MOHAMMAD AMIN BHAT Vs. STATE OF J&K

JUDGEMENT

(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.) 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.