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1981 DIGILAW 404 (ALL)

Padmaswar Mahadav v. Municipal Board

1981-05-07

N.N.MITHAL

body1981
JUDGMENT N.N. Mithal, J. - This is plaintiff's second appeal in a suit for permanent injunction filed against the Municipal Board, Haldwani and another restraining them from interfering with the peaceful possession of the plaintiff over plot Nos. 538 and 539. 2. According to the case set up by him, the land was recorded in the name of Padmaswar Mahadav in the revenue records and is in actual possession of the plaintiff through Sureshananda Giri who claims to be Mahant and Pujari of the plaintiff. It was alleged that in early April, 1971 maize crop had been sown on the land in question but on 16th April, 1971, the employees of the defendants wanted to take forcible possession and damaged the maize crop worth Rs. 1200/-. It was in these circumstances that the suit for permanent in junction was filed. 3. The defendants raised a number of pleas but the relevant points were that the plaintiff was not in possession over the land in suit and that the land belonged to the State of U.P. and was under the management of the defendants who used to realise Tehbazari dues during fairs held on that land. It was also said that Sureshanand Giri who has filed the suit was not Mahant and Pujari and as such he had no right to file the suit. It was also contended that the suit was bad for want of notice under section 326 of the U. P. Municipalities Act. Some other legal pleas were also raised initially but appear to have been given up in the trial court. 4. On the basis of the evidence before it, the trial court came to the conclusion that the plaintiff was in possession of the land in question and there were supporting revenue entries also in that regard. As regards the right of the plaintiff to file the suit, the trial court came to the conclusion that Sureshanand Giri had no right to bring suit and it was not maintainable. 1981 All. L. J./61 IX (2) On the question of bar of suit in view of Section 326 of the U. P. Municipalities Act. the court came to the conclusion that the suit was bad for want of notice in that connection. On the basis of the last two findings, the court dismissed the suit. 5. 1981 All. L. J./61 IX (2) On the question of bar of suit in view of Section 326 of the U. P. Municipalities Act. the court came to the conclusion that the suit was bad for want of notice in that connection. On the basis of the last two findings, the court dismissed the suit. 5. On appeal before the lower appellate court, once again these two questions were raised and were decided against the plaintiff. Consequently the appeal was dismissed. 6. Aggrieved, the plaintiff has come up in second appeal before this Court. 7. It has firstly been contended that section 326 of the U. P. Municipalities Act did not apply to the facts and circumstances of the present case. Accroding to the learned counsel, a notice under Section 326 of the Act is required only when a suit is brought against the Board in respect of "an act done or purported to have been done in its official capacity." In view of the fact that the land belonged to the plaintiff and the defendants had no concern with the same and also the fact that the Municipalities Act does not give any right to the Board to straightway try to take forcible possession of any land without recourse to any court of law, the act impugned in the suit could not be said to be an act within the four corners of the Municipalities Act. Since the very act, by which the dispossession of the plaintiff was threatened was not an act, which could have been performed by the Municipality acting within the limits of its powers, the same was clearly beyond the jurisdiction of the Board and as such was illegal, for preventing such an illegal act, therefore, it was not necessary that any notice under Section 326 of the Municipalities Act should be a precondition. In order to appreciate this argument of the learned counsel, let us have the relevant portion of Section 326 of the Act before us. (1) No suit shall be instituted against a board......... in respect of an act done or purporting to have been done in its .........official capacity, until the expiration of two months next after notice in writing has been......... left at its office ............ explicitly stating- the cause of action........." (2) and (3) .................. (1) No suit shall be instituted against a board......... in respect of an act done or purporting to have been done in its .........official capacity, until the expiration of two months next after notice in writing has been......... left at its office ............ explicitly stating- the cause of action........." (2) and (3) .................. (4) Provided that nothing in subsection (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 the giving of the notice or the postponement of the commencement of the suit or proceeding." 8. For the purposes of this appeal, the important words in Section 320 of the Act are "in respect of an act done or purporting to have been done in its official capacity". In order that the provisions of Section 326 of the Act may be attracted it is essential that the act complained of must be one which has either been done or was purported to have been done by the Board in its official capacity. The powers of the Board are regulated by the provisions contained elsewhere in the Act and the Board cannot do any act which goes beyond the limits of the powers given to it and specified under the Act. I have searched in vain to find out any specific provision in the Municipalities Act which may empower the Board to take forcible possession over any land in possession of a person without having recourse to some procedure laid down by law. Even the limited powers given to the Board for removal of encroachment from public streets within the limits of the Municipal Board require that the Municipal Board must first give notice to the person concerned to remove the encroachment and then only the Board can remove that encroachment. Clearly, possession over the land in question was not an encroachment on public street. The land was claimed as that of the plaintiff as it had been recorded in the name of the deity and it was in its actual possession also. In these circumstances, the Municipal Board could not claim to occupy the land immediately by forcibly evicting the plaintiff. If there was any dispute about the ownership of ' possession of the land, the Municipal Board was only entitled to approach the appropriate court for seeking necessary relief. In these circumstances, the Municipal Board could not claim to occupy the land immediately by forcibly evicting the plaintiff. If there was any dispute about the ownership of ' possession of the land, the Municipal Board was only entitled to approach the appropriate court for seeking necessary relief. In any case, it had no right to take forcible possession over any land. No such authority had been granted to the Board under the provisions of U.P. Municipalities Act. 9. The learned counsel for the respondent submitted that the plaintiff had been 'Issued notice by the Municipal Board on 5-4-1971 claiming the land in dispute to be Nazul land. This notice is not on the record but a reply thereto is paper No. 99-C on the record, which appears to have been sent by the plaintiff in reply thereto. From this reply, it appears that Municipal Board had claimed the land in question to be Nazul land, which was claimed to have been under management of the Municipal Board. This fact was denied by the plaintiff. On the basis of this letter, it is submitted that the act of the Municipal Board in demanding possession was an official act, which was done in discharge of its official duties of managing Nazul property and therefore. notice under Section 326 was essential before any suit could be locally filed. The answer to this question would depend upon the nature of the rights claimed by the plaintiff and not what was asserted by the defendant Municipal Board. The plaintiff throughout has claimed that this land belongs to it and has been in its possession and that Municipal Board has no right to occupy or manage the same. The courts below have also found as a fact that the land did not belong to the Municipal Board and in any case, it has been in possession of the plaintiff and was also recorded in its name in the revenue papers. In such circumstances, the claim of the defendant to occupy the land and allegation in this respect made by the plaintiff in first information report (92-c) as well as reply to the notice (99-c) clearly go to show that an effort was being made by the Municipal Board to forcibly dispossess the plaintiff from the land in question. In such circumstances, the claim of the defendant to occupy the land and allegation in this respect made by the plaintiff in first information report (92-c) as well as reply to the notice (99-c) clearly go to show that an effort was being made by the Municipal Board to forcibly dispossess the plaintiff from the land in question. If the land belongs to the plaintiff and the Municipal Board forcibly wanted to evict it from there whether in such circumstances the act of the Municipal Board can be said to be an act which was within its powers granted under the U.P. Municipalities Act ? If such an act could be said to be an official act, then certainly a notice under Section 326 of the Act would become imperative, otherwise no such notice may be necessary. 10. In order to see whether this can be said to be an act done or purporting to have been done in its official capacity by the Board, we have to consider to what is meant by "official act." Lucknow Nagar Mahapalika v. Sardar Karamjit Singh, (1962 All LJ 165) (FB) the words `act done' under a statute were held to mean an act expressly or specifically required or Permitted to be done by the statute. Reference in this regard may be made to `Words and Phrases' Vol. XXIX 372 Permanent Edition:- "All acts of officials are not `official acts' but only such as are done under some authority derived from the law or in pursuance of prescribed duties." Some significance has also to be attached to the words 'in its official capacity' which can only mean that the act done must be one which falls within the powers given under the Act or which can be exercised by the Board, by virtue of the authority or power Riven to it under any provision of the Act or law. In view of this, the act which was complained of by the plaintiff in the circumstances, that is, the act of the Municipal authorities trying to forcibly evict the plaintiff from the land recorded in its name, cannot be said to be an official act or an act which may have purported to have been done in its official capacity. In view of this, the act which was complained of by the plaintiff in the circumstances, that is, the act of the Municipal authorities trying to forcibly evict the plaintiff from the land recorded in its name, cannot be said to be an official act or an act which may have purported to have been done in its official capacity. If the act was wholly beyond powers granted to the Board under the Act then certainly the plaintiff would not be required to serve any notice whatsoever under Section 326 of the Act. That being so, I am of the view that in the facts and circumstances of the present case, the plaintiff was not required to serve any notice at all under Section 326 of the Act and the findings of the courts below on this point are errneous. 11. It may also be stated here that S. 326 of the Act has been subject of consideration in various cases. Suffice here to mention a few of them such as Municipal Board of Faizabad v. Edward Medical Hall ( AIR 1976 All 349 ) wherein it was held that where the act has been done in purported exercise of official duties the public servant can defend his act by reference to the nature of duties of his office if he is challenged while doing the act. 12. The learned counsel for the parties had also submitted that the provisions contained in sub-para (4) of Section 326 of the U.P. Municipalities Act do not apply in the present case. It is not necessary for me to enter into that controversy because I have already held that a notice under sub-paras (1) of Section 326 of the Act itself was not necessary in the instant case and, therefore, there would be no purpose served by examining whether exception provided under sub-clause (4) would be attracted in the present case at all. 13. We next come to the next important question involved in this appeal. The plaintiff has been non-suited in the court below on the ground that he was neither Mahant nor Pujari of the - plaintiff temple and as such he was not competent to bring the suit. A deity of a temple is a juristic person and this proposition is now not open to question. The plaintiff has been non-suited in the court below on the ground that he was neither Mahant nor Pujari of the - plaintiff temple and as such he was not competent to bring the suit. A deity of a temple is a juristic person and this proposition is now not open to question. However, deity cannot act on its own and, therefore, some human agency is always to be employed for the purposes of defending its rights. According to the well known tenets of Hindu Law, right to act on behalf of the deity vests in a Shebait. It is he who normally performs all the functions of the management as well as performance of necessary spiritual functions and worship etc., of the deity. Position in this regard has been explained in B. K. Mukherji's Hindu Law of Religious and Charitable Trusts and in its Second Edition at page 249, it is stated as under. (1) An idol is a juristic person in whom the title to the properties of the endowment vests. But it is only in an ideal sense that the idol is the owner. It has to act through human agency, and that agent is the Shebait, who is in law the person entitled to take proceedings on its behalf. The personality of the idol might, therefore be said to be merged in that of the Shebait. (2) Where however, the Shebait refuses to act for the idol, or where the suit is to challenge the act of the Shebait himself as prejudicial to the interests of the idol, then there must be some other agency which must have the right to act for the idol. The law accordingly recognises a right in persons interested in the endowment to take proceedings on behalf of the idol. This passage from the book of B.K. Mukherji has been quoted with approval in the case of Bishwanath v. Radha Ballabha Ji, ( AIR 1967 SC 1044 ) by Hon. Subba Rao C. J. and it was stated by him that the view (sic) as by decisions. In this case, Hon. Subba Rao C.J. had this to say:- "The question is. can such a person represent the idol when the Shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle we do not see any justification for denying such a right to the worshipper. In this case, Hon. Subba Rao C.J. had this to say:- "The question is. can such a person represent the idol when the Shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle we do not see any justification for denying such a right to the worshipper. An idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad how power of representation to protect its interest. It is a pragmatic, vet a legal solution to a difficult situation. Should it be held that a Shebait, who transferred the property, can only bring a suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the Shebait's duty, for more often than not he will not admit his default and take steps to recover the property, apart from other technical pleas, that may be open to the transferee in a suit. Should it be held that a worshipper can file only a suit for removal of a Shebait and for the appointment of another in order to enable him to take steps to recover the property such a procedure would be rather a prolonged and a complicated one and the interest of the idol may irreparably suffer. This is why decisions have permitted a worshipper in such circumstances to represent the idol and to recover the property for the idol. It has been held in a number of decisions that worshippers may file a suit praying for possession of a property on behalf of an endowment." 14. In the case referred to above, the Shebait had illegally transferred the property belonging to the idol and in those circumstances it was held by the Supreme Court that even a worshipper can file a suit challenging the transfer made by a Shebait for and on behalf of the idol. The position in the present case is slightly different. Here plaint has been filed through one Sureshanand Giri who claims to be the Mahant and Pujari. He has not claimed himself to be the Shebait. In fact, in evidence it has come that She bait was the father-in-law of Sureshanand Giri, who has brought the present suit on behalf of the idol. Here plaint has been filed through one Sureshanand Giri who claims to be the Mahant and Pujari. He has not claimed himself to be the Shebait. In fact, in evidence it has come that She bait was the father-in-law of Sureshanand Giri, who has brought the present suit on behalf of the idol. It was pleaded by him that his father-in-law had put him in charge of the management of the temple long back and since then he was looking after the management of the temple. From the evidence on record, a possibility cannot be ruled out that some heirs of the original Shebait may be alive but it appears that none of them is coming forward to protect the property of idol. The question, therefore, arises as to whether even in these compelling circumstances when the heirs of Shebait were not coming forward and there was an imminent danger of the Board forcibly occupying the land belonging to the idol, can a worshipper or Pujari not file the suit to protect the property in question of the idol? In my opinion, in such circumstances, a Pujari cannot be denied the right to bring a suit. The nature of the plaint and the reliefs claimed clearly go to show that no relief has been claimed by the Puiari in his favour. All the reliefs have been claimed in the interest of the idol itself. In order to protect the interest of the idol even a person who may not be a Shebait or otherwise qualified to bring suit but if he has sufficient interest in the protection of the rights of the idol, can bring a suit for the purposes of protecting the rights of the idol. The view expressed in AIR 1967 SC 1044 (supra) does not say anything against the view which I am taking. In that case the circumstances were slightly different and in view of those circumstances, a worshipper was held entitled to bring a suit. In the present case also the circumstances may not be similar but they certainly require protection of the property and even if as Pujari Sureshanand had come forward in the name of the idol to protect its property, the suit cannot be said to be to have been improperly brought merely because Sureshanand was not a Mahant or Shebait. In the present case also the circumstances may not be similar but they certainly require protection of the property and even if as Pujari Sureshanand had come forward in the name of the idol to protect its property, the suit cannot be said to be to have been improperly brought merely because Sureshanand was not a Mahant or Shebait. It has also come in the evidence that he had been in actual management of the property and was manager of the temple property. The view which I am taking also finds support from the case Maharaja Jagdindra Nath Ray Bahadur v. Rani Hemanta Kumar Devi, ((1904) 31 Ind App 2031 (PC). 15. In Raghwacharya's Hindu Law, Sixth Edition page 682, the learned Author has observed `except where there is a statutory provision to the contrary, the following may be said to have prescriptive right of suit in respect of the endowed property : (1) Idol itself, being a juristic person has a right of suit against the infringement of its right. (2) A Shebait through whom the idol acts has a similar right of suit which is in normal case even in supersession of the idol's right of suit . (3) Prospective Shebait is a uerson interested in the endowment: (4) the worshipper of the temple and the members of the family of the founder of the endowment. 16. Therefore, there was nothing illegal in idol bringing a suit through Mahant or Puiari. Even a worshipper could have done so. A Puiari (priest) is not in worse position than an ordinary worshipper. 17. In view of the above, I am of the opinion that the findings on the above two points by the lower appellate court are erroneous and the suit as brought by the plaintiff was legally maintainable. 18. In the result, the appeal succeeds and is hereby allowed with costs throughout.