High Court · 2011

(b) pass decree directing the defendants No.1,2 and 7 to hand over deliver khas possession of the land under Dag No. 554 to the plaintiff free and clear from in terference/encroachment by the defendant No.8, his men, workmen, agents, represe ntatives and assigns; (c ) pass decree directing the defendants No.3,4 and 5 to executive the Deed of Reconveyance of the mortgaged property as per Transfer of Property Act and Assam Financial Rules to ensure delivery of the suit land in favour of the plaintiff; ( d) pass decree directing the defendant No.3 to vacate the order issued vide l etter dated 05:05:1999 entrusting the mortgaged land in the custody of the defe ndant No.2. Deputy Commissioner, Golaghat, to ensure the mortgaged land become f ree from all encumbrances: (e) pass decree for damage and compensation to be paid by the defendants to the plaintiff; (f) pass decree for demolishing the building constructed by the defendant No.8 u pon the suit land owned by the plaintiff and for eviction of the defendant No.8f rom the suit land. (g) pass decree directing the defendants No.6 to take appropriate action under t he provisions of Assam Town & Country Planning Act to demolish the building cons tructed by the defendant No 8 upon the suit land owned by the plaintiff, if need ed, with the assistance of police administration; (h) pass decree prohibiting the defendant No.8, his men, workmen, agents, repres entatives and assigns from entering into the land under Dag No. 554 of P.P. No.1 9 owned by the plaintiff and also from occupying or encroaching into the suit l and by way of issuance of permanent injunction; (i) and to pass decree for granting any other relief which the plaintiff may be deemed by this court to be entitled to under the facts and circumstances stated herein and also in law and equity. (cid:29) The summon of the suit having been served upon the defendant Nos. 1, 7 and 8 ap peared in the suit and submitted their written statement. However, in spite of s ervice of notice upon the defendants No. 3,4,5 and 6 have not contested the sui t and the suit proceeded ex-parte. After proceeding the suit to some extent, the defendant No.8, the present petitioner filed an application praying for amendi ng the written statement and the same having been rejected, the petitioner appro ached this court by filing CRP No. 356/09 which was disposed of on 18.11.09. In the aforesaid order, it was observed by the High Court that regarding amendment pertaining to non compliance of the necessary pre-condition enjoined by Section 60 of the Town and Country Planning Act, 1959 and Section 80 of the CPC is also not wholly unwarranted. It was further observed in the order that the submissio ns of the learned Senior counsel appearing for the plaintiff to the effect that the petitioner may still raise the plea of non compliance of the requirements o f Section 60 of the Assam Town and Country Planning Act, 1959 and Section 80 of the CPC being pure questions of law, of so advised. It was also observed in the aforesaid order that in the suit none of the concerned official defendants has asserted such non compliance. Thereafter, the defendant No.8 filed an applicati on under Order VII Rule 11(d) of the CPC asserting non compliance of provision of Section 60 of the Assam Town and Country Planning Act, 1959 and praying for rejection of the plaint. The aforesaid contention was sternly resisted by the pl aintiff opposite party by filing written objection. The learned trial court vide impugned judgment and order dated 15.5.10 rejected the prayer of the defendant petitioner which is the subject matter of challenge in this revision petition. Mr. Banerjee, learned counsel for the petitioner submits that on earlier occasio n in CRP No. 356/09, the High Court has categorically observed allowing the li berty to file objection under Order VII Rule 11(d) of the CPC and the same view was also endorsed by the learned Sr.counsel appearing for the plaintiff and in t erms of the said observation and there not having any statement regarding non compliance of the provision under Section 60 of the Assam Town and Country Act, 1959 the present petitioner may raise the issued before the learned trial court . It is submitted by the learned counsel that bare reading of the plaint do not disclose that the petitioner has made any averments as required under Section 6 0(2) of the Act for which the suit itself is not maintainable. The learned coun sel further contents that the learned trial court has extensively dealt with the provision of Section 60(1) of the Act but not answered the grievance of the pet itioner regarding the non-compliance of the provision of Section 60(2) of the Ac t and in the facts and circumstances o the case the said proving not having been complied with the suit is liable to be rejected in exercise of Order VII Rule 11)(d) of the CPC. Mr. T.J. Mahanta, learned counsel for the respondent No. 1 submits that the lea rned trial court has extensively dealt with the matter and it is not correct to say that the petitioner has not made any statement regarding non compliance of the notice under the aforesaid Act. At paragraph Nos.17 and 19 could go to show that such notice under Section 80 was served upon the concerned defendants but i n spite of service of notice they remain silent. As regards non compliance of S ection 60 of the Assam Town and Country Planning Act it is submitted by Mr. Maha nta that the facts pleaded in the plaint against the concerned respondent namely , respondents No. 3,4,5 and 6 discloses that there was absence of good faith on the part of the respondents for not giving due attention to the grievance of th e petitioner for which the present suit was instituted with the relief claimed a s indicated above and accordingly the provision of Section 60 (2) of the Act cou ld not be taken place. Mr. MK Sarma, learned Standing counsel submits that the property mortgaged by the plaintiffs to secure the housing loan have been released by the Assam State Housing Board vide order dated 22.5.08 upon realisaton of the outstanding amount . I have considered the rival submission made by the appearing parties. The crux of the dispute as projected is as to whether the notice under Section 6 0(2) of the Assam Town and Country Planning Act is required to be served upon th e concerned respondents and whether in the absence of any such grievance raised by the concerned respondents, the plaintiff can raise the issue. Section 60 (1) of the Act provides that no suit, prosecution or other proceeding shall lie against an Authority or any officer or servant thereof or any persons acting under their direction or any Government Officer or servant employed for the purpose of this Act for anything which is in good faith done in pursuance of this Act, or any rules made there under and Sub Section 2 of Section 60 provide s that no suit, prosecution or other proceedings shall lie against any officer or servant of the authority or any Government Officer/ authority unless the prev ious sanction of the State Government has been obtained and until the expiratio n of two months after notice in writing has been given to the person to be sued, clearly stating the cause of action and the nature of relief sought for or not resorting action required to be taken under the Act as prayed for. That apart, the Section itself specifically described the person or authority who are entit led to claim get protections under Section 60 of the Act. Admittedly, the presen t petitioner/defendant No.8 do not fall under the category of those persons. It was also observed in the earlier revision petition that those defendants who ar e officer and authority under the House Board have not contested the suit by fil ing written statement and the suit proceeded ex-parte. Admittedly, the petitione r/defendant No.8 do not fall within such category. From the line of Section 60 o f the Act it is very clear and specific as regards the persons who are entitled or authorised to raise such grievance about the non compliance of the provisio n of Section 60 do not fall under the aforesaid category. Learned trial court seriously considered the thing as regards the allegation of non-compliance of the provision of Section 60(1) of the Act. From the aforesaid discussion and the materials available before me, I am of the view that the peti tioner/defendant No.8 do not fall within the category of persons to raise the gr ievance regarding non compliance of the provision of Section 60 of the aforesai d Act in the suit and the persons who are really authorized to raise the issue h as not challenged the same. In that view of the matter, I find no merit in this revision petitioner to interfere with the impugned judgment and order on the rea sons expressed above and accordingly, this revision petition stands dismissed. The learned trial court is directed to dispose of the Title Suit No.17/08 as exp editiously as possible. Earlier interim order dated 25.6.10 stands vacated.