HARMESH CHANDRA DUA Vs. NAGAR PALIKA NIGAM

JUDGEMENT

(1.) THIS appeal is filed by plaintiff against dismissal of his suit.

(2.) PLAINTIFF has filed a suit for declaration and perpetual injunction against the respondent. Plaintiff claimed that he owned a immovable property bearing House No. 40/955/3 (Old) now 40/1024 and the number of said house is again changed to 44/1034/1, which is situated at Jadhav Mahal, Khasgi Baazar, Lashkar, Gwalior. Plaintiff contended that he has submitted a map for construction of the house under Section 294 of the M. P. Municipal Corporation Act (hereinafter referred to as "the Act" ). The said map has not been approved by the defendant within the statutory period, therefore, sanction was under the deemed permission under Section 295 (3) of the Act. In spite of repeated requests defendant have not cared to consider the sanction approval of the map, therefore, under the deemed permission construction was carried out by the plaintiff. Plaintiff claimed that since permission has not been granted to him for construction he has suffered loss and he has filed a suit and prayed therein that the plaintiff should be allowed to continue his construction and defendant be restrained from obstructing the construction and he also claimed for damages.

(3.) COUNSEL for defendant submitted that the suit without notice under Section 401 of the Act is not maintainable. Counsel for defendant invited attention to the notice Ex. P-19 which is an acknowledgment and which was sent to Commissioner, Municipal Corporation, Gwalior. He submitted that since notice has not been sent to Municipal Corporation, therefore, suit is not maintainable, suit is barred and in support of his contention he has placed reliance upon the judgment of this Court in the case of Putli Bai v. Municipal Corporation, Gwalior, reported in 1967 MPLJ SN 103. In this case it is held that the notice addressed to the Municipal Commissioner can not be deemed to be a notice to the Municipal Corporation and the suit was liable to be dismissed. He submitted that since there was no valid notice, suit is not maintainable and is liable to be dismissed.