P L D 1952 Lahore 380 (PLP)

S. A. RAHMAN, J.‑This is a regular second appeal arising out of an action brought by Mst. Iqbal Begum appellant to challenge two notices purporting to have been issued by the Secretary, Municipal Committee, Multan, under sections 195 and 172 of the Punjab Municipal Act, 1911 (hereinafter referred to as the Act), on the 30th of September, 1948. The Municipal Committee had been superseded under section 238 of the Act, by a notification of tree Provincial Government and en Administrator appointed by the. Government was in charge of its affairs. The notices impugned had called upon the appellant to demolish a building that had been constructed by her and to remove the encroachment constituted by it. The action was brought on 16th October 1948, claiming a declara tion that the notices were ultra vies the Secretary and seeking an injunction restraining the Municipal Committee through tree Administrator from: demolishing the building in question. The suit was resisted inter alia on the ground that a notice under section 80, Civil P. C., had to be given as a condition precedent to the institution of the suit but no such notice had admittedly been given. The trial Civil judge found in favour of the appellant on this preliminary issue and decreed the suit on the merits. The defendant went up in appeal to the learned Senior Civil Judge, Multan, who reversed the decision of the trial Court and dismissed the plaintiff's suit. Hence this second appeal. It may be noted that originally the plaint mentioned the Administrator, Multan Municipal Committee as the defendant but by a subsequent petition the designation of the defendant was amended to read as the Municipal Committee, Multan, through the Administrator. The question that fails for deter mination is whether a notice prescribed under section 80, Civil P. C, was necessary in the case or not. No direct authority on all fours with the present case has been cited before me by learned counsel for the parties. On behalf of the Municipal Committee, reference has been made to the provisions of section 238 of the Act, and those of section 80 and clause (17) section 2 of the Civil Procedure Code. Admittedly the impugned notices had been issued in this case after the supersession of the Committee had taken effect and the Administrator was functioning. Section 238 of the Act prescribes that when a committee is superseded the following consequences shall ensue :‑ (a) All members of the committee shall, from the date of the notification, vacate their seats. (b) All powers and duties of the committee may until the committee is reconstituted, be exercised and performed by such person as the Local Government may appoint in that behalf. (c) All property vested in the committee shall, until the committee is reconstituted, vest in His Majesty. It is claimed on behalf of the Committee that the Adminis trator was the person whose action was being challenged by the plaintiff and he was a "public officer" within the meaning of clause (17) section 2, Civil P. C., and, therefore, a notice under section 80 was essential for the competency of the suit. Mr. Muhammad Amin Khan on behalf of the appellant has referred me to Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakoman I L R 29 (1906) Mad. 539 D. B. In that case it was held by a Division Bench of the Madras High Court that the supersession of a Municipal Council under section 4‑B (1) (b) of Madras Act IV of 1884 is only a suspension of such body for a limited period and such supersession is different from and has not the effect of a dis solution under section 4‑B (1) (a). The reconstitution of such a Council under section 4‑B (3) (b) is the revival of the old corporation and not the creation of a fresh one, and all the rights and liabilities of the superseded Council will devolve on the Council so reconstituted, as its rightful successor. This authority seems to have no bearing on the facts of the present case. The following observations made by the Federal Court of India in Administrator, Lahore Municipality v. Daulat Ram Kapur A I R 1942 F. C. 14 are instructive in this connection:‑ "The provisions of section 18 relating to the corporate character of the Committee and the manner of suing must be read subject to the provisions of section 238 (2) which lays down the consequences of a supersession. It may be that a supersession has not the effects of a dissolution and that when another committee is constituted in the place of the superseded committee, it is a revival of the old corpora tion and not the creation of a new one. But during the period when the order of supersession is in force, the statute makes it clear that all the members of the committee vacate their seats and that all the powers and duties of the com mittee are to be exercised and performed by the Administra tor. Consequently, in the case of supersession of a Municipal Committee by an Administrators it is not necessary for the Administrator to take proceedings only in the name of the dormant corporation. The person competent to take proceedings is the Administrator and he can do so himself. Even if the true view were that he should take proceedings in the name of the committee, the defect is one purely of a formal character which can be cured by amendment. No final view however was expressed in that case as to whether the Administrator or the Committee through the Administrator should be regarded as the party competent to sue or be sued. In Muhammad Shafi v. Sialkot Municipality and another A I R 1940 Lah. 451 Din Muhammad J. of this Court dealt with a suit by a person for ark injunction restraining the Sialkot Municipality from demolishing his building. In that case the plaintiff had obtained sanction to erect the building in question from the Municipality which was subsequently superseded and the sanction was suspended. The owner of the building served a notice on the Secretary of State for India in Council through the Deputy Commissioner. It was described as a notice under section 80, Civil P. C., and section 49 of the Act. The Deputy Commissioner occupied a dual capacity. He was the Collec tor of the District as well as the Administrator of the Municipal Committee. It was held by the learned judge that the notice served on the Deputy Commissioner was valid and proper. It appears to have been assumed in that case that a notice under section 80, Civil P. C., was necessary. This lends indirect support to the petition of the respondent. Mr. Muhammad Amin Khan referred to certain authorities in which the view has ‑been‑taken that a Municipal Committee or a Village Sanitation Panchayat is not a public officer within the meaning of section 2 (17) Civil P. C. The citations are Village Sanitation. Panchayat Committee v. S. R. Deshmukh A I R 1929 Nag. 70 and Vasudeva Rao v. Municipal Council, Anantapur A I R 1930 Mad. 844. These rulings do not appear to be in point. We are not concerned with the Municipal Committee as such in the present case. On the other hand we are considering the position of an Administrator appointed under section 238 of the Act. Mr. Iqbal Hussain on behalf of the Committee, relied upon Hazi Jamal Noor Muhammad v. Governor‑General in Council A I R 1947 Cal. 26 and Governor‑General of India in Council v. U. Raghunandan A I R 1947 Mad 64 as furnishing an analog in support of the contention raised on behalf of the Committee. In those cases, suits had been instituted against private railway companies which had been taken over by Government pending the settlement of tire matter in dispute. It was held that a notice under section 80, Civil P. C., to the Government was necessary before the suit could be maintained. It appears to me that the view taken by the learned Senior Civil Judge is correct. After the supersession order is passed,' all property that previously vested in the Committee, vests in' the Crown and the Administrator who is an officer appointed by Government, even if he is paid out of Municipal funds should be regarded as one who is paid by the Crown during the period of supersession, within the meaning of item (h) of clause (17) of section 2, Civil P. C. His functions would, moreover, bring him within the purview of items (f) and (g) of clause (17) of section 2, Civil P. C., inasmuch as he is an officer whose duty it is "to protect the public health, safety or convenience" and also "to take, receive, keep or expend any property" on behalf of the Crown. An Administrator, there fore, would seem to be a "public officer" and in order to challenge his action, a condition precedent to the institution of the suit would be, to give the notice prescribed by section 80, Civil P. C. As this was not done in the present case the suit was rightly dismissed. The appeal fails and is hereby dismissed with costs. A. H. Appeal dismissed.