Municipal Committee vs Ishar Dass and Another

R.L. Anand, J.—Municipal Committee, Sirhind through Executive Officer, Sirhind, District Patiala, has fried the present Regular Second Appeal against the judgment and decree dated 7.1.1980, passed by the Court of District Judge, Patiala, who dismissed the appeal of the Municipal Committee, holding that the same was incompetent in view of the fact that no resolution has been filed by the Committee before filing the appeal authorising any person much less Executive Officer to institute the appeal.

Some facts can be noticed in the following manner; Shri Ishar Dass and Gian Chand filed a suit for permanent injunction against the Municipal Committee, Sirhind, Executive Officer, Municipal Committee, Sirhind and the Administrator, Municipal Committee, Sirhind, alleging that defendants are interfering in the peaceful possession of the plaintiff in respect of the suit properties shown as ABCD in the Annexure-A, appended with the plaint. According to the plaintiffs, the disputed site is a part of Ashoka Oil and Flour Mills (previously known as Ashoka Flour Industries), Sirhind Mandi, owned and belonging to the plaintiffs and they are in its peaceful possession. Their possession is hostile for the last more than 30 years and they have become the owners of the said plot by way of adverse possession. The plaintiffs have even raised a pucca construction by investing Rs. 30,000/- over the disputed site as their adverse possession had matured into ownership and that defendants have no concern or connection with the same. It was also alleged by the plaintiffs that the defendant committee without any right or lawful authority, had served a notice dated 17.6.1978 requiring the plaintiffs to demolish the construction within ten days failing which the defend ant-committee had threatened to demolish the same. According to the plaintiffs, this action on the part of the Committee was arbitrary, against the principles of natural justice and even against the mandatory provisions of the Municipal Act as the suit property could not be demolished or acquired without payment of any compensation. Even the statutory notice u/s 172 of the Punjab Municipal Act, was not given. With the above broad allegations, the plaintiffs challenged the notice dated 17.6.1978.

The suit was contested by the defendants who pleaded that the Commit tee has every right to acquire the encroachment and it is not liable to pay any compensation. Notice was delivered to the plaintiffs perfectly in accordance with law.

The plaintiffs filed rejoinder to the written statement of the defendants in which they reiterated their allegations made in the plaint while denying those of the written statement.

The above pleadings of the parties gave rise to the following issues:-

Whether the plaintiffs are in possession of the property in dispute for the last more than 13 years and they have become owners by way of adverse possession? OPP

If issue No. 1 is proved whether the plaintiffs are entitled to the injunction, prayed for? OPP

Whether the plaintiffs have spent the amount of Rs. 30,000/- regarding construction on the suit property, if so, to what effect? OPP

Whether the notice issued by the Municipal Committee, Sirhind, u/s 172 of the Punjab Municipal Act is void and illegal? OPD

Whether valid notice u/s 49 of the Punjab Municipal Act has been given by the plaintiffs prior to filing this suit if not to what effect? OPP

Relief.

The parties led evidence in support of their case and ultimately the suit was decreed.

Aggrieved by the judgment and decree of the trial Court, the Municipal Committee, Sirhind, through Executive Officer, Sirhind, filed the appeal before the first appellate Court who dismissed the appeal on a preliminary objection taken up by the plaintiff-respondent that the appeal was not competent because no resolution had been passed by the Municipal Committee authorising the Executive Officer to file the appeal.

The reliance was placed upon (1979)81 P.L.R. 527, Garib Chand v. Municipal Committee, Budhlada, and Municipal Committee, Ludhiana v. Surinder Kumar ILR 1974 P&h 420. It will be useful for me to reproduce paras No. 2 and 3 of the judgment of the first appellate Courts as follows:-

"At the hearing of the appeal a preliminary objection was taken that the appeal was not competent in as much as no resolution had been passed by the Municipal Committee authorising the Executive Officer to file the appeal. 1 was taken through the observation of our High Court in Garib Chand v. Municipal Committee Bhadlada, (1979 P&h 478 III), wherein it was observed as follows:-

"Held that the Municipal Committee had to pass the resolution giving authority to file appeal on its behalf against the judgment and decree of the trial Court. Local Bodies, Corporate Bodies or Registered Bodies of Associations are independent legal entitles and are capable of holding property and of suing and to be sued. Local bodies like a Municipal Committee can only act through resolutions and unless by a resolution it authorises somebody to file appeal on its behalf, no appeal could be presented on behalf of the Committee. The provision of Order 41 Rule 1 of the CPC 1908 are mandatory",

In Municipal Committee Ludhiana v. Surinder Kumar I.L.R 1974 P&h 420 . it was observed as follows:-

"Held, that the plain reading of Section 35 of the Punjab Municipal Act, 1911 shows, that an Executive Officer is not competent to order the filing of appeal against the judgment of civil Court against the Municipal Committee, when the Committee does not pass a resolution for filing the appeal. There is, however, no legal prohibition which bars the filing of an appeal on behalf of the Municipal Committee, but the decision to file the appeal has to be that of the Municipal Commit tee.

I hold the appeal to be incompetent and dismiss the same with costs."

Aggrieved by the judgment and decree of the first appellate Court, the Committee has filed the present appeal.

I have heard Shri Rajinder Pal Sood, learned counsel appearing on behalf of the appellant and Shri S.N. Chopra, learned counsel appearing on behalf of the respondents.

In para No. 3 of the grounds of appeal it has been stated that the Committee was not in existence when the appeal was filed but it was being run by the Administrator, at that time, hence the question of passing the resolution, does not arise at all. The new Committee came into existence on 31(8.1979 and, therefore, the entire case law discussed by the learned appellate Court in dismissing the appeal does not apply to the facts of the case.

The learned counsel for the appellant has reiterated before me by submitting that the Municipal Committee was not in existence when the appeal was instituted and, therefore, the appeal could be instituted through the Administrator.

On the contrary the learned counsel for the respondents submitted that it is not the correct position. It is not the case of the appellant at any stage before the first appellate Court that the Municipal Commit tee, Sirhind had been superseded and that it was being represented by the Administrator. The counsel for the respondents submitted that if the Municipal Committee, Sirhind was not in existence, in that eventuality, the appeal could be instituted by the Municipality.

I find force in the contention raised by the learned counsel for the respondents. First of all, let us see the actual facts. I had already stated that the suit was instituted against three defendants namely, Municipal Committee, Sirhind, Executive Officer, Municipal Committee, Sirhind and Administrator, Municipal Committee, Sirhind. Meaning thereby that the appeal could be instituted by any one of them. If the appeal was to be instituted by the Municipal Committee, Sirhind or by the Executive Officer, there should be a special resolution by the Municipal Committee firstly to the effect that a decision has been taken by the Committee to that effect and secondly, a particular person was authorised to institute the appeal on behalf of the Committee and further such a person has been authorised to engage a counsel on behalf of the Committee. Such officer should further be authorised to sign and verify the pleadings.

The record of the first appellate Court has also been examined by me which would show that the appeal was instituted by the Municipal Commit tee, Sirhind through the Executive Officer. In the grounds of appeal dated 1.6.1979, there is not an iota of averment that the Municipal Committee, Sirhind, had been superseded or it was not being run by the Administrator. Further the grounds of appeal are barren that the Executive Officer of the Sirhind had been authorised to file an appeal in his official capacity and that any resolution was passed in his favour. Order 29, C.P.C. lays down that in suit by or against a Corporation, any pleading may be signed and verified on behalf of the Corporation by the Secretary or by any Director or other Principal Officer of the Corporation who is able to depose to the facts of the case. Municipal Committee was a juristic person and it acts through its Officer. In these circumstances, it was obligatory firstly on the part of the Municipal Commit tee to pass a resolution authorising its Executive Officer to file the appeal. There is no averment that Municipal Committee, Sirhind was superseded or any Administrator was appointed. Also there is no resolution authorising the Executive Officer to file the appeal in his official capacity. It has been held in AIR 1943 Lah 318 Bawa Bhagwan Dass v. Municipal Committee, Rupar, where it was held the Words "for the purpose of carrying on the administration of the municipality": do not confer any power to file an appeal. The act of filling an appeal in a suit against the municipality for injunction restraining the municipal committee from obstructing plaintiff from building on his land cannot be regarded as an act for carrying on the administration of the municipality. The administration by the municipality of affairs which it is by statute entitled or liable to perform is one thing and the carrying on of its own administration which the words "administration of municipality" seem to suggest another. The act of filing an appeal still requires, a special resolution of the committee and the authority of the decision in AIR 1935 Lah 345, cannot be said to have been shaken by what is contained in S.4. Executive Officer Act, or in the rules framed by the Local Government u/s 11 of that Act. The fact that the plaintiff filed the suit against the municipality through the executive officer is beside the point."

Even I do not find any special resolution of the Municipal Commit tee, when the present appeal has been filed. In this view of the matter, I am inclined to hold that the observations made by the first appellate Court are correct. There is no merit in this appeal. The same, is hereby dismissed. No order as to costs.