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2010 DIGILAW 2546 (PNJ)

Sambhavna Welfare Society v. State Of Haryana

2010-09-07

ALOK SINGH

body2010
Judgment Alok Singh, J. 1. Plaintiffs-petitioners have invoked jurisdiction of this Court under Article 227 of the Constitution of India assailing the order dated 20.11.2009 passed by Civil Judge (Jr. Divn.) Gurgaon whereby suit of the plaintiff was directed to be dismissed for want of proper notice under Section 80 C.P.C. 2. The brief facts of the present case are that present plaintiffs-petitioners filed suit for declaration alongwith relief of permanent injunction before the learned trial Court against the State, officials of the State as well as against defendant No. 3 private party impleading other private persons as proforma defendants. The main relief sought in the plaint is against defendant No. 2 i.e. Haryana Town and Country Planning through its Director and against defendants No. 1 and 3. In paragraph No. 10 of the plaint plaintiffs petitioners have stated that plaintiff through its counsel Sh. Arun Sharma sent a legal notice and brought all the facts in front of defendants No. 1 and 2 but the defendants failed to take any action thereon. Plaintiffs have also annexed copy of the notice dated 16.4.2009. 3. Before the learned trial Court written statement was filed by defendant No. 2, however, defendant No. 2 has not taken any plea pertaining to Section 80 C.P.C, nor defendant No. 2 put any challenge about validity and service of the notice as stated in paragraph No. 10 of the plaint. However, private defendant i.e. defendant No. 3 has moved an application before the trial Court stating that alleged notice dated 16.4.2009 is not a valid notice and in the notice only 15 days time was given to the State Government and its officers while as per Section 80(1) a notice should be clear cut minimum 60 days notice. On the application of defendant No. 3 (private defendant) impugned order was passed by learned trial Court thereby dismissing the suit for want of proper notice under Section 80 C.P.C. observing in the order that as per Section 80(1) 60 days notice is required to be served while notice dated 16.4.2009 is of 15 days notice. 4. I have heard learned counsel for the parties and perused the record. 5. 4. I have heard learned counsel for the parties and perused the record. 5. Learned counsel for the petitioners-plaintiffs vehemently argued that first of all on the application of the private defendants learned trial Court ought to not have passed order since no notice under Section 80 is required to be served on the private defendants. Learned counsel for the petitioners-plaintiffs further stated that state and its officers i.e. other defendants have not taken any plea in the written statement about the validity and service of the notice under Section 80 C.P.C, hence, their right to agitate the validity of the notice under Section 80 C.P.C. stands waived. It is further contended by learned counsel for the petitioner that in view of Sub Section 3 of Section 80 any formal defect in the notice does not result in the dismissal of the suit if notice is clear in its terms and was validly served on the defendants and if suit was filed after 2 months from the service of the notice. As per learned counsel for the petitioners, notice dated 16.4.2009 was served on the defendants on 23.4.2009 while suit was filed on 21.7.2009 after more than two months. 6. Mr. Gaurav Dhir, DAG Haryana stated that although plea regarding Section 80 C.P.C. was not taken in the written statement, however, since plea of Section 80 C.P.C. is legal plea which can be taken at any stage, Mr. Dhir has placed reliance on the judgment of the Apex Court in the matter of The State ofA.P. v. Gundugola Venkata Suryanarayana Garu, 1 1965 AIR (SC) page 11. 7. Learned counsel appearing for respondent No. 3 argued that if notice is not a 60 days notice and if notice is vague then it would result in dismissal of the suit. He further stated that defendants No. 3 has only drawn the attention of the trial Court on the legal aspect, hence, learned trial Court was well within its jurisdiction while allowing the application of defendant No. 3 and dismissing the suit of the plaintiff for want of 60 days notice. 8. Section 80 C.P.C. is being reproduced as under:- 80. Notice. 8. Section 80 C.P.C. is being reproduced as under:- 80. Notice. - (1) Save as otherwise proved in sub-section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to or left at the office of - (a) in the case of a suit against the Central Government, except where it related to a railway, a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway; (bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf; (c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. (2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or a public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1) (3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice - (a) the name, description and the resident of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1) and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated. 9. From the perusal of Section 80 sub Section 3, it can be safely said that no suit instituted against the Government or against a public servant shall be dismissed merely by reason of any error or defect in the notice if notice contains grievances, cause of action, reliefs claimed, name, description and resident of the plaintiff and notice enable the authority or public officer to identify the person serving the notice. 10. Undisputedly plaintiffs have raised all the grievances in the notice and notice contains name, description and resident of the plaintiff. Although noticees were called upon to respond on the notice within 15 days while 60 days time should have been given, however, fact remains that notice was served on the Government and public servants on 23.4.2009 while suit was filed after 2 months i.e. on 21.7.2009. In the opinion of this Court error of 15 days instead of 60 days should have been ignored in view of Section 80(3) of C.P.C. In the opinion of this Court in the notice plaintiff has contended all the grievances which plaintiff is agitating in the present suit, hence, notice should be construed as a valid notice despite of the fact that in the notice instead of 60 days, 15 days time was given. 11. 11. I find support form the judgment of the Apex Court in the matter of The State of A.P. v. Gundugola Venkata Swyanarayana Gam (supra) where Supreme Court in paragraph No. 11 has held as under:- "The object of the notice under Section 80 is to given to the Government or the public servant concerned an opportunity to reconsider its or his legal position and if that course is justified to make amends or settle the claim out of Court. The section is imperative and must undoubtedly be strictly construed : failure to serve a notice complying with the requirements of the statute will entail dismissal of the suit. But the notice must be reasonably construed. Every venial error or defect cannot be permitted to be treated as a peg to hand a defence to defeat a just claim. In each case in considering whether the imperative provisions of the statute are complied with, the Court must face the following questions: (1) whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice; (2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity; (3) whether the notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section; and (4) whether the suit is instituted after the expiration of two months next after notice has been served, and the plaint contains a statement that such a notice has been so delivered or left. In construing the notice the Court cannot ignore the object of the Legislature to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position. In construing the notice the Court cannot ignore the object of the Legislature to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position. If on a reasonable reading but not so as to make undue assumptions the plaintiff is shown to have given the information which the statute requires him to give, any incidental defects or errors may be ignored." 12 Honble Apex Court in the matter of State of Madras v. C.P. Agencies and another, 2 AIR I960 Supreme Court 1309 while placing reliance on the earlier judgment of the Apex Court in the matter of Dhian Singh Sobha Singh v. Union of India, 3 AIR 1958 SC 274 has held that though the terms of this Section (i.e. Section 80 C.P.C.) are to be strictly complied with, that does not mean terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense. On the facts that the cause of action was clearly stated in the notice so as to enable the State Govt., to know what the plaintiffs claim was about and whether the claim should be conceded or resisted. 13. In the opinion of this Court since plea regarding the service and validity of notice was not taken by the State Government and its officers in the written statement, hence, it shall be deemed that State Government and public officers i.e. other defendants have waived their right on the question of service and validity of notice under Section 80 C.P.C. Since no notice is required to be served on the private defendants under Section 80 C.P.C, hence defendant No. 3 has absolutely no locus to challenge the maintainability of the suit on the ground of valid notice under Section 80 C.P.C. 14. In view of the above peculiar facts and circumstance of the case, impugned order does not survive in the scrutiny of law. 15. Present petition is allowed. Impugned order is quashed. 16. Parties are directed to appear before the trial Court on 20.9.2010 for further directions. Trial Court shall decide the suit in accordance with law at its own merits. It would be open to the defendants to raise all other pleas about the maintainability of the suit.