CRP(I/O) 3/2017. Gauhati High Court
| Case Number | CRP(I/O) 3/2017 |
| Judgement Date | May 30, 2017 |
| Court | Gauhati High Court |
THE GAUHATI HI GH COURT
( THE HI GH COURT OF ASSAM, NAGALAND, MI ZORAM & ARUNACHAL PRADESH)
CRP( I / O) 3 of 2017
I SLAMUDDI N AHMED …..Petitioners
-Versus-1. DR. BI JOY SI NGH BAI D
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THE MUNI CI PAL BOARD, DHUBRI …..Respondents
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THE STATE OF ASSAM
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THE DEPUTY COMMI SSI ONER, DHUBRI …..Proforma Respondents.
BEFORE
HON’BLE MR. JUSTI CE KALYAN RAI SURANA
Advocates for the Petitioners : Mr. A.C. Sarma, Mr. B. Haider,
: Mr. G. Bharadwaj, Mr. B. Mandal.
Advocates for the Respondents : Mr. R.K. Jain, Ms. U. Sahu (R-1)
: Mr. P.S. Bhattacharjee (R-2)
: Mr. S. Roy, Mr. J. Dutta, GA, Assam.
Date of hearing : 04.05.2017
Date of judgment and order : 30.05.2017.
JUDGMENT AND ORDER ( CAV)
Heard Mr. A.C. Sarma, learned Senior Counsel for the petitioner,
i.e. I slamuddin Ahmed, Mr. R.K. Jain, learned Counsel for the respondent No.1,
i.e. Dr. Bijoy Singh Baid, Mr. A.P. Bhattaharyya, learned Standing Counsel for the respondent No.2, i.e. Municipal Board, Dhubri, and Mr. C.K.S. Barua, learned State Counsel for the Respondent No.3 and 4, viz., The State of Assam and The Deputy Commissioner, Dhubri.
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2) Owing to the nature of dispute raised herein, this revision has been taken up for final disposal at the admission stage as consented to by the learned Counsels of all sides.
3) The respondent No.1 had filed a suit for declaration, injunction for demolition of illegal construction raised by the petitioner herein and as per the statements made in the plaint, the allegation was that the petitioner was raising his construction in violation of the sanctioned plan. The petitioner contested the suit and raised a preliminary issue of maintainability of the suit for non- compliance of mandatory provisions of section 326 of the Assam Municipal Act, 1956 (hereinafter referred to as the “1956 Act”), which requires issuance of one month’s notice to the concerned Municipal authorities before filing the suit. The learned Trial Court rejected the said application. Aggrieved by the same, by filing this revision under Article 227 of the Constitution of I ndia, the petitioner has assailed the said order dated 28.11.2016 passed by the learned Munsiff No.1, Dhubri (hereinafter referred to as the “learned Trial Court”), in Title Suit No. 459/ 2016.
4) The learned Senior Counsel for the petitioner submits that at the time of filing the said suit, while the Respondent No.1 craved leave of the learned Trial Court under section 80(2) of the Civil Procedure Code (hereinafter referred to as the “Code”), for instituting a suit without issuance of notice under section 80 of the Code. However, one month’s notice as contemplated under section 326 of the Assam Municipal Act, 1956 (hereinafter referred to as the “1956 Act”) was not issued upon the respondent No.2 herein and, the non-compliance thereof, being fatal to the maintainability of the suit, the petitioner raised a preliminary issue of maintainability of the suit. However, the learned Trial Court by holding that the provisions of section 326 of the 1956 Act was not attracted in the suit and admitted the plaint for hearing, which is in challenge herein.
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5) The learned Senior Counsel for the petitioner has further submitted that the provisions of section 326 of the 1956 Act was mandatory and was not dependent on the merit or demerit of the suit. I t is submitted that there was no provision in the said 1956 Act similar or para-mateira to the provisions of section 80 of the Code. Hence, in the absence of any enabling provisions in the said 1956 Act, the same ought to be taken as mandatory and once such notice as contemplated under section 326 of the 1956 Act is found to be not served, the same is fatal and, as such, the learned Trial Court had committed jurisdictional error in proceeding with the suit and in rejecting the plea of non-maintainability of the suit, as raised by the petitioner before the said learned Court. I n order to press his point, the learned Senior counsel for the petitioner has relied on the following case law citations:-
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Nagar Palika Parishad, Mihona & Anr. V. Ramnath & Anr., (2016) 6 SCC 394;
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B. Majumdar V. Jorhat Municipal Board & Anr., (2007) 4 GLR 269;
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Unreported judgment dated 02.05.2013 of the Hon’ble High Court of Chhattisgarh in S.A. No. 10/ 2009 (M/ s. Mangilal Pagariya Builders & Contractors V. Nagar Palika Nigam, Raipur);
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Unreported judgment dated 16.07.2010 of the Hon’ble Bombay High Court in Jijamata Sahakari Sakhar … V. Union of I ndia (print-out from website of indiankanoon.org).
6) Per contra, the learned Counsel for the respondent No.1 by relying on his affidavit-in- opposition filed on 21.03.2017 has submitted that on the perusal of the statements made in paragraph 5 of the plaint, it would be crystal clear that the respondent No.1 had indeed issued statutory notice as required under section 326 of the said 1956 Act. I t...
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