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2009 DIGILAW 2240 (RAJ)

Ganpat Lal v. State of Rajasthan

2009-10-29

SANGEET LODHA

body2009
Hon'ble LODHA, J.—The judgment and decree dated 23.3.2005 passed by the Board of Revenue setting aside the judgment and decree dated 26.3.1991 passed by the Revenue Appellate Authority (Second), Jodhpur, decreeing the suit for declaration and perpetual injunction preferred by the petitioners against the respondents is impugned in this writ petition. By the order impugned, the Board of Revenue has rejected the plaint of the petitioner allowing an application preferred on behalf of the Rajasthan Housing Board, the respondent No.5 herein, under O. VII R. 11 of Civil Procedure Code, 1908. 2. The petitioners preferred a suit for declaration and permanent injunction against the State of Rajasthan alleging therein that they are in possession of 2.5 bighas agriculture land comprising Khasra No. 881/751 of revenue village-Jodhpur since Samvat 2000 and after resumption of the Jagir, they have acquired khatedari rights over the said land. Accordingly, they prayed for a decree for declaration of their khatedari rights so also the permanent injunction against the respondents not to interfere with their cultivatory possession over the land in question. Since the suit land was sought to be acquired for development of residential colony by the respondent-Rajasthan Housing Board therefore, it was also impleaded as party defendant in the suit. 3. The suit preferred by the petitioners was dismissed by the Trial Court vide judgment and decree dated 28.7.1986. Aggrieved thereby, the petitioners filed an appeal before the Revenue Appellate Authority (Second), Jodhpur, which was allowed vide judgment and decree dated 26.3.1991 and the suit was decreed in the favour of the petitioners as prayed for. 4. Against the judgment and decree dated 26.3.1991, the respondent-Housing Board preferred an appeal before the Board of Revenue, Rajasthan. During the pendency of the appeal, the respondent-Housing Board preferred an application under Order VII Rule 11 read with Section 151 of C.P.C. for the rejection of the plaint, on the ground that by virtue of the provisions of Section 50 of Rajasthan Housing Board Act, 1970 ("the Act"), the suit filed by the petitioners without giving two months previous notice in writing to the Housing Board was not maintainable. A reply to the application was filed >n behalf of the petitioners and the written submissions were also made on their behalf before the Board. A reply to the application was filed >n behalf of the petitioners and the written submissions were also made on their behalf before the Board. However, after due consideration, the appeal of the Housing Board was allowed by the Board of Revenue on the ground that before instituting the suit against the Housing Board, service of the notice in terms of Section 50 of the Act is mandatory and since no notice has been served by the petitioners before filing the suit therefore, the suit is liable to be rejected as not maintainable. Hence this petition. 5. It is contended by Mr. Sunil Bhandari, the learned counsel for the petitioners but the essentially relief claimed in the suit by the petitioners was against the State of Rajasthan and no relief was claimed against the Housing Board. It is submitted that the Housing Board was impleaded as party defendant in the suit inasmuch as, the land in question was sought to be acquired by the State for the benefits of the Housing Board. The learned counsel submitted that no action of the respondent-Housing Board taken in pursuance of the Act was under challenge therefore, the provisions of Section 50 of the Act are not attracted. In support of his contention, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in Devi Singh vs. Municipal Corporation Hyderabad, AIR 1972 SC 2510 . That apart, it is submitted by the learned counsel that no objection regarding non service of the notice in terms of the provisions of Section 50 of the Act was taken by the respondent-Housing Board before the Trial Court and even before the First Appellate Court therefore the Board of Revenue has seriously erred in entertaining an application preferred by the respondent-Housing Board for rejecting of the plaint on the said ground at the stage of second appeal. The learned counsel submitted that even if it assumed for the sake of arguments that the notice was required to be given before institution of the suit then too, any objection in this regard, having not been taken by the respondent-Housing Board at the earliest possible occasion, the same stands waived and the suit decreed after a trial could not have been rejected on such ground at the belated stage. In support of his contention, the learned counsel has relied upon a Full Bench decision of this Court in the matter of State of Rajasthan vs. Girdhari Lal Chunni Lal Modi, AIR 1959 Raj. 126 and a Single Judge decision of this Court in Suresh Chandra & Anr. vs. Hanuman Prasad, 2006(4) RLW 3090 and the decision of the Hon'ble Supreme Court in Ram Prakash Gupta vs. Rajiv Kumar Gupta, (2007) 10 SCC 59 = 2008(1) RLW 776 (SC). 6. Per contra, Mr. P.C. Sharma, learned counsel for the respondent-Housing Board submitted that admittedly, the land was under acquisition for the benefits of the Housing Board which has been constituted with an object to develop the residential colonies, therefore, it cannot be said that the challenge of the petitioners to the acquisition proceedings claiming khatedari rights over the land in question does not relate to an action taken by the Housing Board in pursuance of the Act. It is submitted by the learned counsel that as per the provisions of Section 50 of the Act, no person is entitled to commence the suit against the Housing Board without giving two months previous notice if any action taken by the Housing Board in pursuance of the Act is sought to be challenged, therefore, as a matter of fact, the filing of the suit without notice as such is barred under Section 50 of the Act. Accordingly, it is submitted by the learned counsel that the Board of Revenue has committed no error in rejecting the suit as not maintainable. In this regard, the learned counsel has relied upon a decision of this Court in Ram Gopal Goyal vs. Om Prakash Dhir, S.B. Civil Revision Petition No. 466/1987, decided vide order dated 2.9.1987 and in Kailash Kabli & Ors. vs. Smt. Neeta Agarwal & Ors. S.B. Civil Second Appeal No. 419/2005, decided vide judgment dated 16.10.2008. 7. I have considered the rival submissions and perused the material on record. 8. The question arising for determination in this writ petition turns on true interpretation of the provisions of Section 50 of the Act, which runs as follows: "50. vs. Smt. Neeta Agarwal & Ors. S.B. Civil Second Appeal No. 419/2005, decided vide judgment dated 16.10.2008. 7. I have considered the rival submissions and perused the material on record. 8. The question arising for determination in this writ petition turns on true interpretation of the provisions of Section 50 of the Act, which runs as follows: "50. Notice suit against Board.-No person shall commence any suit against the Board or against any officer or servant of the Board or any person acting under the orders of the Board, for anything done or purporting to have been done in pursuance of this Act, without giving to Board, officer or servant or person two months previous notice in writing of the intended suit and of the cause thereof, nor after six months from the date of the act complained." 9. A bare perusal of the aforesaid provision clearly indicates that it prohibits commencement of the suit against the Housing Board or any officer or servant of the Board or any person acting under the orders of the Board for anything one or purported to have been done in pursuance of the Act unless a notice in writing of two months period disclosing the cause of action is served. But then, as per the mandate of Section 50, the condition precedent of prior notice of two months before the commencement of the suit shall apply only when any action taken or purported to have been taken in pursuance of the Act by the Housing Board or any officer or servant of the Board or any person acting under the orders of the Board is sought to be challenged. However, in the instant case, a perusal of the plaint reveals that it contains absolutely no averment assailing any action taken or purported to have been taken by the respondent-Housing Board under the Act. As a matter of fact, essentially the suit preferred by the petitioners was against the State Government for declaration of their khatedari rights and for permanent injunction not to dispossess them from the land in question. It is not disputed before this Court that the respondent-Housing Board was impleaded as party defendant in the suit only for the reason that the land in question was sought to be acquired by the State Government for the benefits of the respondent-Housing Board. 10. It is not disputed before this Court that the respondent-Housing Board was impleaded as party defendant in the suit only for the reason that the land in question was sought to be acquired by the State Government for the benefits of the respondent-Housing Board. 10. It is true that the respondent-Housing Board has been constituted to deal with and safety the need of housing accommodation in the State of Rajasthan and the land was sought to be acquired for its benefits, but then, if the petitioners have any right over the land in question and on that basis a dispute is raised before the Court for declaration of their rights over the land then, it cannot be said that the petitioners have challenged any action of the respondent-Housing Board taken or purported to have been taken under the Act. As a matter of fact, even passing of the decree in favour of the petitioners declaring them as khatedar tenant in no matter shall divest the State Government from its authority to acquire the land for the benefits of the respondent-Housing Board. It appears that the petitioners have impleaded the respondent-Housing Board as party defendant in the suit inasmuch as, in pursuance of the acquisition proceedings, the possession of the land may be handed over by the State Government to the respondent-Housing Board and in that case, the petitioners may not be precluded from enforcing the decree of permanent injunction if any, passed against the Housing Board as well. Thus, having regard to the nature of (is between the parties, in considered opinion of this Court, before the commencement of the suit against the respondent-Housing Board, the petitioners were not under an obligation to serve a prior notice of two months upon the Housing Board in terms of the Section 50 of the Act. 11. Thus, having regard to the nature of (is between the parties, in considered opinion of this Court, before the commencement of the suit against the respondent-Housing Board, the petitioners were not under an obligation to serve a prior notice of two months upon the Housing Board in terms of the Section 50 of the Act. 11. In Devi Singh vs. Municipal Corporation, Hyderabad, AIR 1972 SC 2510 , where in a suit for injunction against the municipality restraining it from interfering with the plaintiffs peaceful enjoyment of the Bazar, the controversy was whether the Bazar was the property of the plaintiff and was in his possession at the time of institution of the suit, no notice of suit under Section 447 of Hyderabad Municipal Corporation Act, 1950 is necessary and the suit had nothing to do with any act done or purported to be done in pursuance of the execution or intended execution of any provisions of the Act, the Hon'ble Supreme Court while dealing with the question held that: "The question whether a notice under the aforesaid section was necessary has to be decided on the averment made. It was never the case of the plaintiff that the defendant Corporation was acting or purported to act under the provisions of the Act. The dispute raised related to the ownership of the property as also its possession. We have not been shown any provision in the Corporation Act by which the corporation or its officers were entitled to either take possession of another person's property or retain its possession or dispossess a person who is already in possession without having recourse to the ordinary remedies under the law. We are wholly unable to understand how Section 56 of the Corporation Act could be of any avail to the Corporation in the matter of notice under Section 447 of the Act. The whole controversy between the parties centered on the question whether the Bazar was the property of the plaintiff and was in his possession at the time of the institution of the suit. That had nothing to do with any act done or purported to be done in pursuance of execution or intended execution of any provision of the Corporation Act. The learned counsel for the Corporation has not been able to show how the suit as laid and framed attracted the applicability of Section 447 of the Corporation Act. That had nothing to do with any act done or purported to be done in pursuance of execution or intended execution of any provision of the Corporation Act. The learned counsel for the Corporation has not been able to show how the suit as laid and framed attracted the applicability of Section 447 of the Corporation Act. We would, accordingly, hold that under the aforesaid section no notice was necessary before the institution of the suit." Thus, the ratio of the aforesaid decision of the Hon'ble Supreme Court squarely covers the controversy involved in the instant case. 12. In view of the conclusion arrived at by this Court as aforesaid, the other contentions raised by the learned counsel for the parties are not required to be dealt with. 13. In the result, the writ petition succeeds, it is hereby allowed. The impugned order dated 23.3.2005 passed by the Board of Revenue is quashed and set aside. The matter is remanded to the Board of Revenue for decision afresh on merits after hearing both the parties. Since, the parties are litigating for last so many years, therefore, in the interest of justice, it is directed that the appeal shall be decided by the Board of Revenue expeditiously, in any case, within a period of six months from the date of this order. No order as to costs.