Andhra HC (Pre-Telangana)
The Andhra Pradesh Wakf Board, Rep. By ... vs Tati Venkata Sheshagiri Rao And Ors. on 31 August, 2001
Author: E. Dharma Rao
Bench: E. Dharma Rao
ORDER
E. Dharma Rao, J.
1. This Civil Revision Petition is filed by the Andhra Pradesh State Wakf Board (for brevity Wakf Board) against the order dated 24-8-1999 in I.A. No. 195 of 1999 in O.S. (SR) No. 382 of 1999 passed by the Presiding Officer, Andhra Pradesh Wakf Tribunal, Hyderabad (for brevity Tribunal), whereby the learned Presiding Officer of the Tribunal allowed the application filed under Section 151 of the Code of Civil Procedure (for brevity the Code) to dispense with the notice to be issued under Section 89 of the Wakf Act, 1995, (for brevity the Act) to the respondent/Defendant No.3.
2. The suit was filed for declaration and perpetual injunction against the petitioner herein and others from carrying out construction work of Urdu Bhawan-cum-community Centre or Shadi Manzil at suit schedule property. He also filed an application for grant of temporary injunction to the same effect. The petitioner herein is the 3rd respondent/defendant in the Suit and he was tenant of the 3rd Respondent Board and therefore he made the Board as a proforma party and further he is not seeking any relief against the 3rd respondent in the application as well as in the suit, that since there is urgency in the matter, therefore, he sought for dispense with the issuance of notice under section 89 of the Act to the petitioner herein.
3. The petitioner herein filed counter alleging that though no relief was sought against the petitioner herein, in the main suit and in the injunction petition, the last sentence of paragraph No.4 on page 4 of the plaint and the last two sentences of paragraph No.10 on page 8 of the plaint clearly show that the plaintiff is alleging against the Board and about its alleged acts, as such the provisions of Sec.89 of the Act apply and as such, issuance of notice under section 89 of the Act is mandatory. That apart, it is contended that Section 89 contains no Exception as is contained in Section 80 of the Code, and therefore, failure to issue notice under Section 89 of the Act before filing the suit is illegal and the suit is not maintainable and is liable to be dismissed.
4. The trial Court, having regard to the facts and circumstances of the case and considering the effect of Section 80 of the Code rejected the contention of the petitioner herein and held that since no relief is sought for against the petitioner herein both in the I.A. and the main suit, allowed the petition.
5. Against that order, the present Civil Revision Petition is filed contending that the impugned order passed by the Tribunal dispensing with the mandatory notice under section 89 of the Act and relaxing the provisions of the Act is against the statutory provisions of the Act and is liable to be set aside. He further contended that section 89 contemplates that the aggrieved party has to issue notice of six days to the Wakf Board, before filing the suit and therefore, the Tribunal should not have entertain the suit and passed interim injunction in the interest of justice and therefore, the impugned order is liable to be set aside.
6. Before dwelling upon the rival contentions of both the parties, it is feasible to extract Section 89 of the Act which reads as under:
"..No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any Rules made thereunder until the expiration of two months, next after notice in writing has been delivered to or left at the office of the Board stating the cause of action, the name, the description and the place of residence of the plaintiff and the relief, which he claims and the plaint shall contain a statement that such action has been so delivered or left.."
7. A reading of the above provision of law makes it clear that no suit shall be instituted against the Wakf Board in respect of any act purporting to be done by it in pursuance of the Act or any Rules made thereunder unless two months notice is issued prior to the filing of the suit. The section further contains that notice in writing containing the cause of action, the name of plaintiff and description and place of residence and the relief sought for should be left at the office of the Board; whereas Sec. 80 of the Code contemplates that no suit shall be instituted against the Government including the Government of the State of Jammu and Kashmir or against a Public Office 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 case the suit against the Central Government, except where it relates 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 State of Jammu and Kashmir, the Chief Secretary to that Government or any other Officer authorized by that Government in this behalf
(c) ............
and, in the case of the 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.
8. Sub-Section (2) of Section 80 reads thus:
A suit to obtain an urgent or immediate relief against the Government including the Government of State of Jammu and Kashmir or any 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 Public Officer as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit
9. Provided that the Court shall if it is satisfied, after hearing the parties, that no urgent or immediately relief need be granted in the suit, return the plaint for presentation to it after complying with the requirement of sub-section (1).
10. Thus Sub-Section 2 of Section80 of the Code requires issuance of notice before institution of the suit against the Government or Public Servant, but it can dispense with the same for passing any urgent or immediate order against the Government. This exception is not present in Section 89 of the Act. The Legislature in its wisdom has not given any option to the plaintiff intending to file a suit against Wakf Board to file a petition to dispense with the issuance of 60 days notice. Therefore, as seen from the language imported in the Section, it is mandatory on the part of any person who claims to institute any suit against the Wakf Board in respect of any act purported to be done in pursuance of the Act or Rules made thereunder, have to issue 60 days notice with the particulars contained in the Section.
11. Section 56 of the Wakf Act of Madras State corresponding to Sec.89 of the Act was consider by the learned Single Judge of the Madras High Court in a decision Rahmath Bi and another Vs. State Wakf Board(1). In this case when similar contentions were raised in that case, that the requirement of notice under Sec. 56 of the Wakf Act is mandatory and that failure to issue such notice would be in the nature of a formal defect within the meaning of Order 23 Rule 1(3) of the Code and therefore, the petitioners should be permitted to withdraw the suit with liberty to institute fresh suits on the same cause of action; that there were otherwise sufficient grounds for allowing the petitioners to withdraw the suit and to permit them to institute another suit afte5r giving a proper notice under Sec.56 of the Act. On the other hand, the learned counsel for the respondents contended that in the absence of notice under Sec.56 of the Act which is mandatory requirement, there is no suit at all which has been properly laid and that therefore, there is no question of withdrawal of such a suit under the provisions of Order 23 Rule 1(3) of the Code. He also further contended that the institution of the suit without giving a notice under Sec.56 of the Act would not be a formal defect, but would a radical defect going to the root of the matter and consequently, the suit cannot be entertained at all and the plaints should be rejected under Order 7 Rule 11 of the Code.
12. The learned Single Judge of Madras High Court, after considering the above contentions held that notice under section 56 of the Act is necessary as claimed by the petitioners and the Court cannot make exceptions or qualifications to the explicit terms of Sec. 56 of the Wakf Act on account of the consideration of hardship and absence of prejudice or detriment. A defect cannot be equated to a formal one as it is radical defect going to the root of the claim of the petitioners. Section 56 of the Act is express, explicit, mandatory and admits of no exceptions. Therefore, the issue of a notice under Sec. 56 of the Wakf Act is a condition precedent to the institution of the suit itself.
Applying the principle laid down in the above judgment to the facts and circumstances of the case, the suit was filed by the first respondent without issuing 60 days notice mandated under section 89 of the Act to the petitioner before instituting the suit. The language imported in Sec.89 of the Act is explicit, mandatory and admits of no exception analogous to Sec.80 of the Code. Therefore, the respondent No.1 draws no right to file a petition to dispense with the issuance of Sec. 89 notice and no power is conferred on the Court to dispense with such a notice to the Wakf Board. When the Legislature itself in express terms excluded the power of the Court to dispense with 60 days notice to the Wakf Board before filing any suit against it, neither the Tribunal nor this Court derives power or authority to dispense with the issuance of notice irrespective of the fact that no relief, either interim or otherwise, was sought for against the Board. Thus the said contention of the respondent No.1 herein is rejected. Therefore, for non-compliance of the mandatory provisions of the Act the petition is liable to be rejected at the threshold, as rightly contended by the learned counsel for the petitioner herein. Therefore, the Tribunal has committed an illegality in dispensing with the issuance of notice to the petitioner and therefore, when the suit is not maintainable for such non-compliance of the mandatory provisions under section 89 of the Act, the grant of interim injunction against the petitioner herein is void ab initio and liable to be set aside. Accordingly the impugned order passed by the learned Presiding Officer of the Tribunal is liable to be set aside and is accordingly set aside and the Civil Revision P2 Petition is allowed. No order as to costs.