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1952 Supreme(All) 89
IN THE HIGH COURT OF ALLAHABAD
Raghubar Dayal, Harish Chandra and Bind Basni Prasad, JJ.
HAJI AHMAD RAZA - Appellant
Versus
MUNICIPAL BOARD - Respondents
Original Suit 1 Of 1951
Decided On : 03/18/1952
AMBIKA PRASAD, BALESHWARI PRASAD, HARNANDAN PRASAD, K.C.SAXENA, SHANKER SAHAI VARMA
Headnote:
MUNICIPALITIES ACT - SECTION 326 - NOTICE REQUIREMENT - APPLICABILITY TO SUITS BASED ON CONTRACTS OR TORTIOUS ACTS - INTERPRETATION OF SUB-SECTION (4) - DEFEAT OF SUIT'S OBJECT - INJUNCTION SUITS - DISTINCTION BETWEEN "INCONVENIENCED" AND "DEFEATED".
Fact of the Case:
Butchers and hide merchants of Allahabad challenged a bye-law amendment by the Municipal Board prohibiting the slaughter of bulls, bullocks, cows, and calves in slaughterhouses or any other place. They sought a permanent injunction to restrain the Board from enforcing the amendment, arguing that it infringed their fundamental right under Article 19(1)(g) of the Constitution and was not authorized by Section 298 of the U.P. Municipalities Act. The Board raised a preliminary objection that the suit was not maintainable without a notice under Section 326 of the Act.
Finding of the Court:
The Court held that the suit was not maintainable for want of notice under Section 326(1) of the U.P. Municipalities Act. It rejected the plaintiffs' contention that the notice requirement applied only to suits based on tortious acts and not to those based on contracts, clarifying that Section 326 applied to both types of claims. The Court also held that the object of the suit would not have been defeated by the giving of the notice or the postponement of the commencement of the suit, as the plaintiffs could have been adequately compensated by damages if the bye-law was found to be ultra vires.
Issues: 1. Whether the suit was maintainable without a notice under Section 326 of the U.P. Municipalities Act. 2. Whether the notice requirement applied only to suits based on tortious acts and not to those based on contracts. 3. Whether the object of the suit would have been defeated by the giving of the notice or the postponement of the commencement of the suit.
Ratio Decidendi: 1. Section 326(1) of the U.P. Municipalities Act requires a notice to be given to the Board before instituting a suit against it or its officers for an act done or purporting to have been done in their official capacity. 2. The notice requirement applies to both suits based on tortious acts and those based on contracts. 3. The object of a suit for an injunction will be "defeated" by the giving of the notice or the postponement of the commencement of the suit only if the loss cannot be adequately compensated by damages.
Final Decision: The suit was dismissed with costs for want of notice under Section 326(1) of the U.P. Municipalities Act.
( 1 ) THIS suit which was originally instituted before the learned Civil Judge of Allahabad has, by an order of the Court, been removed to the extraordinary original side of this Court. It came up for hearing before a Division Bench which recorded the statements of learned counsel for the parties, framed issues and took down evidence which was concluded on the 10th December, 1951. On the 11th December, 1951, it directed the case to be laid before the Honble the Chief justice for constituting a Full Bench to decide it as it raised questions of general importance in this State. The case then came up before this Full Bench on the 18th January, 1952, when at the request of the learned counsel for the defendant the following issue was added: "is the suit bad for want of notice under Section 326 of the U. P. Municipalities Act?" learned counsel for the plaintiffs requested for time to argue on this new issue and this was granted to him. It may be mentioned that in para. 11 of the written statement the defendant had already raised the plea that the suit was not maintainable without a notice.
( 2 ) THE plaintiffs are three in number and they have brought this suit under Order 1, Rule 8, of the code of Civil Procedure representing the butchers and the hide merchants of city of Allahabad. Plaintiffs 1 and 2 are butchers by profession and plaintiff 3 is a hide merchant. The defendant is the Municipal Board of Allahabad. At first the State of Uttar Pradesh was also impleaded as a defendant but subsequently it was exempted.
( 3 ) IT is common ground of the parties that in this Municipality bye-laws in respect of slaughter houses have been in existence since 1916. By a notification published in the U. P. Gazette, dated the 31st March, 1951, these bye-laws were amended and the following was inserted as Clause
(iii) of bye-law No. 1 :no bull, bullock, cow, calf (both male and: female) shall be slaughtered in any slaughter house or "in any other place. "
( 4 ) THE plaintiffs case is that the said amendment is not warranted by the provisions of Section 298 of the U. P. Municipalities Act, that it infringes their fundamental right conferred by sub-clause (g) of Clause (1) of Article 19 of the Constitution and that the Municipal Board have no right to place an absolute bar of prohibition against such slaughter, esspecially prohibiting such a slaughter "in any other place".
( 5 ) THE relief claimed by the plaintiffs is to the following effect:by means of a permanent injunction the defendant be restrained from prohibiting absolutely the slaughter of bull, bullock, cow, calf (both male and female) in any slaughterhouse established by the Municipal Board of Allahabad or any other place as contemplated by the void and ultra vires new bye-law No. 1 sub-bye-law No. 3 published in the U. P. Gazette of March 31, 1951. "
( 6 ) THE defendant raised a number of pleas and as many as 11 issues were framed by the Division bench. It is unnecessary however, to set them out. If the suit fails on the preliminary ground of want of notice it is futile to enter into a discussion of the other issues. I proceed, therefore, to determine the issue added by this Court, viz. whether the suit is maintainable without a notice under Section 326 of the U. P. Municipalities Act, 1916. Sub-sections (1), (3) and 1 (4) of this section are relevant for the purposes of our discussion. They run as follows:-"326. Suits against board or its officers: (1) No suit shall be instituted against a board, or against a member, officer or servant of a board, in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice in writing has been, in the case of a board, left at its office, and, in the case of a member, officer or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed,
