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2017 DIGILAW 2146 (RAJ)

Municipal Council, Barmer v. State Of Rajasthan

2017-10-05

SANGEET LODHA

body2017
ORDER : Sangeet Lodha, J. This petition is directed against the order dated 22.5.17 passed by the Civil Judge, Barmer in Civil Suit No. 12/13, whereby an application preferred by the petitioner under Order 7, Rule 11 CPC r/w Section 304 of the Rajasthan Municipalities Act, 2009 ("the Act"), stands rejected. 2. The facts relevant are that the respondents-plaintiffs filed a suit which is titled as suit for declaration and permanent injunction against the State of Rajasthan and the petitioner herein, seeking the relief that the order passed during the settlement entering the disputed land as Government land and the entries made pursuant thereto may be declared ab-initio void. It is further prayed that by way of permanent injunction, the defendants may be restrained from interfering with the possession of the plaintiffs over the disputed land and may not issue patta of the disputed land or portion thereof. 3. The suit is being contested by inter-alia the petitioner by filing a written statement thereto. During the pendency of the suit, the petitioner preferred an application under Order 7, Rule 11 CPC seeking rejection of the plaint on the ground that before filing the suit seeking declaration, the two months notice disclosing the cause of action was not served upon the petitioner herein as mandated by provisions of Section 304(1) of the Act and therefore, the suit instituted deserves to be rejected. 4. The application has been rejected by the trial court observing that in the written statement filed, no objection regarding noncompliance of the condition precedent as mandated by Section 304 of the Act is taken and thus, the same stands waived and therefore, the petitioner cannot be permitted to raise objection in this regard after a lapse of about three years since filing of the written statement and framing of the issues. Hence, this petition. 5. Learned counsel appearing for the petitioner contended that the plaintiffs have claimed relief of declaration and permanent injunction against all the defendants and therefore, compliance of provisions of Section 304(1) of the Act is mandatory and thus, the suit instituted without service of the notice is not maintainable. Learned counsel submitted that ignoring noncompliance of the mandatory condition precedent, the trial court while passing the order impugned has committed grave illegality and material irregularity. Learned counsel submitted that ignoring noncompliance of the mandatory condition precedent, the trial court while passing the order impugned has committed grave illegality and material irregularity. Learned counsel submitted that merely because the objection regarding non service of the notice is not set out in the written statement, the same cannot be treated to be waived and thus, the court below has seriously erred in rejecting the application preferred on behalf of the petitioner. Learned counsel urged that the power under Order 7, Rule 11 CPC can be exercised at any stage of the suit before the conclusion of the trial and thus, the trial court has erred in rejecting the application on the ground that the objection raised belatedly cannot be entertained. In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of Saleem Bhai and Ors. v. State of Maharashtra & Ors. 2003 (1) Apex Courts Judgments, 238 (SC) and a decision of this Court in Parshav Nath Jain Mandir Trust v. Avtar Singh, 2012 (1) Civil Court Cases, 462 (Rajasthan). 6. I have considered the submissions of the learned counsel appearing for the petitioner and perused the material on record. 7. The question raised in the petition rolls around provisions of Section 304 of the Act which may be beneficially quoted: "304. Suits against Municipality or its officers.- (1) No suit shall be instituted against a Municipality or against the Chairperson, Vice-Chairperson, member, officer or servant of Municipality or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice thereof in writing has been, in the case of a Municipality, left at its office and, in the case of the Chairperson, Vice-Chairperson, member, officer, servant or person delivered to him or left at his office or place or abode explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left. (2) No action such as is described in sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the causes of action. (3) Nothing in sub-section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by giving of the notice or the postponement of the commencement of the suit or proceeding." 8. A bare perusal of the provisions of sub-section (1) of Section 304 of the Act makes it abundantly clear that notice of two months as mandated is required to be given where the suit sought to be instituted is against the Municipality or against Chairman, Vice-Chairman, member or servant of Municipality or against any person acting under the directions of any of them in respect of an act done or purporting to have been done in its or his official capacity. Moreover, as per the provisions of sub-section (3), the provision incorporated in sub-section (1) shall not apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by giving of the notice or postponement of the commencement of the suit proceedings. 9. It is to be noticed that in the instant case, the relief of declaration in the form of mandatory injunction sought by the plaintiffs regarding the entry in the revenue record of the disputed land in the name of the State Government is sought by the plaintiff against the State Government. In any case, so far as the relief for declaration sought is concerned, no act done or purported to have been done by the Municipality or its officers is questioned and thus, the provisions of sub-section (1) of Section 304 of the Act mandating the requirement of prior notice of two months before institution of the suit against the Municipality are not attracted in the matter. 10. 10. Coming to the relief of permanent injunction sought, it is pertinent to note that as per provisions of sub-section (3) of Section 304, the provisions of sub-section (1) of Section 304, which provides for service of notice upon Municipal Board does not apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by giving of notice or postponement of the commencement of the suit or proceedings. In this view of the matter, the suit filed by the plaintiffs seeking injunction as aforesaid without service of notice upon the Municipal Board, cannot be said to be barred by the provisions of sub-section (1) of Section 304 of the Act. 11. It is true that the power under the provisions of Order 7, Rule 11 CPC can be exercised at any stage of the suit before the conclusion of the trial. But then, in the instant case, admittedly, while filing the written statement, no objection regarding noncompliance of the condition precedent as mandated by provisions of Section 304 (1) of the Act was raised by the petitioner. It is not in dispute that the question regarding the maintainability of the suit in absence of service of notice in terms of sub-section (1) of Section 304 of the Act was raised by the petitioner after a lapse of more than three years, after filing the written statement. As laid down by the Hon'ble Supreme Court while dealing with the provisions of section 80 CPC, in the matter of Bishan Dayal & Sons v. State of Orissa (2001) 1 SCC 555 , the right to notice can be waived by the party for whose benefit, it has been provided. Similar view is taken by this Court in the matter of Dayanand v. State, AIR 2001 Rajasthan, 257. In this view of the matter, the petitioner having failed to take any objection in the written statement regarding non compliance of provisions of Section 304 of the Act, is estopped by its conduct from raising objection in this regard at this stage and thus, the trial court has committed no error in holding that the right of the petitioner to raise objection regarding non compliance of provisions of sub-section (1) of Section 304 of the Act stands waived. 12. 12. For the aforementioned reasons, viewed from any angle, the order impugned passed by the court below does not suffer from illegality, irregularity or jurisdiction error so as to warrant interference by this Court in exercise of its revisional jurisdiction. 13. The revision petition is, therefore, dismissed.