- (1.) Instant petition has been filed assailing the constitutional validity of sub-section (3) of Section 304 of the Rajasthan Municipalities Act, 2009 (for short, 'the Act of 2009') and the self same provision under sub-section (3) of Section 79 of the J.D.A. Act, 1982 (for short, 'the Act of 1982'). In both the two relevant provisions, on filing of a suit against the Municipality and its Officers or against the authorities of the JDA, the suit cannot be entertained/instituted against the Municipality authorities or its members, provided sub-section (3) being complied with. Sub-section (3) of Section 304 of the Act of 2009 and sub-section (3) of Section 79 of the Act of 1982, are reproduced hereunder, which are pari materia provisions in both the two enactments:-- "304. Suits against Municipality or its officers. (1)... (2)..... (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 giving of the notice or the postponement of the commencement of the suit or proceedings." 79. Notice of suit against Authority- (1)..... (2)..... (3) Nothing contained in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by giving of the notice or the postponement of the institution of the suit."
(2.) The grievance of the petitioners is that a suit for declaration and injunction came to be filed at their instance before the Court of Additional Civil Judge(Jr. Division) & Judicial Magistrate No. 4, Jaipur Metropolitan, Jaipur, impleading the Nagar Nigam, Jaipur and the JDA as defendants along with an application seeking exemption from the notice, to be served under Sub-section (3) of Section 304 of the Act of 2009 and sub-section (3) of Section 79 of the Act of 1982. The application came to be dismissed by the learned trial Judge and the suit was returned for want of notice.
(3.) The main thrust of the submissions of the Counsel for the petitioner is that such provisions are wholly unconstitutional and deprives a citizen of his right to property and filing of a suit for declaration and injunction. If any notice, as contemplated/envisaged under sub-section (3) of Section 304 of the Act of 2009 and sub-section (3) of Section 79 of the Act of 1982 is served, it certainly deprives a citizen of his right to save the property, which is inbuilt under the Constitution and that being so, the very provision is arbitrary and unconstitutional.;