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2019 DIGILAW 463 (ORI)

Raghunath Sabat v. Councillers Of Nac, Hinjilicut

2019-07-18

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. Plaintiff no.2 is the appellant against a reversing judgment in a suit for declaration that the enhancement of licence fee passed by the Notified Area Council, Hinjilicut-defendant is not valid and permanent injunction. 2. The brief fact of the case is that the original plaintiff-Baraja Sabat, was in occupation of stall no.1 constructed by the defendant Notified Area Council ("NAC") and running a shop on payment of monthly fee of Rs.30/- since 1972. The defendant gradually enhanced the licence fee from Rs.30/- to Rs.80/- per month. He used to pay licence fee regularly. While the matter stood thus, the defendant enhanced the licence fee from Rs.80/- to Rs.200/- w.e.f.1.1.84 and issued notice to him on 7.12.83. The defendant directed him to deposit the enhanced licence fees of six months from receipt of notice and to execute a fresh agreement and in the alternative, he was asked to vacate the stall by 1.1.84. On receipt of the notice on 12.12.83, he filed a representation ventilating his grievance through registered post and the same was received by the defendant on 16.12.83. He issued a notice under Sec.349 of Orissa Municipal Act to the defendant on 19.2.84. The defendant tried to take coercive steps to evict the plaintiff from the stall. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. The defendant filed written statement denying the assertions made in the plaint. 4. Learned trial court struck three issues. Parties led evidence. Learned trial court decreed the suit. The defendant filed T.A. No.17 of 1989 before learned Suboridnate Judge, Chatrapur. The same was allowed. It is apt to state here that during pendency of the suit, the original plaintiff died. His legal heirs have been substituted. 5. The appeal was admitted on the substantial questions of law enumerated in ground nos.(i), (ii) and (iii) of the appeal memo. The defendant filed T.A. No.17 of 1989 before learned Suboridnate Judge, Chatrapur. The same was allowed. It is apt to state here that during pendency of the suit, the original plaintiff died. His legal heirs have been substituted. 5. The appeal was admitted on the substantial questions of law enumerated in ground nos.(i), (ii) and (iii) of the appeal memo. The same are: "(i) Whether the learned appellate court is right in holding that the plaintiff-appellant was also supposed to state and to adduce evidence about the nature and improvement and/or service required by him to be rendered by the defendant-N.A.C. while challenging the fee enhanced without basing upon the principles of quid-pro-quo and further in the absence of the pleadings in the written statement about rendition of service as to whether the evidence if any adduced, can at all be looked into upon a plea which are never put forward ? (ii) Whether in the absence of pleading in the written statement and in the absence of evidence adduced establishing rendition of service, the upholding of the enhanced fee by the learned appellate court is just and proper and also in terms of the law prescribed under the Municipal Act laying down guidelines for such enhancement or not? (iii) Whether having regard to the findings of the learned courts below that the notice contemplated under Section 349(1) of the Municipal Act being mandatory provision of law which correspondence to Section 80 of CPC and such notice vide Ext.1 having been served on 19-2-84 and reply to the same from the N.A.C. having been received and thereafter the suit was instituted on 12-4-84 before expiry of 60 days from the date of service of the said notice on the N.A.C. but ignoring the facts on record that in view of the urgency the suit was filed along with a petition under Section 80(2) of the C.P.C. which was allowed by the trial court, vide order dated 12-4-84 permitting to sue, the learned appellate court is right in holding that the requirement of the provision is found wanting in the notice without stating said requirements in detail and further holding that the suit is hit under Section 349(1) of the Municipal Act ?" 6. Mr. Amar Kumar Mohanty, learned counsel for the appellant, submits that batch of appeals came for consideration before this Court. Mr. Amar Kumar Mohanty, learned counsel for the appellant, submits that batch of appeals came for consideration before this Court. This Court vide judgment dated 6.3.1995 remitted the matter back to learned trial court for de novo hearing. 7. Conversely, Mr. Sarojananda Mishra, learned counsel for the respondent, submits that the case is squarely covered by the judgment of the apex Court in the case of Dhenkanal Municipal Council and another vs. A. Raja Rao and others, (1993) 2 OrissaLR 1 (SC). 8. In Bipra Gouda vs. The Councillors of Notified Area Council, Hinjilicut NAC (disposed of on 6.3.1995 in SA No.223 of 1991), the question arose for determination as to whether the demand of licence fee at the enhanced rate by Hinjilicut Notified Area Council against the appellants is sustainable in law. Taking a cue from the decision of the apex Court in the case of A. Raja Rao and others, Justice D.P. Mohapatra (as he then was) allowed the appeal, set aside the judgment and decree passed by learned Subordinate Judge and remanded the suit for fresh disposal in the light of the decision of the apex Court in the case of A. Raja Rao and others. 9. In view of the same, the impugned judgment is set aside. The appeal is allowed. The matter is remitted back to learned trial court for de novo hearing. Learned trial court shall dispose of the case afresh in the light of the judgment in the case of A. Raja Rao and others (supra). In order to avoid further delay, the parties shall appear before the court below on 16.08.2019, on which date, learned trial court shall fix a date of hearing and conclude the suit within three months thereafter. Since the matter is remitted back to learned trial court, this Court refrains itself from answering the substantial questions of law.