BIBI ASFIA BEGUM Vs. MUNICIPAL BOARD ALIGARH

JUDGEMENT

(1.) The present appeal has been filed against the rejec tion of the plaint under Order 7 Rule 11 C. P. C. due to want of notice under sub-section (1) of Section 326 of the U, P. Municipalities Act. The plaintiff-appellant filed the suit for a permanent injunction restraining the defendant, the Municipal Board Aligarh, from realizing a sum of Rs, 29,576/61 p. as arrears of house tax on the properties detailed in the plaint. The plaintiff alleged that the tax was imposed without complying with the provisions of the Act. No draft rules as contemplated by Section 131 of the U. P. Municipalities Act hereinafter called the Act) were published nor were the assessment proposals published. The house tax was not imposed in accordance with the provisions of the Act. The imposition was void and without jurisdiction. The Municipal Board being under super session, the Administrator was not competent to impose the impugned tax. There was no valid notice of proposals to the owners of houses to file their objections. The notices under Section 143 (1) and (3) of the Act were not given. The tax was challenged by way of a writ petition before the High Court. The petition was dismissed. In Special Appeal, on 2-4-1971, the plaintiff was permitted to with draw the writ petition with liberty to file a regular suit. As the matter could not be decided without evidence, oral and documentary, the plaintiff was advised to file the suit. It was mentioned in paragraph 35 of the plaint that the defen dant No. 1, i. e. Municipal Board was making great haste to recover the amount and the purpose of the suit would be defeated if the suit was not filed immediately. One of the pleas in defense was that the suit was not maintainable as it was filed without issuing any notice under Section 326 (1) of the Municipali ties Act. Several issues were framed and issue No. 17 was framed about the maintainability of the suit in absence of notice under Section 326 of the Act. That issue was tried as a preliminary issue. The issue was decided against the plaintiff and the suit was dismissed. The Courts below relied upon a Full Bench decision of this Court, Haji Ahmad Raza v. Municipal Board. Allahabad (A. I. R. 1952 Alld. 711 ). It further relied on a subsequent Division Bench case. Municipal Board, Shikohabad v. Chandra Deo Prasad Srivastava and others (1963 Alld. L. J. 688 ). In both the cases this Court had held that the requirement of notice under sub-section (1) of Section 326 could be dispensed with only if the purpose of the suit would have been defeated by giving of the notice or the postponement of the commencement of the suit. There is no averment in the plaint that the object of the suit would be defeated if the suit was postponed for the purpose of giving the notice under Section 326 of the Municipalities Act, 1916. No immediate danger or such injury was averred which would have rendered the suit in fructuous if it would have been filed after issuing the notice. Thus the suit would not be defeated by delay. The argument of the learned counsel was that the orders challenged in the suit could not be deemed to have been passed by the Municipal Board as they were passed in utter violation of the provisions of the Act. The demand was illegal and void. The learned counsel for the appellant relied upon a single Judge decision of this court in Nagar Mahapalika v. Diwan Gokul Chand Kapoor (1965 A. L. J. 773. ). It was held that where the assessment on the face of it was arbitrary and. unreasonable it could not be regarded as an act done or purporting to have been done in exercise of the powers conferred under Section 147 and the suit would not be barred by the provisions of Section 326 of the U. P. Municipalities Act. We find ourselves unable to agree with the decision of the learned Single Judge. In Haji Ahmad Raza's case (supra) a Full Bench of this Court held as under: ''a Municipal Board is a corporation and it can act only by the passing of a resolution by those who for the time being are entrusted with its administration. The passing of the resolution, the making of a bye- law, its publication in the Gazette and all steps taken to implement those bye-laws are all "act" of the Municipal Board. " Section 326 provides for a notice "in respect of an act done or purporting to have been done" by the officers of the Municipal Board. In the instant case even if we accept the plaint allegations as they are, the Municipal Board imposed the tax under the various provisions of the Act which according to the plaintiff were not in accordance with law. Therefore, there can be no doubt that the Municipal Board purported to act as contemplated by Section 326 (1 ). If an act is squarely covered by a provision of the Municipalities Act, it will be an act done by the Municipal Board under that provision. But if that act is not in accordance with the provisions of the Act or in defiance of relevant provisions, such an act of the Municipal Board would be purporting to have been done under the provisions of the Act, though illegality. It cannot be said that the illegal act complained of was done under some other cover or label. It was mentioned under the authority of various provisions of the Municipalities Act. The disputed assessments were thus made by the respondent purporting to act under the relevant provisions of the Act. In our opinion the present suit has been rightly held to be barred by the provision of Section 326 (4) of the Municipalities Act and the plaint has been rightly rejected. In the result, the appeal is dismissed. There will be no order as to costs. .