Notice Under Municipalities Act Not Mandatory When Seeking Declaration Of Title & Permanent Injunction Against Town Municipal Council: Karnataka HC

The Karnataka High Court has made it clear that a prior notice under provisions of the Karnataka Municipalities Act is not mandatory while filing a declaratory suit of title and permanent injunction against the Town Municipal Council.

Section 284 (1) reads thus: 284. Previous notice for suits, etc.—(1) No suit shall be instituted against any municipal council, officer, servant or any person acting under the order or direction of such municipal council, officer or servant in respect of any act done or purporting to have been done in pursuance of this Act or any rule or bye-law made thereunder until the expiration of sixty days next after notice in writing, stating the cause of action, the nature of the relief sought, the amount of compensation claimed, the name and place of residence of the intending plaintiff and the relief which he claims, has been in the case of a municipal council delivered or left at its office, and in the case of such officer, servant, or person, delivered to him or left at his office or place of residence and unless the plaint contains a statement that such notice has been so delivered or left.

A single judge bench of Justice Shivashankar Amarannavar allowed the appeal filed by Laxman Warad and others and quashed the first appellate court order which had dismissed the suit filed by the plaintiff and confirmed the order of the trial court which had decreed the suit in favour of the plaintiff.

The plaintiff claimed that he is the actual owner and possessor of the suit property and the same has been granted to him by the Special Deputy Commissioner, Bijapur on 18.12.1986 on a privilege of consideration of his military service.

The plaintiff contended that they were running an oil mill after obtaining the necessary permission from the concerned authority. It is further case of the plaintiff that he wanted to construct a room on the eastern side of the property for his family use and when the said construction was in progress, the defendant (Town Municipal Council, Bagalkot) surveyed the suit property through Survey Department wherein it was shown that he had encroached an adjacent property.

It was alleged that the defendant with their labourers then trespassed the suit property and demolished the portion newly constructed.

The defendant's only contention was that issuance of prior notice as required under Section 284 of The Karnataka Municipalities Act is mandatory and for non-issuance of the same, he prayed for the return of the plaint.

The appellant contended that he had filed the suit for the relief of declaration and injunction to declare that he is the owner of the suit property and to restrain the defendant from interfering with his possession over the suit property. 

The bench noted the suit filed by the appellant-plaintiff was for the relief of declaration that he was the owner and in possession of the suit property. It was found that when the plaintiff was constructing a building on his property on the eastern side, he alleged that the labourers of the defendant had high-handedly demolished the undergoing construction alleging that the plaintiff had encroached on the property of the defendant. As the defendant and his servants interfered with the plaintiff's possession and denied his title, he filed a suit for declaration and injunction.

It was further opined that in the written statement, the defendant had not pleaded any encroachment by the plaintiff over the property of the defendant, or of any action taken against the plaintiff under the provisions of the Act for removal of encroachment.

Thus it observed “That itself establishes that the defendant has not invoked any of the provisions of The Karnataka Municipalities Act for removal of alleged encroachment made by the plaintiff over the property of the defendant. If any action is taken by the defendant under the provisions of The Karnataka Municipalities Act, then the defendant is entitled to prior notice as required under Section 284(1) of the Act.”

Referring to Section 284 of the Act the court said that the notice as required under Section 284(1) of the Act is necessary in respect of any act done or purporting to have been done in pursuance of this Act or any rule or bye-law made thereunder”

It was found that the defendant had not initiated any action against the plaintiff under the provisions of the Act, therefore, no prior notice as required under Section 284(1) of the Act, was necessary.

Following this, the Court held that the dispute between the plaintiff and defendant did not attract the provisions of the Act. Therefore, no question of issuance of notice under Section 284(1) of the Act, arose.

The First Appellate Court without considering all these aspects has erred in holding that notice under Section 284(1) of the Act is mandatory and in the absence thereof, suit is not maintainable,” it was held.

Accordingly, it allowed the appeal.

Appearance: Advocates for appellants Shivanand Malashetti, Shivaraj P Mudhol.

Advocate R.K. Kulkarni for respondent.

Citation No: 2023 LiveLaw (Kar) 482.

Case Title: Laxman Warad & Others AND Town Municipal Council

Case No: Regular Second Appeal No 3206 of 2007.

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