passage by the occupants of the houses abutting on the land for the last over 25 years. The land is a private street within the meaning of Section 2(47) of the Act. At one time the plaintiff contended that the land is not a private street but this contention was negatived by both the lower Courts and the plaintiff has now argued this Second Appeal before me on the footing that the land is a private street subject to all the incidents and liabilities of a private street It has also been found by both the lower Courts and the arguments before me have proceeded on the basis-that the land is levelled and drained but not metalledpaved channelled or lighted. The position therefore is that the land is a private street which is levelled and drained but not metalled pavedchannelled or lighted.

3. On 29th April 1952 the Municipal Commissioner purporting to act under Section 224 of the Act put up a notice on the main gate of the private street declaring the private street to be a public street. The plaintiffs case is that he did not know about the notice until 5th October 1952 when an employee of the Municipal Corporation met him casually in a vegetable market and told him about it. The lower appellate Court has however disbelieved this part of the plaintiffs evidence and found as a matter of fact that the plaintiff was aware of the notice when it was affixed on the main gate of the private street on 29th April 1952. This is a finding of fact which must be accepted as correct for the purpose of this Second Appeal and I must proceed on the basis that the plaintiff knew about the notice on 29th April 1952. The plaintiff did not object to the notice within one month as provided under the proviso to Section 224 but addressed a notice to the Municipal Commissioner on 6th October 1952 pointing out to the Municipal Commissioner that the declaration of the private street as public street by the Municipal Commissioner was null and void. The Estate and City Improvement Officer replied to the notice on 24th October 1952 stating that the private street had been declared as public street on 29th April 1952 under Section 224 by putting up the requisite notice. The plaintiff thereupon gave the statutory notice to the Municipal Corporation on 30th October 1952 and called upon the Municipal Corporation to desist from putting up water mains gutter pipes or drainage lines in the private street or from carrying out any paving work on the same which the Municipal Corporation threatened to do. Since there was no favourable response to the statutory notice and the plaintiff felt that the threat of the Municipal Corporation was imminent the plaintiff filed the present suit for a permanent injunction to restrain the Municipal Corporation from putting up water mains gutter pipes and drainage lines in the private street or from carrying out any paving work on the same.

4. The suit was tried by the Civil Judge Junior Division Ahmedabad Two contentions in the main were raised on behalf of the Municipal Corporation. The Municipal Corporation contended that since the private street was levelled and drained it was competent to the Municipal Commissioner to declare it as a public street under Section 224 and the Municipal Commissioner had rightly declared it as a public street by putting up the requisite notice on the main gate of the private street on 29 April 1952. The Municipal Corporation also contended that the notice under Section 224 having been put up on the main gate of the private street on 29th April 1952 the cause of action accrued if at all to the plaintiff oil 29th April 1952 and the suit should therefore have been filed by the plaintiff within six months from that date as required by Section 487 of the Act. The argument urged on behalf of the Municipal Corporation was that since the suit was filed on 9th January 1953 i. e.more than six months after the date of accrual of the cause of action the suit was time barred under Section 487 and was therefore liable to be dismissed. The learned trial Judge negatived both the contentions of the Municipal Corporation. The learned trial Judge held that it was a condition precedent to the exercise of power under Section 224 that the private street should be levelled metalled flagged or paved sewered drained channelled and made good to the satisfaction of the Municipal Commissioner and since in the present case the private street was only levelled and drained and not metalled paved channelled or lighted it was not competent to the Municipal Commissioner to declare it as a public street and the action of the Municipal Commissioner in putting up the notice declaring the private street to be a public street was ultra vires and a nullity. The learned trial Judge observed that since the notice put up by the Municipal Commissioner was ultra vires and null and void there was no question of limitation under Section 487 and the suit could not be said to be time-barred. The learned trial Judge accordingly issued a permanent injunction restraining the Municipal Corporation from declareing the private street as a public street in pursuance of the notice dated 29 April 1952.

5. The Municipal Corporation being aggrieved by the decree passed by the learned trial Judge filed an appeal against the same in the Court of the District Judge Ahmedabad. The appeal was heard by the learned Assistant Judge. The learned Assistant Judge took a different view of the construction of Section 224 and observed that the words levelledmetalled flagged or paved sewered drained channelled and made good to the satisfaction of the Commissioner must be read disjunctively so that even if the private street satisfied only one of these requirements the Municipal Commissioner could act under the section and declare the private street as a public street. The learned Assistant Judge held that since in the present case the private street was levelled and drained it was competent to the Municipal Commissioner to declare the private street as a public street under Section 224 and that the notice put up by the Municipal Commissioner declaring the private street as a public street was therefore legal and valid and the private street was validly and effectively declared as a public street. The learned Assistant Judge also held against the plaintiff on the question of limitation. The learned Assistant Judge came to the conclusion that the cause of action accrued to the plaintiff on 29th April 1952 and that since the suit was not filed within six months from that date the suit was time barred under Section 487 The learned Assistant Judge accordingly allowed the appeal and dismissed the suit with costs. The plaintiff thereupon preferred the prosent Second Appeal before this Court.

6. Two questions in the main arise for consideration in this appeal. The first question relates to the construction of Section 224 and the second relates to the applicability of Section 487. If either of these questions is decided against the plaintiff the suit would be liable to fail. In my opinion however both the questions must be decided in favour of the plaintiff and I shall proceed to give my reasons for the same.

7. In order to appreciate the arguments which have been urged on both sides on the question of construction of Section 224 it is necessary to refer to certain provisions of the Act. Section 2(63) defines a street as including any highway and any causeway bridge viaduct, arch, road, lane footway sub-way court alley or riding path or passage whether a thoroughfare or not over which the public have a right of passage or access or have passed and had access uninterruptedly for a period of twenty years and when there is a footway as well as a carriage way in any street the said term includes both. Streets are divided into two categories viz. private streets and public streets. Under Section 2(47) a private street means a street which is not a public street and a public street is defined in Section 2(52) to mean any street-

(a) heretofore levelled paved metalled channelled sewered or repaired out of municipal or other public funds; or

(b) which under the provisions of Section 224 is declared to be or under any other provision of this Act becomes a public street.

I have reproduced this definition of public street because considerable reliance has been placed on it by Mr. R.M. Shah on behalf of the Municipal Corporation. The next relevant section is Section 202 which provides that all public streets including the pavements stones and other materials thereof shall vest in the Municipal Corporation and be under the control of the Municipal Commissioner Section 203 imposes an obligation on the Municipal Commissioner to cause all public streets to be levelled metalled on paved channelled altered and repaired as the occasion shall require. The Municipal Commissioner is authorized under Section 205 subject to certain conditions to lay out and make a new public street. Then come Sections 217 to 225 under the heading provisions regarding Private street. Section 217 requires that every person who intends to make or lay out a private street must give written notice of his intention to the Municipal Commissioner and along with such notice submit to the Municipal Commissioner various plans and sections specified in the section. The Municipal Commissioner is empowered under Section 220 to fix and determine the level direction width and means of drainage of every private street the kind and number of trees to be planted and reared beside such street and the height and means of drainage and ventilation of and access to all buildings to be erected on such land or on either side of such street so as to secure sanitary conditions amenity and convenience for the users of the adjoining lands and Section 221 provides that no person shall make or lay out any private street except in accordance with such directions as may by fixed and determined under Section 220. That takes me to Sections 223 and 224 It is no doubt true that it is Section 224 which is required to be construed for the decision of the present appeal and not Section 223 but the language of Section 223 throws considerable light on the interpretation of Section 224 and it would therefore be useful to reproduce both the sections:

223 If any private street or any other means of access to a building be not levelled metalled flagged or paved sewered drained channelled lighted or provided with trees for shade to the satisfaction of the Commissioner he may with the sanction of the Standing Committee by written notice require the owner or owners of the several premises fronting or adjoining the said street or other means of access or abutting thereon or to which a access is obtained through such street or other means of access or which will benefit by works executed under this section to carry out any one or more of the aforesaid requirements in such manner as he shall direct.

224 When any private street has been levelled metalled flagged or pavedsewered drained channelled and made good to the satisfaction of the Commissioner he may and upon the request of the owners or of any of the owners of such street shall if lamps lamp-posts and other apparatus necessary for lighting such street have been provided to his satisfaction and if all land revenue payable to the State Government in respect of the land composed in such street has been paid declare the same to be a public street by notice in writing put up in any part of such street and thereupon the same shall become a public street and vest in the corporation as such:

Provided that no such street shall become a public street if within one month after such notice has been put up the owner of such street or the greater part thereof shall by notice in writing to the Commissioner object thereto.

Having referred to the relevant sections which might assist me in the task of interpreting the provisions of Section 224 I will now turn to examine the language of that section.

8. Section 224 confers power on the Municipal Commissioner to declare a private street to be a public street by putting up a notice in writing in any part of such street and thereupon the same becomes a public street and vests in the Municipal Corporation as such. This power is however circumscribed by certain conditions and is not an absolute unfettered power. It is not any and every private street which can be declared to be a public street by the Municipal Commissioner. There are three conditions which must be satisfied before a private street can be declared to be a public street. The first condition is that the private street must have been levelled metalled flagged or paved sewereddrained channelled and made good to the satisfaction of the Commissioner. I have quoted these words from the section for it is ultimately on the true interpretation of these words that the decision of this case must rest. The second condition is that the lamps lampposts and other apparatus necessary for lighting the private street must have been provided to the satisfaction of the Municipal Commissioner. And the third condition is that all land revenue payable to the State Government in respect of the land comprised in the private street must have been paid. If these conditions are fulfilled in respect of a private street then and then alone can the Municipal Commissioner declare the private street to be a public street. These conditions are obviously in the nature of conditions precedent to the exercise of power by the Municipal Commissioner and if any one of these conditions is not fulfilled the Municipal Commissioner cannot exercise the power for declaring the private street to be a public street. This much was conceded by Mr. R.M. Shah on behalf of the Municipal Corporation and in my opinion rightly for it is impossible to take any other view of these conditions. It must also be remembered that it was not disputed that the second and the third conditions were satisfied in the present case and the only controversy centred round the question whether the first condition was satisfied and this in its turn depended on the true interpretation of the first condition.

9. Mr. R.M. Shah on behalf of the Municipal Corporation contended that on a true construction the words in which the first condition was couched involved four different requirements in respect of a private street which requirements were all disjunctive and even if any one of these requirements was satisfied the first condition could be said to have been fulfilled. The four requirements according to Mr. R.M. Shah were that the private street should have been levelled or metalled or flagged or paved sewered drained channelled and made good to the satisfaction of the Commissioner. The three words levelled metalled and flagged before the disjunctive or denoted three out of the four requirements while the fourth require ment was denoted by the words paved sewereddrained channelled and made good to the satisfaction of the Commissioner following the disjunctive or each of the requirements argued Mr. R.M. Shah was disjunctive. Mr. R.M. Shah relied strongly on the disjunctive or and contended that since the last requirement was preceded by the disjunctive or each of the first three requirements must also be read disjunctively and it was therefore enough for the fulfilment of the first con dition if any one of these requirements was satisfied. The argument was that since in the present case the private street was levelled at least one of these requirements was satisfied and that was sufficient to constitute fulfilment of the first condition. This argument of Mr. R.M. Shah has no doubt the merit of ingenuity but is opposed to the plain language of the section and I cannot accept the same for reasons which I shall immediately proceed to state.

10. Under the scheme of the Act all public streets vest in the Municipal Corporation and the obligation is on the Municipal Commissioner to cause all public streets to be levelled metalled or paved channeled altered and repaired as occasion might require. So far as private streets are concerned however there is no such obligation on the Municipal Commissioner Of course the Municipal Commissioner is enjoined by various provisions of the Act to see that private streets are leveledmetalled flagged or paved sewered drained channelled lighted and provided with trees for shade to the satisfaction of the Municipal Commis sioner; but the obligation to carry out these requirements is not on the Municipal Commissioner. When a new private street is to be made or laid out the person intending to make or lay out such private street is required to give notice of his intention to the Municipal Commissioner and to submit to the Municipal Com missioner along with such notice plans and sections showing various particulars in relation to such private street. The plans and sections must show the intended level direction width means of drainage paving metalling and lighting of such private street and the provisions for planting and rearing of trees beside such private street and if the Municipal Commissioner is not satisfied with the provision made in respect of any of these matters the Municipal Commissioner may disapprove of the plans and sections or may approve the same subject to conditions. The Municipal Commissioner can fix and determine the provision to be made in regard to these matters and once that has been done the person intending to make or lay out such private street cannot do so otherwise than in accordance with such directions as may have been fixed and determined by the Municipal Commissioner. It will thus be seen that the various requirements in relation to a private street in regard to level direction width means of drainage paving metalling lighting and providing with trees are to be carried out by the person intending to make or lay out the private street in accordance with the directions fixed and determined by the Municipal Commissioner and there is no obligation on the Municipal Commissioner to carry out any of these requirements In respect of an existing private street also the obligation to carry out various requirements such as levelling metalling flagging or paving sewering draining channeling lighting or providing with trees is on the owner or owners of the premises fronting or adjoining the private street or other means of access or abutting thereon or to which access is obtained through such street or other means of access or which will benefit by the carrying out of such requirements (hereinafter referred to as the owner or owners of the premises) and there is no such obligation on the Municipal Commissioner. If any private street is not levelled metalled flagged or paved sewered drained channelled lighted or provided with trees to the satisfaction of the Municipal Commissioner the Municipal Commissioner can with the sanction of the Standing Committee by written notice require the owner or owners of the premises to carry out one or more of these requirements in such manner as he may direct. If the owner or owners of the premises on whom the written notice is served do not carry out the requirements specified in the notice the Municipal Commissioner can act under Section 479 and carry out those requirements in the manner specified in that section and recover the expenses incurred in carrying out those requirements from the owner or owners of the premises to whom the written notice was addressed. When the private street has been levelled metalled flagged or paved sewered drained channelled and made good to the satisfaction of the Commissioner either upon a requisition made under Section 223 or otherwise the Municipal Commissioner may and upon the request of the owners or any of the owners of such street shall if certain conditions are satisfied declare the same to be a public street by following the procedure prescribed by Section 224. It is clear from these provisions to which I have just referred that the Municipal Commissioner is not bound to declare and in fact cannot declare the private street to be a public street under Section 224 unless each one of the requirements specified in the section is fulfilled. The only alternative is between flagging and paving. The private street must be either flagged or paved. But in addition to this requirement which provides an alternative between flagging and paving each one of the other requirements must be fulfilled before the Municipal Commissioner can act under Section 225. A private street must be levelled and metalled and either flagged or paved and sewered and drained and channelled and made good to the satisfaction of the Municipal Commissioner. If any one of these requirements is not satisfied the Municipal Commissioner can act under Section 223 and with the sanction of the Standing Committee require the owner or owners of the premises to carry out such requirement in such manner as he may direct. When such requirement is carried out either by the owner or owners of the premises on whom the requisition is made or by the Municipal Commissioner under Section 479 and it can be said of the private street that all the requirements specified in Section 224 are fulfilled then and then only can the Municipal Commissioner exercise the power under Section 224 and declare the private street to be a public street. The owner or owners of the private street cannot require the Municipal Commissioner under Section 224 to declare the private street to be a public street and thereby get rid of the obligation arising under Section 223 to carry out the requirements specified in Sections 223 and 224 and pass on such obligation to the Municipal Commissioner. If the private street is declared a public street under Section 224 the Municipal Commissioner would be liable under Section 203 to cause such street to be levelled metalled or paved channelled altered and repaired as occasion might require. Section 224 therefore requires that before the Municipal Commissioner can be called upon to declare a private street to be a public street the private street must be levelled metalled flagged or paved sewered drained channelled and made good to the satisfaction of the Municipal Commissioner-each one of these requirements being conjunctive. It will be apparent from this discussion that the scheme of the Act is that if there is a public street the Municipal Commissioner is bound to look after such street and to get it levelled metalled or paved channelled altered and repaired as occasion may require. If however there is a private street there is no obligation on the Municipal Commissioner to get it levelled metalled flagged or paved sewered drained channeled lighted or provided with trees for shade. The obligation is on the owner or owners of the several premises fronting or adjoining the private street or abutting thereon or to which access is obtained through the private street or which will benefit by the carrying out of these requirements. If the obligation in respect of any one of the requirements is not carried out the Municipal Commissioner may with the sanction of the Standing Committee by a written notice require such owner or owners to carry out such requirement. If such owner or owners do not carry out such requirement the Municipal Commissioner can carry out such requirement under Section 479 and recover the expenses incurred in carrying out such requirement from such owner or owners. When all the requirements are fulfilled the Municipal Commissioner may and upon the request of the owners or any of the owners of the private street shall if certain conditions are satisfied declare the private street to be a public street. The requirements are thus conjunctive requirements and it is only when each one of the requirements is satisfied that the Municipal Commissioner can act under Section 224 and declare a private street to be a public street. If the requirements were disjunctive as contended by Mr. R.M. Shah the result would be that even if some of the requirements were not satisfied the owner or owners of the private street would be entitled to require the Municipal Commissioner to declare the private street to be a public street and thus pass on the obligation to carry out those requirements to the Municipal Commissioner which in my opinion would be contrary to the scheme of the Act.

11. Having dealt with the scheme of the Act and examined how far it throws light on the interpretation of the words prescribing the condition which requires that the private street must have been leveled metalled flagged or paved sewered drained channelled and made good to the satisfaction of the Commissioner before action can be taken by the Municipal Commissioner under Section 224 I will now proceed to consider the plain and grammatical construction of these words. These words are clear and explicit and are not susceptible to any doubt or ambiguity. They declare clearly and unmistakably that the private street must be levelled metalled flagged or paved sewered drained channelled and made good to the satisfaction of the Municipal Commissioner before any action can be taken by the Municipal Commissioner under Section 224 and that each one of the requirements denoted by the word slevelled metalled flagged or paved sewered drained channelled and made good to the satisfaction of the Commissioner must be fulfilled in relation to the private street before it can be declared to be a public street. Each one of these words represents a distinct requirement and the conjunction and coming as it does immediately before the last requirement and connecting all the preceding requirements with the last requirement clearly shows that each one of the requirements is conjunctive and not disjunctive. I may in this connection profitably contrast the language employed here with the language in Section 223. The words levelled metalled flagged or paved sewered drained and channelled are common both in Sections 223 and 224 and these words are followed by the word slighted or provided with trees for shade to the satisfaction of the Commissioner in Section 223. It will thus be seen that in addition to the requirements denoted by the words first mentioned which are common both in Sections 223 and 224 there are in Section 223 two additional requirements represented by the words lighted or provided with trees for shade to the satisfaction of the Commissioner. Now obviously each one of these requirements in Section 223 is disjunctive and the legislature has therefore employed the disjunctive or immediately before the last requirement represented by the words provided with trees for shade to the satisfaction of the Commissioner. Turning to Section 224 however there is a deliberate departure in the language and instead of the disjunctive or I find that the Legislature has used conjunctive and immediately before the last requirement. This change in language must be regarded as indicative of the Legislatures desire to express a different intention and it must be concluded that the Legislature intended each one of the requirements specified in Section 224 to be conjunctive and that is why the Legislature employed the conjunctive sand instead of the disjunctive or. This circumstance considerably strengthens the view which I am inclined to take on a plain and grammatical construction of the words used by the Legislature in Section 224. Mr. R.M. Shah relied strongly on the disjunctive or between the words flagged or paved and contended that the three words levelled metalled and flagged before the disjunctive or represented three distinct requirements while the words paved sewered drained channelled and made good to the satisfaction of the Commissioner following the disjunctive or represented the last requirement and that since the last requirement was preceded by the disjunctive or each one of the requirements must be considered to be disjunctive. This contention is in my opinion opposed to the plain grammatical meaning of the words used by the Legislature. In the first place though punctuation is not regarded in england as affording any assistance in construction of a statute owing mainly to the historical reason that statutes when enacted do not continent punctuation in a country like India where the statute when enacted by the Legislature bears careful punctuation it would not be right to regard punctuation as a totally irrelevant consideration when the Court is faced with the task of construing the statute. Of course consideration based on punctuation must not be given undue weight but it can certainly be taken into account as throwing some little light on the intention of the Legislature particularly in cases where the language employed by the Legislature is not very clear or is capable of bearing more than one meaning. Punctuation in the present case completely negatives the argument on construction put forward by Mr. R.M. Shah. The comma before the word flagged and the comma after the word paved clearly show apart altogether from the other considerations which I have already discussed that the disjunctive or has been employed by the Legislature for the purpose of creating an alternative between the words flagged and paved and not between the words levelled metalled and flagged on the one hand and the words paved sewered drained channelled and made good to the satisfaction of the Commissioner on the other. Apart from punctuation there is no logic which I can perceive in the Legislature intending to create the latter alternative. I can understand the former alternative. The Legislature may require that a private street must be either flagged or paved-these two kinds of word being of a similar nature. But I do not see why the Legislature should require that the private street must be levelled or metalled or flagged or paved and sewered and drained and channelled and made good to the satisfaction of the Municipal Commissioner. What possible co-relationship or affinity can there be between levelling or metalling or flagging a private street on the one hand and for example sewering draining or channelling the private street on the other so that the Legislature may say that if any one of these things is done it would serve the purpose. Besides the disjunctive or also occurs in Section 223 between the words flagged and paved and there obviously it has the effect of creating an alternative between the words flagged and paved and not between the words leveled metalled flagged and paved sewered drained channelled lighted or provided with trees for shade to the satisfaction of the Commissioner could the same disjunctive or between the same words flagged and paved be intended to have a different effect in Section 224? I am therefore of the opinion that each one of the requirements represented by the words levelled metalled flagged or paved sewered drained channelled and made good to the satisfaction of the Commissioner is a conjunctive requirement and must be fulfilled before the Municipal Commissioner can act under Section 224 and declare a private street to be a public street. The private street in the present case was admittedly not metalled flagged or paved channelled or lighted and these requirements being not satisfied the condition precedent to the exercise of power by the Municipal Commissioner was clearly not fulfilled. The Municipal Commissioner had therefore no jurisdiction or power to declare the private street to be a public street as he purported to do by putting up the notice dated 29th April 1952. The action of the Municipal Commissioner in putting up the notice declaring the private street to be a public street was under the circumstances ultra vires and a nullity and the private street continued to be a private street notwithstanding the notice dated 29th April 1952 purporting to declare the private street to be a public street. If this be the position it is apparent that the Municipal Corporation is not entitled to put up water mains gutter pipes or drainage lines in the private street or to carry out any paving work on the same and the threat of the Municipal Corporation being imminent the Municipal Corporation must be restrained from doing so.

12. That leaves only one other contention urged on behalf of the Municipal Corporation. The contention was that the notice purporting to declare the private street to be a public street having been put up on 29 April 1952 the cause of action accrued if at all to the plaintiff on 29th April 1952 and since the suit was filed by the plaintiff on 9th January 1953 that is more than six months next after the accrual of the cause of action the suit was barred under Section 487 and was therefore liable to be dismissed. This contention is in my opinion without any force If the action of the Municipal Corporation in putting up the notice purporting to declare the private street to be a public street was null and void as I have held it to be it was not necessary for the plaintiff to take any proceedings for setting aside the notice. The plaintiff could ignore the notice on the basis that the notice was null and void and did not affect his title to the private street which continued to belong to him. It was only when the Municipal Corporation attempted to put up water mains gutter pipes and drainage lines in the private street and to carry out paving work on the same that the plaintiffs proprietory rights in the private street were sought to be affected and it became necessary for the plaintiff to start proceedings for protecting his rights. The cause of action accrued to the plaintiff by the threatened invasion by the Municipal Corporation of the plaintiffs proprietory rights in the private street and no sooner that happened the plaintiff immediately filed the present suit against the Municipal Corporation. It was not disputed before me that if the cause of action be regarded as having accrued to the plaintiff when the Municipal Corporation threatened to put up water mains gutter pipes and drainage lines in the private street and to carry out paving work on the same the suit was within time as provided by Section 487. The bar of limitation was sought to be pleaded against the plaintiff on the basis that the cause of action accrued to the plaintiff on 29th April 1952 when the notice was put up by the Municipal Corporation declaring the private street to be a public street. But that as I have pointed out above did not give rise to any cause of action in the plaintiff for the plaintiff was entitled to ignore the notice as a nullity.

13. This view which I am inclined to take is supported by two decisions of the High Court of Bombay. The first is the decision of a Full Bench of the Bombay High Court in Soorannana Devappa v. The Secretary of State for India in Council 2 Bom. L.R. 261. In this case a piece of land belonging to the plaintiff was at the introduction of the Revenue Survey in 1882 entered in the register as Government waste land. Notwithstanding this entry the land remained in the possession of the plaintiff. On 12th November 1895 the Revenue Commissioner ordered it to be given to defendant No. 2 on the latter paying the assessment due since the survey settlement. On 16th November 1895 the plaintiff was ousted by the order of the Collector and defendant No. 2 was placed in possession. The plaintiff filed a suit on 15th November 1896 to establish his title to the piece of land and to recover possession of the same from defendant No. 2. The Secretary of State for India was made defendant No. 1. It was contended that the suit was barred under Article 14 of the Limitation Act since it was not brought within one year from the date of the Revenue Commissioners order namely 12 November 1895. The plea of limitation was rejected by the Full Bench. Jenkins C.J. observed as follows:

The cause of action was in my opinion the dispossession not the order; for that if the land in suit is the property of the plaintiff is a mere nullity.

14. To the same effect is the other decision of the High Court of Bombay in Abdullahuyan v. The Government of Bombay 44 Bom. L.R. 577 This was also a decision of a Pull Bench of the High Court. Beaumont C.J. said much the same thing as Jenkins C.J. when he observed in this case as under after referring to various cases which were cited before him:

Those cases have established the principle that where an authority which purports to pass an order is acting without jurisdiction the purported order is a mere nullity. As Sir Lawrence Jenkins puts it is mere waste paper and it is not necessary for anybody who objects to that order to apply to set it aside. He can rely on its invalidity when it is set up against him although he has not taken steps to set it aside.

it is therefore clear that in the present case when the Municipal Corporation threatened to invade the plaintiffs proprietory rights in the private street by attempting to put up water mains gutter pipes and the drainage lines in the private street and to carry out paving work on the same the plaintiff was entitled to resist the Municipal Corporation and when the Municipal Corporation relied up an the notice put up by the Municipal Commissioner purporting to declare the pi ivate street to be a public street under Section 224 the plaintiff could in law set up the invalidity of the notice even though a period of more than six months had elaj sed since the date of the notice at the time when the suit was filed. I must there ore reject the contention of Mr. R.M. Shah based on Section 487 and hold that the suit was not barred under the provisions of that section.

In this view of the matter I must setjaside the decree passed by the learned Assistant Judge and issue injunction againsnthe Municipal Corporation restraining the Municipal Corporation from putting up water mains water pipes and drainage lines in the private street belonging to the plaintiff and from carrying out any paving work on the same. The Municipal Corporation will pay the costs of this appeal to the plaintiff.


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