Judgment :- 1. The petitioner K. Thanumalayan, prays that the proceedings taken by the counter Petitioners (1) City Municipal Corporation, Trivandrum, and (2) Sri. A. Kunjukrishna Pillai, Commissioner, City Municipal Corporation, Trivandrum, for the demolition of the petitioner's building be quashed, that further demolition be prohibited and that such further order in the form of writs be passed securing the rights of the petitioner over his building and preventing any further damage or infringement of his rights. 2. The application was presented before this Court on 12.10.1950 along with which was also presented C.M.P. 1648/50 praying that the counter-petitioners (respondents in the O.P.) be restrained by an injunction from causing any further demolition of the building put up by the petitioner in survey Nos. 2705 and 2537 of Chengazhassery Pakuthy on the eastern side of the Srikumar Theatre at Thampanoor, Trivadrum. This application was urgently moved and the court ordered on that very date:- "Notice returnable in 7 days. Pay urgent process. The counter petitioners are restrained from demolishing the building any further." Notice of the O.P. as also of the said CMP were served upon the respondents on 17.10.1950 and in answer the respondents presented a counter-affidavit bearing date 6.11.1950 sworn to by the 2nd respondent with an application dated the next day (C.M.P. 1898/50) both of which were presented in Court on 11.11.1950. The petitioner filed an affidavit dated 25.11.1950 in reply to the said counter-affidavit on 27.11.1950. In C.M.P. 1898/50 the prayer of the respondents is that for the reasons stated in the affidavit of the Commissioner, the O.P. may be dismissed with costs. 3. After the hearing of this case started last week two more affidavits have been filed. One is by A. Swamikannu Pillai dated 21.9.1953 and the other by Srikantan Nair, clerk of the 1st respondent Corporation dated 22.9.1953. On 26.11.1951 the respondents filed C.M.P. 2625/51 stating that all the records in the possession of the counter-petitioners regarding this matter are produced therewith and the petition was accompanied by a list. The petition contains an endorsement at its foot that Nos. 5,10,12,14, 15, 42, 44 to 49, 53 and 55 shown in the list have not been produced. On 26.11.1951 the respondents filed C.M.P. 2625/51 stating that all the records in the possession of the counter-petitioners regarding this matter are produced therewith and the petition was accompanied by a list. The petition contains an endorsement at its foot that Nos. 5,10,12,14, 15, 42, 44 to 49, 53 and 55 shown in the list have not been produced. No affidavit tendering proof of any document in the Form prescribed in Art. 29 of the Cochin Civil Rules of Practice or Art. 95 of the Travancore Civil Court's Guide has been presented before court though the attention of both parties was drawn early enough at the trial regarding the necessity for compliance therewith, time was given for such compliance therewith, time was given for such compliance and the case adjourned from last week to this. That however does not stand in the way of the Court's disposing of the matter as in my view it admits of being disposed of upon admitted facts or upon facts that have been proved by the affidavits already filed. No party wanted any further opportunity to adduce any further evidence or tender any further mode of proof than what has been done already which, as above stated, remains in an unsatisfactory condition. 4. The facts are as follows. Whichever fact is disputed I shall indicate by that appellation and in the absence of any such indication, the facts mentioned are those that are admitted. 5. The petitioner is a tax-payer in the City of Trivandrum. That city is being governed by a Corporation under the Travancore Act, IV of 1116 called the Trivandrum City Municipal Act. On 23.4.1950 the petitioner made an application to the Commissioner for permission to erect a building under S. 237 of the Act. On 25.5.1950 a communication was sent to him intimating a truism that the building ought not to be constructed without a licence from the Corporation. On 11.7.1950 the petitioner applied to the Standing Committee for the said permission, it is not having been granted by the Commissioner, under S. 242(1). A notice dated 26.7.1950 was issued by the Corporation to the petitioner asking him to show cause why he should not be prosecuted under S. 380 of the Act for having started construction without the permission of the Corporation. A notice dated 26.7.1950 was issued by the Corporation to the petitioner asking him to show cause why he should not be prosecuted under S. 380 of the Act for having started construction without the permission of the Corporation. To this notice, the petitioner alleges, he sent a reply on 31.7.1950 repudiating the statement contained in the notice that he had started construction and mentioning that there was no ground for any prosecution. The Corporation denies having received any such reply. By order dated 12.8.1950 the provisional order to prosecute the petitioner was made final and intimation thereof was given to him to which he replied on 28.8.1950 saying that there was no ground for the proposed prosecution. The petitioner says that there is as yet no prosecution against him. Learned counsel for the respondents is not in a position to say one way or the other on this point. On 28.9.1950 a notice under S. 259(1) of the Act was issued to the petitioner. A copy of the said notice was returned to the office of the Corporation purporting to contain the petitioner's signature at its foot with an endorsement of the peon entrusted with the service of the notice on its back to the effect that service has been effected. This paper is noted as No. 13 in the list furnished on behalf of the respondents. It has not been proved. The receipt of that notice is denied by the petitioner in this affidavit. In paragraph 5 of the petitioner's affidavit in reply he says that he purchased the ticket for a trip to Madras the previous day, i.e., on 27.9.1950 and that he left Trivandrum by the Express train early morning on 28.9.1950. He swears also that he was in Madras until the 10th October 1950 on which date he returned to Trivandrum. In paragraph 5 of his affidavit filed along with the O.P. he had mentioned that he learned while at Madras that a copy of the said notice had been taken to his residence on the morning of 29.9.1950. The answer to this is contained in paragraph 7 of the counter affidavit filed by the Commissioner wherein he says that "copy of the order No. P.W. 4702 appeared prima facie to have been accepted by the petitioner on 28.9.1950. If the petitioner did not sign it, somebody signed on his behalf or by his direction". The answer to this is contained in paragraph 7 of the counter affidavit filed by the Commissioner wherein he says that "copy of the order No. P.W. 4702 appeared prima facie to have been accepted by the petitioner on 28.9.1950. If the petitioner did not sign it, somebody signed on his behalf or by his direction". On 29.9.1950 Ganesh & Co. sent a letter to the Corporation stating that their proprietor, the petitioner was away at Madras (giving his address at Madras at the foot) and that an order left at his residence was being therewith returned to them, in his absence. It was requested therein that the notice may be sent to the petitioner at Madras. The notice discloses on its face that the petitioner was directed to demolish the construction. "He is also required to show cause within 24 hours why the above order should not be confirmed". The above order is to the effect that: "Whereas I am satisfied that Mr. K. Thanumalayan, T.C. No. 79, Pettah Division has constructed a building without obtaining the requisite licence under S. 237 of the City Municipal Act and that he has not complied with the instructions of the notice No. PW.1372 dated 25.5.1950 and subsequent notices issued from this office, he is hereby required under S. 259(1) of the City Municipal Act to demolish the construction". The notice proceeds to say that:- "Failure to comply with the instruction will entail further action being taken against him and the building demolished departmentally". 6. No application for time was made by Ganesh & Co. to comply with the requirements contained in the said notice. Paragraph 7 of the counter-affidavit of the 2nd respondent says about this as follows: "The petitioner's agent informed me on 29.9.1950 that the petitioner had left for Madras on the morning of 28.9.1950 and that he will be returning only after two weeks. As the contents were known to the agent and as the time fixed was 24 hours, the agent could have informed me of the fact of Sri. Thanumalayan's absence on 28.9.1950 itself, if Sri. Thanumalayan was actually absent. In the letter of the agent, it was stated that the original of the order was returned with his letter. But as a matter of fact it was not so returned. Thanumalayan's absence on 28.9.1950 itself, if Sri. Thanumalayan was actually absent. In the letter of the agent, it was stated that the original of the order was returned with his letter. But as a matter of fact it was not so returned. But the agent who usually sends communications on behalf of the petitioner did not state any reason why the order should not be carried out. He also did not ask for any time." On 3.10.1950 the order was confirmed and the next morning a part of the building was demolished by the Corporation with Police aid. On that day an appeal appears to have been preferred before the Government by Ganesh & Co. and an order of stay obtained whereupon further demolition was stopped. Within a week thereafter the O.P. was presented before this Court and an order of stay of further demolition obtained as already stated. The building is in that part-finished and part-demolished condition even this day disfiguring the beautiful City of Trivandrum and perhaps serving to ward off the evil eye. Swamikannu Pillai who swears to have constructed the building for and on behalf of the petitioner states that the building was hurriedly put up, working day and night. Steps for its demolition were taken by the Corporation with equal expedition but when the matter came to this Court, it gave a quietus to the whole affair and neither of the parties appears to have been anxious either to complete the construction or the demolition, a situation which is very much to be regretted. For three years the building remains in this undesirable condition. Had there been an urgency to demolish it, the Corporation could have applied for the cancellation of the interlocutory order passed by this Court. Had there been an urgency to complete the construction, a motion for the early disposal of the O.P. might have been made by the petitioner. 7. There is a keen controversy as to the date on which the construction was commenced. Had there been an urgency to complete the construction, a motion for the early disposal of the O.P. might have been made by the petitioner. 7. There is a keen controversy as to the date on which the construction was commenced. The respondents would have it that it was commenced within a month from 11.7.1950 in which event the construction would necessarily be unauthorised because under the Act an applicant for permission to erect a building can commence construction even without a licence only if no order be passed by the Standing Committee within a month from the date on which the Committee was approached for such permission. According to the petitioner, however, the construction was started only after the 16th August 1950 on which date he entrusted the work on contract to the said Swamikannu Pillai, the deponent of the affidavit. It is certainly strange that upon a question whose truth or falsity would admit of demonstration, we are in a situation where it is still at a stage of dispute. Had the Corporation on 28.7.1950 given notice, which they did on 28.9.1950, under S. 259 of the Act instead of under S. 380, and the demolition had been done within a few days as was done pursuant to the notice on 28.9.1950, then this controversy would not, as it could not have arisen. What we find, however, is that the notice dated 28.7.1950 (which was within a month of the application dated 11.7.1950) was to prosecute the petitioner and not for the purpose of demolishing the building said to have been put up. This circumstance is certainly significant especially in view of the fact that on 28.8.1950 the petitioner admittedly denied having started construction. The Commissioner says in his affidavit that before the issue of the notice dated 28.7.1950 a member complained about the commencement of the construction and that he had occasion to visit the place and satisfy himself about its truth. That member, however, has not helped this court with an affidavit in that matter nor is there any record produced before court by the Corporation wherein the said complaint would appear. That member, however, has not helped this court with an affidavit in that matter nor is there any record produced before court by the Corporation wherein the said complaint would appear. That question of fact is one that has to be investigated and decided after testing the veracity of the conflicting versions by subjecting the concerned parties to cross-examination, a process which is not available in proceedings for a writ of this description under R.10 of the Rules framed by the High Court in that behalf which provides that proof of facts and documents shall be tendered by way of affidavit and restricts the application of O. XIX of the Civil P.C. by providing that the calling in of deponents for cross examination will not be permitted. It is contended by learned counsel for the respondents that a question of fact about which there is keen contest should not be decided by the High Court in an application for a writ and he cites decisions of various High Courts in support of that position. I do not feel called upon to decide that aspect of the question just now because, in my view, it is unnecessary in this case to do so. 8. The notice dated 28.9.1950 under S. 259(1) directing the petitioner to demolish the unauthorised construction and to show cause why the provisional order called upon him to demolish the building should not be confirmed under S. 259(2) is a condition precedent to its confirmation which is essential to clothe the Corporation with authority to themselves do the act which the petitioner was directed to do. If a notice as contemplated by clauses (1) and (2) of S. 259 is served upon a person unauthorisedly erecting a building and if he does not show cause why the provisional order should not be confirmed, then the Corporation is entitled under the provisions of S. 402 to themselves do the demolition or the act that the addressee is asked to do. This is the view taken by Sir Lionel Leach, Chief Justice of the Madras High Court (as he then was) sitting with Horwill, J. in 1940 (2) MLJ 1032. With that view I agree with respect. This is the view taken by Sir Lionel Leach, Chief Justice of the Madras High Court (as he then was) sitting with Horwill, J. in 1940 (2) MLJ 1032. With that view I agree with respect. If there had been no service of the notice contemplated by S. 259(1) and no opportunity given to the petitioner to show cause under S. 259(2) then the jurisdiction of the Corporation to take action under S. 402 has not arisen. In this case, upon the evidence, but one conclusion is possible. The petitioner distinctly swears in his affidavits that he left Trivandrum for Madras early in the morning on 28.9.1950 and was there until the 10th of next month. The notice issued by the Corporation on 28.9.1950 could not possibly have been served upon him if his case of leaving for Madras be true. Upon that there is only his sworn testimony supplied by his affidavits which is not contradicted by any affidavit filed in answer. The counter-affidavit of the Commissioner only goes to show that the return purported to contain the petitioner's signature and "if he had not signed somebody signed on his behalf or by his direction" which is mere conjecture. The person who was entrusted with the service of the notice has not been called to file an affidavit about the truth of the endorsement made by him. Learned counsel for the respondents contend that the rule regarding presumptions applicable to official acts should be applied in the present case and the return must be presumed to be true. There is no scope for presumption when the fact is covered by the evidence tendered. On 29.9.1950 as already stated the notice in original left at the residence of the petitioner is stated to have been sent back by Ganesh & Co. to the Corporation though its receipt is denied by the Corporation. The receipt of the letter sent by Ganesh & Co. is admitted which letter discloses the fact that the petitioner was away at Madras in the address given therein. Under S. 395(c) of the Act notice should be sent by post to a party when it could not be personally served. The receipt of the letter sent by Ganesh & Co. is admitted which letter discloses the fact that the petitioner was away at Madras in the address given therein. Under S. 395(c) of the Act notice should be sent by post to a party when it could not be personally served. The information about the petitioner's absence at Madras with his precise address there was admittedly obtained by the Corporation on 29.9.1950 and it was up to the Corporation to serve the notice on the petitioner by sending it to his known address at Madras. Not having done so, the Corporation wants to depend the fact that Ganesh & Co. must have known about the contents of the notice and they not having asked for time, the Corporation was entitled to proceed as though notice has been properly served. The petitioner in his affidavit denies the authority of Ganesh & Co. to act as his agent. In answer to this, learned counsel for the respondents says that the same Ganesh & Co. appealed to the Government on 4.10.1950 and obtained a stay of the demolition. That fact would not indicate that Ganesh & Co. were authorised to do so by the petitioner. If Ganesh & Co. did act in the matter and if that act did benefit the petitioner, for that reason it cannot be said that that act was done by Ganesh & Co. on the authority conferred upon them by the petitioner. The petitioner could not but accept the advantage obtained by Ganesh & Co. by filing an appeal and obtaining an order of stay. The statements contained in the counter affidavit of the 2nd respondent cannot be accepted as evidence because he had no direct knowledge as to what transpired at the time when the notice was taken to the petitioner's residence. Those statements can therefore only amount to contentions and not proof. by filing an appeal and obtaining an order of stay. The statements contained in the counter affidavit of the 2nd respondent cannot be accepted as evidence because he had no direct knowledge as to what transpired at the time when the notice was taken to the petitioner's residence. Those statements can therefore only amount to contentions and not proof. The result is that upon the question of service of notice the only conclusion possible is that the notice had not been served upon the petitioner and if no notice had been served, the provisional order made under S. 259(1) and its confirmation under S. 259(2) without giving an opportunity to the petitioner to show cause would be altogether and would not amount to an order within the meaning of S. 259, which is a necessary prerequisite for the arising of jurisdiction for the Corporation to take action under S. 402 and the action which is impeached in this case, viz., the demolition of the building and the proceedings to complete the demolition are unauthorised and cannot be sustained. On this question of fact, viz., on the factum of the service of the notice upon the petitioner, learned counsel for the respondents urged before me that the court should refrain from adjudicating upon, because it is a contested question of fact. In the sense in which a contested question of fact is ordinarily understood, I do not consider there has been a contest on this question of fact because even the counter-affidavit of the 2nd respondent does not say that the return did in fact contain the signature of the petitioner. It merely says that it purported to contain, which is very different from saying that it does in fact contain. If the bonafides of the 2nd respondent had been in question, in the absence of an intimation which was supplied to him by Ganesh & Co., on 29.9.1950 if the 2nd respondent had taken action on the basis of the apparent being the true state of things then he may be immune from responsibility. But that is not the question here. The question is whether he does say that the notice was in fact served upon the petitioner and the return does contain his signature. That the 2nd respondent does not say. But that is not the question here. The question is whether he does say that the notice was in fact served upon the petitioner and the return does contain his signature. That the 2nd respondent does not say. I asked learned counsel for the respondents whether he required time to produce in Court an affidavit clearly stating that to the knowledge of the 2nd respondent or any other person the notice was in fact tendered to and accepted by the petitioner and in token of which he affirmed his signature to the copy, and the answer was that no time is required. Learned counsel now intervenes and says that if it is a question of the affidavit of the peon he is prepared to file an affidavit but that is not how I understood him at the time of argument but whatever that may be what matters now is the question whether there was in fact a tender of the notice to the petitioner whose factum has been questioned. It might be a correct thing to say that though the petitioner was away tendering of notice to someone in his house as contemplated by the Civil P.C. might be sufficient but such a plea has not been raised. It has not been pleaded that the notice was tendered to an adult member of the family in the absence of the petitioner and that therefore it would constitute proper service. It is sufficient to say that such a plea namely that there has been in this case proper service of notice because it was tendered to an adult member of the family, has not been raised and its sufficiency or truth does not therefore fall to be decided. Ganesh & Co. in their letter of 29.9.1950 say that the notice in original was sent to them on the 29th which was transmitted along with the letter. Their failure after knowledge of the contents of the notice to ask for time is considered by the Commissioner to be sufficient justification in proceeding to confirm the provisional order as intimated in the notice. As already stated the petitioner distinctly swears that Ganesh & Co. had no authority from him to act in that behalf as his agent. The Commissioner no doubt says in his affidavit that Ganesh & Co. As already stated the petitioner distinctly swears that Ganesh & Co. had no authority from him to act in that behalf as his agent. The Commissioner no doubt says in his affidavit that Ganesh & Co. were acting as petitioner's agent but to the query made by the Court to learned counsel for the respondents whether the file produced will show the existence of any paper in which Ganesh & Co. acted as petitioner's agent the answer was that there is no paper in the file but that there may be papers in some other files relating to other matters between the Corporation and the petitioner. In the absence of any such paper no more consideration of that question is necessary and it is sufficient to say that in the absence of any contention raised that Ganesh & Co. were generally the agents of the petitioner in other matters between him and the Corporation, any consequence of the act or default or omission of Ganesh & Co. cannot be visited upon the petitioner for any purpose. The result is that the sine qua non for the Corporation to take action under S. 402 in the matter of demolition of the building erected by or on behalf of the petitioner, even if such erection was unauthorised, is absent and the order to demolish the whole and the action in demolishing a part is altogether unjustified. The respondents should, therefore be restrained from further demolishing the building and the prayer contained in the petition to that effect is allowed. 9. The same conclusion would follow even if that notice is taken to have in fact been served on the petitioner because, the contention urged by learned counsel for the petitioner that there has not been reasonable notice has to be accepted. A 24 hour notice is far too short in a matter like this and the order of confirmation under S. 250(2) which was made without reasonable notice will not bind the petitioner nor will it clothe the respondents with authority to proceed under S. 402. Compliance with the provisions contained in both the Clauses of the 259th Section is a condition precedent to taking action under the 380th Section to prosecute the delinquent or to doing what he was ordered to do. (See AIR 1948 Mad. 470 = (1948) 1 MLJ 413). Compliance with the provisions contained in both the Clauses of the 259th Section is a condition precedent to taking action under the 380th Section to prosecute the delinquent or to doing what he was ordered to do. (See AIR 1948 Mad. 470 = (1948) 1 MLJ 413). The notice whose issue is enjoined upon the Corporation by cl. (2) is an effective notice; i.e., one sufficient for the purpose for which that Clause expressly says it is meant, namely to enable the addressee to show cause against confirming the provisional order directing him to demolish (as in this case) the unauthorised construction. The petitioner had already denied that charge. What remained was proof of the date of commencement of the construction before the Corporation who had laid the charge. The tendering of proof necessarily takes time and it was impossible to do it in 24 hours from -it is not clear when- presumably the time of its issue which is not stated in the notice. The time given is obviously unreasonable and the notice is illusory. Learned counsel for the respondents realised this position and was driven to contend that the petitioner had flouted the orders of the Corporation and therefore deserved no better treatment. The flouting meant is the alleged unauthorised construction. It is just to a person against whom a provisional order to set right an unauthorised act or omission is made that the law obliges the Corporation to give reasonable notice to show cause. If what is contended is that the Corporation and already reached a final conclusion against the petitioner, the issue of notice would be an empty and purposeless formality, a farce, reduction whereto of solemn proceedings affecting the liberty and property of persons cannot be countenanced or tolerated. I have no hesitation in holding that the time given is unreasonable, the notice is illusory and that the mandatory provisions in that behalf contained in the 2nd clause of the 259th Section have not been complied with. 10. I have no hesitation in holding that the time given is unreasonable, the notice is illusory and that the mandatory provisions in that behalf contained in the 2nd clause of the 259th Section have not been complied with. 10. I cannot accept the contention of learned counsel for the petitioner that the presence of the last portion of the notice referring to direct action by the Corporation in default of demolition by the petitioner vitiates the notice in its entirety because that part is severable and the rest which alone would be sufficient can and does exist independently and there is no confusion or want of clarification by clubbing the two together. 11. In the result, allowing the Original Petition, I hereby quash the proceedings of the respondents confirming, under S. 259(2), their provisional order issued under S. 259(1) and deciding to take action under S. 402 of the Trivandrum City Municipal Act, IV of 1116 as also the provisional order, and I hereby prohibit the respondents from further proceeding with the demolition pursuance to the said proceedings. 12. The present fight is sui generis. The belligerents are a rate-payer and the City fathers between whom, instead of amity, animosity appears to prevail. The facts make it clear that this situation is the result of some misappropriations between the parties for which perhaps neither of them is actually responsible. It is hoped that the parties will see eye to eye with each other and so adjust themselves as to engender a proper and peaceful administration of the City Municipal Act in the manner and for the purpose for which its various provisions are meant. The petitioner charges the 2nd respondent with malafides. I must say that there is nothing in the case to suggest that he was actuated by any malafides. It might be that the Corporation was in error as to the real import of the various provisions of the Act. The Commissioner does not swear that the petitioner in fact signed the copy of the notice nor has he attempted to pop up such a case by other evidence which may perhaps be condemned as prejury. This attitude on his part is certainly commendable. The Commissioner does not swear that the petitioner in fact signed the copy of the notice nor has he attempted to pop up such a case by other evidence which may perhaps be condemned as prejury. This attitude on his part is certainly commendable. Therefore, though I have allowed the petition and prohibited the respondents from further proceeding with the act of demolition, I do not in the least intend to say that the 2nd respondent or anybody connected with the Corporation has been actuated by any other than proper motives. Under the circumstances, I make no order for costs. Allowed.