Jammu Development Authority and Others vs Baljeet Singh

B.L. Bhat, J.—Perusal of the record reveals that Mr. O.P Thakur, advocate filled his Vakalatnama on behalf of the respondent in the case in

hand as is manifest from the order dated 7.8.2002. Today nemo is present on behalf of the respondent. The case is set exparte against him.

This motion of revision is aimed at setting aside the order dated 28.2.2002 recorded by the learned civil Ist. Subordinate Judge( Municipal

Magistrate) Jammu in an application of the petitioners/defendants seeking rejection of the plaint under Order 7 Rule 11 (d) for non-compliance

with requirement of prior notice u/s 48 of the Development Act, 1970 in civil suit titled Baljeet Singh v. JDA and others.

It appears that respondent/plaintiff came to institute a suit for declaration to the effect that he is owner in possession of the land measuring 2

Kanals comprising Khasra No. 1188 min, Khata No. 759 min and khewat No. 72 min, Land measuring 10 marlas comprising Khasra No. 1183

min, Khewat No. 759 min, Khata No. 72, Land measuring 1 Kanal 5 marlas comprising khasra No. 1188 min, Khewat No. 759 min, Khata No.

72 min located at Paloura Housing colony with consequential relief for permanent prohibitory injunction restraining the petitioners/defendants from

claiming the aforesaid land and restraining them to interfere in the peaceful possession of the plaintiff with respect to this land. It further appears that

the defendants/petitioners approached the trial court with an application praying therein for the rejection of the plaint on the ground that no notice

as envisaged u/s 48 of the Development Act, 1970 has been served upon them. The learned trial court came to reject the application after holding

that the plea raised in the application regarding the necessity of the notice u/s 48 of the Act can be gone into by the court in the present application

more particularly when the case of the plaintiff is that the defendants have no claim on the property in any manner with further observation that plea

raised in the application shall be gone into when the written statement is filled in the matter.

Heard learned counsel for the petitioner.

Section 48(1) of the Development Act, 1970 (hereinafter referred to as the Act) deals with that notice be given of the suits, which is reproduced

here for convenience provides that:

(1) No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees or any person acting under

the directions of the Authority or any member or any officer or other employees of the Authority in respect of any act done or purporting to have

been done in pursuance of this Act or any rule or regulation made thereunder until the expiration of two months after notice, and in any other case,

delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature

of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaint contains a

statement that such notice has been so left or delivered.

Upon the language of this Section it is manifestly clear that no suit for relief against the Development Authority or any of its members or officers or

employees or any person acting under the directions of such authority member officer or an employee in respect of any act done or purported to

have been done under the Act or any rule or regulation framed there under unless the prior notice of two months is given stating therein the cause

of action and the relief claimed in the suit against such authority or against officer or officials against whom the suit is proposed and the plaint must

contain an averment to the effect that such notice has been given. This being so, the sine-quo-non for filling a suit for any relief against development

authority, its officer, officials acting under the Act or regulations or rules framed thereunder is two months' prior notice and a positive statement in

the plaint to the effect that such notice has been served before the expiration of two months or was served left or delivered in the office of such

authority before the expiry of two months. The Section is mandatory in character. Its object is to give the Development Authority or its members

or officers of officials an opportunity to reconsider the legal position and may make amendments or settlement or settle claim if so advised without

entering into litigation. Non-compliance of the said requisites of this Section or omission of a statement that the requisite notice under the said

Section has been served will merit rejection of the claim under Order 7 Rule 11 (d) C.P.C.

Having regard to this law, let me examine the case of the respondents/plaintiff. The perusal of the record as indicated reveals that the

respondent/plaintiff came to institute a suit for declaration to the effect that he is the owner of the land described in the plaint with the consequential

relief of perpetual injunction restraining the petitioners/defendants to claim the said land or to interfere in this land. This suit is instituted against the

Jammu Development Authority and its officers. There is nothing in the record of the suit file to show whether any notice as contemplated u/s 48 of

the Act has been given or delivered in the name of the defendants or left or delivered in the office nor does the plaint contain any averment to the

effect that said notice has been given to the petitioners/ defendants two months prior to the institution of the suit. This being so, the plaint is liable to

be rejected under Order 7 Rule 11, CPC.

Viewed thus, the learned trial court has fallen in a grave error in over-looking this aspect of the case as result of which has come to pass the

impugned order which suffers with jurisdictional error and has been passed with material irregularity, if allowed to continue, will cause injustice to

the petitioners/defendants. Therefore, the petition is allowed and the impugned order is set aside. Plaint is rejected under Order 7 Rule 11 (d) of

the C.P.C. Let the record together with copy of this order be sent to the trial court for information and necessary action.