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2005 DIGILAW 2800 (RAJ)

Krishan Gopal Mittal v. Municipal Board

2005-10-25

DALIP SINGH

body2005
Judgment Dalip Singh, J.-This is a plaintiff s first appeal by which the plaintiff s suit for damages against the defendants-respondents has been dismissed primarily on account of the findings on issue No. 5, inasmuch as the plaintiff has failed to proved that notice as required by the Section 271 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as “the Act of 1959”) was given prior to the filing of the suit. 2. The submission of the learned Counsel for the appellant is that while it has been mentioned in the plaint that a notice dated 08.03.1975 under Section 271 of the Act of 1959 was served upon the defendant-respondents, there was in fact no necessity for such a notice, inasmuch as, the act complained of in the instant case was not done by the respondents in discharge of their official capacity and hence the provisions of the Section 271 of the Act of 1959 making it mandatory for the plaintiff to serve the notice are not attracted. 3. I have perused the record and Judgment of the learned trial Court. Learned Counsel appearing on behalf of appellant has failed to show from the evidence that there is any evidence lead to prove that a notice was actually served upon the respondents nor is there any such notice produced in evidence on record. Thus, so far as the finding of trial Court on issue No. 5 that no notice has been produced before the Court in the evidence led by the plaintiff s is concerned, no exception can be taken to the said finding. 4. The alternate submission that requirement of notice under Section 271 of the Act of 1959 could not be insisted upon as the act complained of in the instant case was not committed by the defendants in their official capacity is concerned, from the pleadings of the plaintiff in the plaint no such alternate plea has been raised by the plaintiff in the suit nor was any such issue framed by the trial Court in the absence of such plea. As such there is no factual foundation for the alternative submission, as such, the same cannot be allowed to be raised, in appeal for the first time. As such there is no factual foundation for the alternative submission, as such, the same cannot be allowed to be raised, in appeal for the first time. In any case a perusal of the evidence on record goes to show that in fact the action of the respondents in carrying out the alleged demolition of the property of plaintiff s on 20, 21 and 22.05.1972 was carried out after the defendant-Municipal Board had resolved unanimously vide its resolution (Exhibit-A/6) in its meeting held on 04.02.1972, and after issuance of the notice under Section 203 of the Act of 1959 (Exhibit-A/2) dated 22.02.1972 to the plaintiff . In that view of the matter, when the Board had resolved unanimously under the resolution (Exhibit-A/6) dated 04.02.1972 for the removal of encroachment and protecting the area by erecting a fencing over the disputed land and authorising the Chairman of the Board to do the needful to protect the Mela ground since as per the case of the defendant-Board the land in dispute claimed to be a Mela ground, it cannot be said that action of the Board and the defendant No. 2 in carrying out the demolitions on the land in dispute was an act which was not carried out in the official capacity. In that view of the matter the submission of the learned Counsel for the appellant that there was no requirement of the notice under Section 271 in the instant case and that the suit should not have been dismissed on that account, cannot be sustained. The findings of the learned trial Court on issue No. 5 cannot be said to be erroneous and secondly that no such plea regarding the alternate submission regarding the necessity of notice having been raised by the plaintiff , same cannot be allowed to be raised for the first time in appeal, even otherwise, there is evidence on record, as pointed out above, to the effect that in fact the action of the defendant-respondents was in pursuance of the official capacity. As such there is no merit in the said submission. 5. In that view of the matter, there is no force in the submission of the learned Counsel for the appellant. Consequently, the appeal is dismissed. Since, the respondents had not appeared, there shall be no order as to costs.