Debendra Ojah vs The Barpeta Municipal Board and Others

K. Lahiri, J.—This appeal involves the construction of Section 326 of the Assam Municipal Act, 1956 (as amended), which we extract herein below:

(1) No suit or other legal proceeding shall be brought against any Board or any of its officers, or any person acting under its direction for anything done under this Act or any rule or bye-law made there under, until the expiration of one month next, after notice in writing has been delivered or left at the office of such Board and also (if the suit is intended to be brought against any officer of the said Board or any person acting under its direction) at the place of abode of the person against whom such suit or proceeding is threatened to be brought stating the cause of suit or proceeding, the- nature of the relief sought, the amount of compensation claimed and the name and place of abode of the person who intend to bring the suit;

and unless such notice be proved, the Court shall find for the Defendant.

(2) Every such action shall be commenced within three months next after ''the accrual of the cause of action, and not afterwards,

(3) If the Board or its officers or any person to whom any such notice is given, shall, before suit is brought, tender sufficient amends to the Plaintiff, such Plaintiff shall not recover.

[Emphasis added]

The provisions of the Section superimposes certain restrictions and lay down a special period of limitation. Therefore, the question is whether the section should receive liberal or strict construction. We find that the restrictions provided and the limitation prescribed have affected the litigants and are intended to take away certain rights of the litigants. The first restriction is that no suit or legal proceeding can be brought against this Board or its officers or persons acting under the direction of the Board "for anything done" under the Act or any rule or bye-law made there under. The conditions protect the board, its officers and a persons acting under its direction. Secondly, the section imposes a prohibition on the institution of a suit or case until a period of one month elapses. The last restriction is somewhat significant, which prescribes a period of limitation and prohibits a person in bringing any action beyond 3 months next after the accrual of tee cause of action "and not afterwards". The second and third restrictions are very striking. To bring an action one must wait until the expiry one month after service of notice and the right to sue is lost on the expiry of three months from the date of the accrual of the cause of action. When and under what circumstances these restrictions are applicable are the moot points in this appeal.

The provision of the Act lay down a complete procedure for taking action under the Act, Rules and Bye-laws. Apart from this procedure they enable a person aggrieved by any action of the Board or its officers in obtaining the necessary relief. Now, are the provisions of Section 326 of the Act applicable to all acts or actions of the Board''? Broadly speaking there may be three classes of actions. First, action taken conformably with the provisions of the Act, within the jurisdiction of the Board or its officers. Secondly, an action may be professedly done under the Act which is sometimes styled as act purportedly done. The third category of action may be wholly illegal, in contravention of "the Act" or act beyond the jurisdiction of the Board. In our opinion the second and third categories of actions do not fall within the ambit of Section 326 of "the Act". The expressions used in Section 326 takes within their folds only such act which is "done under this Act or any rule or bye-law", and, excludes all other actions, including act done in purported exercise of the power. An action having the appearance of being done under the Act, rules or bye-laws have been omitted, whereas similar acts are saved in other laws. Acts done contrary to law but bonafide done also do not tall within the Section. Only "action directa" or action founded on strict law and conducted according to fixed forms falls within the ambit of Section 326. No purported action done contrary to the provisions of the Act does attract Section 326. Therefore, if the'' Board acts strictly within its jurisdiction or takes action fulfilling the requirements or the provisions of the Act, the case may fall within Section 326 otherwise not.

4 Chairman, Doomdooma Town v. Jugal Prasad (1965) ILR XV Gua . 1 has laid down the principles which are on all fours with the view that we have just taken. Therein, provisions of Section 320 of the Assam Municipal Act, 1923, which is precisely the same with the provisions of Section 326 of the Act, came up for consideration. It has been held that the expressions "for anything done under the Act" mean acts strictly done under the Act and not those acts which the Board do in purported exercise of its power. It has been held that it would not be sufficient to apply the provisions even if it is established that ,be Board did something purporting to exercise its power under the Act. We are in respectful agreement with the view expressed by their Lordship in the District Board Vs. Lala Behari Lal, Section 192 of the U.P. District Boards Act came up for consideration. Section 192 provided limitation for instituting suit against the Beard in respect of any act "done or purporting to have been done in its or his official capacity". The suit was brought by a contractor for refund of deposit made by him and for payment of certain extra work done. It was held that the claim for refund was based on private contract with the Board and as a suit would not be governed by Section 192. Apart from the above decisions, reliance was placed on Bando and Co. Ltd. Vs. Corporation of Calcutta, and Ranchor Das Moorarji v. Municipal Commissioner Bombay ILR XXV Bom 389 , Padmanabhuni Narasimhadas Vs. Dist. Board of Kistna, Monohar Ganesh Tambekar v. The Dakar Municipality ILR XXII Bom. 289 and Nagar Mahapalika v. Sardar Karamott Singh 1962 ALJ 165 (FB).

In our opinion purported acts do not attract Section 326 of "the Act". Section 326 is also not attracted when the action is ''ultra-vires'' or illegal or wrongful, Professedly done acts, though seem to have been done in pursuance of the Act ate done without a vestige or semblance of authority or short of a right in the Board or its officers doing those Acts, therefore, such acts also do not fall within Section 326. Only the acts done strictly in conformity with the provisions of the Act attract the provisions of Section 326.

We find that the area of operation of Section 326 is very much constricted. Even colourable exercise of the powers or factions professedly done do not fall within the contours of Section 326. While reaching the conclusion we have derived considerable assistance from Chairman, Doodooma Town Committee v. Umed Sarma S.A. No. 124 of decided on 22.7.80 by Hansaria, J.

It is the common case of the parties that the Appellant brought an action against the Barpeta Municipal Board as the main Defendant and others as pro-forma Defendants claiming, inter-alia, that the Plaintiff had right, title and interest in the suit land measuring about 12 lechas; the Municipal Board had no right, title and interest in the land but issued a notice purportedly u/s 159 of "the Act" which it had no jurisdiction to issue, as the Plaintiff had never encroached or obstructed any properly of the Board and/or in or on any public property, and, the land never vested in the Board. Accordingly, the Plaintiff-Appellants claim that the Board had no jurisdiction to issue the notice u/s 159 of "the Act". The Defendants appeared and raised objection that the cause of action attracted the provisions of Section 326 of the Act, and, as such the suit was bad for non-service of the requisite notice, and, filed beyond the prescribed period of limitation prescribed in Section 326. Learned trial Judge assumed that no suit could be instituted against the Municipal Board etc. without serving a notice referred in Section 326 and without complying with the conditions prescribed there under and, accordingly dismissed the appeal. Learned Judge overlooked the prima facie case put forward by the Plaintiff. When there was a contest as to which of the parties bad right, title and interest in the suit land, and. whether the Plaintiff had encroached or obstructed any public properly, learned Judge in absence of clear admissions and/or positive proof that the suit land belonged to the Municipality or there was such obstruction OP encroachment could not have decided the question of applicability or non-applicability of Section 326. If the suit land did not belong to or vest in the Municipal Board and there was no obstruction or encroachment on public property the entire action of service of notice asking the Plaintiff to vacate the land or order removal of the alleged obstruction was ultra-virus or illegal or without jurisdiction. Section 326 could not have been applied. The cardinal issue which arose out of the pleadings of the parties was whether the actions of the Municipality were strictly in accordance with the provisions of "the Act". To determine that issue various ancillary questions including the question of the ownership of the suit land etc. were material questions. It the suit land did not belong to the Municipal Board or there was no such alleged obstruction, the action of the Municipality in asking the Plaintiff to vacate the land or to remove the alleged obstructions must be invalid and Section 326 could not apply. We do not desire to make any comment on the findings of the learned Judge, as desired by learned Counsel for the parties, who invited us not to make any comment except that they contain various short-falls, omissions and mistakes. As desired by learned Counsel for the parties we set aside the impugned order with a direction to the learned Judge to proceed on with the sale. We express the view that the decision rendered by the learned Judges was premature, The question can be decided only after evidence upon determination of the relevant issues.

If the Municipality threatens a person to evict him from his property without any authority of law or threatens to evict a lawful owner of a property on the assumption that the Board is the owner of the property, is the person threatened by the action obliged to serve notice, wait for two months? By that time he might be evicted unless he obtains an appropriate order from a competent Court questioning the validity of the actions. No such illegal act or action professedly done under the Act can stand as a bar to action u/s 326 of "the Act".

For the foregoing reasons we accept the appeal, set aside the impugned order and remit the matter to the Court of the Assistant District Judge, Barpeta to proceed on with the suit and to dispose of the same in accordance with law and the directions contained above. We direct, the parties to appear before learned Judge on 4.7.83, to take appropriate order. Learned Judge shall dispose of the suit as expeditiously as possible. We allow the appeal but make no order as to costs. Send down the records forthwith.