1 S.B.Civil Second Appeal No.191/2007 Sunder Devi & Anr. Vs Amar chand & Ors. And S.B.Civil Second Appeal No.192/2007 Sunder Devi & Anr. Vs Anjani Kumar & Ors. And S.B.Civil Second Appeal No.193/2007 Sunder Devi & Anr. Vs Lrs of Om Prakash & Ors. Date of order : 28.11.2007. HON'BLE MR. PRAKASH TATIA, J. Mr. SN Trivedi, for the appellants. Mr. Dilip Moolchandani, for the respondents. <><><> Heard learned counsel for the parties. The plaintiffs' suit was dismissed by the trial court for want of notice under Section 271 and 80 CPC, which was required to be given to the defendants Municipal Board and the Sate Government. According to learned counsel for the appellants the plaintiffs filed the suit for declaration and permanent injunction and, therefore, there was no necessity of giving any notice to the respondents Municipal Board and the State Government in view of the judgment of the Madhya Pradesh High Court delivered in the case of M.G. Tipnis Vs. The Secretary,Ministry of Commerce, Union of India, New Delhi & Ors reported in AIR 1970 Madhya Pradesh 5. Learned counsel for the appellant also relied upon 2 another judgment of Patna High Court delivered in the case of Ramautar Gope & Ors Vs. Sheonandan Mistri & Ors reported in AIR 1962 Patna 273. I considered the submissions of learned counsel for the parties and perused the reasons given in the said judgment referred above. It is not in dispute that the suit was dismissed by the trial court on the ground that notice under Section 271 of the earlier Municipalities Act was not given to the defendants Municipal Board and the State Government under Section 80 CPC. From the judgment of this court delivered in the case of Mohammed Shafi & Ors. Vs. Sant Kumar & Ors reported in RLW 1992(2) 621 relied upon by learned counsel for the respondent it is clear that requirement of giving of notice is mandatory. Further, in a suit for declaration based on title or any other right and where none of the act of the Municipal Board or State or its officer is under challenge and there is allegation of absolutely unauthorized and illegal act then there may not be necessity of giving a notice to the Municipal Board, but when any act alleged to have been done under the Municipal Act is under challenge and when any act which is having colour of power under the Act is under challenge then notice is required to be given before filing the suit. In certain cases, some law allows for filing of the suit of urgent nature but in 3 this case, looking to the totality of the facts, I do not find that the plaintiffs' case can be considered to be a case of mere establishing their right without challenging the act, action and order of the Municipal Board. Therefore, the courts below rightly held that the suit of the plaintiffs is not maintainable. The effect of dismissal of suit for want of notice can only be that plaintiffs can file the suit after giving notice to the defendants afresh. In view of the above reasons, I do not find any merit in this writ petition and the same is hereby dismissed. At this stage,learned counsel for the appellant submitted that appellants have already served the notice upon the defendants, but unfortunately because of some unavoidable circumstances, the copy of that notice was not produced in the trial court. The copy of the said notice was also not produced in this appeal also. Therefore, in case, the appellants want to serve a fresh notice to the defendants then he do so and in case, he want to file fresh suit on the basis of earlier notice then he may also file the suit on the basis of earlier notice. (PRAKASH TATIA), J. c.p.goyal/-