KUMARI BAI Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) In these writ petitions the constitutional validity of Section 401 of Chhattisgarh Municipal Corporation Act, 1956 (for short 'the Act') has been questioned so far it takes away the right of an aggrieved person of approaching the Court of law by filing Civil Suit of appropriate nature to obtain immediate and urgent relief without serving the statutory notice as required under sub-section (1) of that Section.

(2.) The facts of the case leading to filing of these writ petitions be noted in the first instance and they, in brief, are as follows : In Writ Petition No. 1797 of 2005 the petitioners are the owners of a roof of a building situate at M. G. Road, Raipur having acquired the same under a sale-deed dated 24-5-2000. After purchasing the said property, the petitioners have raised further construction over the said roof. When the matter stood thus, they were served with a notice dated 6-9-2003 alleging that the construction of the first floor made by them is not legal and in violation of the approved plan, therefore, the same should be demolished within three days from the date of notice. The petitioners apprehending that the Corporation might demolish the construction filed a civil suit on 15-10-2004 before the Court of First Civil Judge, Class-I, Raipur along with an application for grant of injunction. After service of summons, the Municipal Corporation on 17-3-2005 made an application under Order 7 Rule 11 of the Code of Civil Procedure contending that the suit is not maintainable for non-compliance of statutory provisions of Section 401 of the Act inasmuch as the suit was filed without giving statutory notice of one month to the Corporation and therefore the suit should be dismissed. The Civil Court allowed the said application and dismissed the suit. At that stage, the petitioners filed the writ petition.

(3.) In writ petition No. 1993 of 2005 the petitioners are the owners of a land bearing Plot No. 2/8 admeasuring 805 sq. ft. situate at Maudhapara, Jawahar Nagar Ward, Raipur having purchased the same under a registered sale-deed (Annexure-P/2). It is stated that having obtained required permission from the Municipal Corporation, Raipur, they have made constructions in the said plot. On 14-10-2004 the officers of the Municipal Corporation, Raipur visited the property of the petitioners and threatened them that they would demolish their construction, if not removed by the petitioners themselves, for alleged violation of the bye laws and sanctioned/plan. The petitioners apprehending that the Municipal Corporation would demolish the construction filed a Suit before the Civil Court along with an application for grant of injunction. The petitioners also filed an application for permission to file the suit without service of notice on the Municipal Corporation as required under Section 401 of the Act. The Municipal Corporation on service of summons entered appearance and raised an objection that the civil suit instituted by the petitioners is not maintainable for non-compliance of the mandatory provisions of Section 401 of the Act inasmuch as the suit was instituted without service of notice on the Municipal Corporation. The Civil Court allowed the application filed by the Municipal Corporation and dismissed the suit. At that stage, the petitioners filed writ petition No. 1993 of 2005 praying for the same reliefs as prayed for by the petitioners in writ petition No. 1797 of 1993.