The impugned action of the Rajasthan Housing Board fell within the ambit and scope of the Act, and therefore, the suit seeking cancellation of lease-deed required prior notice to the Housing Board as per Section 50 of the Act.

1. - Heard the learned counsels for the parties.

2. The present second appeal has been filed by the plaintiffs being aggrieved by the judgment of two Courts below allowing the defendants' application under Order 7 Rule 11 Civil Procedure Code. and dismissing the suit filed by the plaintiffs - appellants. The learned trial Court dismissed the suit filed by the plaintiff vide judgment and decree dated 30.8.2005 which was upheld by the first appellate Court by judgment dated 16.11.2005 and both the Courts below held that since notice as required by Section 50 of the Rajasthan Housing Board Act, 1970 was not given by the plaintiffs to the Rajasthan Housing Board before instituting the suit in question, therefore, the said suit was barred by law and, therefore, the same was bound to be dismissed on the application under Order 7 Rule 11 Civil Procedure Code.

3. The learned counsel for the plaintiffs - appellants Mr. L.R. Mehta submits that the substantial question of law framed by this Court in the present second appeal deserves to be answered in favour of the plaintiffs - appellants as the impugned action cannot be said to be undertaken and done in pursuance of Rajasthan Housing Board Act, 1970 (hereinafter referred to as the Act of 1970) and therefore, there was no question of giving any notice as required in Section 50 of the Act before instituting the said suit.

4. This Court by order dated 11.5.2007 framed following substantial question of law for determination by this Court :

"In a case where the plaintiff claims his property right in the suit land, whether the notice under Section 50 of the Rajasthan Housing Board Act, 1970 is a condition precedent for maintaining the suit and limitation prescribed under the Act of 1970 governs the suit?

5. Mr. Mehta urged that the State Government had acquired the land of the plaintiffs under the provisions of the Land Acquisition Act and by way of compensation for such acquisition 15% of the land was given to the land holder Nathu Kabli, father of the present appellants, who are legal representatives of said Nathu Kabli and out of said land, Nathu Kabli had sold some portion of the land to the defendants No.1 and 5 under the sale-deed dated 8.6.1984 out of khasra No.729 and some portion was retained by Nathu Kabli. On account of plotting done by the Rajasthan Housing Board, plot numbers were allotted later on and the allotment letter was also issued in favour of the legal representatives of Nathu Kabli on 25.4.2000. However on account of representation of defendants No.1 and 5, Rajasthan Housing board later on cancelled their allotment and the defendants were allotted the said plots in the portion which was earlier allotted to the plaintiffs in the year 2000 and in the year 2003 in exchange of the plots in portion of land sold by Nathu Kabli to the defendants, the Rajasthan Housing Bord changed number of plots and allotted the plots of land allotted to the plaintiffs, to the defendants No.1 and 5 and therefore being aggrieved of such exchange of plots, the plaintiffs filed the present suit against the Rajasthan Housing Board as well as defendants No.1 and 5. Mr. Mehta submitted that for invoking provisions under Order 7 Rule 11 Civil Procedure Code. for dismissal of the suit at threshold, the averments made in the plaint alone have to be looked into and as per well settled position of law in this regard, where the property rights were claimed by the plaintiffs over the portion of the land which according to the plaintiff was not sold to the defendants No.1 and 5, such exchange of plots could not be done by the Rajasthan Housing Board and that was not the action of the Rajasthan Housing Board done under the provisions of Rajasthan Housing Board Act, 1970 and therefore, no notice under Section 50 of the Act was required to be given before institution of the suit. He, therefore, submitted that the Courts below have erred in rejecting the suit on the anvil of noncompliance with the provisio