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2006 DIGILAW 315 (GAU)

B. Majumdar v. Jorhat Municipal Board

2006-03-30

P.G.AGARWAL

body2006
1. Heard Mr. B.K. Goswami, learned counsel for the appellant. None has appeared for the respondent when the matter was called for hearing. 2. the appellant/plaintiff Bankim Ch. Mazumdar instituted T.S. No. 44/89 before the Munsiff No. 1 Jorhat for a declaration that the notice No. 548-89 dated 8.6.1989 issued to him by the chairman of the Jorhat Municipal Board is illegal, without authority and jurisdiction. The plaintiff also prayed for injuction. The case of the plaintiff, in brief, is that the said notice for eviction is illegal and, hence, it is not in accordance with law and the notice is vague in respect of the disputed land. It is mentioned in para 4 of the plaint that the plaintiff is in the occupation of the land of their own since decades. The suit was contested by the defendant, Jorhat Municipal Board by filling written statement stating, inter alia, that the suit not maintainable for want of notice under section 326 of the Assam Municipal Act. The plaintiff had encroached about 408 Sq. ft. of land belonging to the Municipal Board and accordingly the notice was issued for eviction of temporary structures like bamboo fencing, etc., and the chairman has the authority to issue the said notice under the Act. On the pleadings of the parties, the trial court framed as many as four issues and thereafter vide judgment dated 24th June, 1996 decided issue Nos. 2 and 3 against the plaintiff and accordingly suit was dismissed. Feeling aggrieved, the plaintiff preferred T.A. No. 2/96 and vide impugned judgment the Appellate Court dismissed the appeal and affirmed the judgment and decree passed by the trial court. The second appeal was admitted on the following substantial question of law : Whether a notice as required under section 326 of the Assam Municipal Act, 1956 upon the Jorhat Municipal Board/defendant is required or essential or mandatory before filling the suit by the plaintiff/appellant before the learned court below for the relief sought for in the plaint or not? "326. No action to be brought against the Board or their officers until after one month's notice of cause of action. "326. No action to be brought against the Board or their officers until after one month's notice of cause of action. - (1) No suit or other legal proceeding shall be brought against any Board or any of its officers, or any person acting under its direction for anything done under this Act or any rule or bye-law made thereunder, until the expiration of one month next after notice in writing has been delivered or left at the office of such Board and also (if the suit is intended to be brought against any officer of the said Board or any person acting under its direction) at the place of abode of the person against whom, such suit or proceeding is threatened to be brought stating the cause of suit or proceeding, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the person who intends to bring the suit; and unless such notice be proved, the court shall find for the defendant. (2) Every such action shall be commenced within three months next after the accrual of the cause of action, and not afterwards. (3) If the Board or its officers, or any person to whom any such notice is given shall before the suit is brought, tender sufficient amends to the plaintiff, such plaintiff shall not recover." In the case, there is no dispute at the Bar that no notice under section 326 was served by the plaintiff on the defendant Municipal Board. There is an admission to that effect by the plaintiff himself. The learned counsel for the appellant has, however, submitting that as the defendant Jorhat Municipal Board has failed to establish that the land in question belong to Jorhat Municipal Board and in view of assertion of the plaintiff the act of the defendant issuing the notice (Ext. 2) will not be covered by the requirement under section 326 of the Act. We have perused written statement wherein plaintiff was notified that he has encroached upon the Municipal land situated by the side of Mahuanan in Ward No. 9 of Block No. 2, Jorhat Municipal Board and he was, therefore, asked to vacate the same immediately failing which action under the provision of Assam Municipal Act shall be initiated against him. We do not find any force that the description of the land in Ext. We do not find any force that the description of the land in Ext. 2 is vague. Although the specific provision of law under which the notice (Ext. 2) was served has not been mentioned in Ext. 2 the courts below rightly observed that Ext. 2 was a notice under section 159 of Municipal Act, 1956. Under the above provision of law, the power to issue notice in respect of any obstruction or encroachment of any pubic road, public drain, water course, ghat or any land is vested in the Board. The courts recorded a concurrent finding that the notice was issued under section 159 of the Municipal Act. So far the merit of the plaintiff's case is concerned, the same can be considered only when there is proper suit before the court. The requirement of issuance of notice under section 326 is not dependent on the merit or demerit of the case of the plaintiff. The substantial question of law, therefore, answered against the appellant. We hold that the notice under section 326 of the Municipal Act was essential and mandatory before filling the suit. At this stage, Mr. Goswami, learned counsel for the appellant has submitted that if the suit was held to be bad or want of notice, the court should have rejected the plaint instead of considering the merit of the matter. Order 7, rule 11 CPC reads as follows : - "Rejection of plaint. - the plaint shall be rejected in the following cases : - (a) where it does not disclose cause of action ; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp-paper within a time to be fixed by the court, fails to do so ; (d) where the suit appears from the statement in the plaint to be barred by any law." We find that clause (d) of rule 11 is relevant and the suit was barred under section 326 of the Municipal Act as no notice was served. In view of the above, the plaint stands rejected. The appeal stands disposed of accordingly. No cost.