- (1.) This writ petition is directed against the order dated 13.01.2012 passed by District Judge, Baghpat whereby objection with regard to defect in election petition on account of non-compliance of Section 80 C.P.C. has been rejected.
(2.) Besides that election petition is not defective for non-compliance of Section 80 C.P.C., this Court is also of the view that such objection cannot be raised at the instance of a private party if State has not taken such an objection.
(3.) This issue has been considered by a Special Bench of this Court in Sunni Central Board of Waqfs Vs. Sri Gopal Singh Visharad and others,2010 ADJ 1 and in the judgment delivered by myself (concurred by Hon'ble S.U. Khan, J. on this issue), it has been said: "622. Now we come to the second part of this issue i.e. 10 (b). The legislative intent of Section 80 is to give the Government sufficient notice of the suit which is proposed to be filed against it so that it may reconsider the decision and decide for itself whether the claim made could be accepted or not. The object of the section is advancement of justice and securing public good by avoidance of unnecessary litigation Bihari Chowdhary and another Vs. State of Bihar and others, 1984 2 SCC 627; State of Andhra Pradesh and others Vs. Pioneer Builders, 2007 AIR(SC) 113. 623. We, however, proceed to consider certain authorities cited on behalf of the defendant no. 10 to press upon their submission that in case of non compliance of Section 80 C.P.C., it is the duty of the Court to reject the plaint outright even if no objection is raised by anyone since it is a jurisdictional issue. 624. Prior to Section 80 C.P.C., 1908, similar provision existed in Section 424 of C.P.C., 1882. Considering the purpose and objective of such a provision, in Secretary of State for India In Council Vs. Perumal Pillai and others, 1900 24 ILR(Mad) 271it was held: "... object of the notice required by section 424, Civil Procedure Code, is to give the defendant an opportunity of settling the claim, if so advised, without litigation." 625. With reference to Section 80 C.P.C. of 1908, the objective and purpose came to be considered in Secretary of State for India In Council Vs. Gulam Rasul Gyasudin Kuwari, 1916 ILR(Bom) 392wherein it was held as under : "... the object of section 80 is to enable the Secretary of State, who necessarily acts usually through agents, time and opportunity to reconsider his legal position when that position is challenged by persons alleging that some official order has been illegally made to their prejudice." 626. In Raghunath Das Vs. Union of India and another, 1969 AIR(SC) 674, in para 8, the Court said : "8. The object of the notice contemplated by that section is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The provisions in Section 80, Civil Procedure Code are not intended to be used as boobytraps against ignorant and illiterate persons." 627. The object and purpose of enactment of Section 80 C.P.C. was also noticed in State of Punjab Vs. M/s. Geeta Iron and Brass Works Ltd., 1978 AIR(SC) 1608as under : "A statutory notice of the proposed action under S. 80 C.P.C. is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted." 628. The requirement of notice under Section 80 C.P.C. has also been held mandatory. In Bhagchand Dagaduss Vs. Secretary of State for India in Council, 1927 AIR(PC) 176, it was held that the provision is express, explicit and mandatory. It admits no implications or exceptions. It imposes a statutory and unqualified obligation upon the Court. Therein a noticed was issued under Section 80 C.P.C. on 26.6.1922, but the suit was instituted before expiry of the period of two months from the said date. The Judicial Committee Observed: "To argue as appellants did, that the plaintiffs had a right urgently calling for a remedy, while Section 80 is mere procedure, is fallacious, for Section 80 imposes a statutory and unqualified obligation upon the Court." 629. This decision was followed by Judicial Committee in Vellayan Chettiar Vs. Government of Province of Madras, 1947 AIR(PC) 197. 630. In Government of the Province of Bombay Vs. Pestonji Ardeshir Wadia and Ors., 1949 AIR(PC) 143it has been held that provisions of Section 80 of the Code are imperative and should be strictly complied with. 631. A Constitution Bench of the Apex Court in Sawai Singhai Nirmal Chand Vs. Union of India, 1966 AIR(SC) 1068also took the same view. Following the above authorities in Bihari Chowdhary , the Apex Court, in para 6, observed: "6. It must now be regarded as settled law that a suit against the Government or a public officer, to which the requirement of a prior notice under Section 80 C.P.C. is attracted, can not be validly instituted until the expiration of the period of two months next after the notice in writing has been delivered to the authorities concerned in the manner prescribed for in the Section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable." 632. In none of the above noted cases, the Courts had the occasion to consider whether a Suit for non compliance of Section 80 C.P.C. ought to be dismissed even if the authority for whose benefit the provision has been made is not inclined to press this objection or is interested to get the decision on merits from a competent Court of law. On the contrary, slight divergent view was also going on simultaneously as is evident from some of the authorities of the Apex Court. 633. In Dhian Singh Sobha Singh Vs. Union of India, 1958 AIR(SC) 274, the Court observed that Section 80 C.P.C. must be strictly complied with but that does not mean that the terms of Section should be construed in a pedantic manner or in a manner completely divorced from common sense. It observed : "The Privy Council no doubt laid down in Bhagchand Dagadusa v. Secretary of State, 1927 AIR(PC) 176that the terms of section should be strictly complied with. That does not however mean that the terms of the notice should be scrutinised in a pedantic manner or in a manner completely divorced from common-sense. As was stated by Pollock, C. B., in Jones v. Nicholls, (1844) 13 M&W 361=153 ER 149 "we must import a little commonsense into notices of this kind." Beaumont, C. J., also observed in Chandu Lal Vadilal v. Government of Bombay, 1943 AIR(Bom) 138"One must construe Section 80 with some regard to common-sense and to the object with which it appears to have been passed." 634. In para 17 of the judgment while referring to and relying on its earlier decision of Sangram Singh Vs. Election Tribunal, Kotah, 1955 AIR(SC) 425, the Apex Court said: "Section 80 of the Code is but a part of the Procedure Code passed to provide the regulation and machinery, by means of which the Courts may do justice between the parties. It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it." 635. The protection provided under Section 80 is given to the person concerned. If in a particular case that person does not require protection, he can lawfully waive his right. This is what was held in Dhirendra Nath Gorai and Sabal Chandra Shaw and others Vs. Sudhir Chandra Ghosh and others, 1964 AIR(SC) 1300where considering a pari materia provision, i.e. Section 35 of Bengal Money Lenders Act, 1940 the Apex Court held that such requirement can be waived. Similarly, while considering Section 94 of the Representation of People Act, 1951, the above view was reiterated in S. Raghbir Singh Gill Vs. S. Gurucharan Singh Tohra and others, 1980 Supp1 SCC 53. All the aforesaid decisions have been followed in Commissioner of Customs, Mumbai Vs. M/s. Virgo Steels, Bombay and another, 2002 AIR(SC) 1745and it has been held that notice in such a case can be waived. 636. A Full Bench of the Bombay High Court in Vasant Ambadas Pandit Vs. Bombay Municipal Corporation and others, 1981 AIR(Bom) 394while considering a similar provision contained in Section 527 of Bombay Municipal Corporation Act, 1888 held "The giving of the notice is a condition precedent to the exercise of jurisdiction. But, this being a mere 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." 637. In Amar Nath Dogra Vs. Union of India, 1963 1 SCR 657; State of Punjab Vs. Geeta Iron and Brass Works Ltd., 1978 1 SCC 68and Ghanshyam Dass Vs. Dominion of India, 1984 3 SCC 46the Apex Court also held that notice under Section 80 C.P.C. or similar provisions of other Acts are for the benefit of a particular authority. The same can be waived as they do not go to the root of jurisdiction in the true sense of the term. Referring to the aforesaid judgments as well as the Full Bench judgment of Hon'ble Bombay High Court in Vasant Ambadas Pandit , the Apex Court in Bishandayal and sons Vs. State of Orissa and others, 2001 1 SCC 555 said that there can be no dispute to the proposition that a notice under Section 80 can be waived. 638. In fact we find in Ghanshyam Dass and Ors. Vs. Dominion of India and Ors. wherein a three judges Bench considered the correctness of the decision of this Court in Bachchu Singh Vs. Secretary of State for India in Council,1903 25 ILR(All) 187, Mahadev Dattatraya Rajarshi Vs. Secretary of State for India, 1930 AIR(Bom) 367and earlier decision in S.N. Dutt Vs. Union of India, 1961 AIR(SC) 1449. Though the facts of that case are slightly different but what has been observed by the Apex Court is of some importance. The Apex Court while reiterating the Privy Council's observations in Bhagchand Dagadusa that requirement of Section 80 C.P.C. of giving notice is express, explicit an mandatory and admits of no implications or exceptions, however observed that one must construe Section 80 with some regard to common sense and to the object with which it appears to have been passed. It also observed that our laws of procedure are based on the principle that "as far as possible, no proceeding in a court of law should be allowed to be defeated on mere technicalities". The Apex Court overruled its decision in S.N. Dutt as also the Bombay High Court's decision in Mahadev Dattatraya Rajarshi and this Court's decision in Bachchu Singh . In the case before the Apex Court though notice was issued but on a closer scrutiny, the High Court found that it was not a valid notice under Section 80 C.P.C. and therefore non suited the plaintiff. This judgment was reversed by the Apex Court making the abovesaid observations. The Court reiterated that the object of notice contemplated by Section 80 is to give to the Government and public officers an opportunity to consider the legal position and to make amends or settle the claim, if so advised, without litigation so that public money and time may not be wasted on unnecessary litigation. 639. Considering the objective of such enactment and the fact that party concerned can waive it, we are of the view that the plea of want of notice under Section 80 cannot be taken by a private individual since it is for the benefit of the Government and its officers. 640. A Division Bench of Hon'ble Bombay High Court in Hirachand Himatlal Marwari Vs. Kashinath Thakurji Jadhav, 1942 AIR(Bom) 339said "In the first place defendant 3 is not the proper party to raise it, and in the second place the receivers in our opinion must be deemed to have waived their right to notice. It is open to the party protected by S. 80 to waive his rights, and his waiver binds the rest of the parties. But only he can waive notice, and if that is so, it is difficult to see any logical basis for the position that a party who has himself no right to notice can challenge a suit on the ground of want of notice to the only party entitled to receive it. We think therefore that this ground of attack is not open to defendant 3; and for our view on this point direct support may be obtained from 32 Cal. 1130." 641. The same view has been taken by Kerala High Court in Kanakku Vs. Neelacanta, 1969 AIR(Ker) 280 holding that the plea of want of notice cannot taken by private individuals. 642. A Single Judge of this Court in Ishtiyaq Husain Abbas Husain Vs. Zafrul Islam Afzal Husain and others, 1969 AIR(All) 161has also expressed the same view: "It appears to me that the plea of want of notice is open only to the Government and the officers mentioned in section 80 and it is not open to a private individual. In this particular case the State Government did not even put in appearance. The notice, therefore, must be deemed to have been waived by it." 643. We respectfully endorse the aforesaid view of the Hon'ble Single Judge. 644. The entire issue 10 (a) and 10 (b) (Suit-3) is, accordingly, decided in favour of plaintiffs (Suit-3). We hold that a private defendant cannot raise objection regarding maintainability of suit for want of notice under Section 80 C.P.C.";