ABDUL KARIM Vs. MUNICIPAL CORPORATION OF HYDERABAD

JUDGEMENT

(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.