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2005 DIGILAW 637 (MP)

Harmesh Chandra Dua v. Nagar Palika Nigam

2005-06-20

P.K.JAISWAL, S.S.JHA

body2005
Judgment ( 1. ) THIS appeal is filed by plaintiff against dismissal of his suit. ( 2. ) PLAINTIFF has filed a suit for declaration and perpetual injunction against the respondent. Plaintiff claimed that he owned a immovable property bearing House No. 40/955/3 (Old) now 40/1024 and the number of said house is again changed to 44/1034/1, which is situated at Jadhav Mahal, Khasgi Baazar, Lashkar, Gwalior. Plaintiff contended that he has submitted a map for construction of the house under Section 294 of the M. P. Municipal Corporation Act (hereinafter referred to as "the Act" ). The said map has not been approved by the defendant within the statutory period, therefore, sanction was under the deemed permission under Section 295 (3) of the Act. In spite of repeated requests defendant have not cared to consider the sanction approval of the map, therefore, under the deemed permission construction was carried out by the plaintiff. Plaintiff claimed that since permission has not been granted to him for construction he has suffered loss and he has filed a suit and prayed therein that the plaintiff should be allowed to continue his construction and defendant be restrained from obstructing the construction and he also claimed for damages. ( 3. ) COUNSEL for defendant submitted that the suit without notice under Section 401 of the Act is not maintainable. Counsel for defendant invited attention to the notice Ex. P-19 which is an acknowledgment and which was sent to Commissioner, Municipal Corporation, Gwalior. He submitted that since notice has not been sent to Municipal Corporation, therefore, suit is not maintainable, suit is barred and in support of his contention he has placed reliance upon the judgment of this Court in the case of Putli Bai v. Municipal Corporation, Gwalior, reported in 1967 MPLJ SN 103. In this case it is held that the notice addressed to the Municipal Commissioner can not be deemed to be a notice to the Municipal Corporation and the suit was liable to be dismissed. He submitted that since there was no valid notice, suit is not maintainable and is liable to be dismissed. ( 4. ) IN reply to objection, Counsel for appellant submitted that notice was given to the Municipal Corporation through Commissioner, Municipal Corporation, Gwalior. He invited attention to Ex. P-18, a notice sent on an inland letter. He submitted that since there was no valid notice, suit is not maintainable and is liable to be dismissed. ( 4. ) IN reply to objection, Counsel for appellant submitted that notice was given to the Municipal Corporation through Commissioner, Municipal Corporation, Gwalior. He invited attention to Ex. P-18, a notice sent on an inland letter. But, the address on which notice was sent is not mentioned. It is not clarified to whom the said notice was sent. Probably first page of notice has not been filed. In this notice first line which is Versus Municipal Corporation, Gwalior, Through Commissioner, Municipal Corporation. It is not clear when the notice was sent. From acknowledgment Ex. P-19 clarifies that the notice was issued to Commissioner, Municipal Corporation and not to Municipal Corporation through Commissioner, Municipal Corporation, Gwalior. In this circumstance and on perusal of notice Ex. P-17 it is apparent that the notice was not sent through Municipal Commissioner, Municipal Corporation, Gwalior. In the notice cause of action and other factors which are required in the notice are not mentioned. As discussed we uphold the objection of Municipal Corporation that in the absence of valid notice under Section 401 of the Act the said suit was not maintainable. ( 5. ) RECENTLY the Apex Court has considered the question of notice while considering the scope of Sections 79 and 80 of CPC. While considering the scope of Section 79 of CPC it is held that in a suit by or against the Government, the authority to be named as plaintiff or defendant as the case may be, in the case of the Central Government, the Union of India and in the case of the State Government, the State, which is suing or is being sued. Thus, suit could be filed against the State Government and in the name of State and against the Central Government as Union of India. ( 6. ) SECTION 401 of the Act as it stood on the date of filing of the suit provides that the notice in writing must contains : (a) the cause of action; (b) the name and residence of the intending plaintiff and of his Advocate, pleader or agent, if any, for the purpose of the suit; and (c) the relief which he claims. Sub-section (2) further provides that every suit shall be commenced within six months next after the accrual of the case of action, and the plaint therein shall contain a statement that a notice has been delivered or left as required by sub-section (1 ). It has been held that notice addressed to Municipal Corporation is not valid and suit is liable to be dismissed. ( 7. ) THE Division Bench of this Court in the case of Ram Sharan Bari, Municipal Councillor, Jabalpur v. Dr. K. L. Dubey, Mayor, Municipal Corporation, Jabalpur and Anr. , reported in 1974 MPLJ 612 , has held that the Corporation is a legal entity different from its office bearers. In legal proceedings, it is the Municipal Commissioner and not the Mayor. Division Bench of this Court has also considered the scope of Sections 79 and 80 of CPC and has held that notice under Section 80 was not proposed as the notice was sent to the Collector, District Gwalior and not to the State Government. Since the notice has been sent to Commissioner, Municipal Corporation the suit as filed will not be maintainable and is liable to be dismissed. Trial Court has therefore not committed any error in dismissing the suit. It is also held in the case of Municipal Corporation Murwara-Katni v. Lalchand Jaiswal, reported in 2000 (2) MPLJ 288 that it is mandatory to serve notice under Section 401 (1) of the Act prior to filing of the suit. There is no provision in the Act that in case of emergency and where an injunction is sought a suit could be filed without serving a notice under sub-section (1 ). There is no provision for taking permission of the Court for filing the suit without complying with the requirement of service of notice. In the said facts of the case, plaint as filed is liable to be returned to the plaintiff for presentation after complying the provisions of Section 401 of Municipal Corporation Act. Therefore, dismissal of the suit by the Trial Court is modified and it is directed that the plaint be returned to plaintiff with liberty to present after complying with provisions of notice, if it is within limitation and permissible under the law. ( 8. ) COUNSEL for appellants then submitted that construction can be compounded by the authorities of the Municipal Corporation. ( 8. ) COUNSEL for appellants then submitted that construction can be compounded by the authorities of the Municipal Corporation. He has submitted that he has moved an application for compounding the said construction. If such application is filed it is expected that the authorities of Municipal Corporation shall take decision on the said representation in accordance with law ignoring the fact of return of the plaint. ( 9. ) IN the result decree passed by the Trial Court is modified and it is directed that the plaint be returned to the plaintiff for presentation after complying with the provisions of the notice. Therefore, plaint be returned to the plaintiffs for presentation after complying the requirement of sub-section (1) of Section 401 of the Act. ( 10. ) WITH the aforesaid observation, decree of Trial Court is modified and appeal is dismissed without any orders as to costs.