JUDGMENT S. Mubarak Hasan, M. - This is a reference made to us by a Single Member of the Board regarding the impleadment of the State Government as a party without the procedure prescribed by Section 80, C.P.C. being observed and regarding the consequence which will follow in case the provisions of Section 80, C.P.C. have not been complied with an yet the Government has not challenged it impleadment on that ground. 2. The fact and circumstances of the case giving rise to this reference may be reproduced in the words of the referring Member himself. "In this second appeal the learned counsel for the appellant has raised a question regarding Section 80, C.P.C. The plaintiffs suit for partition also required simultaneous declaration as he was not a recorded tenure-holder and his claim was denied by the defendant. In the circumstances, the relief under Section 229-B of the U.P.Z.A. and L.R. Act was necessary. For that purpose State Government is a necessary party. The state Government was allowed to be impleaded by the learned trial court and they did not challenged the frame of the suit on the ground that notice under Section 80, C.P.C. was lacking. 2. The learned counsel has relied upon the decision of the Board in the case of Rajjab v. Shamsher Khan, (1969 R.D. 368). In that ruling the impleadment of the State Government as a landholder has been distinguished form the impleadment of the State Government in matters denied under Section 80, C.P.C. The learned counsel relied upon the pronouncement of their lordships of the Supreme Court in the case of Amar Nath Dongra v. Union of India and others,(A.I.R. 1963 S.C. 424) in which it has been held that if the provisions of Section 80, C.P.C. have not been complied with then the suit is liable to be dismissed." 3. The issue referred to us are contained in para 3 of the referring order and read as follows:- "The first question for decision is whether the State Government can be impleaded as a party in suit under the U.P.Z.A. and L.R. Act without the procedure prescribed under Section 80, C.P.C., being observed. The next question is whether the defendant-appellant can re-open the matter of non-compliance of the provisions of Section 80, C.P.C., when the State Government has not challenged its impleadment in the instant suit on that account." 4. The next question is whether the defendant-appellant can re-open the matter of non-compliance of the provisions of Section 80, C.P.C., when the State Government has not challenged its impleadment in the instant suit on that account." 4. We feel that the issue referred to us have not been couched in very precise language and for the purpose of this reference we propose to reframe the issues as follows:- (i)Whether in all cases under the U.P.Z.A. and L.R. Act in which the State Government is to be mandatorily impleaded as a necessary party is the service of notice under Section 80, C.P.C. to State a condition precedent for the entertainment of such a suit? (ii) Whether in suits under the U.P.Z.A. and L.R. Act in which the State Government is not a necessary party but, it appears subsequently that the relief sought for is one which makes the impleadment of state Government essential for the decision of the suit is the issue of a notice to the State Government under Section 80, C.P.C. absolutely imperative? (iii) Once the State Government is impleaded as a party in any case without the proper compliance of the provisions of Section 80, C.P.C. and such impleadment is not challenged at the proper stage, can the State Government call in question the validity of proceedings at a later stage on the ground that the notice under Section 80, C.P.C. had not been given to it? 5. It was with regard to the first issue that the case of Rajjab v. Shamsher Khan, (1969 R.D. 368) was cited. In the referring order a very brief reference has been made to the findings of the Board in this case. We feel that it is necessary to quote in a little more detail from the judgment in this case in order to ascertain the view of the Single Member of the Board of this important point. According to him "Section 80, C.P.C. covers the case where there is a cause of action against the State Government or the Central Government who would require notice. Under the U.P.Z.A. and L.R. Act the State Government is like any other landholder or tenure-holder and as cause of action would be one under the U.P.Z.A. and L.R. Act. There can be no separate cause of action as distinct form the U.P.Z.A. and L.R. Act. Under the U.P.Z.A. and L.R. Act the State Government is like any other landholder or tenure-holder and as cause of action would be one under the U.P.Z.A. and L.R. Act. There can be no separate cause of action as distinct form the U.P.Z.A. and L.R. Act. Section 80, C.P.C., would cover cause other then those under the U.P.Z.A. and L.R. Act. Secondly there is no cause of action against State Government in the present case and no relief is sought against the State Government. It has been impleaded as a party due to the mandatory provisions of Section 209 of the U.P.Z.A. and L.R. Act. It is neither a defendant nor a plaintiff but it was arrayed as a defendant because it cannot be arrayed as a plaintiff. As a landholder it is arrayed as a watchdog and an impersonal observer to safeguard the State Government interest being the landholder. Hence the plaintiff does not have a cause of action contemplate under Section 80, C.P.C. a notice therefore, under section 80, C.P.C. was not necessary in a normal suit under the U.P.Z.A. and L.R. Act. 6. With due deference to the view of our brother Member we are unable to subscribe to his observations. There are several Sections of the U.P.Z.A. and L.R. Act, under which, when suits are filed State Government has to be made a necessary party by the statute itself. Both Section 209 and 229-B of the U.P.Z.A. and L.R. Act require that the State Government shall be made a party in suits under these Sections. There might be some other sections under this Act in which the impleadment of State Government is a sine qua non for the filing of the suit. In such cases, therefore, a suit would be liable to be dismissed outright if a notice under Section 80 C.P.C. had not been served upon the Government. In all Sections of the U.P.Z.A. and L.R. Act in which it is laid down that the State Government shall be made a party it is our considered view that the term shall has been used in a mandatory sense and that the use of this term makes the State Government a 'necessary' party as distinguished from a 'formal' or 'proper' party. When the State Government is a necessary party the service of notice under Section 80, C.P.C., cannot be done away with just because there is no direct cause of action against the state Government. The very purpose of making the State Government a necessary party in such suits would be defeated if notice under Section 80 C.P.C. were not to be given before hand. Our view finds full support from the case of Amar Nath Dongra v. Union of India, in which their Lordships of the Supreme Court have held that a suit against the Government will be barred by Section 80, C.P.C. in case there is non-compliance with the required of this section'. It is true that in this case there were many other facts which do not have a direct bearing on, or relevance for the purpose of instant reference, yet in view of the unequivocal pronouncement of the hightest court of the land that in respect of suits to which Section 80 applies, compliance with it is mandatory and a suit which does not satisfy its terms is liable to be dismissed there can be hardly any scope for doubts or misgiving in this respect. 7. This view has also been followed by several other Members of the Board in several cases and this is also the generally accepted view of the Allahabad High Court. 8. We may now pass on the next issue, namely, the position of State Government regarding suits in which it has not been explicitly laid down in these Section of the Z.A. and L.R. Act under which these suits are filed that the State Government shall be made a party. It would appear that these cases will broadly fall under two categories:- (a) those in which the State Government is made a defendant although the law does not require the necessary impleadment of the State, and (b) those suits in which the State has not been impleaded because such impleadment is not necessary under the Act but during the course of proceedings under that suit, the impleadment of State Government becomes necessary and the State is made a party either by the court suo motu or on the application of a party. 8. 8. (i)(a) In respect of suits under sections of the Z.A. and L.R. Act in which the impleadment of State is not necessary but the plaintiff arrays the Government as one of the defendants,a notice under Section 80 C.P.C. becomes necessary. In such cases it is not for to see whether there is any cause of action against the State Government or not but the mere fact of impleadment of the State Government as a defendant attracts the provisions of Section 80 C.P.C. and a prior notice to Government under this section becomes essential. We are, therefore, of the view that such case will also be covered by our observations contained in para 6 of this order. 8. (ii) (b). However, the position is different in respect of suits under those sections of the U.P.Z.A. and L.R. Act which do not require that the State Government should be impleaded as a necessary party but the relief claimed reveals that the State Government should also have been impleaded and the court concerned directs the Stats impleadment either on its own motion or on the request of any party. Such a suit can be a case under section 175 of the U.P.Z.A. and L.R. Act filed by a person who is a not a recorded co-tenure holder yet when such a suit comes up for hearing and parties are examined in accordance with the provisions of O.X, C.P.C. it transpires that the plaintiff cannot be given the relief of partition without the relief of declaration in his favour being given to him simultaneously. The suit, thus, assumes the form of a declaration suit as well. At that stage it is open to the court to implead the State Government as a party in accordance with O.I, Rule 10(2) C.P.C. In case the court does not take this action suo moto, it is fully competent for the court to entertain an application from one of the parties that the state Government may be impleaded and thereafter the court can implead the State Government in accordance with Rule 10(2) of O. I, C.P.C. on such terms and conditions as may appear to the court to be just and reasonable. It is in respect of these cases in which the State Government was not arrayed as a defendants but was impleaded by the court at a stage subsequent to the filing of the suit that the issue of a notice under Section 80 C.P.C. cannot be regarded as a defect which may prove fatal to suit. In this view we are fortified by the case of Ramdas v. Board of Revenue, 1967 R.D. 224 in which Allahabad High Court has held that there is no statutory provision for impleading State of U.P. in a case under Section 176 of the U.P.Z.A. and L.R. Act. In the absence of such statutory provisions, it can only be said that the State is a proper party and non-impleadment of the State cannot be regarded as fatal defect. 9. We may, now pass on to the third issue to be considered by us. It relates to the question of waiver or estoppel in case the State Government does not object to its impleadment as a party. In this respect the position of law is very clear and there should not be any scope for divergence of views on this point. It is a well settled principle of law that if a notice can be and has been waived by the authority concerned the natural conclusion appears to be that it is not open to any other party to suit to urge want of notice against the maintainability of that suit. If the authority for whose benefit Section 80, C.P.C. has been enacted does not claim the benefit, it is not for other persons to press into service the provisions of that section for defeating the suit. This view expressed by the Allahabad High Court in the case of Gaja v. Das Loeri has been reiterated in another case of the same High Court, Banarsei Rai v. D. Aheer, 1964 ALJ 229. 10. This point has been admirably made out in the legal maxim 'consensus toll it errorem' Broom's 'Selection of Legal Maxims' p. 109 (the acquiescence of a party who might take advantage of an error obviates its effect). Giving a very lucid exposition of the doctrine of waiver, Broom has concluded with the pithy remark of a well known Judge 'a man who does not speak when he ought, shall not be heard when the desires to speak'. Giving a very lucid exposition of the doctrine of waiver, Broom has concluded with the pithy remark of a well known Judge 'a man who does not speak when he ought, shall not be heard when the desires to speak'. Thus, it is abundantly clear that if at the time of impleadment of the State Government does not object to its being made a party to the suit, this point cannot be agitated at any subsequent stage to challenged the validity of the proceedings. 11. In the light of the above discussion our answer to the issues are as follows:- Issue No. 1:- In all cases under the State is mandatorily required to be impleaded as a party a notice to the State under Section 80, C.P.C. is absolutely essential for the maintainability of the suit. The question is thus answered in the affirmative. Issue No. 2:- In suits under the U.P.Z.A. and L.R. Act in which the statute does not lay down that the State Government should be impleaded as a necessary party yet the State Government is arrayed as a defendant the issue of notice under Section 80 C.P.C. will be necessary. However in suit under the U.P.Z.A. and L.R. Act in which the State Government is not to be mandatorily impleaded as a party but at any subsequent stage of proceedings it seems essential that the State Government should be impleaded and the court orders such impleaded in exercise of its powers under O, I, R. 10(2), C.P.C. the failure to issue of a notice under Section 80, C.P.C. is not a defect which may prove fatal to this suit. This question is thus answered accordingly. Issue No. 3:- In any suit or proceedings under the U.P.Z.A. and L.R. Act, if the State is impleaded as a party after the institution of the suit but does not raise any objection to it at that time, neither the State Government nor any other party will be permitted to challenge the validity of the proceedings because the notice under Section 80, C.P.C. had not been given to the State Government. Thus this question is answered in the negative. 12. Let the case be now sent back to the referring Member for disposal of the second appeal in the light of these answers.