Municipal Committee, Mandi Dabwali v. Jagdish Kumar & Anr.

Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Sameer Rathore, Advocate for Mr.Sumeet Goel, Advocate for the appellant. Mr. Vivek Suri, Advocate for the respondent. ... Rakesh Kumar Garg,J. This is defendants’ second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondent for mandatory injunction directing the defendants to take the plaintiff in job as a Peon has been decreed. Briefly stated, the facts of the case are that the plaintiff was interviewed for the post of Peon by the respondent-Municipal Committee, and thereafter, he was not communicated anything regarding his selection. When the plaintiff went to the Employment Exchange, Mandi Dabwali for renewal of his employment card, the employees of the Employment Exchange, Mandi Dabwali refused to renew his card on the pretext that the plaintiff had been selected by the Municipal Committee, Mandi Dabwali but he did not join. Thereafter, he approached the Municipal Committee, Mandi Dabwali and inquired about his selection. The plaintiff came to know that vide letter No. 287/334/LFA dated

24.1.1997 of Deputy Commissioner, Sirsa, he was selected and appointed as Peon but the defendants never intimated the plaintiff regarding his selection and appointment and just to deprive him of his right of appointment and to appoint some body else in his place, defendant did not inform the plaintiff regarding his RSA No. 1646 of 2005 2 selection and appointment. Plaintiff asked the defendants to allow him to join as Peon in the office of Municipal Committee, Mandi Dabwali and also sent a legal notice but to no effect, hence the suit. After notice defendant appeared and filed joint written statement. While contesting the suit and raising legal objections of limitation, locus standi, cause of action, maintainability and the suit being bad for want of notice under Section 52 of the Haryana Municipal Act, 1973. However, on merits the allegations of the plaintiff with regard to selection and appointment of the plaintiff vide letter No. 287/334/LFA dated 24.1.1997 of Deputy Commissioner, Sirsa were denied for want of knowledge and asserted that if the plaintiff was selected as Peon vide the impugned orders the appointment letter might have been sent to him and he might not have been interested in joining service, therefore, he did not join his duties. All other allegations of the plaint were denied and prayed for dismissal of the suit with costs. The trial Court vide judgment and decree dated 19.11.2001 decreed the suit of the plaintiff. Feeling aggrieved from the aforesaid judgment and decree of the trial court, the defendants filed an appeal. The said appeal was filed by the Municipal Committee, Mandi Dabwali through its Secretary. However, the Municipal Committee, Mandi Dabwali never passed any resolution authorizing its Secretary to file appeal nor there was any resolution passed by the Municipal Committee, Mandi Dabwali to challenge the judgment and decree of the trial Court. The Additional District Judge, Sirsa vide his judgment and decree dated

31.1.2005 dismissed the appeal holding that in the absence of any resolution showing that the Secretary of the Municipal Committee is competent to file the appeal without resolution and authority from the Municipal Committee, the appeal is not maintainable. Still not satisfied with the aforesaid judgment and decree of the lower Appellate Court, the defendants have filed the present appeal. At the time of motion hearing, learned counsel for the appellant has submitted that resolution passed by the department at the time of defending the RSA No. 1646 of 2005 3 suit was likely to be there in the trial Court and the lower Appellate Court has non-suited the appellant on the ground that copy of the resolution authorizing the Municipal Committee to file an appeal had not been attached. It was further contended by the counsel for the appellant that the reliance of lower Appellate Court on the judgment of this Court in Garib Chand Versus Municipal Committee Bhadlada AIR 1979(Punjab) 478 was wrong as the said decision had been over ruled by the Division Bench of this Court in the case of Municipal Committee, Bathinda Versus Sadhu Singh 1986(2) P.L.R. 1. I have heard learned counsel for the parties and perused the record. No doubt before the trial Court while defending the suit, the resolution was passed by the appellant Committee authorizing the Secretary to defend the suit. It is also not in dispute that appeal is a continuation of suit and therefore, the appeal could be filed by the Secretary of the Municipal Committee even in the absence of any specific resolution authorizing him to file the appeal. However, the appellant has been non-suited on the ground that copy of the resolution passed by the Municipal Committee deciding to file an appeal has not been attached. Admittedly, there is no such resolution by the Municipal Committee to challenge the judgment and decree of the trial Court by filing an appeal and therefore, the lower Appellate Court was right in law in holding that the appeal is not maintainable. Even in the case of Municipal Committee, Bathinda (supra), it was held that appeal becomes maintainable when a resolution is passed by deciding to file an appeal and no further authorization in favour of Executive Officer by the Municipal Committee is necessary. Thus what was held in the Division Bench case was that it is wholly unnecessary for Municipal Committee to confer a separate authorization upon its Executive Officer to carry out his administrative function which he otherwise is bound to do. The appellant Municipal Committee is a corporate body. Its proceedings are conducted through the resolution of its members. Thus for filing an appeal on behalf of the Municipal Committee, there has to be a conscious decision taken by its members by a resolution to challenge decision of the trial RSA No. 1646 of 2005 4 Court. Admittedly, no such resolution has been passed by the Municipal Committee in this case. Hence I find no legality or infirmity in the judgment and decrees of the courts below. No substantial question of law arises. Dismissed. November 26, 2008 (RAKESH KUMAR GARG) JUDGE