SBCSA NO.419/2005 – KAILASH KABLI AND ORS. V/S SMT. NEETA AGARWAL AND ORS. : JUDGMENT DTD.16.10.2008. 1/10 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.419/2005 1. Kailash Kabli 2. Ashok Kabli 3. Smt. Monika 4. Smt. Jyoti versus 1. Smt Neeta Agarwal 2. Rajashan Housing Board. 3. Resident Engineer, Rajasthan Housing Board Division, Pali. 4. Secretary, Rajasthan Housing board, Jaipur. 5. Shyam S. Agarwal PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.L.R.Mehta, for the appellants. Mr.S.L.Jain, }for the respondents Mr.K.N.Vyas, } DATE OF JUDGMENT : 16th October, 2008. JUDGMENT 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 SBCSA NO.419/2005 – KAILASH KABLI AND ORS. V/S SMT. NEETA AGARWAL AND ORS. : JUDGMENT DTD.16.10.2008. 2/10 the defendants' application under Order 7 Rule 11 C.P.C. and dismissing the suit filed by the plaintiffs – appellants. The learned trial Court dismissed the suit filed by the plaintiff vide judgment and decree dtd.30.8.2005 which was upheld by the first appellate Court by judgment dtd.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 C.P.C. 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 dtd.11.5.2007 framed following substantial question of law for determination by this Court : SBCSA NO.419/2005 – KAILASH KABLI AND ORS. V/S SMT. NEETA AGARWAL AND ORS. : JUDGMENT DTD.16.10.2008. 3/10 “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 dtd.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 SBCSA NO.419/2005 – KAILASH KABLI AND ORS. V/S SMT. NEETA AGARWAL AND ORS. : JUDGMENT DTD.16.10.2008. 4/10 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 C.P.C. 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 non- compliance with the provisions of Section 50 of the Act. 6. Mr. S.L. Jain appearing for the defendants No.1 and 5 and Mr. K.N. Vyas appearing for the Rajasthan Housing Board vehemently opposed the submissions made by the learned counsel for the appellant and submitted that the notice under Section 50 of the Act is mandatory for any kind of suit filed against the Rajasthan Housing Board and in view of admitted SBCSA NO.419/2005 – KAILASH KABLI AND ORS. V/S SMT. NEETA AGARWAL AND ORS. : JUDGMENT DTD.16.10.2008. 5/10 non-compliance on the part of the plaintiff to have given such advance notice to the Board prior to the institution of the suit, the suit in question was admittedly barred by law and was rightly rejected by the Courts below invoking powers under Order 7 Rule 11 C.P.C. on the application filed by the defendants No.1 and 5. 7. The learned counsels on both the sides relied on number of judgments of Apex Court as well as this Court in support of their submissions on the issue relating to requirement of giving prior notice under Section 50 of the Act and similar provisions under Section 80 C.P.C. and Section 271 of the Rajasthan Municipalities Act and also under the Rajasthan Panchayati Raj Act. 8. This Court heard the learned counsels at length and has also perused the judgments cited at the Bar. 9. This Court is of the opinion that there is no need to deal with the case laws cited at the Bar in detail as the position of law in regard to Order 7 Rule 11 C.P.C. is well settled and therefore, this Court has to only see as to whether requirement of giving prior notice under Section 50 of the Rajasthan Housing Board Act could be applied in the facts of the present case or not. SBCSA NO.419/2005 – KAILASH KABLI AND ORS. V/S SMT. NEETA AGARWAL AND ORS. : JUDGMENT DTD.16.10.2008. 6/10 10. The provisions of Section 50 of the Act are reproduced hereunder: “50. Notice of suit against Board.- No person shall commence any suit against the Board or against any officer or servant of the Board or any person acting under the orders of the Board, for anything done or purporting to have been done in pursuance of this Act, without giving to the Board, officer or servant or person two months previous notice in writing of the intended suit and of the cause thereof, nor after six months from the date of the act complained of. 11. It is also necessary to look into the provisions of the Act contained in Section 26 and 28 of the Act contained in Chapter III of the said Act relating to the Housing Schemes to be framed and developed by the Rajasthan Housing Board as that was the purpose for which the land in question was acquired by the State for Rajasthan Housing Board and against such acquisition only part of the land was given to the land holder by way of compensation. The impugned action of the Rajasthan Housing Board in the present suit filed by the plaintiff is change of plot numbers and exchange of plots at the request of SBCSA NO.419/2005 – KAILASH KABLI AND ORS. V/S SMT. NEETA AGARWAL AND ORS. : JUDGMENT DTD.16.10.2008. 7/10 defendants No.1 and 5 because according to the defendants Nathu Kabli had sold these plots only to them, which according to the plaintiff was not permissible for the Rajasthan Housing Board. A perusal of various powers conferred upon the Rajasthan Housing Board in Section 28 which deals with the matter provided for by the Rajasthan Housing Scheme, is, therefore, considered necessary. Section 28 of the Act particularly its clauses “(a) to (k) and (v)are reproduced hereunder for ready reference: “28. Matters to be provided for by housing schemes.- Notwithstanding anyting contained in ahy other law for the time being in force, a housing scheme may provide for all or any of the following matters, namely:- (a) the acquisition by purchase, exchange or otherwise of any property necessary for or affected by the execution of the scheme. (b) the laying or re-laying out of any land comprised in the scheme: (c) the distribution or re-distribution of site belonging to owners of property comprised in the scheme; (d) the the closure or demolition of dwellings or portions of dwellings unfit for human habitation: (e) the demolition of obstructive buildings or portion of buildings; (f) the construction and reconstructin of buildings; (g) the sale, letting or exchange of any property comprised in the scheme; SBCSA NO.419/2005 – KAILASH KABLI AND ORS. V/S SMT. NEETA AGARWAL AND ORS. : JUDGMENT DTD.16.10.2008. 8/10 (h) the construction and alteration of streets and back lanes; (i) the formation of a constituted plot by the alterations of the boundaries of an original plot: (j) the allotment of a plot to any owner dispossesed of his land in furtherance of the housing scheme; (k) the transfer of ownership of a plot from one person to another. (l)............. (m)............. (n)............. (o)............. (p)............ (q)........... (r) ............. (s)............. (t)............... (u).............. (v) any other matter for which in the opinion of the State Government, it is expedient to make provision with a view to provide housing accommodation and to the improvement or development of any area comprised in the scheme or any adjoining area or the general efficiency of the scheme.” 12. In view of the aforesaid functions of the Rajasthan Housing Board envisaged in Section 28 of the Act, it is clear that even exchange of plot, transfer of ownership of plot from one person to another, allotment of any plot etc. are all the functions of the Rajasthan Housing Board and that is the very SBCSA NO.419/2005 – KAILASH KABLI AND ORS. V/S SMT. NEETA AGARWAL AND ORS. : JUDGMENT DTD.16.10.2008. 9/10 purpose for which the said Act has been enacted and the Board has been constituted under the provisions of said Act. Therefore, the contention of the learned counsel for the appellant that the change of plot numbers and plots given in exchange by the Rajasthan Housing Board on the representation of the defendants No.1 and 5 was not covered within the ambit and scope of the Act and therefore, the suit seeking cancellation of lease-deed executed in favour of the defendants No.1 and 5 in the year 2003 does not require prior notice to the Housing Board as per Section 50 of the Act appears to be misconceived to this Court. The language of Section 50 of the Act is widely worded and it says that “anything done or purposed to have been done in pursuance of this Act”. The plaintiff is supposed to give two months' prior notice and the suit also cannot be filed after six months from the date of the act complained of. Thus, the legislature is very clear in putting mandatory condition of prior notice to the Rajasthan Housing Board before instituting any suit against it in the Court of law. Admittedly, the plaintiff in the present case did not give any prior notice to the Rajasthan Housing Board before institution the suit in question. As already observed, the impugned action of cancelling the allotment of certain plots and giving the said plots in exchange to the defendants No.1 and 5 cannot be said to be an act which is beyond the provisions of Act of 1970 or powers of the Rajasthan Housing SBCSA NO.419/2005 – KAILASH KABLI AND ORS. V/S SMT. NEETA AGARWAL AND ORS. : JUDGMENT DTD.16.10.2008. 10/10 Board. The lease-deed was executed by the Rajasthan Housing Board on account of sale of portion of property by Nathu Kabli himself and therefore, the claim of the plaintiffs that Nathu Kabli did not sell any specific portion to the defendants and the Housing Board could not exchange the said plot and such action of the Housing Board was not an act done or purported to have been done in pursuance of the said Act of of 1970 so as not to require any prior notice under Section 50 of the Act, does not impress this Court. 13. The courts below, therefore, cannot be faulted in allowing the application under Order 7 Rule 11 C.P.C. and in view of the admitted non-compliance on the part of the plaintiffs to have served an advance notice upon the Rajasthan Housing Board as mandatorily required by Section 50 of the Act, this Court finds no force in the appeal of the plaintiffs. Consequently, the present second appeal is devoid of merit and the same is accordingly dismissed. No order as to costs. (Dr.VINEET KOTHARI)J. Item No. Ss/-