The appellant challenged the dismissal of his suit for declaration of title and injunction against the Municipality for demolishing his shop. The High Court held that since the suit challenged actions under the Municipalities Act, mandatory notice under Section 319 was required. Non-compliance rendered the suit non-maintainable.
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Digitally signed by RAMESH KUMAR VATTI
2024:CGHC:42774
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No. 240 of 2010
---- Appellant/Plaintiff
Versus
---- Respondent /Defendant
| For Appellant/Plaintiff | : Mr. Prakash Tiwari, Advocate |
|---|---|
| For Respondent/Defendant | : Mr. Sourabh Sharma, Advocate |
Hon’ble Shri Justice Rakesh Mohan Pandey Judgment on Board
04.11.2024
Heard.
1. The appellant/plaintiff has assailed the judgment and decree dated 31.07.2009 by the Additional District Judge (FTC), Bemetara, District Durg (C.G.) in Civil Appeal No. 02-A/2009, whereby the appeal preferred by the plaintiff was dismissed and the judgment and decree dated 30.09.2008 passed in Civil Suit No. 24A/06 by the learned trial Court was affirmed.
2. This second appeal was admitted for hearing vide order dated 27.06.2022 on the following substantial question of law:-
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“ Whether the learned First Appellate Court was justified in dismissing the suit for non-compliance of Section 319 of the C.G. Municipalities Act, 1961? ”
3. The plaintiff filed a civil suit for declaration of title and permanent injunction, inter alia on the ground that a notice was issued to the plaintiff to vacate the suit shop situated at New Bus Stand, Bemetara where the plaintiff was running Printing Press. The plaintiff pleaded that the lease was granted in his favour by the Additional Collector, Durg on 23.02.1988. The plaintiff raised a construction and started a business styled as “Quality Printers”. A notice was issued by the defendant on 28.06.2006 whereby the plaintiff was directed to vacate the premises within a period of three days and he was held to be encroacher. Pursuant to the notice, the shop of the plaintiff was demolished by the defendant. The plaintiff further pleaded that the amount of premium was already paid to the defendant and the lease was also granted, therefore, the plaintiff was not an encroacher. The plaintiff pleaded that the cause of action arose on 03.07.2006. He stated that the notice issued by the defendant was null and void being contrary to the provisions of Section 223 of the C.G. Municipalities Act, 1961 (for short the 'Act of 1961'). Thus, the plaintiff claimed compensation for the demolition of the suit shop.
4. The defendant filed a written statement and denied the plaint averments. It is pleaded that the plaintiff has raised construction over the government land; no lease was granted in favour of the plaintiff; notice was issued to produce the relevant documents, but the plaintiff failed to produce any document to establish his right over the suit property. It is also pleaded that no notice under Section 319 of the Act
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of 1961 was served upon the defendant; therefore, the suit is not maintainable. It is further pleaded that the suit shop was reserved for the development of the New Bus Stand. It is also pleaded that the notice was served upon the plaintiff and when he failed to vacate the suit shop, the same was demolished. The defendant moved an application under Order 7 Rule 11 of CPC on the ground that no notice was served upon the defendant according to the provisions of Section 319 of the Act of 1961 therefore, the suit is not maintainable. The plaintiff filed a reply to the aforesaid application.
5. The learned trial Court vide order dated 30.09.2008 taking into consideration the fact that no notice was served upon the defendant two months prior to the date of institution of the civil suit, held that the suit is not maintainable and consequently, allowed the application and rejected the plaint.
6. The plaintiff preferred an appeal before the learned first appellate Court but the same was also dismissed affirming the findings recorded by the learned trial Court.
7. Mr. Prakash Tiwari, learned counsel appearing for the appellant/plaintiff, would argue that the provisions of Section 319 of the Act of 1961 would not attract as the suit shop was demolished without any reason and without the authority of law. He would further submit that a permanent lease was granted by the Additional Collector, Durg in favour of the plaintiff on 23.02.1988 for 30 years. He would also submit that after obtaining permission from the Municipalities, the construction was raised. He would further contend that the plaintiff was running a Printing Press at the suit shop, which was the source of his
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livelihood and by demolishing the said premises, the defendant has deprived the plaintiff of his bread and butter and the same is violative of Article 21 of the Constitution of India. It is also contended that the provisions of Section 319 of the Act of 1961 would not attract as the demolition carried out by the defendant was illegal, arbitrary, malafide and contrary to the well-established principles of law. In support thereof, he placed reliance on judgments passed by the High Court of Madhya Pradesh in the matter of Adarsh Balak Mandir Vs. Chairman, Nagar Palika Parishad, Harda and Ors., 2019 LawSuit (MP) 538 and Nagar Palika Parishad Mihona & Anr. Vs. Ram Nath & Anr., 2012 (3) MPHT 360 .
8. On the other hand, Mr. Sourabh Sharma, learned counsel appearing for the respondent/defendant, would oppose. He would submit that no notice under Section 319 of the Municipalities Act was served upon the defendant, whereas the requirement is mandatory in nature and, therefore, an application under Order 7 Rule 11 of CPC was moved before the learned trial Court and the same was allowed. He would further submit that the plaintiff failed to prove the fact that any notice was served upon the defendant prior to the institution of the civil suit. He would contend that the first appellate Court affirmed the findings recorded by the learned trial Court. In support of his submissions, he placed reliance on the judgment passed by the coordinate bench of this Court in the matter of Nagar Palika Parishad, Pathalgaon and Others Vs. Lakhiram Agrawal and Another, S.A. No 655 of 1997 dated 28/10/2015 .
9. I have heard learned counsel for the parties and perused the records
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of the Courts below.
10. From a perusal of the prayer made in the plaint, it is quite vivid that the plaintiff has challenged the notice dated 03.08.2006 issued by the Municipalities.
11. Section 319 of the C.G. Municipalities Act, 1961 reads as under:-
12. From a bare reading of Section 319 of the Act of 1961, it is quite vivid
that before the institution of the civil suit, a party has to serve a notice on Municipalities two months prior to the date of institution of the civil suit and the maximum limitation to institute civil suit is eight months.
13. In the present case, the plaintiff was aggrieved with the notice issued by the Municipalities dated 03.08.2006 wherein and whereby only three days time was granted to remove encroachment. Though it is pleaded by the plaintiff that he was running a Printing Press, it is not in dispute that no notice under Section 319 of the Act of 1961 was served upon the defendant.
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14. In the matter of Adarsh Balak Mandir (supra), it is held that the provisions of Section 319 of the Act of 1961 would not attract. It was a case where the order passed under the M.P. Municipalities Act was not challenged in the Civil Court, therefore, it was held that the provisions of Section 319 of the Act of 1961 would not attract. But, in the present case, the plaintiff has challenged the notice issued under provisions of the Municipalities Act for demolition of the suit premises and the notice was under challenge, therefore, the provisions of Section 319 of the Act of 1961 would attract, thus the facts of the present case are distinguishable from the facts of the cited case.
15. In the matter of Ram Nath (supra), it is held that the provisions of Section 319 (1) of the Act of 1961 can be invoked only when the suit in question seeks a remedy arising out of the Act of 1961. In the present case also, the plaintiff has challenged the action of the defendant arising out of the Act of 1961, therefore, the judgment cited by Mr. Prakash Tiwari Advocate is in favour of the respondent/defendant.
16. In the matter of Lakhiram Agrawal (supra) while dealing with a similar issue, the coordinate bench of this Court in paras- 9 and 14 held as under:-
“ 9. Learned counsel for the appellants argued that provision contained in Section 319 of the Madhya Pradesh Municipalities Act, 1961 (for short”the Act of 1961”), in unambiguous terms, bars suit against Municipality as no notice, as contemplated therein, was given to appellantMunicipality by the plaintiff prior to institution of suit. The plaintiff averments clearly state that it was the overt act of encroachment on plaintiff's land by Municipal Authority which gave the plaintiff cause of action to file suit, provision of Section 319 of the Act of 1961 was clearly attracted. It is further contended that as present is not a case of merely seeking a decree of perpetual injunction but is coupled with prayer for grant of a decree of declaration of title, vacant possession and damages, suit will not be
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saved under sub-section (3) of Section 319 of the Act of 1961. Therefore, on this count alone, the suit was not maintainable and consequently judgment and decree passed by the Courts below are liable to be set aside and suit dismissed. In support of his submission, learned counsel for the appellants placed reliance on the judgment of the Supreme Court in the case of Nagar Palika Parishad, Mihona and Anr. Vs. Ramnath and Anr. (2014) 6 SCC 394 .
14. A plain reading of the plaint and the relief sought shows that the suit filed by the plaintiff was a suit not merely for grant of decree of permanent injunction, but is was coupled with prayer for grant of decree of declaration of title, vacant possession etc. it is not a case where the plaintiff filed a suit mainly against the State involving Municipality in the suit only as a proper party and it being a case of seeking relief against other defendant. As the plaint averments goes to show, the dispute was directly with the Municipality because according to plaint allegation, the Municipal Authority started encroaching upon the land claimed to be under the title and ownership of the plaintiff. The suit, as originally filed, sought declaration of title, permanent injunction and other relief only against Municipality. All other defendants were added by way of amendment later on. It is thus clear that the suit was against the Municipality. Moreover, the relief as prayed for by the plaintiff, goes to show that it was not a suit for mere perpetual injunction but for other reliefs also. Seeking a decree of declaration of title cannot be said to be a relief ancillary to the relief of perpetual injunction. Seeking relief of declaration of title is one of the principal reliefs. It is the prayer for grant of injunction which is ancillary in nature.”
17. Taking into consideration the relief(s) sought by the plaintiff, the
provisions of Section 319 of the Act of 1961 and the law discussed above, in my opinion, the Courts below have not committed any error of law.
18. The substantial question is decided in negative against the plaintiff.
19. Consequently, this appeal fails and is hereby dismissed. No order as to cost(s).
20. A decree be drawn accordingly.
Sd/- (Rakesh Mohan Pandey) Judge
vatti
1 issue framed by the court
Whether the learned First Appellate Court was justified in dismissing the suit for non-compliance of Section 319 of the C.G. Municipalities Act, 1961?
Colour shows how this judgement treated each authority
Adarsh Balak Mandir Vs. Chairman, Nagar Palika Parishad, Harda and Ors.Distinguished¶14
Adarsh Balak Mandir Vs. Chairman, Nagar Palika Parishad, Harda and Ors., 2019 LawSuit (MP) 538
Nagar Palika Parishad Mihona & Anr. Vs. Ram Nath & Anr.Referred¶15
Nagar Palika Parishad Mihona & Anr. Vs. Ram Nath & Anr., 2012 (3) MPHT 360
Nagar Palika Parishad, Pathalgaon and Others Vs. Lakhiram Agrawal and AnotherRelied on¶16
Nagar Palika Parishad, Pathalgaon and Others Vs. Lakhiram Agrawal and Another, S.A. No 655 of 1997 dated 28/10/2015
2 provisions across 2 enactments
Nawal Kishore Shrivastava
Nagar Palika Parishad, Bemetara Through the Chief Municipal Officer
Rakesh Mohan Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
