S.326(1) UP Municipalities Act | Notice To Municipality Not Mandatory If It Will Defeat Purpose Of Injunction Suit: Allahabad High Court
The Allahabad High Court has upheld the rejection of anapplication under Order 7 Rule 11 CPC (rejection of plaint) on grounds that notice under Section 326 of the U.P. Municipalities Act, 1916 is not mandatory if it will defeat the purpose of the injunction suit.Section 326 of the U.P. Municipalities Act, 1916 provides for suits against municipality or its officers, it is mandatory to provide...
The Allahabad High Court has upheld the rejection of anapplication under Order 7 Rule 11 CPC (rejection of plaint) on grounds that notice under Section 326 of the U.P. Municipalities Act, 1916 is not mandatory if it will defeat the purpose of the injunction suit.
Section 326 of the U.P. Municipalities Act, 1916 provides for suits against municipality or its officers, it is mandatory to provide a two month notice period to the municipality and its officers. The notice must contain the cause of action, nature of relief sought, amount of compensation claimed, and name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left at the address of the municipality or its officers whoever is sought to be impleaded.
Sub-section (4) of Section 326 of the U.P. Municipalities Act, 1916 dilutes the requirement of notice under Section 326(1) in cases where the only relief sought in a suit is injunction.
Relying on the full bench decision of the Allahabad High Court in Haji Ahmad Raza and others v. Municipal Board Allahabad, Justice Manish Kumar Nigam held
“In view of the judgment of the Full Court in case of Hazi Ahmad Raza (supra), the exception given in sub-Section 4 has also very restricted meaning. Even in case of injunction, a notice is necessary to be given to the Board or its officer or servant covered by sub-Section 1. Where the object of the suit would be defeated by giving a notice in an injunction suit, such notice need not be given.”
The Court further held that for deciding an application for rejection of plaint under Order 7 Rule 11 CPC, the Court must only consider the statements made in the plaint. Defence evidence can only be looked at after framing of issues.
Factual Background
Respondent-plaintiff instituted a suit for permanent prohibitory injunction restraining the defendants not to raise constructions over the passageway shown by letters A,B,C,D, in the plaint map and obstruct the right of way of the plaintiff-respondents.
According to the plaint, the passageway towards the plaintiff's house existed before abolition of zamindari and it is the approach road to the house. It was alleged that since the passageway was used by plaintiff's ancestors, petitioner-defendant had no legal right to raise construction over the passageway.
Petitioner-defendant [Executive Officer Nagar] filed an application under Order 7 Rule 11 CPC on grounds that no notice was given to him under Section 326 of the U.P. Municipalities Act, 1916 as well as under Section 80 CPC prior to filing of the suit. It was pleaded that the suit was barred by law and liable to be rejected. The application was rejected by the Court below and revision filed against the order was also rejected.
Counsel for petitioner argued that the only question for the consideration of the High Court under Article 227 of the Constitution of India was whether suit filed by the plaintiff-respondents is barred for want of notice under Section 326 of U.P. Municipalities Act, 2016 as admittedly no notice was given under Section 326 of the U.P. Municipalities Act, 1916 and as such the plaint is to be rejected under Order 7 Rule 11 CPC.
Counsel for petitioner argued that since no notice was given under Section 326 of the Act of 1916 and the plaintiff-respondent has other passageways to approach his house, the plaint was liable to be rejected under Order 7 Rule 11 CPC.
Per Contra, counsel for respondent-plaintiff argued that Section 326(4) provides that the mandate of notice in Section 326(1) does not apply to suit praying only for injunction.
High Court Verdict
The Court observed that in view of Section 326(1) of the U.P. Municipalities Act, 1916, notice is to be given before instituting suits against the Nagar Palika (Municipality) unless the case falls within the exception under sub-section (4) of Section 326.
The full bench of the Allahabad High Court in Haji Ahmad Raza and others v. Municipal Board Allahabad had held that
“The word "defeated" in Sub-section (4) of Section 326 is much stronger than the word "inconvenienced". If the plaintiffs'' contention were accepted then it would mean that in every suit for an injunction there is no need of any notice, because in every such case a delay in the institution of the suit is bound to cause inconvenience to the plaintiff. It will be noticed that Sub-section (4) of Section 326 does not dispense with the requirement of notice in all suits for an injunction. It is only in those suits for an injunction in which the object would be "defeated" by the giving of the notice or the postponement of the commencement of the suit that this requirement has been dispensed with."
Accordingly, the Court held that the requirement of giving notice can only be circumvented when the same would defeat the purpose of the injunction suit. The Court observed that since the passageway was the only approach road available to the plaintiff, any construction/ obstruction of the same would have defeated the purpose of the suit.
To the contention of the petitioner that Section 326 of Act of 1916 cannot be looked into while deciding application under Order 7 Rule 11 of CPC, the Court held that
“Whether the suit is barred by any law must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement in the case.”
The plaintiff had specifically pleaded that there was only one passageway available to him. The Court held that the case set by the defendant can only be considered that after framing of issued and not at the stage of deciding application under Order 7 Rule 11 of CPC.
Accordingly, the Court upheld the order of rejection of application under Order 7 Rule 11 of CPC filed by the petitioner.
Case Title: Executive Officer Nagar vs. Stainli Khan And Another 2024 LiveLaw (AB) 71 [MATTERS UNDER ARTICLE 227 No. - 12988 of 2023]
Case citation: 2024 LiveLaw (AB) 71