- (1.) ISRANI, J. -Briefly stated, petitioners and non-petitioner No. 3 filed a suit in representative capacity for declaration and perpetual injunction against the non-petitioner, stating therein that non-petitioner No. l wanted to grab the land of public 'chowk', and Municipal Board, Jhunjhunu, vide order dated October by non-petitioner No. 1, the petitioners agreed to implead respondent No. 2, Municipal Board, Jhunjhunu, as party to the proceedings. Non-petitioner No. 2 raised a plea that the suit was not maintainable for want of notice under Section 271 of the Rajasthan Municipalities Act, 1959 (for short, 'the Act, 1959' ). A specific issue 8-A was, therefore, framed, which reads as under: - "whether the suit was not maintainable, since no notice as required under the provisions of Section 271 of the Act, 1959 was given to the Municipal Board. " This issue was heard as preliminary issue and was decided in favour of the non petitioners and against the petitioners.
(2.) IT is submitted by Mr. M. M. Ranjan, learned counsel, that the provisions of Section 271 are not mandatory and are only directory in nature. Therefore, the trial Court has erred in holding that it was mandatory to give notice to the Municipal Board. IT is further submitted that, in fact, the Municipal Board was not a necessary party, therefore, for this reason also, it was not mandatory to give notice to the Municipal Board under Section 271 of the Act, 1959, more so, when no relief has been sought against the Municipal Board. I have heard both the parties and gone through the impugned order and necessary documents, pointed out by both the parties. It will be proper to extract the provisions of Section 271 of the Act, 1959, which reads as under: - "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 a 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 action, 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 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 cause of action. (3) Nothing 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. " The opening words of this Section clearly show that this Section is non-obstante in nature. It states that no suit shall be filed against a board, chairman, vice-chairman, member, officer or servant of a board in respect of an act done or purporting to have been done in its or his official capacity, unless a period of two months has expired, after a notice regarding filing of the suit has been given in writing. The suit has been filed for declaration as well as perpetual injunction. Sub-Section (3) of Section 271 lays down that sub-section (1) shall not be applicable to any suit, in which the relief claimed is only an injunction and the object would be defeated by giving of the notice or the postponement of the commencement of the suit or proceeding. In this case, the suit has been filed for declaration as well as for perpetual injunction, therefore, the provisions of sub-section (1) of Section 271 are evidently applicable and the provisions are clearly mandatory in nature. The exception, regarding applicability of the provisions has been mentioned in the Section itself. I am fortified in my opinion as this Court, in Nagar Palika, Nathdwara vs. Temple Board, Nathdwara (1), while considering the applicability of Section 271, held that when the plaintiff claims relief of declaration of title as well injunction, it will be necessary to give notice before filing the suit. As pointed out by Mr. Gupta, in Gangappa Gurupadappa Gugwad vs. Rachawwa and others (2), it was held by the Supreme Court that if a notice under Section 80 of the C. P. C. was not served in terms thereof, it shall be duty of the Court to reject the plaint recording an order to that effect with reasons for the order and it will not be necessary to try all the issues framed. It is also contended by the learned counsel that since the Municipal Board was not a necessary party and was arrayed as defendant only on the direction of the Court, therefore, it was not necessary to have given any notice to the Municipal Board under the provisions of Section 271 of the Act. It is further contended that since no relief has been claimed against the Municipal Board, therefore, no notice was required to be given to him. I do not find any force in both these contentions, raised above. At page 3 of the impugned order, it has been clearly mentioned by the trial Court that the Municipal Board was arrayed as defendant with the consent of both the parties. If the petitioners thought that the Municipal Board was not a party, they could have opposed its joining as defendant. Apart from that, since the land alleged to be public 'chowk', on which permission for construction was given by the Municipal Board, evidently, the Municipal Board was a necessary party and was rightly impleaded as such by the trial Court. In the relief, it has been prayed by the petitioners that the land in dispute marked as ABCDEF & G be declared as public land and the non-petitioners be directed to allow the residents of the locality to use the 'chowk' for public purposes, without any impediment. It is further prayed that the constructions raised by non-petitioner No. l be got demolished at the expenses of non-petitioner No. l. From these prayers, it is clear that, in fact, the relief claimed is that the permission granted by the Municipal Board to non-petitioner No. l, for raising construction, should be cancelled and the construction should be demolished. Further, the residents of the locality should be allowed to use the land as a public land. Thus, it cannot be said that no relief has been claimed against the Municipal Board. In fact, the whole relief is claimed against the Municipal Board and if the same is granted, the permission given by the Municipal Board will have to be cancelled and, thereafter, it will have to be declared that the land is a public 'chowk' and people should be allowed to use the same. The learned counsel has placed reliance on Ramautar Gope vs. Sheonandan (3), in which it was held that when Municipality is impleaded as one of the defendants and no relief has been claimed against it, except the declaration, the suit is not bad for want of notice to the Municipality under Section 508 of the Patna Municipal Corporation Act. This authority is of no help to the petitioners, since the only relief sought was regarding possession in respect of land bearing Khasra No. 334 and for mandatory injunction, directing the defendant to close their door and windows facing the land. However, in the present matter, under consideration, the relief claimed is demolition of the construction, for which permission has been given by the Municipal Board, which, in fact, means that the permission given will have to be cancelled, which was given by the concerned official of the Municipal Board in his official capacity. Therefore, it was necessary that notice should have been given to the Municipal Board, before the Board was arrayed as party. In the result, I do not find any force in this revision petition, which is, therefore, dismissed, with no order as to costs. .;