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2005 Supreme(MP) 620
HIGH COURT OF MADHYA PRADESH
S.S. Jha, P.K. Jaiswal, JJ.
Harmesh Chandra Dua
Versus
Nagar Palika Nigam
First Appeal 93 of 1997 Of
Decided On : Jun 20,2005
JITENDRA MAHESVARI, P.D.Bidua,
Headnote:(1) Civil P.C, 1908 -- Ss. 79 and 80-suit against the Central Government n may he filed in the name of Union of India-suit against the State Government may be filed in the name of State after service of notice. [Para 5
(2) Municipal Corporation Act, 1956 (M.P.) -- S. 401 and 401 (2) -- notice -- should contain cause of action, name and address of intending plaintiff, his Advocate, relief claimed -- sub-section (2) further provides commencement of suit within six months from cause of action. [Para 6
(3) Civil P.C., 1908 -- S. 80 -- notice-not sent to State Government but to Collector of the District -- not valid. 1974 JLJ 490 relied on. [Para 7
(4) Municipal Corporation Act, 1956 (M.P.) -- S. 401 (1) -- suit against Municipal Corporation -- notice is necessary -- there is no provision for taking permission of Court for filing of suit without compliance. [Para 7
(5) Municipal Corporation Act, 1956 (M.P.) -- S. 308-A -- compounding of construction done without permission n if prayed -- authorities should take decision thereon according to law ignoring litigation. [Para 8
(6) Civil P.C, 1908 O. 7 R.10 -- M.P. Municipal Corporation Act, 1956 -- S. 401 -- notice under S. 401 of the Act found defective -- plaint may be returned for representation after service of valid notice. [Para 9
¼1½ flfoy izfdz;k lafgrk] 1908 && /kkjk 79 rFkk 80 && dsUnzh; ljdkj ds fo:) okn && Hkkjr la?k ds uke esa Qkby fd;k tk ldrk gS && jkT; ljdkj ds fo:) okn lwpuk dh rkehy ds i‘pkr~ jkT; ds uke esa Qkby fd;k tk ldrk gSA
¼iSjk 5½
¼2½ uxjikfyd fuxe vf/kfu;e] 1956 ¼e-iz-½ && /kkjk 401 rFkk 401 ¼2½ && lwpuk && okngsrqd] vk‘kf;r oknh vkSj mlds vf/koDrk dk uke vkSj irk] ek¡xk x;k vuqrks"k varfoZ"V gksuk vko‘;d gS && mi/kkjk ¼2½ esa vkSj micaf/kr gS fd okn] okngsrqd ls Ng ekl ds Hkhrj vkjaHk fd;k tkuk pkfg,A
¼iSjk 6½
¼3½ flfoy izfdz;k lafgrk] 1908 && /kkjk 80 && lwpuk && jkT; ljdkj dks ugha vfirq ftys ds dyDVj dks izsf"kr && fof/kekU; ughaA 1974 ts ,y ts 490 voyafcrA
¼iSjk 7½
¼4½ uxjikfyd fuxe vf/kfu;e] 1956 ¼e-iz-½ && /kkjk 401¼1½ && uxjikfyd fuxe ds fo:) okn && lwpuk vko‘;d gS && vuqikyu fd, fcuk okn Qkby djus ds fy, U;k;ky; dh vuqKk ysus ds fy, dksbZ mica/k ughaA
¼iSjk 7½
¼5½ uxjikfyd fuxe vf/kfu;e] 1956 ¼e-iz-½ && /kkjk 308&d && vuqKk ds fcuk fd, x, fuekZ.k dk le>kSrk && ;fn izkFkZuk dh tk, && izkf/kdkfj;ksa dks eqdnesa ij /;ku ugha ns dj mlds ckjs esa fof/k ds vuqlkj fofu‘p; djuk pkfg,A
¼iSjk 8½
¼6½ flfoy izfdz;k lafgrk] 1908 && vk- 7 fu- 10 && e-iz- uxjikfyd fuxe vf/kfu;e] 1956 && /kkjk 401 && vf/kfu;e dh /kkjk 401 ds v/khu lwpuk =qfViw.kZ && fof/kekU; lwpuk dh rkehy fd, tkus ds i‘pkr~ iqu% izLrqr fd, tkus ds fy, okni= ykSVk;k tk ldrk gSA
¼iSjk 9½
( 1. ) THIS appeal is filed by plaintiff against dismissal of his suit.
( 2. ) PLAINTIFF has filed a suit for declaration and perpetual injunction against the respondent. Plaintiff claimed that he owned a immovable property bearing House No. 40/955/3 (Old) now 40/1024 and the number of said house is again changed to 44/1034/1, which is situated at Jadhav Mahal, Khasgi Baazar, Lashkar, Gwalior. Plaintiff contended that he has submitted a map for construction of the house under Section 294 of the M. P. Municipal Corporation Act (hereinafter referred to as "the Act" ). The said map has not been approved by the defendant within the statutory period, therefore, sanction was under the deemed permission under Section 295 (3) of the Act. In spite of repeated requests defendant have not cared to consider the sanction approval of the map, therefore, under the deemed permission construction was carried out by the plaintiff. Plaintiff claimed that since permission has not been granted to him for construction he has suffered loss and he has filed a suit and prayed therein that the plaintiff should be allowed to continue his construction and defendant be restrained from obstructing the construction and he also claimed for damages. ( 3. ) COUNSEL for defendant submitted that the suit without notice under Section 401 of the Act is not maintainable. Counsel for defendant invited attention to the notice Ex. P-19 which is an acknowledgment and which was sent to Commissioner, Municipal Corporation, Gwalior. He submitted that since notice has not been sent to Municipal Corporation, therefore, suit is not maintainable, suit is barred and in support of his contention he has placed reliance upon the judgment of this Court in the case of Putli Bai v. Municipal Corporation, Gwalior, reported in 1967 MPLJ SN 103. In this case it is held that the notice addressed to the Municipal Commissioner can not be deemed to be a notice to the Municipal Corporation and the suit was liable to be dismissed. He submitted that since there was no valid notice, suit is not maintainable and is liable to be dismissed.
( 4. ) IN reply to objection, Counsel for appellant submitted that notice was given to the Municipal Corporation through Commissioner, Municipal Corporation, Gwalior. He invited attention to Ex. P-18, a notice sent on an inland letter. But, the address on which notice was sent is not mentioned. It is not clarified to whom the said notice was sent. Probably first page of notice has not been filed. In this notice first line which is Versus Municipal Corporation, Gwalior, Through Commissioner, Municipal Corporation. It is not clear when the notice was sent. From acknowledgment Ex. P-19 clarifies that the notice was issued to Commissioner, Municipal Corporation and not to Municipal Corporation through Commissioner, Municipal Corporation, Gwalior. In this circumstance and on perusal of notice Ex. P-17 it is apparent that the notice was not sent through Municipal Commissioner, Municipal Corporation, Gwalior. In the notice cause of action and other factors which are required in the notice are not mentioned. As discussed we uphold the objection of Municipal Corporation that in the absence of valid notice under Section 401 of the Act the said suit was not maintainable.
( 5. ) RECENTLY the Apex Court has considered the question of notice while considering the scope of Sections 79 and 80 of CPC. While considering the scope of Section 79 of CPC it is held that in a suit by or against the Government, the authority to be named as plaintiff or defendant as the case may be, in the case of the Central Government, the Union of India and in the case of the State Government, the State, which is suing or is being sued. Thus, suit could be filed against the State Government and in the name of State and against the Central Government as Union of India.
( 6. ) SECTION 401 of the Act as it stood on the date of filing of the suit provides that the notice in writing must contains :
(
