Jammu & Kashmir High Court - Srinagar Bench
Mohammad Amin Bhat vs State & Others Instituted In The Court Of ... on 27 April, 2012
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR C. Rev. No.103 of 2010 CMP No.394 of 2010 Mohammad Amin Bhat Petitioners State of J&K and others Respondents !Mr. Syed Manzoor, Advocate ^Mr. N. H. Shah vice, Advocate Mr. M. A. Thakur, Advocate Mr. S. A. Vakil, Advocate Mr. Manzoor A. Dar, Advocate Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date:27/04/2012 : J U D G M E N T :
1. Suit for declaration, cancellation and injunction captioned Gh. Rasool Ahangar vs. State & others instituted in the Court of District Judge, Srinagar has been assigned to the Court of Additional District Judge, Srinagar for disposal under law. Petitioner who figures as defendant No.6 in the suit has filed an application for rejection of the plaint under Order 7 Rule 11 CPC, same has been dismissed, hence instant revision petition.
2. On three counts rejection of the plaint has been sought; (1) non compliance to Section 48 of Development Act, (2) non compliance to Section 48 of the Tourist Trade Act, and (3) plaintiff has no cause of action.
3. According to learned counsel for the petitioner, before instituting suit against the Development Authority, two months prior notice, in terms of Section 48 of the Act, is mandatory. Trial court has rejected this contention by stating that the Development Authority is not the party in the suit but in terms of SRO 109 dated 27th of March, 1997, in exercise of powers conferred by sub-section (1) of Section 3 of J&K Development Act, Lakes and Waterways Development Authority (LAWDA) is constituted as authority for the purposes of the Act. Chairman, LAWDA figure as defendant No.4 in the suit. The submission is well founded.
4. Mandate of Section 80 CPC is that before institution of the suit, service of two months prior notice is a requirement. When admittedly two months notice under Section 80 CPC has been served upon the Authority, whether in addition to that a separate two months notice was also required to be served under Section 48 of the Development Act. The answer has to be no.
5. The object of notice under Section 48 of the Development Act is the same as that of Section 80 CPC i.e. claim of the plaintiff has to be brought to the notice of the Authority so that Authority can make up its mind either to concede the claim, contest the claim or amicably settle the claim so as to avoid un-necessary litigation. When the notice under Section 80 CPC has been served, the Authority has become aware but has not chosen to settle the claim or accept the same, therefore, as a necessary corollary filing of suit became inevitable. In case separate notice under Section 48 of the Act would have been served, results could not be different. Under such situation notice under Section 48 of the Development Act shall be irrelevant because two months prior notice under Section 80 CPC would also be substantial compliance of Section 48 of the Development Act. This view is also supported by judgment rendered by the Division Bench of Delhi High Court on 29th of May, 2009 in the case titled DCM Limited Vs. DDA, wherein similar question arose for consideration. In the reported case notice under Section 80 CPC was served but the notice under Section 53-B of the Delhi Development Act was not served and the service of notice under Section 53-B, under such circumstances, was held to be un-necessary.
6. Though the trial court has not looked into this aspect of the case but same, in view of the above position, is determined so the contention raised is accordingly repelled.
7. The second ground for rejection of claim is that in terms of Section 48 of the Tourist Trade Act no suit can be instituted against the Tourism Authorities. In the suit respondents No.1, 2 and 5 are the authorities of Tourism Department, therefore, suit against them could not be instituted. The submission is without any substance. Section 48 of the Tourist Trade Act reads as under:-
48. Indemnity.
No suit, prosecution or other legal proceedings whatsoever shall lie against the Government or any person in respect of anything which is in good faith done or intended to be done under this Act. The wording of the Section would provide that protection is available to the Government or any person and the authorities in respect of anything which they have done in good faith or intended to be done, under the Act.
8. The suit instituted does not fall within the ambit of Section 48 of the Act. If the contention of learned counsel for the petitioner is taken correct, then in view of Section 46 of the Development Act, Section 48 of the said Act looses significance. Section 46 of the Development Act reads as under:-
46. Protection of action taken in good faith.
No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rule or regulation made thereunder.
9. In case suit would have totally barred against the Development Authorities, then there was no requirement of incorporating Section 48 in the Act which provides for service of two months prior notice before instituting any suit against Authority or any member thereof or any of its officers or other employees or any person acting under the directions of the Authority. Section 48 of the Tourist Trade Act is pari materia with Section 46 of the Development Act, therefore, the protection available under the said two provisions is against the act done in good faith or intended to be done. The suit against the Authority or the Government so as to seek the relief of cancellation of registration or for ensuring functioning within the limits of law is not barred. On this count suit against the authorities of the Tourism Department is not barred.
10. Under Order 7 Rule 11 CPC one of the grounds for rejection of the plaint is that when suit is barred by any law, same can be rejected. So it is in that context it was projected that in terms of Section 48 of the Development Act and Section 48 of the Tourist Trade Act suit is barred. Said contention, for the afore-stated reasons, stand rejected.
11. Next learned counsel contended that the plaintiff has no cause of action and plaint on such count is liable to be rejected. Order 7 Rule 11 CPC provides that the plaint can be rejected when it does not disclose the cause of action. Perusal of the plaint, as produced, clearly shows as to how the cause of action has accrued to the plaintiff so has been disclosed. Whether same is true or incorrect is a question for trial. In case plaint would not disclose the cause of action, then definitely clause (a) of Order 7 Rule 11 CPC would apply but in the instant case, on perusal of plaint, cause of action is clearly disclosed, therefore, this contention also fails.
12. Viewed thus, the order impugned sustains. The revision petition, as such, being without merit is dismissed along with connected CMP.
13. Learned counsel shall ensure appearance of the parties before the trial court, either in person or through authorized agent, on 14.5.2012.
14. Trial court record along with copy of the order be send back forthwith well before the date fixed.
(Mohammad Yaqoob Mir) Judge Srinagar 27.04.2012 Mohammad Altaf