TOWN AREA COMMITTEE, SOPORE Vs. AB KHALIQ

JUDGEMENT

(1.) THIS is a revision application against the order of the Munsiff Sopore and arises out of a suit instituted by Abdul Khaliq seeking injunction against the defendant Town Area Committee -restraining the defendant from removing the wire fencing round the grave -yard. The defendant had served a notice on the plaintiff on 2nd of poh 2007 calling upon the plaintiff to remove the wire fencing from the graveyard as according to the defendant the plaintiff had encroached upon the land belonging to the defendant. The plaintiff filed a suit in the Court of Munsiff Sopore for injunction. The written statement was filed by the defendant in which it was pleaded that the suit was not maintainable. The trial Court struck various issues and one of the important issues was whether the present suit was maintainable under the provisions of Town Area Act. An application was made by the defendant on 18th of Jeth, 2008, requesting the Court to decide the legal issues first before deciding other issues in regard to facts. The learned, trial Court acceded to the request of the defendant and heard arguments on the legal issues on 8th of assuj 2008. Both these legal issues were decided in favour of the plaintiff.

(2.) THE defendant has come up in revision to this Court and it is argued on his behalf that the suit filed by the plaintiff was not maintainable in asmuch as the plaintiff had not complied with the mandatory provision of s. 38 proviso to part 2 of the Town Area Act which runs as follows: Notwithstanding anything contained in the Limitation Act IX 9 of 1995, all prosecutions of any servant of a Town Area Committee and all actions which may be lawfully brought against a Town Area Committee or against any servant of a Town Area Committee in respect of anything done or alleged to have been done in pursuance of this Act, shall be instituted within six months from the date of the act complained of and not afterwards: Provided that no such suit shall be instituted until the expiration of one month after notice has been given stating, the cause of action and the name and the place of abode of the intending plaintiff and the plaint shall contain a statement that such notice has been given. It is contended that as the plaintiff did not give any notice as required under the above proviso to S. 38, Part (2), the plaintiffs suit could not proceed and should have been dismissed by the trial Court.

(3.) IN support of this contention reliance is placed on Marina Ammayi v. Secy, of State, a.I.R. 1941 Mad. 446 wherein it is held that s. 80 is explicit and mandatory and if a notice is not given under this section to the Collector, the Court is bound to dismiss the suit; and that it is not open to the Collector to waive the plea of want of notice under s. 80, Civil P. C. The same view was taken in another case by the Madras High Court in Govt. of Madras v. Vellayan Chettiar, a. I.R 1944 Mad. 544 in which it has been held: "Section 80 is express, explicit, and mandatory and admits of no implications or exceptions. When the section has not been complied with the Court has no jurisdiction to try the suit against Government. The language of the section is imperative and consequently there can be no question of waiver and no question of estoppel. It is very desirable that the objection that S. 80 has not been complied with should be taken at the earliest possible moment but failure to do so will not deprive the section of its force.