Radha Devi v. Nagar Mahapalika, Varanasi — 1979 DIGILAW 147 (ALL)

JUDGMENT B.N. Sapru, J. - The plaintiff appellant is the owner and landlord of premises No. B-22/296, Mohalla Khojawa, Varanasi City. The said premises were constructed after Jan. 1, 1951 ana, as such, the provisions of the U. P. (Temporary) Control of Rent and Eviction Act. 1947 did not apply to it. 2. According to the plaintiffs case the Nagar Mahapalika Varanasi was the tenant of the accommodation in question and was running a Girls primary School therein. The School is known as "Khojawa Basic Primary School for Girls." The plaintiff filed suit No. 19 of 1970 in the court of the City Munsif for the ejectment of the defendant from the accommodation in question, but that suit was dismissed on the ground that no notice under Section 571 of the Nagar Mahapalika Adhiniyam had been served on the defendant Nagar Mahapalika. After the dismissal of the aforesaid suit, the plaintiff served the defendant with a composite notice under Section 106 of the T. P. Act terminating the defendants tenancy read with Section 571 of the Nagar Mahapalika Adhiniyam, calling upon the defendant to vacate the house in dispute within thirty days of the service of the Notice. The aforesaid notice was dated 17-3-1971 and it was served on the defendant on 19-3-1971. According to the plaintiff the defendant, despite the service of the notice did not vacate the premises in dispute and, from 19-3-1971 defendants possession became that of a trespasser. 3. After the expiry of the period of notice the plaintiff filed the present suit for ejectment. The plaintiff also claimed rent from the 1st of April, 1971 to 18th April, 1971 calculated at the rate of Rs. 75/- per month and also mesne profits since after that date for use and occupation of the premises. 4. The defendant pleaded inter alia that the notice u/s. 571 of the Nagar Mahapalika Adhiniyam could only be served on the defendant after the accrual of the cause of action and as, in the instant case the notice dated 17th March, 1971 had been served on 19th March, 1971 it was served before the accrual of any cause of action and, as such, was no notice under Section 571 of the Nagar Mahapalika Adhiniyam. It was further pleaded in the absence of a proper notice under Section 571 of the Transfer of Property Act the suit for ejectment could not be decreed. 5. The trial court negatived all the contentions of the defendant Nagar Mahapalika and decreed the suit for ejectment as also the suit for arrears of rent and mesne profits at the same rate as the rate of rent which was being paid by the defendants to the plaintiff. The Nagar Mahapalika aggrieved by the order of the trial court filed an appeal. The appeal was restricted only to that portion of the decree which had decreed the suit for ejectment. 6. In appeal the appellate court held that there was no defect in the notice served by the plaintiff on the defendant under Section 106 of the T. P. Act. It, however, upheld the contention of the defendant that the composite notice under Section 106 read with Section 571 of the Nagar Mahapalika Adhiniyam had been served by the plaintiff on the defendant before the accrual of the cause of action and, as such, it was invalid, and the suit for ejectment of the defendant appellant should have been dismissed. The appeal of the defendant Mahapalika was allowed on the aforesaid finding by the lower appellate court and the suit for ejectment dismissed. 7. Aggrieved by the order of the lower appellate court, the plaintiff has filed the instant appeal. The only question that has been canvassed before the court in this appeal is whether the view of the lower appellate court in regard to the question of the validity of the notice served on the defendant is correct or not. 8. The learned counsel for the appellant has argued that in fact no notice under Section 571 of the Nagar Mahapalika need have been served by the plaintiff on the defendant. 8. The learned counsel for the appellant has argued that in fact no notice under Section 571 of the Nagar Mahapalika need have been served by the plaintiff on the defendant. Section 571 of the Nagar Mahapalika Adhiniyam so far as it is relevant for the purpose of this decision is reproduced below :- "(1) 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, for the purpose of such suit, or (b) unless it is commenced within six months next after the accrual of the cause of action: Provided that nothing in this sub-section shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding". 9. At this stage an argument on behalf of the defendant-respondent, that the Nagar Mahapalika was performing an obligatory duty in running the primary school in the premises in question has to be noticed. Chap. V of the Nagar Mana-palika Adhiniyam deals with the duties and powers of the Mahapalika and the Mahapalika authorities. Section 114 provides as follows "114. 9. At this stage an argument on behalf of the defendant-respondent, that the Nagar Mahapalika was performing an obligatory duty in running the primary school in the premises in question has to be noticed. Chap. V of the Nagar Mana-palika Adhiniyam deals with the duties and powers of the Mahapalika and the Mahapalika authorities. Section 114 provides as follows "114. Obligatory duties of the Mahapalika :- It shall be incumbent on the Mahapalika to make reasonable and adequate provision, by any means or measures which it is lawfully competent to it to use or to take, for each of the following matters, namely, (xxv) establishing, maintaining, aiding and suitably accommodating schools for primary education including nursery education." Thus, it is established that in running Basic Primary School for girls in the accommodation in question the Mahapalika was discharging an obligatory duty imposed upon it by the Nagar Mahapalika Adhiniyam. 10. The cause of action as disclosed in the plaint is that the plaintiff is the owner of the building and the Mahapalika is its tenant, and that the plaintiff had served a notice on the Mahapalika under Section 106 of the Transfer of Property Act dated 17-3-1971 which was served on the Mahapalika on 19-3-1971 requiring the Mahapalika to vacate the premises in dispute on the expiry of thirty days of the service of the notice on it. It was further asserted in para 10 of the plaint :- "That the cause of action in the present suit arose on 19th April, 1971 when the period allowed in the notice aforesaid expired and the defendant did not vacate the house in dispute." Thus, the cause of action in this case, as asserted by the plaintiff, has nothing to do with the running of the Basic Primary School in the accommodation in question. 11. The learned counsel for the appellant has referred to a decision of this Court in the case of Kedar Nath Misra v. Municipal Board Shikohabad (1971 All LJ 1142): (1972 Lab IC 40), where the provisions of Section 326 (3) of the U. P. Municipalities Act came up for consideration. Those provisions are in pari materia with the provisions of Section 571 of the Adhiniyam. The plaintiff there was a servant of the Municipal Board, and he claimed that the Board had wrongfully not paid his salary. He instituted a suit. Those provisions are in pari materia with the provisions of Section 571 of the Adhiniyam. The plaintiff there was a servant of the Municipal Board, and he claimed that the Board had wrongfully not paid his salary. He instituted a suit. The Board pleaded inter alia that no proper notice under Section 336 (3) of the Municipalities Act had been served on the Board. The question before the High Court was, as to whether a notice under Section 326 (3) of the Municipalities Act was required to be served on the Board. The High Court held that no such notice was required to be served on the Board. The learned Single Judge, who decided the case, placed reliance on a Full Bench decision of this Court in the case of Antarim Zila Parishad v. Shanti Devi (1965 All LJ 221): ( AIR 1965 All 590 ) for reading the conclusion that he did. The case before the Full Bench referred to above had been instituted by a contractor against the District Board for the recovery of money due under the contract for the work done by him for the Board. One of the questions before the Full Bench was whether Section 192 of the District Boards Act which was almost identical with Section 326 (3) of the Municipalities Act would bar the suit without a notice as required by Section 192. The Full Bench held that though an illegal omission to do something that ought to be done in the performance of a duty imposed upon a public body by an Act of Parliament or the continuing to leave any such duty; amounts to an act; nevertheless, in the case before the Full Bench the non-payment of the amount of money due under the contract by the Board to the contractor, was not such an act as brought the provisions of Section 192 of the District Boards Act into play. 12. In the case of Bradford Corporation v. Myers ((1916) 1 AC 242) it was observed as follows :- "..... where the right of the individual cannot be correlated with a statutory or public duty to the individual, the foundation of the relations of parties does not lie in anything but a private bargain which it was open for either the municipality or the individual citizen, consumer, or customer to enter into or to decline. where the right of the individual cannot be correlated with a statutory or public duty to the individual, the foundation of the relations of parties does not lie in anything but a private bargain which it was open for either the municipality or the individual citizen, consumer, or customer to enter into or to decline. And an action on either side founded on the performance or non-performance of that contract is one to which the Protection Act does not apply, because the appeal, which is made to a Court of law, does not rest on statutory or public duty, but merely on a private and individual bargain." By a private contract between the parties the owner of the building, viz., the plaintiff had let it lout to the defendant Nagar Mahapalika. Merely because the Nagar Mahapalika started running a Basic Primary School in the building the contract between the parties cannot be said to have been entered into by the: Mahapalika in the performance of its) obligatory statutory duty to run a Basic Primary School. When ,a proper notice to quit was served on the Mahapalika by the landlord it was in accordance with the provisions of Section 106 of the Transfer of Property Act, which governed the relations between the landlord and the tenant, Nagar Mahapalika. Such a notice is also required to be served in cases where private citizens are both landlords and tenants. When the Mahapalika did not vacate the accommodation on the expiry of the notice, the failure to vacate the premises cannot be deemed to have been performed in any manner connected with the discharge of the statutory duties of the Nagar Mahapalika. The fact that under Section 114 sub-cl. (xxv) it is the statutory duty of the Mahapalika to establish, maintain, aid and suitably accommodate schools for primary education including nursery education, did not make the contract between the Nagar Mahapalika and the plaintiff landlord a contract which war-entered into between the two of them as a contract entered into by Nagar Mahapalika by virtue of any provision of the U.P. Nagar Mahapalika Adhinium .or by any other law. 13. 13. The Acts which would include certain omissions referred to in Section 571 of the Adhinium which are performed by the Mahapalika or its officers Br"servants, must be directly connected with the execution or intended execution of the Act or in respect of any alleged neglect or default in the execution of the Act. "The failure to vacate the premises on the expiry of the notice to quit on the part of the Nagar Mahapalika authorities was not connected with their duties under the Act. 14. In this view of the matter the lower appellate court erred in law in dismissing the suit for the ejectment of the defendant on the ground that a proper notice under Section 571 was not valid. 15. Having conic to the conclusion that no notice under Section 571 of the Adhinium was required to be served by the plaintiff on the defendant, the question as to whether a notice could have been served before the accrual of the cause of action need not be decided in the present case. 16. In the result, the appeal succeeds and is allowed. The decree of the lower appellate court is set aside and the decree for ejectment passed by the Munsif is restored. The appellant is entitled to her costs.