Pritam Singh Makin vs Municipal Corporation Of Delhi
1995 Latest Caselaw 305 Del

JUDGMENT

C.M. Nayar, J.

(1) The present second appeal arises from the judgment dated January 12, 1977 of the Additional District Judge, Delhi. The learned Judge allowed the appeal of the respondent-MCD and dismissed the suit of the plaintiff.

(2) The appellant/plaintiff filed a suit for decree of possession of plot Nos. G.45 and G.46 forming part of Khasra Nos. 629, 802, 803, 839 and 840, village Tihar, Hari Nagar Extension shown in the plan Ex.P.5 filed with the plaint and for the recovery of Rs.2160.00 towards mesne profit as well as for pendente lite and future mesne profit for the use and occupation of the aforesaid plots by the respondent, M.C.D.

(3) The appellant/plaintiff has stated in the plaint that he is the owner of the aforesaid plots; that he purchased the same from one Bans Gopal vide registered sale deed dated August 19, 1955; the appellant had been employed out of Delhi and during his absence in the year 1962 or so, the respondent Corporation illegally and wrongfully took possession of the plots and constructed some structures on the same and is alleged to be running a school. The respondent never obtained the permission and consent of the appellant and has acted without any authority of law and the action, accordingly, is llegal.

(4) The appellant served a notice under Section 478(1) of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the Act) against the respondent before instituting the suit and the said notice was served on the Corporation on February 15, 1969. The possession was not delivered to the appellant and as a consequence, the suit was filed. The respondent Corporation took various pleas in the written statement including the plea that the disputed plots have been earmarked for Community Centre in the regularised plan of Hari Nagar Colony as approved on August 30, 1960. The respondent is running the school on the plots for the welfare of the Community in large and also raised some structures upon the disputed plots in this regard. It was further pleaded that the suit filed by the appellant was bad for notice under Section 478(1) of the Act etc. The following issues were framed:

1. Whether the plaintiff is the owner of the property in suit?

2.If issue No.1 is proved is the plaintiff entitled to damages? If so at what rate and on what amount?

3.Whether the suit is not properly valued for the purposes of court fee and jurisdiction, If not what is the proper valuation?

4.Whether this court has no jurisdiction to try this suit?

5.Whether the suit is barred by resjudicata?

6.Whether the suit is time barred?

8.Relief

9.Whether the suit is barred under Order 2 Rule 2 Civil Procedure Code .?

(5) Issues No. 5 and 9 with regard to the application of principles of resjudicata were rejected and the issue was decided accordingly in favor of the appellant. Similar order was passed with regard to issue no.3 and the suit was held as properly valued for the purposes of court-fee and jurisdiction. The trial judge referred to the evidence on record and disposed of issue no.1 also in favor of the appellant. He has referred to the original sale deed Ex.P.4 which is a registered document, which shows that the previous owner Bans Gopal sold the disputed plots to the appellant/plaintiff. It was further held that the disputed plots had not been acquired by the Government and the same remained the property of the appellant/plaintiff. Issue no.2 was decided in favor of the appellant/plaintiff in view of the findings on issue no.1. The appellant was held entitled to damages of Rs.2160.00 . Issue No.7 related to the validity of notice under Section 478(1) of the Act and whether the suit was liable to be dismissed on that ground. The contention of the respondent was rejected that the notice Ex. P.1 served on the Corporation was not in accordance with law. Reliance was placed on the judgment of the Bombay High Court, as reported in Khairunissa A.K.Siddikki and others v. The Bombay Municipal Corporation and others 1966 I.L.R. Bombay 632 wherein it was held that service of notice on the Commissioner of the Corporation means the service of notice against the Corporation itself. The suit of the appellant/plaintiff was decreed vide judgment dated May 22, 1975. It was , however, made clear in paragraph 31 that in case, at any stage, the disputed plots are acquired by the Government, then from the date of the acquisition the natural and legal consequences of that acquisition shall follow. The appellant as well as respondents felt aggrieved by the judgment of the trial court and filed their respective appeal and cross appeal. The appellant filed his cross appeal with regard to the costs which were not awarded by the trial court.

(6) The First Appellate Court considered the findings and held that the mere fact that the plots had been shown as ear-marked for Community centre, cannot be of any help to the respondent to refuse appellant damages for use and occupation once the ownership of the appellant/plaintiff is established. Therefore, the appellant was held entitled to receive damages for use and occupation as his ownership was established. The finding of the trial court that the appellant was entitled to receive damages for use and occupation at the rate of Rs. 60.00 per month for three years prior to institution of suit was affirmed. The suit was held within time and the finding of the trial court in this regard was also affirmed. The crucial finding which was upset by the First Appellate Court was with regard to issue no.7. The Court in the first instance held on the basis of documents on record read with statement of the appellant that there was no doubt about giving of notice to the Commissioner, Mcd and the copy of the notice Ex.P.1 was held to be proved. The question as to whether the notice could be termed as valid notice under law or not was then considered by the learned judge. It was held that Mcd was a separate legal entity and the service of notice on the Commissioner, Municipal Corporation of Delhi cannot be held to be the service of notice on the Corporation and, therefore, the notice has to be held as not valid. The finding of the trial court on this issue was reversed and the suit of the appellant/plaintiff was dismissed.

(7) The learned counsel for the appellant has argued that the judgment of the First Appellate Court is unsustainable in law as an appropriate notice in accordance with law has been duly served on the Municipal Corporation of Delhi and the technical objection which has been raised before the First Appellate Court is liable to be dismissed. He has reiterated that the judgment of the Bombay High Court as reported in Nathubhai Dhulaji a firm and others v. The Municipal Corporation, Bombay and others was doubted and not relied upon in the subsequent judgment of the same High Court as reported in Khairunissa A.K.Siddikki and others (supra) wherein it is clearly held that the Municipal Commissioner being the Chief Executive and head of the Corporation received the notice and there can be no reason to hold that it was not a proper notice.

(8) The learned counsel for Mcd, on the other hand, has cited the provisions of law and has sought to rely on Sections 3 and 59 of the Act. Section 3 deals with the establishment of the Corporation and Section 59 deals with the functions of the Commissioner. The relevant provisions of Section 3 of the Act read as follows:

"3.Establishment of the Corporation-(1) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be a Corporation charged with the Municipal Government of Delhi, to be known as the Municipal Corporation of Delhi. (2) The Corporation shall be a body corporate with the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and may by the said name sue and be sued."

(9) On reading of the above, it is contended that the Corporation is a legal entity which is different from the Commissioner who is merely functioning on behalf of the Corporation. The notice, therefore, has to be in accordance with the provision of Section 478(1) which may also be reproduced as under: "478. NOTICE to be given of suits-(1) No suit shall be instituted against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule regulation or bye-law made thereunder until the expiration of two months after notice in writing has been left at the municipal officer and in the case of such officer employee or person, unless notice in writing has also been delivered to him or left at his office or place of residence, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so left or delivered."

(10) The First Appellate Court on reading of the above provision has held that the notice having been issued in the name of the Commissioner, Municipal Corporation of Delhi cannot be said to be in compliance with the provisions of Section 478(1) of the Act. Therefore, the suit was liable to be dismissed. He has sought reliance on the Division Bench judgment of the Bombay High Court as reported in Nathubhai Dhulaji a firm and others v. The Municipal Corporation, Bombay and others . The relevant findings in the judgment are contained in paragraph 27 at page 341 and the same read as under: "THE provision contained in S.527 is, therefore, mandatory and the language would seem to be similar to the language as used in S. 80 of the Code of Civil Procedure. As observed by their Lordships of the Privy Council in the case reported in Bhagchand v. Secretary of State 29 Bom. Lr 1227: (AIR 1927 Bom. 176), section 80 is express, explicit and mandatory, and it admits of no implications or exceptions. If, therefore, one of the duties cast upon a Corporation is to secure or remove dangerous buildings, there can be no question that the person to be sued is not the Municipal Commissioner, but the Corporation and it is not sufficient compliance with S.527 to say that a suit would be filed against the Municipal Corporation. It may be that the objection is one of technicality, but if a certain form is prescribed, according to which a notice is to be given in a particular form, I think it is essential that the form prescribed should be strictly adhered to, because, after all, the object of giving a notice is not merely to show as to what claim the plaintiff is making in the suit but also to show against whom the claim is made. Moreover, the learned Judge was right in taking the view that the Municipal Commissioner was not the proper person to be sued. The Municipal Commissioner is not a body corporate. He could not, therefore, be sued. It is not, therefore, sufficient compliance with S.527 to give notice to the Municipal Commissioner and not to give notice to the Municipal Corporation. That a notice given to the Municipal Commissioner is not in order would be seen by reference to the case ."

(11) The law laid down in this judgment was subsequently referred to by the learned Single Judge of the same Court in Shridhar Atmaram Ghadgay v. The Corporation of the City of Nagpur .

(12) I have considered the respective contentions of learned counsel for both the parties. The findings recorded on all issues by the trial court as well as by the First Appellate Court have not been impugned before me except on issue no.7 which relate to the validity of notice and as to whether the suit was bad for want of notice under Section 478(1) of the Act.

(13) The learned counsel for the respondents has not assailed the findings that the appellant/plaintiff is the owner of the property in suit, that he is entitled to damages for use and occupation of the land by the respondent and that the suit is not time barred. In this background I have only to consider the factum of notice and whether it has been issued in accordance with the provisions of Section 478(1) of the Act. The trial court as well as the First Appellate Court have firstly held that there is no doubt about the giving of notice to the Commissioner Municipal Corporation of Delhi and copy of the notice has been proved to be exhibited as P.1. The Trial judge gave a categorical finding that notice had been addressed to the Commissioner of the respondent Corporation and it does not make any difference that the same has not been addressed to the Corporation. Therefore, the learned Judge has held that the suit is not bad for want of notice to the respondent Corporation under Section 478(1) of the Act. This finding was set aside by the First Appellate Court on the ground that the Municipal Corporation of Delhi is a separate legal entity and the service of notice on the Commissioner, Municipal Corporation of Delhi, cannot be held to be service of notice on Municipal Corporation of Delhi and thus the notice was not valid. I am not able to appreciate this reasoning. The provisions of the Act clearly make the Commissioner as a functionary of the Corporation and whenever a notice is addressed to him, it can be presumed that the same relates to the impugned action of the Corporation. There is no doubt that Section 3 of the Act reiterates that the Corporation shall be a body corporate with the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of the Act to acquire, hold and dispose of the property and may by the said name sue and be sued. This, however, does not mean that any notice addressed to the Commissioner will make this provision redundant as has been argued by learned counsel for the respondents.

(14) The Corporation can sue and has to be sued in the name of the functionary of the Corporation, such as the Commissioner and it will not make any difference in case the word "Commissioner" is used first followed by the Municipal Corporation of Delhi. The counsel strangely argues the proposition that in case the notice had been addressed to the Municipal Corporation of Delhi through the Commissioner, such a notice could not be impugned as invalid. This cannot be accepted to be the correct position of law. I have perused the notice Exhibit P.1. The same is addressed as follows: "THECommissioner, Municipal Corporation of Delhi, Town Hall, Delhi."

The Commissioner is a functionary of the Corporation and his functions are clearly defined in Section 59 of the Act. The said provision may be reproduced as follows: "59.FUNCTIONSof the Commissioner-Save as otherwise provided in this Act, the entire executive power for the purpose of carrying out the provisions of this Act and of any other Act for the time being in force which confers, any power or imposes any duty on the Corporation, shall vest in the Commissioner who shall also-- (a) exercise all the powers and perform all the duties specifically conferred or imposed upon him by this Act or by any other law for the time being in force; (b) prescribe the duties of, and exercise supervision and control over the acts and proceedings of, all municipal officers and other municipal employees other than the Municipal Secretary and the Municipal Chief Auditor and the municipal officers and other municipal employees immediately subordinate to them and subject to any regulation that may be made in this behalf, dispose of the questions relating to the service of the said officers and other employees and their pay, privileges, allowances and other conditions of service; (c) on the occurrence or threatened occurrence of any sudden accident or any unforeseen event or natural calamity involving or likely to involve extensive damage to any property of the Corporation, or danger to human life, take such immediate action as he considers necessary and make a report forthwith to the Standing Committee and the Corporation of the action he has taken and the reasons for the same as also of the amount of cost, if any, incurred or likely to be incurred in consequence of such action, which is not covered by a budget- grant; (d) subject to any regulation that may be made in this behalf by the disciplinary authority in relation to all municipal officers and other municipal employees."

(15) The reading of this Section clearly indicates the powers, which are vested in the Commissioner to act on behalf of the Corporation. In this background, there is no infirmity in the finding of the trial court that the suit cannot be dismissed merely on the ground for want of proper notice to the respondent Corporation. The judgment of the Bombay High Court in Nathubhai Dhulaji a firm and others (supra), in my view, with due respect is not correctly followed in the subsequent judgment as reported in Khairunissa A.K.Siddiki and others (supra). The observations in the concluding part of this judgment read as follows: "THE Municipal Commissioner being the chief executive head of the Corporation received the notice and there can be no reason to hold that it is not a proper notice and thus provide a handle of oppression to the municipality. With respect, it would appear that Nathubhai Dhulaji's case may require reconsideration. In this case as we hold in favor of the plaintiff on the other point, nothing more need be said on the matter."

(16) I am in agreement with the above observations of the Bombay High Court. The facts of the present case may also be noticed which are glaring and it will be inequitable to deny relief to the appellant merely on the technical objection. The appellant/plaintiff as has been concurrently held by both the Courts is the owner of the suit property. The same was unauthorisedly occupied by the respondent Corporation for running the school. The appellant knocked at the door of the trial court in civil proceedings as far back as 1969. The issues have been decided in his favor by both the courts except on the question of notice, as provided under Section 478(1) of the Act. In this background it seems rather harsh to non suit the appellant merely on the plea of valid notice. I am not inclined to agree with the reasons, as recorded by the First Appellate Court on that question.

(17) The appeal, as a consequence, is allowed. The judgment of the First Appellate Court dated January 12, 1977 is set aside and that of the trial court dated May 22, 1975 is restored. There will be no order as to costs.