JUDGMENT Dr. A.K. RATH, J. - The instant petition under Article 227 of the Constitution of India is to laciniate the order dated 28.06.2008 passed by the learned Civil Judge (Sr. Division), Bhubaneswar in Civil Suit No. 702 of 2008, whereby and where under, the learned trial Court directed the plaintiff to serve notice under Section 629 of the Orissa Municipal Corporation Act and deferred the admission of the suit after compliance of the aforesaid provision. 2.The petitioner as plaintiff instituted Civil Suit No. 702 of 2008 in the Court of the learned Civil Judge (Sr. Division), Bhubaneswar for permanent injunction impleading the opposite party as defendant. The case of the plaintiff is that she has purchased the land appertaining to khata No. 40, plot No. 70, area A 0.134 dec. of mouza Satya Nagar from one Sadhu Singh by means of a registered sale deed no. 5469 dated 19.6.1986. Sadhu Singh was in possession of a piece of Govt. land which corresponds to hal plot no. 293, hal khata no. 421, area A 0.36 dec of mouza-Bhubaneswar Town Unit No. 10, Stya Nagar. Since the date of purchase the petitioner is in possession of the said land. When the defendant threatened to demolish their southern side boundary wall and structures, the suit was filed. She has also filed an application for waiver of notice on defendants. The learned trial Curt came to hold that the Court is not empowered by law to waive the notice as envisaged under Section 629 of the Municipal Corporation Act. Held so, the learned trial directed the plaintiff to serve notice under Section 629 of the Orissa Municipal Corporation Act on the Commissioner and fix a date for admission after compliance with the provision of law. 3.Heard Miss. Namita Pattnaik, learned Counsel for the petitioner and Mr. Amitav Das, learned counsel for the opposite party No. 1. 4.The sole question that arises for consideration as to whether prior notice under Section 629 of the Orissa Municipal Act is a sine-qua-non for maintaining a suit for permanent injunction? 5.The subject matter of dispute is no more res integra. Section 629 of the Orissa Municipal Corporation Act is pari material to Section 349 of the Orissa Municipal Act. 4.The sole question that arises for consideration as to whether prior notice under Section 629 of the Orissa Municipal Act is a sine-qua-non for maintaining a suit for permanent injunction? 5.The subject matter of dispute is no more res integra. Section 629 of the Orissa Municipal Corporation Act is pari material to Section 349 of the Orissa Municipal Act. On an interpretation of Section 349 of the Orissa Municipal Act, this Court in Hanuman Jew Mahabir Temple v. The Balasore Municipality and another, 15(II) ILR-CUT-758, in paragraphs 8, 9 and 10 has held thus:- “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 councillor, the Chairman, Executive Officer, any councillor, 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 by –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, by-law or order, until the expiration of tow 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 proceedings intended to be brought against any such Chairman, Executive Officer, councillor, 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 for the defendant. (2) Every such proceeding shall, unless it is a proceeding for the recovery of immovable property or for a declaration of title thereto, be commenced within six months after the date on 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 for the recovery of immovable property or for a declaration of title thereto, be commenced within six months after the date on 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 council or person to whom notice is given under Sub-Section (1) shall before the proceeding is commenced, tender amends to the plaintiff and if the plaintiff does not in any such proceeding recover more than the amount to tendered, he shall not recover any costs 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 councillor, officer or servant of a municipal council or any person acting under the direction of a municipal council, or such Chairman, the Executive Officer, councillor, officer or servant in respect of any act done, in execution or intended execution of this Act or any rule, regulation, by-law or order made under it or in respect of any alleged neglect or default on 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 Section375. 9.The subject-matter of dispute is no more 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 . 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 under the Act or Rules or Regulations or Bye-law of 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 other, 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 maintainabiliity 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 councillor, the Chairman, Executive Officer, any councillor, 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. 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. 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 or 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 s 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 councillor, the Chairman, Executive Officer, any councilor, office 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, by-law or order made under it. The act must be “colori offici” . 6.The ratio in Hanuman Jew Mahabir Temple (supra) applies with full force to the facts and circumstances of this case. 7.The plaintiff has committed a mistake in filing an application for waiver of notice under Section 349 of the Act. There was no occasion to file the application for waiver of notice in a suit for permanent injunction. Further, the learned trial Court has travelled beyond its jurisdiction in directing the plaintiff to serve notice under Section 629 of the Orissa Municipal Corporation Act on the Commissioner. 8.In view of the authoritative pronouncement of this Court in the case of Hanuman Jew Mahabir Temple (supra), the order dated 28.6.2008 passed by the learned Civil Judge (Sr. Division), Bhubaneswar is quashed. The petition is allowed. No costs. Petition allowed.