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2012 Supreme(J&K) 151
JAMMU & KASHMIR HIGH COURT
Mohammad Yaqoob Mir, J.
Mohammad Amin Bhat -Appellant
Versus
State of J&K & Ors. -Resopndent
C. Rev. No. 103/2010, CMP No. 394/2010
Decided On : 27-04-2012
Mr. Syed Manzoor for Petitioner.
Mr. N.H. Shah vice Mr. M. A. Thakur (for R-1, 2 , 5) , vice Mr. S. A. Vakil, AAG (for R-3 , 4), Mr. Manzoor A. Dar (for R-6).
The notice under Section 80 CPC would also be substantial compliance of Section 48 of the Development Act.
Headnote:
Rejection of Plaint - Suit for declaration, cancellation and injunction - Section 48 of Development Act, Section 48 of Tourist Trade Act - [Section 48 of Development Act, Section 48 of Tourist Trade Act] - The court discussed the requirements of Section 48 of the Development Act and Section 48 of the Tourist Trade Act, emphasizing that the notice under Section 80 CPC would also be substantial compliance of Section 48 of the Development Act. The court also highlighted the protection available to the Government or any person and the authorities in respect of anything which they have done in good faith or intended to be done, under the Act.
Fact of the Case:
The petitioner filed an application for rejection of the plaint under Order 7 Rule 11 CPC, citing non-compliance with Section 48 of Development Act, non-compliance with Section 48 of the Tourist Trade Act, and lack of cause of action.
Finding of the Court:
The court rejected the application for rejection of the plaint, emphasizing that the notice under Section 80 CPC would also be substantial compliance of Section 48 of the Development Act. The court also held that the suit against the authorities of the Tourism Department is not barred.
Issues: Non-compliance with Section 48 of Development Act, non-compliance with Section 48 of the Tourist Trade Act, and lack of cause of action.
Ratio Decidendi: The court emphasized that the notice under Section 80 CPC would also be substantial compliance of Section 48 of the Development Act. The court also highlighted the protection available to the Government or any person and the authorities in respect of anything which they have done in good faith or intended to be done, under the Act.
Final Decision: The revision petition was dismissed, and the trial court record along with a copy of the order was to be sent back forthwith.
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. According to learned counsel for the petitioner, before instituting suit against the Development Authority, two months prior notice, in terms of Section 48 of the Act, is mandatory. Trial court has rejected this contention by stating that the Development Authority is not the party in the suit but in terms of SRO109 dated 27th of March, 1997, in exercise of powers conferred by sub-section (1) of Section 3 of J&K Development Act, Lakes and Waterways Development Authority (LA WDA) is constituted as authority for the purposes of the Act. Chairman, LA WDA figure as defendant No. 4 in the suit. The submission is well founded.
4. Mandate of Section 80 CPC is that before institution of the suit, service of two months prior notice is a requirement. When admittedly two months notice under Section 80 CPC has been served upon the Authority, whether in addition to that a separate two months notice was also required to be served under Section 48 of the Development Act. The answer has to be "no".
5. 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.Mider Section 80 CPC has been served, the Authority has become aware but has rWrt caosen 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 v. DDA, wherein similar question arose for consid#31;eration. 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.
6. Though the trial court has not looked into this aspect of the case but same, in view of the above position, is determined so the contention raised is accordingly repelled.
7. The second ground for rejection of claim is that in terms of Section 48 of the Tourist Trade Act no suit can be instituted against the Tourism Authorities. In the suit respondents No. 1,2 and 5 are the authorities of Tourism Department, therefore, suit against them could not be instituted. The submission is without any substance. Section 48 of the Tourist Trade Act reads as under:-
"48. Indemnity.
No suit, prosecution or other legal proceedings whatsoever shall lie against the Government or any person in respect of anything which is in good faith done or intended to be done under this Act."
The wording of the Section would provide that protection is available to the Government or any person and the authorities in respect of anything which they have done in good faith or intended to be done, under the Act.
8. The suit instituted does not fall within th
