A notice under Section 80 of the CPC is mandatory for suits against the Government or a public officer in respect of any act purporting to be done by such public officer in his official capacity, and the right to notice cannot be waived merely because the threatened action was imminent.

Untwalia, J.

1. In this second appeal by the defendants, the foremost--rather, ultimately, the only question which has fallen for decision is the true meaning and scope of Section 80 of the Code of Civil Procedure hereinafter called the Code.

2. It is not necessary to give the details of all the facts leading to the institution of the suit by the plaintiff respondent. Suffice it to say that the plaintiff claimed that the suit land is his kasht land and as such did not vest in the State of Bihar defendant No. 1, under the Bihar Land Reforms Act. The case of the plaintiff was that on the 8th of June, 1961, he came to know from Shri T.K. Misra, Land Reforms Deputy Collector, defendant No. 2, that he was purporting to make settlement by auction of an alleged fishery right in the tank said to be existing in the suit land on the ground that it had vested in the State of Bihar under the Bihar Land Reforms Act. The plaintiff filed an objection asserting that the property had not vested in the State. Ignoring that objection, the settlement proceedings continued, and the plaintiffs right was thus threatened by the intended settlement of the alleged fishery right. The plaintiff asserted that the land in suit was not a tank and there was no fishery right which could be settled by the State. Accordingly the suit was filed for declaration of title of the plaintiff to the suit land and for permanent injunction restraining the defendants from settling the lands in suit to any person or from interfering with the possession of the plaintiff.

3. In paragraph 20 of the plaint it was stated that the defendants were threatening interference with the plaintiffs possession by inviting offers for the settlement and hence no notice under Section 80 of the Code was necessary, which section is attracted only when the suit is in respect of past act completed or begun. The plaintiff, however, had given a notice under Section 80 of the Code but he could not wait for the requisite period of two months for the institution of the suit inasmuch as the suit would be rendered in-fructuous if the plaintiff refrained from filing the suit immediately, which he filed on the 17th June, 1961; it may be stated here that the notice had been served only two days earlier on the 15th June. He further pleaded that the defendants will be deemed to have waived their right to have a notice under Section 80 of the Code inasmuch as without any intimation to the plaintiff, they threatened to interfere with his right.

4. Facts pleaded to establish the title of the plaintiff as a raiyat of the land were controverted in the written statement filed on behalf of the defendants. Since ultimately, according to the decision which I am going to give, the plaint has to be rejected as having been filed without compliance with the mandatory provision of law contained in Section 80 of the Code, it has not been necessary either to state the details of the facts of the plaintiffs case or to recite the facts controverting it. In regard to the question of Section 80 notice, however, it was pleaded in paragraph 3 of the written statement that the suit is not maintainable for want of notice under Section 80 of the Code. In paragraph 14 it was stated that the statement in paragraph 20 of the plaint is not true and it is not correct that notice under Section 80 of the Code is not necessary or that there is waiver of the right to get that notice.

5. Both the courts below have held in favour of the plaintiff on the question of right, title and interest in the property as claimed by him and both of them have also held that the suit is not barred for want of requisite notice under Section 80 of the Code. This second appeal has been preferred by the defendants and the sole respondent is the plaintiff. When it came for hearing before a learned Single Judge of this Court, he referred it to a Division Bench as in the view of his Lordship, the decisions of this Court in Province of Bihar V/s. Kamakshya