Chairman, Town Area Committee vs Ghulam Mustafa Shah and Others

J.N. Bhat, J.—A temporary injunction was issued by the Sub-judge Baramulla against the Town Area Committee Baramulla restraining the

Petitioner from demolishing a certain wall belonging to the Plaintiff in Khanpura Baramulla. The litigation between the parties started on a notice

dated 10th May, 1962, issued by the Chairman Town Area Committee to Ghulam Mustafa Shah, one of the Plaintiffs, to the effect that he had

without permission of the Town Area Committee erected a wall whereby ha had blocked a public lane; and despite his having been asked to

remove the same a number of times he had failed to do so. The Chairman Town Area Committee informed Ghulam Mustafa Shah that the wall

would be demolised on the 17th of May through the employees of the Town Area Committee and the charges so incurred would be payable by

him. On 17-5-62 three persons Ghulam Mustafa Shah, Ghulam Nabi Shah and Habib Ullah Shah, brought the suit in question whereupon they

obtained an ex parte temporary injunction which was confirmed by the Sub-Judge on 23-7-62. Against this order an appeal was preferred which

was disposed of by the learned Addl. District Judge Srinagar by his order dated 26-12-62. The learned Addl. District Judge rejected the appeal

of the Town Area Committee. Against this order of the learned Addl. District Judge the Town Area Committee has come up in further revision to

this Court.

The main point of contention between the parties in this Court has been-as in the lower appellate Court-whether the suit of the Plaintiff was

competent without a notice of one month having been given to the Town Area Committee before the institution of the suit. According to Mr. Kaul

Counsel for the Town Area Committee no suit could be brought against a Town Area Committee until the expiration of one month after notice had

been given stating the cause of action and the name and the place of abode of the intending Plaintiff. In this case admittedly no notice has been

givers by the Plaintiffs to the Town Area Committee before the institution of the suit. The point for consideration, therefore, is whether the suit is

bad or is not maintainable without due notice having been given to the Defendant (Town Area Committee) as contemplated by Section 41 of the

Town Area Act. Learned Counsel for the parties have copiously referred to the authorities u/s 80 of the CPC which enacts law which analogous in

principle to the provisions of Section 41 of the Town Area Act. Before discussing tire authorities it would be profitable to reproduce Section 80 of

the CPC and Section 41 of the Town Area Act so far as the present dispute is concerned. Section 80 of the CPC runs as under:

No suit shall be instituted against the Government.....in respect of any act purporting to be done.....until the expiration of, four, months next after

notice in writing has been delivered or left at the office of .....stating the cause of action, the name, description or place of residence of the Plaintiff

and the relief which is claimed, and the plaint shall contain a statement that such notice has been delivered or left.

Section 4I(2) of the Town Area Act reads:

Notwithstanding anything contained in the Limitation Act.....all actions which may be lawfully brought against a Town Area Committee or any

servant of a Town Area Committee in respect of anything done or alleged to have been done in pursuance of this Act, shall be instituted within six

months from the date of the act complained of and not afterwards;

Provided that no such suit shall be instituted until the expiration of one month after notice has been given stating he cause of action and the name

and the place of abode of the intending Plaintiff and the plaint shall contain a statement that such notice has been given.

There has been a conflict of judicial authority on the interpretation of Section 80 of the Code of Civil Procedure. The conflict mainly pertains to

suits for injunction about acts about which the Government or a public officer has to be restrained from performing. It is interesting that a Privy

Council decision on the subject reported as AIR 1927 176 (Privy Council) laid down the view that ""a Plaintiff can bring his suit before the two

months' time prescribed has expired in the case of suits against officials for acts purporting to be done in discharge of their duties, when part or the

whole of the relief claimed in an injunction, is not correct. Section 80 is to be strictly complied with and is applicable to all forms of action and all

kinds of relief"", but the Indian Courts have still held that the true meaning and the correct interpretation of the words in respect of any act

purporting to be done' occurring in Section 80 is that they cover only a past act and do not include a future act. Section 80 as such comes into play

only when the suit begun is in respect of past acts, completed or begun, but incomplete, but it does not apply to future or threatened acts. As such

notice u/s 80 is not necessary for a suit for permanent injunction restraining the Government from doing an act in the near future"". The State of

Bihar Vs. Raghunandan Singh and Another, .

The Bombay High Court followed the last view. Reference may in that behalf be made to Naginlal v. Official Assignee ILR 37 Bom 243. But

later on the Bombay High Court in Mariyam Hakim v. Secy. of State AIR 1927 Bom 649 , relying on AIR 1927 176 (Privy Council) , changed its

view and held that notice was necessary in all suits brought against the Government. Different High Courts in India have followed AIR 1927 176

(Privy Council) . Reference may in this behalf be made to Vishnomal v. Court of Wards AIR 1928 Sind 76, State of Madras v. Venkata Durga

Prasadarao AIR 1957 AP 675, Babulal v. State (S) AIR 1955 MP 75 and Shingara Singh v. C.H.D.O. Callaghan AIR 1946 Lah 247 (SB). For

the other view Arunachalam Chetty v. Official Receiver, Ramnad AIR 1927 Mad 166 and The State of Bihar Vs. Raghunandan Singh and

Another, may be taken notice of.

In my opinion the controversy can be avoided in this case, because it will be clear from the provisions of the two sections, Section 80 of the CPC

and Section 41 of the Town Area Act, the bar which one may hold to attach to suits against the Government or public officers u/s 80 of the CPC

does not apply in the case of suits against the Town Area Committee when the suit is brought in respect of an act which is apprehended to be

committed on the part of a Town Area Committee in future and which is not a past act. In the first place, it is not safe and is unwise to read the

language of one enactment while interpreting Anr. enactment which is in a quite different language, though the spirit of the provisions may be more

or less alike in the two enactments. It is an elementary principle of the interpretation of statutes that the language of each Act and each section of

the Act must be given its plain and due meaning and assistance should not be sought by incorporating similar provisions of Anr. enactment when

the language of the section or the Act is plain and unambiguous. In Inland Revenue Commrs. v. Forrest (1890) 15 AC : 334 at p. 353 Lord

Macnaghten held, the two Acts differ widely in their scope; and even when they happen to deal with the same subject their wording' is not the

same. The language was practically identical, but that expression involved an admission that the language was different.

Similarly in Kydd v. Liverpool Watch Committee (1908) AC 327 330, a case as to the jurisdiction of quarter-sessions under the Police Act,

1890, Lord Loreburn, L.C., declined to consider decisions relating to a different Court, a, different Act, and a different subject-matter.

It has been stated by Craies in his book on Statute Law, 5th Edn. (1952) at page 125 that ""In the interpretation of statutes the Courts decline to

consider other statutes proceeding on different lines and including different provisions, or the judicial decisions thereon.

A comparative examination of the wording of the two sections, Section 80 of the CPC and Section 41 of the Town Area, Act obviously

connotes that their wording is different and even if the view laid down in AIR 1927 176 (Privy Council) and in the authorities following the same is

accepted to be correct, it can afford no guide for the interpretation of the words of Section 41 of the Town Area Act. In place of the words 'in

respect of any act purporting to be done' in Section 80 we have the words 'anything done or alleged to be done' in Section 41 of the Town Area

Act. The language of Section 41, without any difficulty, connotes that the act in respect of which a suit is brought requiring one month's notice must

be done or alleged to have been done. In both cases the act is a past one and does not contemplate a future act to be performed by a Town Area

Committee.

In that view of the matter the present suit of the Plaintiffs cannot be held to be barred for want of a notice, because what the Plaintiffs in this case

want from the Court is that the Defendant, should be restrained from demolishing their wall in future. It is interesting to note, that the notice of 10th

May, 62, fixes the target of 17th May, 1962, on which date the employees of the Town Area Committee had to demolish the wall in question. If

the Plaintiffs were to wait for one month's notice, the result would have been that the wall would have been demolished long before the suit could

be instituted. I do not think that the legislature would leave any loophole in such a contingency, and leave an aggrieved party without any remedy.

Every statute has to be interpreted in a rational manner and in a way which is intended to make its working practicable and smooth and not to

cause any hardship or leave an aggrieved person without any remedy.

My attention was drawn by the earned Counsel for the Petitioner to two authorities of this Court, Town Area Committee v. Abdul Khaliq AIR

1952 J.& K. 47 and Kashi Nath Aima Vs. Bishen Singh and Another, . I have perused both these authorities but they have no application to the

facts of this case, and the point that has arisen for determination in this case was never raised or discussed in those two decisions. The first decision

related to a different point and it was whether the condition of a notice not having been issued could be held to be waived when the objection was

taken at a very late stage in the proceedings. In the 1958 authority the point was simple: whether a suit against a Town Area Committee was

competent, without a notice. In that case the act complained of was a past one. So the present point in issue did not arise in that case at all.

The result is that both the Courts below have rightly held that Section 41 of the Town Area Act was no bar to the maintainability of the suit, and

the temporary injunction could not be vacated for want of a notice before the institution of the suit. No other ground was urged before me. The

result is that' this revision petition is dismissed with -costs. Counsel fee Rs. 32/-.