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2005 DIGILAW 191 (PNJ)

Municipal Council, Narnaul v. Surender Kumar

2005-02-03

V.M.JAIN

body2005
Judgment 1. This Regular Second Appeal has been filed by the defendant appellant (Municipal Council), against the judgments and decree of the Courts below whereby the suit filed by the plaintiffs was decreed by the trial Court and the appeal filed by the defendants was dismissed by the learned District Judge, holding the same to be incompetent. 2. The plaintiffs had filed a suit for permanent injunction against the Municipal Council, Narnaul and the Secretary, Municipal Council. After hearing both sides the learned trial Court decreed the suit of the plaintiffs vide judgment and decree dated 6-9-2000. Aggrieved against the same, an appeal was filed on behalf of the defendants namely Municipal Council, Narnaul and Secretary, Municipal Council, Narnaul before the District Judge, Narnaul. Since the said appeal was filed by the Executive Officer without being authorised to file the appeal by the Municipal Council by passing a resolution, it was found by the learned District Judge that the appeal was not competent. Accordingly, without considering the appeal on merits, the appeal was dismissed, vide judgment and decree dated 8-11-2002. Aggrieved against the same Municipal Council, Narnaul (one of the defendants) filed the present appeal in this Court. Notice of motion was issued. 3. I have heard the learned counsel for the parties and have gone through the record carefully. 4. Learned counsel appearing for the defendant appellant submitted before me that even if the appeal was filed by the Executive Officer without any resolution from the Municipal Council, yet the appeal could not have been dismissed as not maintainable since the President of the Municipal Council, exercising emergency powers under Section 35 of the Haryana Municipal Act had granted approval for filing the appeal. Reliance has been placed on the case Municipal Committee, Sirhind V/s. Bawa Uttam Gir Chela, 2001 (3) Pun LR 533 : (2001 AIHC 4643). On the other hand, the learned counsel appearing for the plaintiffs respondents submitted before me that the aforesaid decision of the President, Municipal Council, Narnaul would be of no help to the defendant appellant Municipal Council, since the said decision is dated 10-10-2000, whereas the appeal had already been filed by the Executive Officer on 6-10-2000. On the other hand, the learned counsel appearing for the plaintiffs respondents submitted before me that the aforesaid decision of the President, Municipal Council, Narnaul would be of no help to the defendant appellant Municipal Council, since the said decision is dated 10-10-2000, whereas the appeal had already been filed by the Executive Officer on 6-10-2000. It was further submitted that even as per the said decision of the President of the Municipal Council, the matter was to be placed before the next meeting of Municipal council, but there is nothing on the record to show that the matter was ever placed before the Municipal Council or that the Municipal Council had granted its approval. 5. After hearing the learned counsel perusing the record, in my opinion, there is no merit in this appeal and the same is liable to be dismissed. It is not disputed before me that the appeal before the District Judge, Narnaul was filed on 6-10-2000. Admittedly, by that time no resolution had been passed by the Municipal Council, authorising the Executive Officer to file the appeal. It was only on 10-10-2000 that the President of the Municipal Council, Narnaul had authorised the filing of an appeal exercising the emergency powers under Section 35 of the Haryana Municipal Act. While doing so, the President of the Municipal Council had also ordered that the matter may be placed in the next meeting of the Municipal Council. Admittedly, nothing has come on the record to show that the matter was ever placed in the next meeting of the Municipal Council and if so, what decision was taken by the Municipal Council in this regard. Even under Section 35 of the Haryana Municipal Act, vide which extraordinary powers have been given to the President or Vice President, in case of emergency, it is specifically provided that every such action shall be reported to the Committee in its next meeting. Even under Section 35 of the Haryana Municipal Act, vide which extraordinary powers have been given to the President or Vice President, in case of emergency, it is specifically provided that every such action shall be reported to the Committee in its next meeting. In this view of the matter, in my opinion, neither there was any authorisation at the time when the appeal was filed on 6-10-2000, nor the subsequent authorisation dated 10-10-2000, given by the President under his emergency powers, validated the action in filing the appeal on 6-10-2000 and in any case matter having not been placed before the Municipal Council in its next meeting, even the said authorisation given by the President would be of no avail and the appellant cannot take any benefit of the same. Furthermore, in The Municipal Committee, Ludhiana V/s. Surinder Kumar, 1971 (73) Pun LR 39, it was held by this Court that Section 35 of the Punjab Municipal Act which is in pari materia to Section 35 of the Haryana Municipal Act, would have no application to such contingency. So far as the authority 2001 (3) Pun LR 533 : (2001 AIHC 4643) (supra), is concerned, in my opinion, the same would have no application to the facts of the present case. In the reported case, there was a resolution authorising the Executive Officer to file the appeal but the same was in general terms. After considering the entire matter, it was held by this Court that the resolution passed by the Municipal Committee was adequate to arm the Executive Officer to file the appeal before the District Judge. However, as referred to above, facts of the present case are entirely different and the law laid down in that case would have no application to the facts of the present case. 6. In this view of the matter, in my opinion, learned District Judge was perfectly justified in dismissing the appeal as incompetent and no fault could be found with the same. Even otherwise, no question of law much less substantial question of law arises for determination in this appeal. Hence the appeal is dismissed.