S. RAHMAN, J.-This order will dispose of certificated Letters Patent Appeals Nos. 57/65 and 58/65 as the facts and points of law involved in the two are almost the same. The judgments of our learned brother Muhammad Akram, J. Dated the 4th of May 1965 in R. S. As. Nos. 483/64 and 484/64 dismissing the suits with costs throughout are challenged.
2. The plaintiffs, five in L. P. A. No. 57 of 1965 and 29 in L. P. A. No. 58 of 1965, are all shopkeepers of Bazar Kalan, Jhelum, within the limits of the Municipal Committee. They claimed to have erected Tharas or projections on Municipal Street in front of their shops, with the permission of the Municipal Committee, as long back as 1925 and had been regularly paying the required fee to the Municipal Committee, Jhelum. By a Resolution No. 79 dated the 25th of October 1962, the Municipal Committee, Jhelum, resolved to remove these projections with a view to widening the street. The resolution was confirmed by another Resolution No. 108 dated the 28th of November 1962. In implementing these resolutions, notices were issued to the plaintiffs on the 30th of. October 1962, 1st of December 1962 and 18th of April 1963 ordering them to demolish the projections. Sardar Muhammad and four others (instituted a civil suit while Jamadar Nek Muhammad and 28 others instituted a separate suit seeking a declaration that the two Resolutions No. 79 dated the 25th of October 1962 and 108, dated the 28th of November 1962, were illegal, without jurisdiction and of no legal effect on the rights of the plaintiffs to hold on to the projections in front of their shops. By way of consequential relief they sought a permanent injunction restraining the Municipal Committee, Jhelum, from demolishing these projections.
3. The suits were contested by the Municipal Committee which took up the pleas that the civil Court had no jurisdic--petition, that Statutory notice as required under section 127 of the Municipal Administration Ordinance, 1960 (hereinafter referred to as the Ordinance) read with Article 94 of the Basic Democracies Order (hereinafter referred to as the Order) had not been served (in L. P. A.
57 of 1965) and that the projections fin front of the sops were obstructions and the plaintiffs had no right to hold on to the projections. The trial Court framed the following issues on the pleadings of the parties in the two suits
(1) Whether the suit is triable by this Court ?
(2) Whether the plaintiffs have not served any notice on the defendant ? If so, what is its effect ?
(3) Whether the resolutions and notices served upon the plaintiffs are ultra vires and not binding upon the plaintiffs ?
(4) Whether the plaintiffs have acquired any right to retain the Tharas in dispute ?
(5) Relief.
4. The Civil Judge, who disposed of the two suits on the 4th of April 1964, decided all the issues against the plaintiffs and dismissed their suits with costs. On appeal, the learned Additional District Judge, by his order dated the 11th of June 1964, reversed the findings of the trial Court and allowed the declaration and the injunction to the plaintiffs in both the suits. Aggrieved Municipal Committee, came up in Second Appeal. The learned Judge in Chambers, while disposing of the main appeal (R. S. A. No. 483/64) held that as no notice under Article 94 of the Basic Democracies Order, had been served, the suit was incompetent and the Civil Court had no jurisdic--petition to entertain it. The subsequent amendment in Article 94 of the Basic Democracies Order, by virtue of the Basic Democracies Order (West Pakistan Amendment) Ordinance 35 of 1963, was also considered and it was held that it made no difference to the lack of competence and maintainability of the snit instituted without a notice before the Amendment. In R. S. A. No. 484/64 the learned Single Judge affirmed the finding of the first appellate Court on issue No. 2 that in view of admission of the Municipal Committee in its written statement about the receipt of notice the service of notice must be held proved. On merits in both the appeals it was held by the learned Single Judge that the Municipal Committee was within its powers under section 83 of the Ordinance to demolish the encroachments, and the bye-laws framed under section 172 of the Punjab Municipal Act, also sustained this power of the Municipal Committee.
5. The certificates have been granted by the learned Single Judge for examination of an important question as to the interpretation of section 83(2) of the Ordinance.
6. Mr. Abid Hassan Minto, learned counsel for the appellants before us has challenged the finding, n Issue No. 2 in L. P. A. 57/65 and the finding on Issue No. 3 in both the Letters Patent Appeals. In challenging the finding on Issue No. 2 in L. P. A. No. 57 of 1965, two alternative pleas have been raised. In the first instance it has been contended that in a suit for injunction a notice is not required to be served under the law, and even if it were required then with the amendment of Article 94 of the Basic Democracies Order by virtue of Basic Democracies Order (West Pakistan Amendment) Ordinance 35 of 1963, the objection of want of notice was no longer available to the Municipal Committee on the date the judgment and decree was passed in the suit.
7. Section 127 of the Ordinance provides : "the provisions of Articles 94, 95, 96, 97 and 98 in Chapter V of the Order shall mutatis mutandis apply to Municipal Committees as they apply to local councils as if the said provisions had been enacted in this Ordinance, and (a) any reference to a local council were a reference to a Municipal Committee ; and (b) any reference to the Order were a reference to this Ordinance". Order has been defined in subsection (30) of section 3 of the Ordinance and it means the Basic Democracies Order, 1:959, (P. O. 18 of 1959). Article 94 of the Basic Democracies Order before its amendment read as follows :- "No suit shall be instituted against a local council or against any member, official or servant of a local council in respect of any act done or purporting to be done in official capacity, until the expiration of one month next after notice in writing has been, in the case of a local council, delivered or left at its office and in the case of a member, official, or servant, delivered to him or left at his office or place of above, stating the cause of action and the name and place of abode of the intending plaintiff and the plaint shall contain a statement that such notice has been so delivered or left."
Article 94 was amended by West Pakistan Ordinance 35 of 1963 and after its amendment it reads as under :- "A suit may be instituted against a Local Council or against any member, official or servant of a Local Council in respect of any act done or purporting to be done in his official capacity after the expiration of one month next after notice in writing has been, in the case of a Local Council, delivered or left at its office, and in the case of a member, official, or servant, delivered to him or left at his office or residence, stating the cause of action, the name, description of place or residence of the intending plaintiff and the relief which he claims ; and the plaint shall contain a statement that such notice has been so delivered or left."
Clause (2) of Article 94 after its amendment reads as below :- "Where any such suit is instituted without delivering or leaving such notice as aforesaid or before the expiration of the said period of one month or where the plaint does not contain a statement that such notice has been so delivered or left, the plaintiff shall not be entitled to any costs, if settlement as regards the subject-matter of the suit is reached or the Local Council or the member or official or servant, as the case may be, concedes the plaintiff's claim within the period of one month from the date of institution of the suit Provided that in a suit instituted without such notice, the Court shall allow not less than two months to the Local Council to submit its written statement."
8. Learned counsel for the appellants admitted that these provisions abort notice were applicable to the Municipal Committee and its employees. However, the learned counsel claims inapplicability of the aforesaid provisions to the facts of his case on the ground that such a notice is necessary only where the act complained of has been performed within the framework of the Act under which it is purported to have been performed and is not entirely without jurisdiction or outside the framework of the law under which it is expressed to be done. He has referred us to a large number of reported cases to support this proposition. In the case Hori Ram Singh v. The Crown ((1939) FC R 159), there is an observation at page 191 when their Lordships commenting on the judgment of the High Court under appeal remarked: "Towards the conclusion of the judgment under appeal the learned Judges observe that. The words `act done or purporting ~to be done in the execution of his duty' cannot by any stretch of the English language be made to apply to an act which is clearly a dereliction of his duty. The word `dereliction' may reasonably include negligence in discharging a duty. But it seems to me that an act is not a duty because the officer concerned does it negligently."
This authority actually goes against the proposition advanced by the learned counsel for the appellants in this case. Their Lordships of the Federal Court, while commenting on the judgment of the High Court, at the very outset, stated "with due respect to the learned Judges of the High Court, that in one or two places in the judgment under appeal, their observation are much too widely worded", and as an instance quoted the portion reproduced above.
9. The other case relied upon is the of District Council. Bhandgra v. Kisorilal Laxminarayan Agar (AIR 1949 Nag. 190) which too is not very helpful. It was observed by their Lordships in this case: "I can understand it being said that an act which is within the scope of an official duty cannot be taken out of that category simply because it is carelessly or negligently performed but I cannot see how an act which is expressly prohibited by law can be said to lie there". In the case before us there is no statutory prohibition that the projections before the shops erected, with the permission of the Municipal Committee shall not be got demolished. It is not alleged that any such specific and express statutory prohibition existed and has been violated.
10. The other case of Murarilal and others v. Municipal Committee, Lashkar (AIR 1952 M B 21) is also distinguishable for the reason that the law under which the suit was instituted provided as in the -- proviso to section 49 of the Punjab Municipal Act, 1911 that the provision of notice was not to apply to a suit for perpetual injunction to prevent the breach of obligation. Besides, it was held on the question of notice that : "if however, the order of the Municipality is not within the scope either of its duty or of its powers under the Act, as in this case, then it will not be in respect of any act done or purporting to be done in its, official capacity and a two months' notice will not be necessary under section 48." The scope and meaning of the expression "purporting to be done" was considered in a Full Bench case of the Madras High Court reported as Samanthala Koti Reddi v. Pothuri Subbiah and others (AIR 1918 Mad. 62) and their Lordships observed as under :- "The act done by a public officer would `purport' to be an act done in his official capacity not only if it was properly and rightly done by him in such capacity and within his powers but also if it has such a reasonable resemblance (though a false or pretended resemblance) to a proper and right act that ordinary persons could reasonably conclude from the character of the act and from the nature of his official powers and duties that it was done in his official-- capacity. But if the act done is so outrageous and extra--ordinary that no reasonable man could detect in it any resemblance to any act which the power of such an officer could allow him to do on the facts as represented and, declared by such officer his mere allegation that he did the act in his official capacity would not suffice."
11. In the case of Province of West Pakistan and other v. Ghulam Qadir and another (PLD 1963 Kar.
337) this very contention was repelled by the learned Single Judge by observing: "Merely because these orders according to the learned Subordinate Court were illegal 'and unjust, would not convert them into: unofficial acts" and a notice under section 80, C. P. C. Was considered essential. We do not see how the functions of the Municipal Committee in maintaining streets and regulating o r& removing encroachments therefrom can be considered alien to the provisions of the Ordinance or completely outside its framework.
12. The other ground taken up by the learned counsel for the appellants is based on the provisions of the Punjab Municipal Act whereunder a suit for injunction was specifically exempted from the purview of the notice clause. As a matter of fact, this conflict and divergence between the views of various High Courts in the sub-continent had come to the notice of the Privy Council in the case Bhagchand Dagdusa Gujrathi and others v. Secretary of State for India (AIR 1927 P C 176). Their Lordships had pointed out the views of the different High Courts on the subject and had held that "the view that the plaintiff can bring his suit before the two months' time prescribed has expired in the case of suits against officials for acts purporting to be done in discharge of their duties, when part or the whole of the relief claimed is an injunction, is not correct and section 80 is to be strictly complied with and is applicable to all forms of action and all kinds of, relief". This sets at rest the con--troversy whether without the proviso as in the Bombay District Police Act a suit for injunction could be an exception to this general provision requiring notice.
13. The learned counsel for the appellants vehemently contended that before the suits were decided an amendment was effected by West Pakistan Ordinance 35 of 1963, radically amending Article 94 of the Basic Democracies Order, 1959 on the lines of the amendment in section 80, C. P. C.
And there--after no notice under Article 94 was necessary and the suit could proceed in spite of the absence of such a notice. This plea was taken up before the learned Single Judge but was rejected on the ground that the plaintiffs could not avail of this change in the law because the suit when instituted did not conform to the law as prevalent at that time and the subsequent alteration could not revive what was not alive at the time of the institution of the suit. We consider that the matter has a different aspect too. Provision of notice as contained in section 80, C. P. C. Or Article 94 of the Order, before their amendment, could at best be considered procedural in nature. This question came up for consideration in Hargulal Mal v. Muhammad Ata Ilahi Khan and another (164 I C 1090) and Monroe, J. While disposing of the reference observed as follows :- "The wording is similar to that of section 80 of the Code of Civil Procedure which requires two months' notice to be given of a suit against the Secretary of State. I find it stated in Chitaley and Annaji Rao's Code of Civil Procedure that this section (i.e. Section 80) like section 79 enacts only a rule of procedure. With this view I agree and after a prolonged search I have been unable to find a suggestion in any case or text-book that an enactment requiring notice of legal proceeding to be given before the institution of such proceedings is a provision of substantive law."
14. The same question was considered in The State of Seraikella and other States v. The Union of India and another (14 SC J 425), a case of original jurisdiction of the Indian Supreme Court where Mahajan, J. Made the following observations :-- " `Procedure' as defined in Wharton means the mode in which successive steps in litigation are taken. It seems to me that what is enacted in section 80 is the first step in litigation between the parties when the cause of action is complete. Section 80 in effect provides that an advance copy of the plaint should be served on the defendant and no suit should be instituted in Court until the expiry of two months after such service. Section 80 does not define the rights of parties or confer any rights on the parties. It only provides a mode of procedure for getting the relief in respect of a cause of action. It is a part of the machinery for obtaining legal rights, i.e. Machinery as distinguished from its products."
Reference was made by the learned Attorney-General to the decision in Bhagchand Dagadusa v.
Secretary of State for India. At page 357 their Lordships of the Privy Council examined the view that had been taken in some of the High Courts in India on the applicability of section 80 to suits for injunction and it was held that these had been decided on an erroneous assumption that a statutory provision as to procedure was subject to an exception in cases of hardship or in cases where irremediable harm might be caused, if it was strictly applied. It was pointed out that the Procedure Code must be read in accordance with the natural meaning of its words and that section 80 being explicit and mandatory it admitted of no implications or exceptions. Their Lordships then made these observations :-- "To argue as the appellants did, that the plaintiffs had a right urgently calling for a remedy, while section 80 is mere procedure, is fallacious, for section 80 imposes a statutory and unqualified obligation upon the Court."
The learned Attorney-General relying on these observations contended that section 80 did not lay down any rule of procedure but was a provision affecting substantive rights. I am unable to accede to this contention. Their Lordships did not decide, and it is not possible to think that they would make any such decision, that section 80 did not lay down a rule of procedure but was a piece of legislation defining substantive rights. All that they said was that section 80 was not mere procedure but was of a mandatory character and more than this they did not say."
15. In the case of Kanailal Karmakar v. Governor General for India-in-Council and others (AIR 1948 Pat. 164) a learned Single Judge came to the following conclusion on the construction of section 80, C. P. C. :-- "In my judgment, there appears to be some misapprehension in the minds of the Court below in relation to the scope of that portion of section 80 of the Code which bears upon the question before us. Section 80 may be divided into two parts. The first part deals with the service of notice in writing, and the second part with a rule of procedure as to what should the plaint contain. The first part begins with the words : "No suit shall be instituted against the Crown" and ends with "stating the cause of action, the name, des--cription and place of residence of the plaintiff and the relief which he claims". In this part is provided what should the notice in writing contain, to whom it should be delivered or at whose office it should be left. This provision is prefixed with the mandatory words :-"No suit shall be instituted . . . . , until the expiration of two months next after notice in writing" etc. These words cannot be read as prefatory to the second part of the section which reads "and the plaint shall contain a statement that such notice has been so delivered or left". From the very language of the two parts, their respective significance will appear to be widely divergent. The one affects the plaintiff's right to sue, while the other relates to a matter of procedure."
His Lordship was in that case not so much concerned with the purpose and effect of the provision of service of notice as the failure to draw up the plaint as required under section 80, C. P. C. For the limited purpose of mentioning the delivery of notice.
16. The specific nature of the requirement of section 80, C. P. C. Was considered in Narayanaswami Iyer and others v. Union of India (AIR 1960 Mad. 58) and the following observations made as relevant "It is well known that statutory notices to Government found in various enactments are only matters of procedure and are not matters of substantive rights. True, failure to give such notice might result in the suit being dismissed ; but that does not alter the situation. In its essence, notice of a claim or of a suit to the Government is only a provision the purpose of which is to prevent vexatious suits against Government, and also to facilitate composition of just claims made by parties against the Government, resulting in avoidance of unnecessary litigation against Government. Such a pro-- vision in any Act cannot be constructed as limiting or governing the substantive rights of parties like the citizens of the country who deal with railways managed by the Government."
17. In the case of Niranjan Agarwalla v. Union of India (AIR 1960 Cal. 391) the question considered at length was how far a notice under section 80, C. P. C. Is a part of the cause of action and the following remarks are relevant to the point at issue :- "The opening words, `No suit shall be instituted' show that section 80 consistently with the context of Part IV of the Code provides a procedural bar to the institution of the suit. It is not dealing with the cause of action. Even with a good cause of action, no suit can be instituted without a notice under section 80. The State or the Government is privileged from being faced with actual law suits by reason of the fact of this bar which will always insist. On a prior notice that a law suit is forthcoming.
A bar to institution of the suit, therefore, is to be distinguished as a procedural hurdle from the cause of action for the claim in the suit."
18. In the case of R. M. P. V. Muthiah Chettiar v, S. R. M. A. R. Ramasami Chettlar ((1913) 20 I C 689) while considering the requirement of notice to be procedural, their Lordships observed as under :- "I am clear that the right of a defendant to raise technical pleas as to court-fees or the absence of notice of suit required by a 1--w or the omission to fulfil a condition imposed on plaintiff before bringing his suit to enforce a right vested in the plaintiff (vested according to ordinary principles of jurisprudence and not a right newly created in plaintiff's favour by the statute itself imposing the condition), the right of a defendant to raise such technical pleas is not a material right which could not be affected by a new statute making changes in the procedural law."
19. On a consideration of the law on the subject we are of the view that the provision of notice as contained in section 80, C. P. C. Or Article 94 of the Basic Democracies C Order is a procedural requirement for the enforcement of the claim and is neither a part of cause of action of the plaintiff nor a vested right of the defendant. The Supreme Court has in the case of the State v. Muhammad Jamil (PLD 1965 SC 681) upheld the view that no party to litigation has a vested right in its procedure and an alteration in the procedure is retrospective unless there be some good reason against such a view. Thus the absence of the notice, in view of the alteration in law before the judgment and decree, could not be fatal to the suit.
20. Even if the aforesaid amendment were not to be deemed to be affecting matters entirely procedural, the suit could be taken to have been instituted the day the amendment came into effect, because for lack of required notice the plaint could at the most be rejected under Order VII, rule 11 leaving the party concerned free to reinstitute it after removing the defect-in this case the defect no longer subsisted due to alteration in Law. The contesting party in that case could set up the bar of limitation.
21. On merits, the case of the appellants is that under the Punjab Municipal Act, there was a clear distinction between projections and encroachments made with the permission of the Municipal Committee and those made without such permission. As the appellants had made, these projections with the per--mission of the Municipal Committee as early as 1925, they fell into a different category and were entitled to the protections provided for under the Punjab Municipal Act.
22. Section 172 of the Punjab Municipal Act dealt with encroachments made without the written permission of the Committee. Apart from prosecuting him the Municipal Committee could also by notice require any owner or occupier of any building to remove or alter such immovable encroach--ment and no compensation was to be paid in respect of such removal or alteration. It was further provided that if a period of more than three years had elapsed from the completion of the encroachment, no prosecution could lie nor could it be removed without payment of reasonable compensation. Sec--petition 175 dealt specifically with encroachments and projections made with the permission of the Municipal Committee. The Municipal Committee was in these cases under an obligation to pay reasonable compensation and then alone it could require its removal or alteration. The learned counsel has referred us to two cases Ghasita v. The Crown through Municipal Committee, Sialkot (AIR 1924 Lah. 89) and Muhammad A.I Akbar v. Mst.
Fatima Begum (AIR 1929 Lah. 660), to contend that where the notice directing the removal or alteration of the encroachment does not offer compensation to a person governed by section 175 of the Punjab Municipal Act the omission renders the notice and the subsequent prosecution, if any against him for non-compliance of notice, illegal.
23. The Punjab Municipal Act, 1911 has been repealed and re-enacted by the Ordinance of which two sections are of particular importance to the case in hand. Section 83 reads as under :- "83. Encroachments.-(1) No person shall make an encroach--ment, movable or immovable, on, over or under a street or a drain, except under a licence granted by the Municipal Committee and to the extent permitted by the licence.
(2) Subject to bye-laws, a Municipal Committee may by notice require the person responsible for any such encroach--ment remove the same within such period as may be specified, and if the encroachment is not removed within such period the Municipal Committee may cause the encroachment to be removed through its own agency, and the cost incurred thereon by the Municipal Committee shall be deemed to be a tax levied on the person responsible for the encroachment under the Ordinance."
Learned counsel for the appellants interpreted this provision of law as being applicable only to future encroachments which are made after the coming into force of the Ordinance. He further contended that in the absence of any provision governing the encroachments already made with the permission of the Municipal Committee and under its licence provisions of section 83 would not be applicable and such licences will be converted into lessees or tenants entitled to hold on to such projections on payment of rent. This plea ignores altogether the provisions of section 4 of the Ordinance to which all other sections and the Schedule of the Ordinance are subordinate. While repealing the Punjab Municipal Act, section 4 in subsection (2) provides as under :- "Where an enactment stands repealed under subsection (1), any appointment, rule, regulation, or bye-law made, notifica--petition, order or notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall, so far as it is not inconsistent with the provisions of this Ordinance and rules, be deemed to have been respectively made, issued, imposed or assessed, entered into, instituted or taken under this Ordinance."
The effect of this provision clearly is that if the act done or action taken does not fall within the purview of the Ordinance or is inconsistent with its provisions then it ceases to exist altogether and stands repealed but if it conforms to the scheme of the Ordinance and is not inconsistent with it then it has been kept alive. Thus the encroachment or the projection which had been made with the permission of the Municipal Committee or without its permission shall be continued and governed by section 83, a portion of which has just been reproduced above. Subsection (4) of section 83 of the Ordinance provides as under :- "(4).-Notwithstanding anything in any other law, no compensation shall be payable for any encroachment removed or required to be removed under this section."
As the licence is now governed by section 83 of the Ordinance, it is no longer open to the appellants to claim compensation p for the removal of the projection and insist on an offer of compensation as a pre-condition for validating the resolutions and the notices, ordering removal.
Even if compensation had been payable under the earlier Act under which they were granted the permission, it is no longer payable as there is a specific prohibition.
24. The bye-laws of the Municipal Committee, Jhelum, on the subject, which were framed and notified in 1954, also mention that no compensation shall be payable for the removal, of the encroachments, even those which had been permitted by the Municipal Committee. The learned counsel for the appellants objects to the application of those bye-laws on two grounds: Firstly, it is contended that these bye-laws were framed in 1954 while the appellants erected the projection in 1925 much before the bye-laws came into existence and as the bye-laws had no retrospective effect they could not govern the terms and con--ditions on which the appellants had been allowed to erect the projections. Secondly, it is contended that the bye-laws in so far as they were inconsistent with the provisions of section 175 of the Punjab Municipal Act were inapplicable and ultra vires. We are not, for the present, directly concerned with the validity or the enforceability of the bye-laws of 1954 so far as this case is concerned. The bye-laws may have been inconsistent with the substantive provision of the law under which they were framed and on that account could have been avoided but with the provision of section 83, it is no longer open to the appellants to get away simply by challenging the bye-laws of 1954. The statutory provision of section 83 of the Ordinance confers on the Municipal Committee the same right independently of the bye-laws. In the circumstances, the Municipal Committee is within its powers to pass the resolutions regarding the removal of the projections which are said to be 6 to 10 feet wide and on both sides of the street.
In this way the street which admittedly passes through a very congested bazar will be widened by about 12 to 20 feet. It is the bounden duty of the Municipal Committee to keep the streets clear of encroachments and adequately wide and safe for traffic.
25. In view of the above discussion, we dismiss both the appeals with costs.