Ram Prasad Pathak v. Agra Nagar Mahapalika — 1971 DIGILAW 518 (ALL)

JUDGMENT T.S. Misra, J. - This is a plaintiff's appeal against the decision of the III Addl. Civil Judge, Agra, dismissing the suit filed by him. The plaintiff had filed that suit for ejectment of the defendant from the premises in question and for recovery of Rs. 227/- towards arrears of rent. It was alleged that the defendant Nagar Mahapalika of Agra committed default in making payment of rent inspite of service of notice of demand. The tenancy of the defendant was terminated by a notice which was served on it on 3-4-63 and as the defendant failed to comply with the same, the suit for the aforesaid reliefs was filed. 2. The defendant contested the suit on a variety of grounds, one of the grounds being that the suit was not maintainable for want of a notice under section 571 of the U.P. Nagar Mahapalika Adhiniyam and the claim for arrears of rent prior to November, 1952, was barred by time under the same section. The trial court decreed the suit as prayed. Aggrieved from the said decision, the defendant filed an appeal which was allowed. The appellate court below held that the suit could not be filed without giving the requisite notice to the defendant Mahapalika under section 571 of the U.P. Nagar Mahapalika Adhiniyam. It also held that the rent for the period prior to November, 1962 is barred by the said section. Aggrieved from the said decision the plaintiff has come up in second appeal. 3. The learned counsel for the appellant submitted that it was not necessary for the plaintiff to serve a notice under section 571 of the U.P. Nagar Mahapalika Adhiniyam inasmuch as the provisions of the said section were not attracted to the facts and circumstances of the case. In support of his arguments the learned counsel placed reliance on a Full Bench decision of this Court in the case of Antarim Zila Parishad (Distt. Board) v. Shanti Devi 1965 AWR 146 ). In the Full Bench case it was alleged that the provisions of S. 192 of the District Boards Act barred the suit. It was held that a suit brought by contractor against the District Board for recovery of money due under the contract for the work done by him is not governed by the provisions of S. 192 of the District Boards Act. It was held that a suit brought by contractor against the District Board for recovery of money due under the contract for the work done by him is not governed by the provisions of S. 192 of the District Boards Act. The provisions of S. 571 of the U.P. Nagar Mahapalika Adhiniyam are similar to the provisions of S. 192 of the District Boards Act with very little change therein. The learned counsel for the respondent urged that the words "or are in respect of any alleged neglect or default in the execution of this Act" which have been incorporated in S. 571 of the U.P. Nagar Mahapalika Adhiniyam are not to be found in S. 192 of the District Boards Act and on this ground he sought to distinguish the aforesaid Full Bench decision reported in 1965 AWR 146 (supra). He submitted that as the defendant Nagar Mahapalika neglected or defaulted in making payment of the arrears of rent the case fell within the mischief of S. 571 of the U.P. Nagar Mahapalika Adhiniyam. Hence a notice under that section was necessary to be served on the defendant before instituting the suit. The relevant portion of S. 571 of the U.P. Nagar Mahapalika Adhiniyam reads as follows:-- No suit shall be instituted against the Mahapalika or against the Mukhya Nagar Adhikari or against any Mahapalika officer or servant, in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act- (a) until the expiration of two months next after notice in writing has been, in the case of the Mahapalika left at the Mahapalika office and, in the case of the Mukhya Nagar Adhikari or of a Mahapalika officer or servant delivered to him or left at his office, stating with reasonable particularity the cause of action, the nature of the relief sought, the amount of compensation claimed, if any, and the name and place of abode of the intending plaintiff and of his attorney, Advocate, pleader or agent, if any, of the purpose of such suit, nor (b) unless it is commenced within six months next after the accrual of the cause of action. 4. The similar provision exists in the District Boards Act. 4. The similar provision exists in the District Boards Act. S. 192 of the District Boards Act reads as follows:- (1) No suit shall be instituted against a Board or against a member, officer or servant of a board, in respect of an act done or purporting to have been done in its or his official capacity until the expiration of two months next after notice in writing has been, in the case of a board, left at its office, and, in the case of a member, officer or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action the nature of the relief sought, the amount of compensation claimed, and the 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. (2) If the board, member, officer or servant has before action is commenced, tendered sufficient amends to the plaintiff, the plaintiff shall not recover any sum in excess of the amount so tendered and shall also pay all costs incurred by the defendant after such tender. (3) No action such as is described in sub-S. (1) shall, unless it is an action for the recovery of immoveable property or for a declaration of title thereof, be - commenced otherwise than within six months next after the accrual of the cause of action. (4) Provided that nothing in sub-S. (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by giving of the notice or the postponement of the commencement of the suit or proceeding. 5. Similarly under section 326 of the Municipalities Act no suit shall be instituted against a board or against a member, officer or servant of a board in respect of an act done or purporting to have been done in its or his official capacity until the expiration of two months next after notice in writing has been left at its office...... 6. 6. Considering the provisions of the said Acts the Full Bench in the case of Antarim Zila Parishad v. Shanti Devi 1965 AWR 146 ) held that:-- If an act comes within the scope of the duties, powers, or functions of the authority created by the statute it is an act done under the official capacity or authority and may also be an act done under the Act or statute. The words 'done under an Act' require more direct connection between the act and the statute than 'done under the official capacity or authority'--it must be an act directly required or permitted expressly or by necessary implication, to be done by the statute. If an statute authorises the doing of an act it is an act done under the statute; it is also done under the authority of the statute or in the official capacity of the doer. An act done, though not under an express or implied provision of a statute but in performance of a statutory duty or in exercise of a statutory power or function is done under the authority of the statute. If the statute confers an official status or capacity upon the doer, it is done under the official authority or in the official capacity. It was further laid down that "act" within the meaning of the words used in various statutes may include omission or failure to do an act, but in order that the particular statute covers an omission or failure it must have been done under the statute or in the official capacity or under the official authority. There is no difficulty in respect of a positive act but in respect of a negative act, i.e., an omission or failure to do a certain act there must be a statutory authority for the negative act or it must have been done in the official capacity of the authority concerned. In other words, there must be a provision in the statute requiring or permitting the authority not to do the act. In other words, there must be a provision in the statute requiring or permitting the authority not to do the act. If what is under the scope of the words is a positive act, an omission or failure to do it does not necessarily come within their scope and may not be said to be under the Act; merely because doing a positive act is within the scope of official authority or capacity or the statute it cannot be said that mere omission or failure to do it also is within the official authority or capacity or the statute. It is essential to have a statutory provision expressly or impliedly requiring or authorising the omission or failure. The U.P. General Clauses Act, S. 4(2) lays down that the words which refer to acts done extend also to illegal omission when the word 'act' is used with reference to an offence or a civil wrong. This means that an omission or failure itself must be (an offence or) a civil wrong. An omission or failure can be a civil wrong only if there is a law declaring it to be so or prohibiting it. An omission or failure to do a positive act may or may not amount to a civil wrong; it depends upon the statute dealing with the act. If it compels it to be done for the benefit of another person so that he has a right to get it done, an omission or failure to do it may be said to be a civil wrong. But if it does not confer such a right or merely permits or authorises it, an omission or failure to do it cannot be said to be a civil wrong and, therefore, is not within the meaning of 'act done'. 7. It was also observed in that case that the non-payment is a part of the cause of action only in a suit for damages for the non-payment i.e. in a suit for a breach of contract. It was held that:- S. 192 of the District Boards Act applies to a suit in respect of an act done. A suit has to be based on a cause of action. For the applicability of S. 192 it must be in respect of an act done by the Board. It was held that:- S. 192 of the District Boards Act applies to a suit in respect of an act done. A suit has to be based on a cause of action. For the applicability of S. 192 it must be in respect of an act done by the Board. Combining the two requirements one arrives at the requirement that an act done by the Board, must complete the cause of action against it. The Board's act is the act without which there is no cause of action in the plaintiff's favour and S. 192 requires that it is this act which must have been done by the Board in its official capacity. 8. It was also observed that since the suit was not based on withholding of the payment, the non-payment is not a civil wrong within the general clause and therefore, does not come within the definition of 'act' used in S. 192. 9. Applying the principles laid down in the said Full Bench case to the facts of the present case it would be found that the provisions of S. 571 of the U.P. Nagar Mahapalika Adhiniyam are not attracted. The suit is not based on breach of contract. The plaintiff has claimed arrears of rent for a particular period. There is no provision in the U.P. Nagar Mahapalika Adhiniyam requiring or permitting the Nagar Mahapalika not to pay the arrears of rent. The Mahapalika took the premises in question on lease and was, therefore, liable to pay rent there of. If the Nagar Mahapalika neglects or defaults in making the payment of rent, it would not be a neglect or default in the execution of the Nagar Mahapalika Adhiniyam. S. 571 of the said Act contemplates an act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act. The act or neglect of payment of rent is not contemplated or governed by any provision of the Nagar Mahapalika Adhiniyam. The rent was claimed for the use of the premises by the Nagar Mahapalika and the suit is to recover the arrears of rent, which the Nagar Mahapalika had failed to pay. The act or neglect of payment of rent is not contemplated or governed by any provision of the Nagar Mahapalika Adhiniyam. The rent was claimed for the use of the premises by the Nagar Mahapalika and the suit is to recover the arrears of rent, which the Nagar Mahapalika had failed to pay. The notice terminating the tenancy of the defendant was duly served and as it failed to comply with the same, it became liable to be evicted from the premises in question. A landlord can file a suit for eviction of a tenant by serving on him a notice u/S. (sic) of the Transfer of Property Act. However, a bar is created by S. 3 of the U.P. (Temp.) Control of Rent and Eviction Act, 1947, which stipulates that no suit for ejectment can be filed against a tenant without the permission of the DM except on one of the grounds mentioned in that section. The landlord can file a suit for eviction without the permission of the DM if the tenant is in arrears of rent for more than four months and commits default in making payment thereof within one month of the service of a notice of demand on him. The present suit is for the recovery of arrears of rent and possession. Such a suit is obviously not covered by the provisions of S. 571 of the U.P. Nagar Mahapalika Adhiniyam inasmuch as it is not in respect of an act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act. 10. The learned counsel for the respondent relied on, other Full Bench decisions of this Court--Dargahi Lal Nigam v. Municipal Board 1952 AWR 259 ) and Hazi Ahmad Raza v. M.B. Allahabad 1952 AWR 536 ). In the case of Hazi Ahmad Raza, the Full Bench followed the earlier decision made in Dargahi Lal Nigam's case and held that the Board's omission to pay the rent for user was an act within the S. 4(2) of the General Clauses Act and that it was done in the official capacity. This case of Dargahi Lal Nigam (supra) was, however, dissented from in the latter Full Bench decision in the case of Antarim Zila Parishad v. Shanti Devi 1965 AWR 146 ). 11. This case of Dargahi Lal Nigam (supra) was, however, dissented from in the latter Full Bench decision in the case of Antarim Zila Parishad v. Shanti Devi 1965 AWR 146 ). 11. The act of payment of rent is not an official act. It is not an act to be done in pursuance or execution or intended execution of the Nagar Mahapalika Adhiniyam or in respect of any alleged neglect or default in the execution of this Act. The learned Civil Judge, was therefore, not justified in holding that the suit was not maintainable for want of notice under section 571 of the U.P. Nagar Mahapalika Adhiniyam. In fact, the provisions of the said section were not attracted to the facts and circumstances of this case. It has been found by the court below that the defendant had committed default in payment of rent within the meaning of S. 3(1)(a) of the Control of Rent & Eviction Act. Under the circumstances, the suit for ejectment was maintainable and liable to be decreed. 12. No other point was pressed by the learned counsel for the parties. 13. In the result, the appeal is allowed the decree passed by the III Addl. Civil Judge, Agra in Civil Appeal No. 6 of 1964 is set aside and the decree of the trial court passed in Original Suit No. 397 of 1963 is restored with costs throughout.