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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Shyam Kishore Agrawal - Appellant
Vs.
Commissioner, Nagar Palika Nigam, Raipur - Respondent
Second Appeal No. 192 of 2005
Decided On: 21.04.2015
Civil Procedure Code - Section 100 - Chhattisgarh Municipal Corporation Act, 1956 - Section 401 – Jurisdiction - Suit filed for declaration, possession as well as injunction - Suit against the Commissioner - Learned counsel appearing for the appellant/plaintiff would submit that suit was filed against the Commissioner, Municipal Corporation after serving notice under Section 401 of the Act, 1956 to the Commissioner of said Corporation is legal and valid service of notice and as such notice to the Commissioner of said Corporation would be a notice to Corporation for all practical purpose and as such there is full and sufficient compliance of provisions contained in Section 401 of Act, 1956. Arguing further, he would submit that suit could be filed against the Commissioner of said Corporation and Section 7(3) of Act, 1956 would not come in way of the appellant/plaintiff in institution of suit and both the courts below are absolutely unjustified in dismissing the suit holding that no proper and valid notice has been served to the Corporation under Section 401 of the Act, 1956 – Held, It is inhered in the language employed as it has to be addressed to the Municipality which is a body corporate. In view of the analysis we are of the considered view that the decision rendered in the case of Chandra do not lay down the correct law to the effect that notice on the Municipal Officer is notice to the Municipality. As the learned single Judge in the instant case has relied on the aforesaid decisions and has arrived at the conclusion that notice on the Chief Municipal Officer has been properly served on the Municipality, we are not able to subscribe to the said view. Resultantly, our view is that the requirement of the statute is that the notice in writing has to be addressed to the Municipality and a notice to the Chief Municipal Officer does not meet the requirement of law - Aforesaid cases facts of present case it would appear that notice Ex. P/5 dated 11.02.1998 was addressed and served to the Commissioner, Municipal Corporation, Raipur and thereafter suit was instituted against the Commissioner, Municipal Corporation, Raipur as such no notice was served to the Municipal Corporation before institution of suit as mandatorily required under Section 401(1) of the Act of 1956. Thus the suit filed without serving notice to the Municipal Corporation under the aforesaid provision was clearly not maintainable for want of valid notice in view of law laid down in the aforesaid cases and therefore the Trial Court was absolutely justified in dismissing the suit for want of notice as provided in Section 401(1) of the Act of 1956 and the First Appellate Court is also perfectly justified in affirming the finding of the Trial Court and dismissing appeal filed by the appellant/plaintiff as such no substantial question of law is involved for determination as required under Section 100(4) of Code of Civil Procedure, 1908 - Appeal dismissed
Sanjay K. Agrawal, J.
1. This second appeal has been filed by the appellant/plaintiff invoking jurisdiction of this court under Section 100 of C.P.C. by which the plaintiff suit filed for declaration, possession as well as injunction of subject suit land was dismissed by the trial court and duly affirmed by the first appellate court by the impugned judgment and decree dated 28.01.2005. That the plaintiff/appellant instituted a suit for recovery of possession, permanent injunction, declaration and for damages, stating inter-alia that he is owner in possession of subject suit land and defendant/respondent has encroached upon part of suit land owned by him and didn't vacate the same despite receipt of notice served to defendant/respondent under Section 401(1) of Chhattisgarh Municipal Corporation Act, 1956 (hereinafter called as, 'Act of 1956') and claimed afore-stated reliefs.
2. The respondent/defendant filed his written statement before the trial court controverting the allegations made in the suit and took specific stand that no notice has been served to the Municipal Corporation, Raipur (for short, Corporation) under Section401(1) of the Act, 1956 and the notice sent to Commissioner, Municipal Corporation, Raipur is not a valid notice under Section 401(1) of the Act, 1956, and as such, notice served to the Commissioner and institution of suit against the Commissioner, Municipal Corporation is not maintainable in law and deserves to be dismissed.
3. The trial court, by judgment and decree dated 24.04.2004 held that plaintiffs are the title holder of suit land, but since notice under Section 401(1) of the Act, 1956 has not been served to the Municipal Corporation, Raipur therefore, suit is not maintainable and dismissed the suit.
4. On first appeal being preferred by the plaintiffs, the first appellate court dismissed the first appeal and affirmed the findings of trial court holding that no notice has been served to the Municipal Corporation under Section 401 of the Act, 1956.
5. Against the said judgment and decree of first appellate court, the appellant/plaintiff has filed this Second Appeal under Section 100 of CPC stating inter-alia that this second appeal involves substantial question of law for determination.
6. Shri R.N. Pusty, learned counsel appearing for the appellant/plaintiff would submit that suit was filed against the Commissioner, Municipal Corporation after serving notice under Section 401 of the Act, 1956 to the Commissioner of said Corporation is legal and valid service of notice and as such notice to the Commissioner of said Corporation would be a notice to the Corporation for all practical purpose and as such there is full and sufficient compliance of provisions contained in Section 401 of the Act, 1956. Arguing further, he would submit that suit could be filed against the Commissioner of said Corporation and Section 7(3) of the Act, 1956 would not come in way of the appellant/plaintiff in institution of suit and both the courts below are absolutely unjustified in dismissing the suit holding that no proper and valid notice has been served to the Corporation under Section 401 of the Act, 1956, and the suit as filed against the Commissioner of said Corporation in absence of Corporation as party defendant is in accordance with law and the present appeal involves substantial question of law for determination as provided in Section 100(4) CPC.
7. I have heard the learned counsel appearing for the appellant/plaintiff and perused the original records with utmost circumspection.
8. Section 55 of the Act, 1956 deal with power of Commissioner. Section 400 of Act deals with power of Commissioner to institute legal proceedings and obtain legal advice. Section 401 of the Act, 1956 provides for notice, limitation in suit against Corporation and provides as under:
"401. Notice, limitation and tender of amends in suit against Corporation etc.--(1) No suit shall be instituted against the Corporation. the Mayor-in-Council or
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