UPLETA MUNICIPALITY Vs. YUNUS HAJI ADAM FULARA

JUDGEMENT

(1.) It is in the light of the above admitted or established facts that the various questions raised in this case are required to be decided. The first and foremost question which goes to the root of the plaintiffs case and which was urged in both the courts below was the question of a notice before the institution of the suit. Under sec. 253 of the Gujarat Municipalities Act 1963 the notice is required to be given before any action is taken against the municipality. Sec. 253 (1) is quoted below:

(2.) Mr. Shah the learned Advocate for the plaintiffs however in- vited my attention to the judgment of the Saurashtra High Court in the case of Tilakchand Dhanji v. Dhoraji Municipality and urged that the owner of an adjacent property has a right of access to the highway on all points on his boundary and the access is not to be restricted to any particular point. He therefore urged that if there was any obstruction to the access at any point he had a right to have the obstruction removed and the obstructionists-municipalitys act could be said to be an unau- thorised and illegal act. I do not subscribe to the latter part of the sub- mission of Mr. Shah. If the municipality had done any act mala fide or out of ulterior objects or without any statutory powers with it the matter would have been totally different. As I said above the municipality pur- ported to discharge its statutory duties. The act cannot be said to be illegal in the sense of violating some specific provision of law. It may be an act offending against a private individuals right but that cannot be said to be an act unlawful or illegal or ultra vires. If it be so sec. 253 will be squarely attracted and the original suit having been filed without giving a notice in writing was initially bad and on this count is liable to be dismissed.

(3.) Mr. Mehta had also urged that the suit was barred by limitation in so far as the suit was filed after the period of six months as laid down in clause (a) of sec. 253 of the Act. In this connection Mr. Shah for the plaintiffs urged that the action of the municipality in putting up the latrines was a continuing wrong and sec. 22 of the Indian Limitation Act would be attracted. In this connection reliance was placed upon the judgment of the Division Bench of this High Court in the case of The President Kalol District Municipality Kalol v. Bai Champa d/o Sheth Bhatubhai Lallubhai & Anr. 17 G.L.R. 44. In that case putting up of cabins by the municipality in the public street was held to be a continuing wrong. I am bound to follow the said judgment because the ratio laid down there would squarely apply to the present case where instead of cabins there are latrines constructed. However this finding in favour of the plaintiffs will not save their suit which as said above is liable to be dismissed for want of a statutory notice as required under sec. 253(b) of the Gujarat Municipalities Act. Appeal allowed.