NEHRU PLACE HOTELS Vs. DDA

JUDGEMENT

(1.) [Ed. facts : In 1976 the plaintiff bought a large plot of land from DDA fur construction of Nehru Place Hotels. For more than 4 years its plans were not being passed on one excuse or the other and the pff. filed a W.P. in High Court which was allowed. The DDA appealed against the same which was dismissed and the D.B. decision is briefly reported at 1983. Rajdhani L.R. 662. The detailed facts mentioned therein are not being repeated and same may be referred to. After that decision pff. applied for sanction of his plans. After lengthy correspondence, frequent meetings and repeated objections the pff. was allowed to build 2 separate blocks for commercial use and the main building of the hotel. Pff. completed the 2 blocks and repeatedly asked high and low concerned to issue the occupancy certificates in respect of the same and on failure filed W.P. in which notice was duly issued to DDA. Afterword pff. withdrew the W.P. on the ground that it intended to file a civil suit and then filed this suit, Pff. applied for interim mandatory injunction that the DDA should issue O.C. and DESU should supply electricity etc. DDA raised a prelimi- nary objectiont hat the suit was not maintainable without statutory notice under D.D. Act, and that pff. was not entitled to interim mandatory injunction.] After detailing above judgment is :

(2.) In paras 158 to 161 of the plaint the plaintiff has referred to the factum of failing the W.P. claiming the same reliefs as in this suit and the show cause notice being issued in the W.P. and the counter affidavit being filed by defts. in the said W.P. and ultimately the W.P. petition being dismissed as withdrawn with liberty to file fresh legal proceedings by the pff. Now, if in law it could be said that service of the notice in the W.P. on the defts. is sufficient compliance with Section 53-B of the Act then, in my opinion, as facts have been given in the plaint with regard to the service of the notice in the W.P. it cannot be said that the plaint does not make necessary averments with regard to the notice. From the facts only a legal inference is to be drawn whether service of the notice in the writ petition does not amount to compliance of provisions of S. 53-B of the Act and what was required to be pleaded in the plaint were the facts and not the legal inferences flowing from the said facts.

(3.) The contention of the learned counsel for the defts. that as the W.P. has been dismissed as withdrawn, so it should be inferred that notice, if any, also stood withdrawn is not tenable because the D.B. while dismissing the W.P. as withdrawn has given permission to the plaintiff to take resort to any other appropriate legal proceedings. So, there has been no unequivocal dismissal of the W.P. as withdrawn. In support of the contention that service of the notice in the W.P. amounts to a notice as required by Section 53-B of the Act, the learned counsel for the plaintiff has relied upon N. Parameswara vs. State AIR 1986 Madras 126. In the said case a W.P. was filed seeking the same reliefs as were sought in a suit filed subsequently. The W.P. was dismissed and the petitioner was granted three months time to seek the remedy by way of suit. The plaintiff filed the suit without serving any notice u/S. 80 of the CPC. The High Court held that the suit is not bad for want of notice presumably treating the notice serviced in the writ petition as sufficient compliance with the provisions of Section 80 CPC. The learned counsel for the deft. has tried to distinguish this judgment by arguing that in the said case the court had given three months time for instituting the civil suit & suit was instituted accordingly whereas in the present case, no time limit was fixed by the High Court while giving liberty to the plaintiff to institute any other appropriate legal proceedings. I do not think that the judgment can be distinguished on such a fact. After a/I the purpose of giving notice u/S. 80 of the CPC or u/S. 53-B of the Act is to enable the authorities to examine the claim of the person giving the notice so that the authorities could settle the said claim without the said person being made to institute legal proceedings. In the State Bank of Patiala vs. M/s. Geeta Iron & Brass Works Ltd., AIR 1978 SC 1608, it was held that a statutory notice of the proposed action u/S. 80 of the Civil Procedure Code is intended to alert a State to negotiate a just settlement or at least for the courtesy to tell the potential suitor as to why the claim is being resisted. In Ghanshyam Dass vs. Dominion of India MR. 1984 SC 1004, it was observed by the Supreme Court that the point to be considered is whether a notice gives sufficient information as to the nature of the claim such as would enable the recipient to avert the litigation.