The requirement of notice under Section 326 of the Assam Municipal Act, 1956 is context-specific and does not apply when the cause of action arises from actions of a different authority.

JUDGMENT :

1. Heard Mr. I Hussain, learned counsel for the appellants. Also heard Mrs. R Choudhury, learned counsel for the respondents.

2. The instant appeal has been preferred against the judgment dated 20.07.2018 and decree dated 21.07.2018 passed by the learned Civil Judge, Tezpur in Title Suit No. 12/2016. By the impugned Judgment, the Judgment and Decree dated 30.09.2015 passed by the learned Munsiff No. 1, Tezpur in Title Suit No. 96/2006 has partly been reversed.

3. The present appellant was the plaintiff in the suit and the learned Munsiff, vide the impugned order dated 30.09.2015, had dismissed the suit, mainly on the ground that the provisions of Section 326 of the Assam Municipal Act, 1956 was not complied with insofar as, the Tezpur Municipal Board was concerned, the learned Court had held that though the plaintiff was able to make out a case on merits, the same was dismissed mainly on the ground that notices under Section 326 was not issued prior to filing of the suit.

4. Against the aforesaid judgment and decree, the present appellant had approached the First Appellate Court. Though, vide the impugned judgment and order dated 20.07.2018, the findings were partly reversed by holding that it was not necessary to serve notice upon the Tezpur Municipal Board, before institution of the suit. Accordingly, the learned First Appellate Court, Tezpur had directed allotment of room No. 154(A) in favour of the defendant No. 4. Aggrieved thereby, the present appeal has been preferred.

5. The appeal was admitted on the following substantial questions of law :

(i). Whether the Defendant No.4 having been failed to file any counter claim as provided by the C.P.C Challenging the Order passed by the Defendant No. 3 on 13.10.2006 Learned Court below were justified in deciding in the issue no. 3 and 4 in favour of the defendants?

(ii). Whether Learned First Appellate Court is justified in holding the view that plaintiff has right, title and interest only in shop no.154(B) not as whole shop room no. 154?

6. Subsequently during the course of hearing on 28.03.2023 another substantial question of law was formulated which is as follows :

“Whether the decision of the learned appellate court is perverse in declaring the defendant No.4 to be tenant under the defendant No.3 in spite of holding that the order dated 20.10.2016 of the District Magistrate was bad in law thereby reviving the order dated 13.10.2016, by which the tenancy in favour of the defendant No.4 was cancelled by defendant No.3.”

7. The case of the appellant/ plaintiff:-

The plaintiff pleaded the following facts in his plaint :

I. The plaintiff/appellant possessed a room/shop comprising shop No.154 at Chowk Bazar, Tezpur as the tenant of Tezpur Municipal Board/Defendant No.3. The plaintiff was running a partnership business with the defendant No.4 i.e. Murad Ahmed on one portion of the shop No.4 by erecting a partition.

II. It is the case of the plaintiff that in the month of February 2001, the plaintiff asked the defendant No.4 to remove the partition. The plaintiff was informed that the defendant No.4 has illegally entered into a tenancy agreement with the vice chairman of defendant No.3 and got separate tenancy as holding No.154-A thereby dividing the original shop No.154.

III. Being aggrieved, the plaintiff submitted several representations before the Executive Officer, Tezpur Municipal Board and Deputy Commissioner in the year 2001 and 2002 and further representations in the year 2004 and 2006.

IV. It is the further case of the plaintiff that on 25.09.2006, in the General Meeting of Tezpur Municipal Board/Defendant No.3, the vice chairman of the Tezpur Municipal Board/Defendant No.3 was authorized to take appropriate steps against the grievance of the plaintiff by passing a resolution.

V. The Tezpur Municipal Board/Defendant No.3 by its letter dated 13.10.2006 informed the plaintiff about the mutation in the name of the defendant No.4 was cancelled upon verification of facts and hearing