Karnataka High Court
K.P. Arvind vs Government Of Karnataka on 27 November, 1991
Equivalent citations: ILR1992KAR307, 1991(3)KARLJ213
JUDGMENT K.A. Swami, J.
1. Office objection is overruled. The Appeal filed by the appellants is maintainable. The respondents have been served.
2. As the Appeal lies in a very narrow compass, it is admitted, production of Paper Books is dispensed with, and heard for final disposal.
3. This Appeal is preferred by plaintiffs 7 and 8 against the Judgment and decree dated 11-2-1991 passed by the learned V Additional City Civil Judge, Bangalore in O.S.No. 3826/1988.
3.1. The only point that arises for consideration is:
Whether the trial Court is justified in law in dismissing the suit?
4. The appellants along with respondents 8 to 13 filed the aforesaid suit for the following reliefs:
"(a) For a declaration that the preliminary Notification dated 19-9-1977, published by defendants 1 and 2 in the Karnataka. Gazette dated 29-9-1979 in Notification No. BDA/SPLAO/ CRPR(S)-131/77-78, under Sub-sections 1 and 3 of Section 17 of Act 12/76 and the final Notification published by the defendants 1 and 2 dated 7-2-1978, in the Karnataka Gazette dated 9-3-1978 in final notification No. HUD 3 MNJ 78, notifying the acquisition of the plaint schedule properties for the formation of a layout called BYRASANDRA-MADIVALA-TAVAREKERE' scheme is illegal and the entire proceedings which have culminated in the making of awards by the third defendant are void ab initio and not binding on the plaintiffs;
(b) For a declaration that the entire proceedings in LAC.253/78-79, in respect of Survey Number 22/1, measuring 2 acres 38 guntas fully described as suit Item No. 1, which is culminated in the making of an award by the third defendant on 19-8-1983 is illegal and not binding on the plaintiff;
(c) For a declaration that the entire proceedings in LAC.254/78- 79, in respect of Survey Number 22/2, measuring 5 acres 13 guntas fully described as Suit Item No. 2, which is culminated in the making of an award by the third defendant on 19-10-1983, is illegal and not binding on the plaintiffs;
(d) For a declaration that the entire proceedings in LAC.256/78- 79, in respect of Survey Number 23/2 measuring 2 acres 10 guntas fully described as suit item No. 3, which is culminated in the making of an award by the third defendant on is illegal and not binding on the plaintiffs.
(e) For a declaration that the entire proceedings in LAC.257/78- 79, in respect of Survey Number 23/3 measuring 1 acre 19 guntas fully described as suit Item No. 4 which is culminated in the making of an award by the third defendant on 12-10-1983 is illegal and not binding on the plaintiffs.
(f) For a declaration that the entire proceedings in LAC.262/78-79, in respect of Survey Number 47/1A measuring 1 acre 36 guntas fully described as suit item No. 5 which is culminated in the making of an award by the third defendant on 26-12-1983, is illegal and not binding on the plaintiffs.
(g) For a permanent injunction restraining the defendants from entering upon the plaint schedule properties and undertaking any work of formation of a layout;
(i) Without prejudice to the above reliefs and Alternatively, if for any reason, this Hon'ble Court comes to the conclusion that the plaintiffs are not entitled to the above reliefs, for the issue of a mandatory injunction directing the third defendant to entertain an application under Section 18 of the Land Acquisition Act and make a reference to the Civil Court in respect of suit Items 1 to 6 in LAC Case Numbers 253-/78-79 and 264/78-79 256/78-79, 257/78-79, 262/78-79 and 264/78-79 respectively;
and
(j) For costs and such other relief or reliefs as this Hon'ble Court deems fit to grant in the circumstances of the case."
5. The defendants were served with the suit summons. One of the contesting defendants i.e., the Bangalore Development Authority, in its written statement raised an objection that the suit was not maintainable as it had been filed without issuing notice to the Bangalore Development Authority under Section 64 of the Bangalore Development Authority Act (hereinafter referred to as 'the Act'). Thereafter the plaintiffs filed an application I.A.No. IX seeking permission to withdraw the suit with liberty to file a fresh suiton the same cause of action. The learned trial Judge not only rejected the said application but also dismissed the suit on the ground that the suit was to fail on a technical ground because the plaintiffs had not issued notice under Section 64 of the Act.
6. We are of the view that the learned trial Judge is not right in dismissing the suit. Admittedly the reliefs sought for by the plaintiffs related to the action taken by the Bangalore Development Authority and the State Government in exercise of their power under the Act. Admittedly the suit was filed without issuing notice to the B.D.A. under Section 64 of the Act, and also under Section 80 of the C.P.C. to the State Government. As the suit was filed without issuing the notice as required by Section 64 of the Act and Section 80 of the C.P.C. It was bad in law, because service of notice as per Section 64 of the Act on the B.D.A. and as per Section 80 of the C.P.C. on the State Government, having regard to the reliefs sought for in the plaint, was a condition precedent for instituting a suit of the nature in question. Section 64 of the Act specifically provides thus:
"No suit or other proceedings shall be commenced against the Authority......for anything done or purporting to have been done, in pursuance of the Act or a Rule, regulation or bye-law made thereunder without giving to the Authority one month's previous notice in writing of the intended suit or other proceedings and of the cause thereof."
Thus, it is clear, no suit or proceeding shall be commenced against the B.D.A. challenging an action of the B.D.A. which is done or purporting to have been done by the BDA pursuant to the Act or a Rule or regulation or bye-law without giving one month notice in writing to the B.D.A. The suit is commenced or instituted, on presenting the plaint before the Court. Therefore, before presenting the plaint it is required of the plaintiff, in a suit challenging the action of the B.D.A. taken, or anything done, in the purported exercise of the power under the Act or a Rule or regulation or bye-law to give to the BDA one month's notice in writing before presenting the plaint in the Court. In the absence of such a notice, plaint cannot at all be entertained by a Court. The plaint must state in unequivocal terms that the notice in writing as required by Section 64 of the Act has been served on the B.D.A., one month prior to the presentation of the plaint. In the instant case, no such averment is contained in the plaint nor any such notice in writing was given to the B.D.A. Therefore, the plaint suffered from an inherent defect of non-compliance with Section 64 of the Act. As such it could not have been entertained.
6.1. Similarly, in the plaint the plaintiffs have challenged the action of the State Government in publishing the Notification under the Act. As such the plaintiffs as per Section 80 of the C.P.C. were required to serve notice in writing two months prior to the institution of the suit. It is mandatory to issue such notice in writing two months prior to the institution of the suit. Institution of the suit against the State Government in respect of any act purporting to be done by the State Government is barred by Section 80 of the C.P.C. without issuing two months notice in writing to the State Government. In such a case the plaint must specifically state regarding notice in writing issued to the State Government two months prior to filing of the suit. This is clear from the opening words of Section 80 of the C.P. Code which are as" follows:
"No suit shall be instituted against the State Government....In respect of any act purporting to be done......until the expiry of two months next after notice in writing has been delivered to or left at the office of."
6.2. At this stage, the observations made by the Supreme Court in GANGAPPA GURUPADAPPA GUGWAD v. RACHAWWA AND ORS., may usefully be referred to:
"No doubt it would be open to a Court not to decide all the issues which may arise on the pleadings before it if it finds that the plaint on the face of it is barred by any law. If for instance the plaintiff's cause of action is against a Government and the plaint does not show that notice under Section 80 of the Code-of Civil Procedure claiming relief was served in terms of the said Section it would be the duty of the Court to reject the plaint recording an order to that effect with reasons for the order. In such a case the Court should not embark upon a trial of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."
7. As already pointed out, the plaint did not contain any averment that the notice in writing as required by Section 64 of the Act and Section 80 of the C.P.C., had been served upon the B.D.A. and the State Government respectively. Therefore, on the face of it, the plaint was barred by Section 64 of the Act and Section 80 of the C.P.C. Hence, the trial Court ought to have rejected the plaint under Order 7 Rule 11 (d) of the C.P. Code. In that event, it would have been open to the plaintiffs to file a fresh suit on the same cause of action on complying with Section 64 of the Act and Section 80 of the C.P.C. Whereas the trial Court has dismissed the suit which is not permissible in law. Hence, the point raised for determination is answered in the negative.
8. For the reasons stated above, the Appeal is allowed. The Judgment and decree of the trial Court are set aside. The plaint is rejected under Order 7 Rule 11(d) of the C.P. Code. All the contentions of the plaintiffs and the defendants are left open. It is open to the plaintiffs to file a fresh suit on complying with Section 64 of the Act and Section 80 of the C.P. Code on the same cause of action.