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2005 DIGILAW 2406 (RAJ)

Suresh Chandra,Dhan Raj v. Hanuman Prasad & Five

2005-09-09

AJAY RASTOGI, S.K.KESHOTE

body2005
Judgment S.K. Keshote, J.-The plaintiff appellants filed a suit against Nagar Palika, Beawar & Others for permanent injunction, perpetual injunction and declaration of title, damages and possession in respect of the property in dispute. 2. The Nagar Palika, Beawar, filed written statement in the suit; therein it has not taken any objection re the maintainability of the suit for want of a notice under Section 271 of the Rajasthan Municipalities Act, 1959 (hereinafter shall be referred to as the Act, 1959) 3. On 04.02.1975 the learned trial Court framed six issues in the suit. 4. The respondent Nagar Palika, Beawar, did not press for framing of any issue re maintainability of the suit of the plaintiff appellants for want of notice by them to it under Section 271 of the Act, 1959. When the plaintiffs evidence completed and the suit reached at the stage of defendants evidence, the Nagar Palika, Beawar, on 07.09.1981 filed an application under Order 7 Rule 11 (d) and Section 151 of the Civil Procedure Code; therein it prayed for dismissal of the suit for want of a notice by the plaintiff appellants. On 07.09.1981 the learned trial Court allowed this application and dismissed the suit of the plaintiff appellants. 5. The plaintiff appellants filed appeal against that judgement and decree of the trial Court, which was dismissed by the learned first appellate Court. 6. The plaintiff appellant filed this second appeal; it came up for admission before the learned Single Judge on 09.09.1986. The learned Single Judge admitted the appeal and having been found two conflict decisions of different Single Benches in the cases of Municipal Board, Nibahera vs. Syed Ashaq Ali 1968 RLW 407 and Nagar Palika vs. Temple Board, Nathdwara 1981 RLW 238, on the point that where giving of notice not alleged in the plaint nor any objection was taken in the written statement for long time, the plea of want of notice is waived, or not. 7. 7. In the first case of Municipal Board, Nibahera vs. Syed Ashoq Ali (Supra), the learned Single Judge held waived the plea of want of notice whereas in the later decision in Nagar Palika vs. Temple Board, Nathdwaras case (Supra), the another learned Single Judge, without referring to the authority aforesaid, took the view that the objection with regard to the notice under Section 271 of the Act, 1959 can be taken at a later stage and it will not be deemed to have been waived, if such objection is not taken in the written statement. 8. The learned Single Judge referred the matter to the Larger Bench. The Honble Chief Justice placed the matter before the Division Bench and that is how it has come before us. 9. The point for our consideration is that which of views of the different Single Benches, referred to above, is correct. 10. Shri J.K. Singhi, learned Counsel for the plaintiff appellants, contended that in the written statement the defendant respondent No. 3 did not raise any plea re maintainability of the suit for want of notice under Section 271 of the Act, 1959. The provision of giving a notice under Section 271 of the Act, 1959 is for the benefit of the defendant respondent No. 3, thus in his submission the defendant respondent No. 3 is within its competence and right to waive the notice. The waiver of the notice under Section 271 of the Act, 1959 by the defendant respondent No. 3, the learned Counsel for the plaintiff appellants urged that will not be prejudicial to the public interest. 11. Shri J.K. Singhi, the learned Counsel for the plaintiff appellants further submitted that the view taken by the learned Single Judge of this Court while deciding the case of Municipal Board, Nimbahera vs. Syed Asheq Ali (Supra), is correct. It has next been contended that the view of the learned Single Judge in the case of Municipal Board, Nimbahera vs. Syed Ashaq Ali (Supra), was not placed for consideration before another learned Single Judge deciding the case of Nagar Palika vs. Temple Board, Nathdwara (Supra). It has next been contended that the view of the learned Single Judge in the case of Municipal Board, Nimbahera vs. Syed Ashaq Ali (Supra), was not placed for consideration before another learned Single Judge deciding the case of Nagar Palika vs. Temple Board, Nathdwara (Supra). Had the former decision of the learned Single Judge in Municipal Board, Nimbahera vs. Syed Ashaq Ali (Supra), been placed before the learned Single Judge deciding the latter case of Nagar Palika vs. Temple Board, Nathwara, Shri J.K. Singhi, the learned Counsel for the plaintiff appellants, submitted that while deciding the latter case the view taken in the former case would have been followed by the learned Single Judge. 12. In contra, Shri Rakesh Jain, the learned Counsel for the defendant respondent No. 3, submitted that Section 271 of the Act, 1959 provides that before a litigant files a suit against Nagar Palika, he has to give a notice. It is being a notice provided under the statute, it cannot be waived. 13. It has next been contended that the view taken by the learned Single Judge of this Court in case of Nagar Palika vs. Temple Board, Nathdwara, is a correct view. A mere reading of Order 7 Rule 11 (d) of the CPC, it is urged, leaves no doubt that the suit is not maintainable and thus deserves to be dismissed and rightly the learned trial Court has dismissed it. 14. Lastly it is contended that merely because the former decision of the learned Single Judge of this Court in Municipal Board, Nimbahera vs. Syed Ashaq Alis case was not placed before another learned Single Judge, who decided the case of Nagar Palika vs. Temple Board, Nathdwara, it will not make the subsequent decision invalid. 15. We have given our anxious and thoughtful consideration to the rival contentions raised by the learned Counsel for the parties. 16. 15. We have given our anxious and thoughtful consideration to the rival contentions raised by the learned Counsel for the parties. 16. While deciding the case of Municipal Board, Nimbahera vs. Syed Asaq Ali (Supra), in which the question was of giving notice by the plaintiff therein to the respondent Municipality under Section 271 of the Act, 1959, the learned Single Judge, in the facts of that case, held that the defendant therein did not care to take the plea of want of compliance with the requirement of Section 271 of the Act, 1959, even at that stage, justified the argument of the non-petitioner, that the defendant had in fact and substance waived any defence that might have been available to it on account of the failure of the plaintiffs to make a statement in the plaint that they had complied with the requirement of Section 271 of the Act, 1959, and further the learned Single Judge held that it was open to a defendant to waive such a defence. 17. In the case of Nagar Palika, Nathdwara vs. Temple Board, Nathdwara (Supra), another learned Single Judge held "It is well settled that so far as the question of waiver is concerned, it is an intentional relinquishment of a known right. The Act that the objection was not taken in the written statement and the trial of the suit proceeded for some time, in my opinion, are not sufficient to infer that the objection regarding non-maintainability of the suit on account of non-issuance and non-service of notice under Section 271 (2) of the Act was waived particularly when the suit was posted for the evidence of the plaintiffs, an application was filed by the defendant that notice has not been issued by plaintiff . The circumstances that the objection was not raised in the written statement and that the trial of the suit proceeded (though no evidence of the plaintiff was recorded so far) are hardly sufficient to draw an inference of either express or implied waiver. As observed by me above the fact whether the suit is barred by any law pertains to domain of power of jurisdiction of the Court to entertain and proceed with the trial of the suit. As observed by me above the fact whether the suit is barred by any law pertains to domain of power of jurisdiction of the Court to entertain and proceed with the trial of the suit. For both these reasons, I regret my inability to agree with the learned Counsel for the non-petitioner that the defendant petitioner having failed to raise the point regarding non-maintainability of the suit on account of the absence of notice under Section 271 (2) of the Act has waived it." 18. Section 80 of the Civil Procedure Code, 1908, is to certain extent is pari meteria with Section 271 of the Act, 1959. Section 271 of the Act, 1959 makes a provision to give a notice to the municipality before a suit instituted against it or against the Chairman, Vice-Chairman, Member, officer or servant of it, 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 municipality, 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. 19. The object of Section 80 of the Civil Procedure Code, 1908 is manifestly to give the Government or the Public Officer sufficient notice of the case, which is proposed to be brought against it or him so that it or he may consider the position and decide for itself or himself whether claim of the plaintiff should be accepted or resisted. Underlying object is to curtail the litigation. The object also is to curtail the area of dispute and controversy. Underlying object is to curtail the litigation. The object also is to curtail the area of dispute and controversy. Wherever the statutory provisions require service of notice as a condition precedent for filing of suit or other proceedings and prescribed period therefor, it is not only necessary for Government or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice. Judicial notice can be taken of the fact that in large number of cases either the notice is not replied or in few cases where reply is sent, it is generally vague and evasive. The result is that the object underlying Section 80 of the CPC and similar provisions gets defeated. 9.20. A plain reading of the provisions of Section 271 of the Act, 1959 gives out underlying object and purpose thereof that before a person files a suit having the grievance against the municipality or its chairman, vice-chairman, member, officer or servant 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, so that an opportunity is provided to them to consider the same at their own level. Two months period has been given for consideration of the matter, which has been brought to their knowledge by a notice in writing giving the details provided under this section. It is a provision to avoid the litigation in a just and reasonable genuine claim of a person against the municipality or its Chairman, Vice-Chairman, Member, officer or servant or against any person acting under the direction of any of them mentioned in the Act and save the public money to be wasted therein. Section 271 of the Act, 1959 is for the benefit of the municipality or its Chairman, Vice-Chairman, Member, officer or servant or against any person acting under the direction of any of them, so as to avoid its indulgence in a litigation and thereby to waste the peoples money therein by considering the grievance well in advance. 10.21. Section 271 of the Act, 1959 is for the benefit of the municipality or its Chairman, Vice-Chairman, Member, officer or servant or against any person acting under the direction of any of them, so as to avoid its indulgence in a litigation and thereby to waste the peoples money therein by considering the grievance well in advance. 10.21. A notice of fact can be taken and our experience also says that the municipality or the State Government, as the case may be, do not even acknowledge the notices sent to them under Section 271 of the Act, 1959 or Section 80 of the CPC, what to say to consider and reply to the grievances made by the concerned person. 122. The Legislature and the Parliament, in their wisdom, have inserted the provision that notice is to be given by a person before he takes the matter to the Court against the municipality or its Chairman, Vice-Chairman, Member, officer or servant or against any person acting under the direction of any of them mentioned in Section 271 of the Act, 1959 and the persons mentioned in Section 80 of the CPC, so that they may consider the genuine grievances made by the concerned person therein. But these statutory provisions being ignored by the municipalities and its officers and the State and its officers. The object and purpose for which these provisions were made in the Act, 1959 and in the CPC, 1908, are not fulfilled for which the municipalities, its officers, the State, and its officers are wholly and solely responsible. 123. When this is the State of affairs prevailing with the municipalities and the State with regard to the provisions of Section 271 of the Act, 1959 and Section 80 of the CPC, 1908, we fail to see their insistence upon fulfillment of the requirement of the condition of giving notice before a person files a suit. Where the litigants very well know and in fact and substance made known of by the municipalities, their officers, State and its officers that their notices are not attended by them, it has now remained an empty formality without there being any force and effect thereof . 124. Where the litigants very well know and in fact and substance made known of by the municipalities, their officers, State and its officers that their notices are not attended by them, it has now remained an empty formality without there being any force and effect thereof . 124. The Parliament has amended the Section 80 of the CPC and that also supports our approach that the Government and its officers do not attend the notices and thus in urgent matters under Section 80 of the CPC the relaxation has been made, however, subject to the permission granted by the Courts. 125. Taking into consideration the State of affairs prevailing with the municipalities and the State regarding the condition of giving notice before approaching to the Court by a person, in our opinion, deserves reconsideration by the Parliament and the State Legislature for deletion thereof . .26. The learned Counsel for the plaintiff appellants submitted that in large number of cases notice under Section 271 of the Act, 1959 is put in the dustbin or in cold storage by the municipality and its officers. We are at pains to State that before a citizen of the country approaches to this Court by a writ petition under Article 226 of the Constitution of India, though, is not required to serve any notice in the matter of his grievance but still the Courts insist upon him first to give a notice for demand of justice in .respect of his grievance to the State or the instrumentality of the State or the agency of the State, but our experience is that the State and its officers even do not acknowledge the notice for demand of justice. 127. In many writ petitions more particularly writ of mandamus where a mandamus is sought for, the Court gave directions to the State and its officers to pass orders on the notice for demand of justice sent in the matter by the litigant; our experience is that almost in all the cases seldom the relief is granted to the litigant. Where this is the position and State of affairs prevailing with the State of Rajasthan, municipalities, instrumentality of State and agency of State, Statutory Corporations etc. Where this is the position and State of affairs prevailing with the State of Rajasthan, municipalities, instrumentality of State and agency of State, Statutory Corporations etc. it is the high time where the Parliament and State Legislature are to reconsider the matter and either to delete these provisions so that the poor citizens may not undertake this exercise of sending notice which is ultimately to be put in the dustbin or to make in mandatory for the State, municipalities, instrumentality of State and agency of State, Statutory Corporations etc. to consider and take a decision on the notice and communicate the same to the person concerned. 128. The facts of the case in hand speak how the municipality and its officers take the matters in suit filed against them in the Courts. The respondent municipality, in the written statements filed by it, did not take the plea that notice was not given before filing of the suit. Even the respondent municipality did not take steps for amendment of the written statements. The learned Counsel, who was appearing for the municipality, did not press for framing of issue on this point. That apart, the respondent municipality did not produce evidence. It took adjournment after adjournment in the matter to produce evidence. Rather to produce the same, at very belated stage it came with the application under Order 7 Rule 11(d) of the CPC. 129. It is not only that State of affairs prevailing at the stage of notice in the municipalities or the State but the worst part is that in almost all the civil suits filed against the State or the municipalities, they seldom bother, care and concern to file written statements or where written statements are filed the evidence is not produced and substantial percentage of cases are decreed ex parte against the State or the municipalities. That is also the position in the High Court in the writ petitions filed. After notice, the State does not file reply or where reply is filed, the State does not bring the record of the matter for perusal of the Court and most of the cases are decided without reply and record of the State. 130. That is also the position in the High Court in the writ petitions filed. After notice, the State does not file reply or where reply is filed, the State does not bring the record of the matter for perusal of the Court and most of the cases are decided without reply and record of the State. 130. The Privy Council in the case of Vellayan Chettiar & Others vs. The Government of the Province of Madras & Another, AIR (34) 1947 Privy Council 197, held that the notice required to be given under Section 80 is for the protection of the authority concerned. If in a particular case he does not require that protection and says so, he can lawfully waive his right to the notice. .31. In Dhian Singh Sobha Singh & Another vs. Union of India, AIR 1958 SC 274 , their Lordships of the Honble Supreme Court held that the objection under Section 80 of the CPC can be waived. It is fruitful to reproduce here the relevant portion of Para No. 30 of the Judgment , which reads as under, ."...A common sense reading of the notice under Section 80 would lead any Court to the conclusion that the strict requirements of that section had been complied with and there was no defect in the same such as to disentitle the appellants from recovering from the respondent the appreciated value of the said two trucks as at the date of the judgement. It is relevant to note that neither was this point taken by the respondent in the written statement, which it filed in answer to the appellants claim nor was any issue framed in that behalf by the trial Court and this many justify the inference that the objection under Section 80 had been waived. The point appears to have been taken for the first time before the High Court, which negatived the claim of the appellants for the appreciated value of the said trucks." 19.32. In Union of India through General Manager, Central Railways vs. Tej Narain Dar, AIR 1957 MP 108, the M.P. High Court held that where an objection as to sufficiency of notice under Section 80 was raised at a late stage (delay of over 2 years), the defendant should be deemed to have waived his right to notice under Section 80. 20.33. 20.33. In case of Nani Amma Nannini Amma vs. State of Kerala & Others, AIR 1963 Kerala 114, the learned Single Judge of the Kerala High Court held that "Section 80 is not a provision of public policy but one for the benefit of particular parties who are competent to waive or disregard it. The indication is clear that the requirements of a notice and expiry of a particular period thereafter are not jurisdictional facts, for jurisdiction cannot be dependent on the consent or waiver of a party." 34. While considering the object of Section 80, their Lordships of the Honble Supreme Court in The State of Madras vs. C.P. Agencies, AIR 1960 SC 1309 , held as under, "...is manifestly to give the Government of the public officer sufficient notice of the case which is proposed to be brought against it or him so that it or he may consider the position and decided for itself or himself whether the claim of the plaintiff should be accepted or resisted." 35. The Full Bench of this Court in State of Rajasthan vs. Girdharilal Chunnilal Modi, AIR 1959 Rajasthan 126, held that the plea of insufficiency of notice or invalidity of notice not raised in the trial Court, it was not open to the State to raise a plea for the first time in the appeal as it must be deemed to have been waived. We consider it appropriate to reproduce the relevant discussion made on this point by the Full Bench of this Court, "(7) When the case came up for hearing before this Full Bench, learned Counsel for the respondent contended that even if the notice be assumed to be invalid so far as the Rajasthan State was concerned, the objection could not be raised at the appellate stage, and must be deemed to have been waived in the circumstances of the present case. After hearing learned Counsel for the parties, we are of the opinion that in the circumstances of this case, the objection as to want of notice to the Government of Rajasthan must be deemed to have been waived. After hearing learned Counsel for the parties, we are of the opinion that in the circumstances of this case, the objection as to want of notice to the Government of Rajasthan must be deemed to have been waived. .(8) There was some conflict of opinion among the High Courts in India as to whether the objection as to want of notice or invalidity of notice under Section 80 could be waived, but the controversy has been set at rest by a decision of the Privy Council in Vellayan Chettiar vs. Government of the Province of Madras ,AIR 1947 PC 197. "There appears to their Lordships to be no reason why the notice required to be given under Section 80, should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required: if in the particular case he does not require that protection and says so, he can lawfully waive his right." .(9) As to what acts of the defendant were necessary to constitute a waiver, the observations their Lordships of the Supreme Court in Dhian Singh Sobha Singh vs. Union of India, AIR 1958 SC 274 at p. 282 are pertinent: "It is relevant to note that neither was this point taken by the respondent in the written statement which it filed in answer to the appellants claim nor was any issue framed in that behalf by the trial Court and this may justify the inference that the objection under Section 80 had been waived." .(10) In the present case, the plea as to want of notice or the insufficiency of notice which was given to the then Government of Jaipur was not raised by the defendant State of Rajasthan, and no issue was framed on this question. The contention on behalf of the Rajasthan State that the notice given by the plaintiff to the then State of Jaipur was not sufficient compliance with Section 80 in the present suit, which was instituted against the State of Rajasthan, was taken for the first time in appeal. We are of opinion that it is not open to the Rajasthan State to raise that plea now, which on the authorities mentioned above, must be deemed to have been waived. It is, therefore, not necessary to consider whether 1956 Raj LW 542, had been correctly decided." 1.36. We are of opinion that it is not open to the Rajasthan State to raise that plea now, which on the authorities mentioned above, must be deemed to have been waived. It is, therefore, not necessary to consider whether 1956 Raj LW 542, had been correctly decided." 1.36. In the of Vasant Ambadas Pandit vs. Bombay Municipal Corporation & Others, AIR 1981 Bombay 394, the Full Bench of the Bombay High Court held the true legal position in regard to giving notice to the municipal corporation is that no suit can be instituted without service of notice if such service of notice is required statutorily as a condition precedent. The giving of the notice is a condition precedent to the exercise of jurisdiction But, this being a mare procedural requirement, the same does not go to the root of jurisdiction in a true sense of the term. The same is capable of being waived by the defendants and on such waiver, the Court gets jurisdiction to entertain and try the suit. The plea of waiver can always be tried by the Civil Court. In fact it is not suggested who else can try. The question whether in fact, there is waive or not would necessarily depend on facts of each case, and is liable to be tried by the same Court if raised. 2.37. In the case of Union of India & Another vs. Mst. Azibun Nssa Khatun & Others, AIR 2001 NOC 8 (Gauhati), the learned Single Judge of the Gauhati High Court held that the plea as to the absence of notice under Section 80, though was taken in the written statement, but neither issued nor was agitated before the learned trial Court, it cannot be permitted to be agitated for the first time in the second appeal and notice would be said to have been waived under such circumstances. 3.38. 3.38. Reference here may have also to the decision of the Patna High Court in the case State of Bihar vs. Panchratna Devi, AIR 1980 Patna 212; in that case there was an averment in the plaint that no notice under Section 80 was required in law to be served on the defendant as it is only in continuation of the claim proceeding decided by the certificate officer; in reply thereto the defendants had vaguely stated that the suit was barred for want of such notice but this issue was not raised at the trial stage rather appeared to have not been pressed, so such conduct on the part of defendants would amount to waiver of right of notice under Section 80, CPC, and the Patna High Court held that there is no inconsistency in the principle that provision under Section 80 is mandatory but the right may be waived by the party for whose benefit it has been provided. 1.39. In the case of Bishandayal & Others vs. State of Orissa & Others, 2001 (1) SCC 555 , their Lordships of the Honble Supreme Court held that there cannot be two views that the proposition that the notice under Section 80 of the CPC can be waived. .40. As a result of the aforesaid discussion we answer the question referred to the Division Bench by the learned Single Judge as under, .(1) Section 271 of the Act aforesaid is not a provision of public policy but one for the benefit of the municipality or the persons mentioned therein. .(2) Giving of notice is a condition precedent to exercise jurisdiction. But, this being a mere procedural requirement, the same does not go to the root of jurisdiction in true sense of the term. The indication is clear that the requirement of notice on expiry of a particular period has no jurisdictional effects. .(3) Looking to this nature of the provision of the notice the same is capable of being waived by the defendants and on such waiver the Court gets a jurisdiction to entertain and try the suit. .(4) The question whether in fact there is waiver or not would necessarily depend on facts of each case, and is liable to be tried by the same Court if raised. 41. As none put appearance for the defendant respondents, there shall be no order as to costs.