JUDGMENT : A.K. Rath, J. By this petition under Article 227 of the Constitution of India, the petitioner assails the order dated 8.2.2008 passed by the learned Civil Judge (Senior Division), Balasore in C.S. No. 141 of 2008, whereby and whereunder the learned trial court has returned the plaint for non-compliance of the provision of Section 349 of the Orissa Municipal Act (hereinafter referred to as "the Act"). 2. The petitioner as plaintiff filed a suit for declaration of right, title and interest; confirmation of possession over Schedule-A land and for permanent injunction restraining the defendants from changing the nature and character of the suit, in the court of learned Civil Judge (Senior Division), Balasore, which was registered as C.S. No. 141 of 2008. By order dated 8.2.2008, the learned trial court returned the plaint to the plaintiff for non-compliance of the provision of Section 349 of the Act and to present the same after the statutory period was over. Learned trial court held that the Municipality is the wing of the Government and is under the control of the Collector, Balasore. Thus the prior notice to them under Section 80 CPC was required to be issued. 3. Heard Mr. Soumya Mishra, learned counsel for the petitioner on behalf of Mr. S.P. Mishra, learned Sr. Advocate and Mr. S.B. Jena, learned counsel for the opposite parties. 4. The seminal point that hinges for consideration of this Court is as to whether learned trial court is justified in returning the plaint to the plaintiff for non-compliance of the provision of Section 349 of the Act? 5. Section 80 CPC, which is relevant, is quoted hereunder: "80. Advocate and Mr. S.B. Jena, learned counsel for the opposite parties. 4. The seminal point that hinges for consideration of this Court is as to whether learned trial court is justified in returning the plaint to the plaintiff for non-compliance of the provision of Section 349 of the Act? 5. Section 80 CPC, which is relevant, is quoted hereunder: "80. Notice.- (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government including the Government of the State of Jammu and Kashmir or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of – (a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway; (bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf; (c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. (2) A suit to obtain an urgent or immediate relief against the Government including the Government of the State of Jammu and Kashmir or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit: Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1). (3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error of defect in the notice referred to in Sub-section (1), if in such notice – (a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and (b) the cause of action and the relief claimed by the• plaintiff had been substantially indicated." 6. On a conspectus of Section 80 CPC, it is evident that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of the State or the Central Government. True it is, the 'Municipality' is a 'State' within the meaning and ambit of Article 12 of the Constitution of India, but then for the purpose of Section 80 CPC it is not a State. Thus no notice under Section 80 CPC is required to be issued to the Balasore Municipality before institution of suit. 7. True it is, the 'Municipality' is a 'State' within the meaning and ambit of Article 12 of the Constitution of India, but then for the purpose of Section 80 CPC it is not a State. Thus no notice under Section 80 CPC is required to be issued to the Balasore Municipality before institution of suit. 7. The next question falls for consideration is as to whether prior notice is required to be issued under Section 349 of the Act to the Balasore Municipality before institution of the instant suit for declaration of right, title and interest, confirmation of possession and permanent injunction? 8. To appreciate the rival contentions, it is necessary to refer to Section 349 of the Orissa Municipal Act, which reads as follows: "349. Notice of action against municipal council – (1) No suit or other legal proceedings shall be brought against any municipal councilor, the Chairman, Executive Officer, any councilor, officer or servant, in respect of any act done or purporting to be done in execution or intended execution of this Act or any rule regulation bye-law or order made under it or in respect of any alleged neglect or default in the execution of this Act or any such rule, regulation, bye-law or order, until the expiration of two months next after notice in writing, stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and name and place of residence of the intended plaintiff and place of residence of the intended plaintiff has been left at the office of the municipal council, and if the proceeding is intended to be brought against any such Chairman, Executive Officer, councilor, officer, servant or person, also delivered to him, or left at his place of residence, And unless such notice be proved, the Court shall find far the defendant. (2) Every such proceeding shall, unless it is a proceeding far the recovery of immovable property or far a declaration of title thereto, be commenced within six months after the date an which the cause of action arises or in case a continuing injury or damage, during such continuance or within six months after the ceasing thereof. (2) Every such proceeding shall, unless it is a proceeding far the recovery of immovable property or far a declaration of title thereto, be commenced within six months after the date an which the cause of action arises or in case a continuing injury or damage, during such continuance or within six months after the ceasing thereof. (3) If any municipal councilor person to who notice is given under Sub-section (1) shall be fare the proceeding is commenced, tender amends to the plaintiff and if the plaintiff does not in any such proceeding recover mare than the amount to tendered, he shall not recover any casts incurred by him after such tender. The plaintiff shall also pay all costs incurred by the defendant after such tender. (4) No suit or other legal proceeding shall be brought against the Chairman, the Executive Officer or any councilor, officer or servant of a municipal council or any person acting under the direction of a municipal council, or such Chairman, the Executive Officer, councilor, officer, or servant in respect of any act done, in execution or intended execution of this Act or any rule, regulation, bye-law or order made under it or in respect of any alleged neglect or default an his part in the execution of this Act or any such rule, regulation, bye-law or order, if such act was done, or if such neglect or default was made in good faith; but any such proceeding shall, so far as it maintainable in a Court, be brought against the municipal council except in the case of suits brought under Section 375". 9. The subject-matter of dispute is no more res integra. In Puri Municipality, Puri, represented through its Executive Officer v. Sradhamani Devi, 80 (1995) CLT 544, A. Pasayat, J (as he then was), on an interpretation of Section 349 of the Act, held as follows; "6. A bare reading of Section 349(1) of the Act makes it clear that requirement of a notice of a contemplated suit was applicable only in those cases where plaintiff claimed damages or compensation or in respect of acts done in execution or intended execution of the provisions of the Act, Rules, Regulations, Bye-laws or Order made under it. A bare reading of Section 349(1) of the Act makes it clear that requirement of a notice of a contemplated suit was applicable only in those cases where plaintiff claimed damages or compensation or in respect of acts done in execution or intended execution of the provisions of the Act, Rules, Regulations, Bye-laws or Order made under it. The question whether notice is necessary would depend not on whether the cause of action arose in tort or contract or any other branch of law but on whether the act complained of was done or purported to have been done directly Linder the Act or Rules or Regulations or Bye-laws or order. Section 349 is not applicable in a suit for possession of land as it is not an action for anything done or purporting to have been done in pursuance of the Act. Where the claim of the Municipality is based on a private right, the plaintiff who may be injured by the exercise of that right can sue without previous notice just as he might sue any other individual. It was held in B. Baliarsingh and another v. Bamdev Misra and others, 1971 (1) C.W.R. 415 that relief of declaration of title and recovery of possession being based on the cause of action of alleged trespass by the Municipality on his private rights, service of a notice under Section 349(1) of the Act is not a pre-condition for maintainability of the suit. Requirement of notice of a contemplated suit was applicable only in those cases where plaintiff claim related to wrongful acts committed by any Municipal councilor, the Chairman, Executive Officer, any councilor, officer or servant in respect of any act done or' purporting to be done in execution or intended execution of the Act or any rule, regulation, bye-law or order made under it. The acts must be in the exercise or honestly supposed exercise of their statutory powers, that is, to acts done by the Commissioners, "colori offici". Section 349(1) of the Act makes it imperative on the part of the plaintiff to serve a notice before institution of the suit in respect of acts done in execution or intended execution of the provisions of the Act, Rules, Regulations, bye-laws etc. Section 349(1) of the Act makes it imperative on the part of the plaintiff to serve a notice before institution of the suit in respect of acts done in execution or intended execution of the provisions of the Act, Rules, Regulations, bye-laws etc. The impugned acts involved in the case at hand are not of such nature as to attract application of section 349(1), as they cannot be brought under the umbrella of acts or purported acts contemplated under the provision. In Manohar Ganesh v. Pakor Municipality, I.L.R. 16 Madras 296 it was held that notice was required in case of actions for possession of land brought against a municipality. It was observed by Fareli, C.J. that a suit for possession of land is not an "action for anything done or purporting to be done in pursuance of the Act." Ranade, J. made this point clear when he observed that "where the claim of the Municipality is based on a private right, the plaintiff who may be injured by the exercise of that right can sue without giving previous notice just as he might sue any other individual." 10. Thus the conclusion is irresistible that in a suit for declaration of right, title and interest, confirmation of possession and permanent injunction against the Municipality, service of notice under Section 349(1) of the Act is not a pre-condition to maintain the suit. Section 349 of the Act is not applicable in a suit of this nature as it is not an action for anything done or purporting to have been done in pursuance of the Act. Requirement of notice of a contemplated suit was applicable only in those cases where plaintiff claim related to wrongful acts committed by any Municipal councilor, the Chairman, Executive Officer, any councilor, officer or servant in respect of any act done or purporting to be done in execution or intended execution of the Act or any rule, regulation, bye-law or order made under it. The act must be "colori offici". 11. In the wake of the aforesaid the order dated 8.2.2008 passed by the learned Civil Judge (Senior Division), Balasore in C.S. No. 141 of 2008 is quashed. Learned trial court shall proceed to hear the suit. The petition is disposed of. Petition disposed of.