Abdul Karim v. Municipal Corporatio..., Andhra Pradesh High Court, Judgment, Law, casemine.com

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Case Number

125 of 1979

Attorney(S)

Shaik Mahmood Ali
K.Janardhana Rao

Judges

Present :-Jeevan Reddy

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Smart Summary

Factual and Procedural Background

The plaintiff alleged ownership of the suit property. On 10 July 1973 the Hyderabad Municipal Corporation issued a notice under section 402 (Exhibit A‑9) calling upon the plaintiff to remove structures as being erected on a public lane, warning of removal and prosecution. The plaintiff replied, alleged the notice was without jurisdiction and that the structures were on his private property, and sought a declaration of title and a perpetual injunction restraining removal or interference. The trial court dismissed the suit for non‑compliance with section 685 of the Hyderabad Municipal Corporations Act, 1955 (the Act). The appellate court held that no such notice was necessary on the facts but decided against the appellant on the merits. The appellant filed this second appeal, raising maintainability under section 685; the court confined its opinion to that question and dismissed the second appeal for non‑compliance with section 685. The court observed the plaintiff may institute a fresh suit after complying with section 685 and dismissed the appeal without costs.

Legal Issues Presented

Whether the suit is maintainable in the absence of compliance with section 685 of the Hyderabad Municipal Corporations Act, 1955 (the mandatory notice and six‑month limitation provisions).
Whether issuance of a notice by the corporation under the Act constitutes an act under the Act that attracts the mandatory notice requirement of section 685.
Whether section 685 applies to threatened future actions (as contended by the plaintiff) or only to past acts.

Arguments of the Parties

Plaintiff's Arguments

The plaintiff claimed ownership of the suit property and that the structures stand on his private land, not on a public lane, so the notice is without jurisdiction and void.
The plaintiff contended section 685 is unnecessary because the defendant's threatened action is prospective (in future) and the section applies only to past actions.
The plaintiff pleaded that the cause of action arose on 10 July 1973 with the issuance of the notice and also alleged a continuing cause of action due to the apprehension of removal.

Appellant's (Counsel's) Arguments

Learned counsel for the appellant relied on the decisions of Vaidya, J. in Hyderabad Municipality v. T. V. Sarma and the Supreme Court decision in Devi Singh v. Hyderabad Municipality to contend that no notice is necessary in respect of a further threatened action.

Respondent/Trial Court Position

The trial court held the notice requirement of section 685 is obligatory and dismissed the suit for non‑compliance.
The respondent was treated as entitled to support the appellate decree on the ground of maintainability despite not having filed an appeal or cross‑objections.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
mohammad hasham v. Hyderabad municipal corporation	Held with reference to section 447 of the Hyderabad Municipal Corporation Act, 1950 (in pari materia with section 685 of the present Act) that the provision is substantially in the same terms as section 80 of the Civil Procedure Code and must be strictly complied with; applies to all causes of action and all kinds of reliefs (including suits for declaration and injunction).	The court relied on this principle to treat section 685 as mandatory and to conclude the suit was liable to fail for non‑compliance.
sharfudd. In ahmed, j. In municipal corporation v. Syed mehboob amhed.	Stated to be to the same effect as the above (that the provision must be strictly complied with).	Referenced as supporting authority for the proposition that the statutory notice requirement is mandatory.
Hyderabad Municipality v. T. V. Sarma	In that case there was no notice by the corporation challenged nor any act done or purported to be done under the Act; held that section 685 was not attracted in those circumstances.	The court distinguished that decision because, unlike T. V. Sarma, in the present case a notice had been issued; hence T. V. Sarma did not assist the plaintiff.
Devi Singh v. Hyderabad municipality	There was no notice nor any other act done by the corporation under the Act or purported to be done under the Act.	The court held this decision was distinguishable because the present case involved issuance of a notice, which the court treated as an act under the Act attracting section 685.

Court's Reasoning and Analysis

The court confined its opinion to the maintainability issue under section 685. It quoted sub‑section (1) of section 685 and accepted prior authority (mohammad hasham and related decisions) that the provision is in pari materia with section 80 CPC and must be strictly complied with, applying to all causes of action and reliefs including declarations and injunctions. The plaint expressly showed the suit arose because of a statutory notice and threatened removal of constructions; issuance of the notice was an act done under the Act and therefore section 685 was attracted. The court considered the appellant's reliance on decisions where no notice had been issued (Hyderabad Municipality v. T. V. Sarma; Devi Singh v. Hyderabad Municipality) and distinguished them on the ground that in those cases there was no notice or act under the Act. Because a notice had been issued here and the notice requirement is obligatory, non‑compliance with section 685 rendered the suit maintainability defective. The court therefore dismissed the second appeal on that ground without expressing any opinion on the merits.

Holding and Implications

Second appeal dismissed.

Direct effects: the second appeal is dismissed for non‑compliance with section 685; the court did not decide the merits of the underlying claim. The plaintiff remains free to institute a fresh suit after complying with the notice requirement of section 685. The court dismissed the appeal without costs. No broader precedent or new legal principle was established beyond applying existing authority to the statutory notice requirement.

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Abdul Karim v. Municipal Corporation Of Hyderabad, Reptd.By Its Special Officer, Office At Earulsh Shifa, Hyderabad

(1) Though i have heard the parties on all the questions arising in this second appeal it is not necessary for me to express any opinion on questions other than the maintainability of the suit. I am of the opinion that the suit is liable to fail on account of non - compliance of the mandatory requirements of section 685 of the hyderabad municipal corporations act, 1955 (hereinafter referred to as 'the act'). Sub - section (1) of section 685 of the act reads as follows :

"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 in respect of any act done in pursuance of execution or intended execution of this act or in respect of any alleged neglect or 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 a 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 plantiff 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"

(2) In mohammad hasham v. Hyderabad municipal corporation, a bench cf this court held with reference to section 447 of the hyderabad municipal corporation act of 1950 which is in pari materia with section 685 of the present act that the provision is substantially in the same terms as section 80 of the civil procedure code, and that it has to be strictly complied with and that it applies to all forces of actions and all kinds of reliefs (including the suits for declaration and injunction). To the same eflerct is the judgment of sharfudd. In ahmed, j. In municipal corporation v. Syed mehboob amhed.

(3) In this case the plaintiff has stated in the plaint that he is the owner of the suit property but that the corporation has issued a notice to him under section 402 of the act, exhibit a - 9, dated 10th july, 1973, calling upon him to remove the structures erected by him on the ground that they are erected on a public lane and notifying further that in default of his removal within the time specified they will be removed by the corporation and that he will also be prosecuted according to law. The plaintiff stated that he submitted a reply to the same but that the corporation has not intimated to him about the action taken. In para. 6 of the plaint the plaintiff stated that the said notice is not based on facts and that the structures are not on a public lane but on his private property and that the said notice is without jurisdiction, mull and void. He stated that the defendant - corporation has no right in law to proceed against the plaintiff for the removal of the construction from the suit property or to interfere in the peaceful possession and enjoyment of the suit property. He further averred "the plaintiff came td know that the defendant is taking immediate steps for the removal of the construction from the suit property. There is, therefore, a necessity for declaration of title and prohibitory injunction against the defendant. "in para. 7 of the plaint the plain tiff stated that the notice under section 685 of the act is not necessary in as much as the act which the defendent threatens to do is in future and not in regard to those already committed in the past. " he averred "the said section applies only to the past actions andnot to acts to be done in future. " in para. 8 of the plaint the plaintiff stated that the cause of action for the suit arose on 10th july, 1973 when the defendant - corpoartion issued a notice and also that since there is an apprehension that the contruction will be removed by the defendant - corpora, tion, the cause of action is continuing from day to day. The reliefs prayed are for declaration of the title and for perpetual injunction restraining the defendant - corporation from removing the construction made by bim or from interfering with the peaceful enjoyment of plaintiff of the suit property.

(4) The trial court held that the notice is obligatory and dismissed the suit on that ground. The appellate court has however held that no such notice is necessary in the circumstances cf the case. But in as much as the appellate court has held aginst the appellapt on merits, he kas filed this second appeal. I am of the opinion that the respondent is entitled to support the decree of the appellate court on the ground of maintainability of the suit though no appeal or cross - objections have been preferred by it against the said findings. I am of the opinion that in view of the express averments in the plaint section 685 of the act is attracted. It is clear from the plaint averments that thesuit wasnecessitated because of the notice issued by the corporation and because of the threatened removal of the constructions raised by the plaintiff. Mr. Shaik mahboob ali, the learned counsel for the appellant however sought to rely upon the decision of vaidya, j. In hyderabad municipality v. T. V. Sarma, and the decisions of the supreme court in devi singh v. Hyderabad municipality, to contend that in respect of a further threatened action no notice is necessary. But i am of the opinion that the said decisions are of no help to the plaintiff. In hyderabad municipality v. T - v. Sarma, there was no notice by the corporation which was challenged nor was any act done or was purported to be done under the act. That was a case where the plaintiff stated that he has constructed a building as he was entitled to according tc the act, and that the defendant should be restrained from interfering with his construction. The defendant - corporation had not issued any notice purporting to remove the construction. It was therefore stated that section 685 of the act is not attracted. Same is the case with the decision in devi singh v. Hyderabad municipality. There also there was no notice nor any other act done by the corporation under the act or purported to act under the act. But that is not the situation here. Issuance of notice is undoubtedly an act done under the act. Tne notice being obligatory, the suit is liable to fail on the ground of noncompliance of section 685. Of the hyderabad municipal corporations act. On this ground alone, the second appeal is dismissed. I need not express any opinion on the merits of the suit.

(5) It is obvious that it shall be open to the plaintiff to institute a fresh suit, if he is so advised, after complying with the provision of section 685 cf the act. Tne second appeal is accordingly dismissd but in the circumstances without ccsts. Second appeal dismissed.

Abdul Karim v. Municipal Corporatio...