1. The sole question raised and argued by the counsel in this Second Appeal is whether the notice contemplated under Sec. 685(1)(a) of the Hyderabad Municipal Corporation Act 1955 is necessary in the facts and circumstances of the case and whether the relief of permanent injunction be negatived on the ground of want of issuance of such notice.
2. The facts in brief are as follows:
The appellant in the present Second Appeal/plaintiff in suit instituted O.S No. 96/82 on the file of Subordinate Judge, Vijayawada for the relief of permanent injunction restraining the respondent herein/defendant in the suit, its Officers and employees from disturbing the possession and enjoyment of the plaint schedule premises and in any way interfering with the plaint schedule premises i.e, the site and the building and several structures and fixtures thereon and for costs of the suit. In paragraph 4 of plaint it was specifically pleaded that the plaintiff's vendor had been served with notice issued by the defendant on 25-2-1982 purporting to be under Sections 184 and 185 of the A.P Municipalities Act, 1965 which is filed as document No. 4 as per the list, directing him to hand over the site over which the buildings and other structure had been constructed by the plaintiff. The defendant had filed a written statement in detail and had taken a specific stand of want of notice under Section 685 of the Hyderabad Municipal Corporations Act 1955 and issue also was settled in this regard.
3. On the strength of the respective pleadings of the parties, after examining P.W 1 and D.W 1 and marking Exs. A-1 to A-10 and Ex. B-1, ultimately the trial Court had decreed the suit as prayed for and aggrieved by the same the defendant/Vijayawada Municipal Corporation had preferred appeal A.S No. 2/88 and the appellate Court had allowed the Appeal holding that notice under Section 685 of the Hyderabad Municipal Corporations Act, 1955 is essential and mandatory and aggrieved by the same, the present Second Appeal is filed by the appellant/plaintiff.
4. This Court in C.M.P No. 21341/94 on 29-12-1994 had granted interim injunction restraining the respondent-Corporation from taking any action including the dispossession of the petitioner society from the suit schedule property extent being 1890 sq. yards in R.S No. 132 of Vijayawada Village area and demolishing the building therein, pending further orders.
5. Sri Ravindranath Reddy, the learned counsel representing the appellant and also Sri Venkataramana, the learned counsel representing the respondent-Vijayawada Municipal Corporation had advanced arguments relating to the non-issuance of notice under Section 685 of the Hyderabad Municipal Corporation Act, 1955. The factual details need not be elaborately dealt with since as can be culled out from the findings recorded, it is in pursuance of the notice issued and the threat by the Officers of the respondent, the suit was instituted for the relief of permanent injunction. Sub-section (1) of Section 7 of the Vijayawada Municipal Corporation Act, 1981, Act No. 23 of 1981, specifically says that save as otherwise expressly provided therein, all the provisions of the Hyderabad Municipal Corporation Act, 1955, including the provisions relating to the levy and collection of any tax or fee are hereby extended and shall apply mutatis mutandis to the Corporation and the said Act shall, in relation to the Corporation be read and construed as if the provisions of the said Act had formed part of this Act. Section 685 of the Hyderabad Municipal Corporation Act 1955 deals with protection of persons acting under this Act against suits. Sections 685(1) of the Act reads as hereunder:
No suit shall be instituted against the Corporation or against the Commissioner or a Deputy Commissioner or against any officer or servant, appointed under this Act, in respect of any act done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect of default in the execution of this Act.
(a) until the expiration of one month next after notice in writing has been in the case of the Corporation, left at the chief Municipal Office and in the case of the Commissioner or of a Deputy Commissioner or of Municipal Officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney or agent, if any, for the purpose of such suit; or
(b) unless it is commenced within six months next after the accrual of the cause of action;
6. It is not in dispute between the parties that before the institution of the suit no notice was issued. It is no doubt true that it is suit for permanent injunction and the threat at the time of the institution of the suit was imminent and serious. But however, since this action questioned was in pursuance of the powers vested in the Officers of the Corporation under the provisions of the Hyderabad Municipal Corporation Act, 1955, I am of the considered opinion that the issuance of notice before the institution of the suit under Section 685 of the Hyderabad Municipal Corporation Act, 1955 is mandatory. Since this was not complied with, the appellate Court is well justified in reversing the Judgment and decree of the trial Court. Hence, I do not see any reason to interfere with the Judgment and decree of the appellate court in this regard. However, it is brought to my notice that in view of the fact that the threat is serious or imminent, if the threatened acts are carried out by the respondent's Officials even prior to the issuance of notice of completion of the said period the appellant Institution will be put to serious loss and in view of the same, the parties are directed to maintain status quo for a period of three months and the appellant/plaintiff is at liberty to follow the procedure under the provisions of the Hyderabad Municipal Corporation Act, 1955 by issuing notice in accordance with law and proceed further, if so advised. Except giving this discretion, no other relief can be granted in the present Second Appeal and the Second Appeal is accordingly dismissed. But however, in the facts and circumstances of the case, without costs. It is made clear that inasmuch as this Court is not touching upon the merits or demerits of the matter, after issuance of such notice and institution of the suit by the appellant/plaintiff, the same shall be decided on its own merits not being influenced by any of the observations made by the Courts below in the present proceeding. No costs.