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Judgment
The present appeal has been preferred by the Municipal Board, Rajgarh, District Churu, feeling aggrieved by rejection of the appeal (No. 1/2005) vide
judgment and decree dated 27.03.2010 passed by the learned Additional District Judge, Rajgarh, District Churu (hereinafter referred as the
“Appellate Courtâ€) vide which, the learned Appellate Court had affirmed the judgment and decree dated 26.02.2005 passed by the learned Civil
Judge (Senior Division), First Class, Rajgarh (hereinafter referred to as the “Trial Courtâ€) in Civil Original Suit No. 46/2004 (38/2000) whereby,
the suit filed by the plaintiffs (respondents herein), seeking mandatory injunction, was decreed.
Succinctly stated the facts of the case are that the plaintiffs (respondents herein) filed a suit against the defendant - Municipal Board, seeking a
direction to the defendant to catch the stray pigs wandering in the city, as they created nuisance and posed a threat of life and property to the
residents.
On the pleadings of the parties, the following issues were framed by the Trial Court:-
^^1- vk;k fd oknhx.k izfroknhx.k ds fo:) bl vkâ€k; dk vkKkid fpjLFkk;h O;knsâ€k izkIr djus ds vf/kdkjh gSa fd dLck jktxLFkyksa] /kkfeZd LFkyksa o lMdksa ij vkokj ?kweus okys lqvjksa ftuds ekfyd mudks vkokjk ;k [kqYyk NksM+ nsrs gSa \ mDr lqvjksa dks
izfroknhx.k ckM+ksa ;k fiatjksa esa can dj nsos vFkok bu lwvjksa dks izfroknhx.k uxj ikfydk jktx2- vk;k oknh us izfrfuf/kRo Lo:i dk nkok isâ€k fd;k gS rFkk dkuwuh dk;Zokgh iwjh ugha djus ls nkok pyus ;ksX; ugha gS \
3- vk;k lwvjksa ds ekfydksa dks i{kdkj okn ugha cuk;k x;k bl dkj.k nkok pyus ;ksX; ugha dkfcy [kkfjt gS \
4- vk;k oknhx.k us uxj ikfydk ij izHkko tekus ds fy;s dk;Zokgh lafLFkr dh gS \
5- vk;k oknhx.k ds ikl oSdfYid mik; miyC/k gksus ds dkj.k dk;Zokgh pyus ;ksX; ugha gS \
6- vk;k jkT; ljdkj vkoâ€;d i{kdkj gS ftls i{kdkj okn gh cuk;k x;k \
7- vk;k 271 uxj ikfydk vf/kfu;e dk uksfVl ugha nsus ds dkj.k nkok pyus ;ksX; ugha gS \
8- vuqrks’k The Trial Court, after dealing with the evidence and material on record, decreed the suit and passed the decree in the following
terms:- “(1) v/;{k uxj ikfydk jktx(1) izfroknhx.k ds fo:) vkKkid fpjLFkkbZ O;knsâ€k bl vkâ€k; dk ikfjr fd;k tkrk gS fd izFker% rks izfroknhx.k uxj ikfydk jktxkks’k.kk djkosa fd ftu O;fDr;ksa ds ikl vkokjk lwvj gSa vFkok tks O;fDr lwvjksa dks ikyrs gSa os vius lwvjksa dks [kqyk ugha NksMsa vkSj ;fn bl
mn~?kks’k.kk ds ckn 7 fnu ds vanj dksbZ O;fDr vius lwvjksa dks [kqyk NksM+rs gS rks izfroknhx.k lkoZtfud LFkkuksa ij vFkok dLck jktxvkokjk :i ls xfy;ksa esa ?kqeus okys lwvjksa dks idM+dj mUgsa uxj ikfydk jktxlwvjksa dks ;fn muds ekfyd tqekZuk Hkjdj iâ€kqvksa dks QkVd ls ugha NqMokrs gS rks izfroknhx.k uxj ikfydk jktxuhykeh dkj;Zokgh djsa A vkokjk iâ€kqvksa o lwvjksa dks lkoZtfud LFkyksa ls gVkosa rFkk dLck jktxxh ls cpkosa ,oa dLck dks LoPN j[ksa A^^
Feeling aggrieved by the said judgment and decree, the appellant Municipal Board preferred an appeal and the Appellate Court, after dealing with the
material on record, rejected the appeal so filed by the appellant, and upheld the judgment and decree dated 26.02.2005 passed by the Trial Court.
Dr. Pratishtha Dave, learned Government Counsel, appearing for the appellant Municipal Board contended that the Trial Court has committed an error
in deciding issues No. 2, 3 and 7 framed by it. She contended that the plaintiffs had filed the suit in representative capacity, as such, it was necessary
for the them to follow the procedure provided under Order I Rule 8 of the Code of Civil Procedure, including issuance of public notice. She further
contended that the plaintiffs had not impleaded the owners of the pigs and hence, the suit filed by the plaintiffs was incompetent for want of non-
joinder of necessary parties and the same ought to have been dismissed. Learned counsel also argued that the plaintiffs had not issued the requisite
notice under Section 271 of the Municipalities Act, 1959, prior to filing of the suit, as such the suit against appellant Board was not maintainable.
This Court does not find any substance in the arguments advanced by the learned counsel for the appellants, for the reasons set out herein below:-.
A perusal of the record of the case, makes it abundantly clear that the plaintiffs had filed the suit under Section 91 of the Code of Civil Procedure and
requisite permission of the Court as mandated under said Section had been obtained by the plaintiffs. Such being the position, the Courts below
were right in holding that issuance of public notice, as contemplated under Order I Rule 8 of the Code of Civil Procedure was not necessary.
The second argument of the appellants, that the suit filed by the plaintiffs was not competent, as they had failed to implead the owners of the pigs as a
party-defendant, is equally fallacious and liable to be rejected out-rightly. The plaintiffs had filed the suit against the Municipal Board, requiring its
officers to discharge their statutory obligation enshrined under the provisions of the Municipalities Act and it is the duty of the Municipality to catch
and control the stray animals, including the pigs. The impleadment of the owners of the pigs was neither necessary, nor required, looking to the
nature of the relief granted by the Courts below as neither any relief was sought against them nor had the Court passed any decree affecting the
rights of such owners.
The third argument vociferously advanced by Dr. Dave regarding issuing of notice, prior to filing of the suit is also unsustainable in the eye of law. It
will not be out of place to reproduce the relevant provisions of Section 271 of the Rajasthan Municipality Act, 1959, which reads thus:-
“271.Suits against board or its officers.-(1) No suit shall be instituted against a board or against the chairman, vice-chairman, member, officer or
servant of board or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or
his official capacity, until the expiration of two months next after notice thereof in writing has been, in the case of a board, left at its office and, in the
case of the chairman, vice-chairman, member, officer, servant or person, delivered to him or left at his office or place of abode, explicitly stating the
cause of actions, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff, and
the plaint shall contain a statement that such notice has been so delivered or left.
(2) No action such as is described in sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title
thereto, be commenced otherwise than within six months next after the accrual of the causes of action.
(3) Notwithstanding in sub-section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be
defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding.â€
A perusal of the aforesaid provisions reveals that a suit cannot be instituted against the Board or its officers in respect of “an act done or
purporting to have been done†in his official capacity, whereas in the present case, the plaintiffs had approached the Court for the “inaction or the
non-action†by the Official of the Municipal Board. In other words, the provisions under Section 271 of the Municipalities Act, 1959 are applicable
only when any action or order passed by the Chairman, ViceChairman, Officer or Servant of the Board has been called in question and not in cases
when there is a dereliction of duties by the Board and its Officers. In considered opinion of this Court, in case of public nuisance, when the plaintiffs
seek mandatory injunction or an order requiring the Municipal Board to act in accordance with law, no notice under Section 271 of the Rajasthan
Municipalities Act, 1959 is required to be given.
In view of the discussion foregoing, neither the arguments advanced by the learned counsel for the appellants have substance, nor any substantial
question of law does arise for consideration of this Court.
The appeal is, therefore, dismissed.