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IN THE HIGH COURT OF ORISSA
Das, J.
BASUDEB BISWAL AND OTHERS - APPELLANT
Versus
PADMANAV CHOUDHURY AND OTHERS - RESPONDENT
Civil Revision No. 21 of 1957
Decided On : 17-03-1959
NOTICE UNDER SECTION 80 OF THE CODE OF CIVIL PROCEDURE - WAIVER - GOVERNMENT - RIGHT TO NOTICE CAN BE WAIVED BY THE GOVERNMENT IF IT DOES NOT REQUIRE PROTECTION AND SAYS SO.
Fact of the Case:
Plaintiffs filed a suit against villagers of village Debabhumi for interfering with their right of pasturage and the right to take water through a defined channel for purposes of irrigation. The villagers denied the existence of any such channel or the grazing ground and claimed that the disputed lands were the private mango-tope of the Zamindar of Shergada. The Zamindar had granted the said mango-tope to the deity Raghunath Swami who had acquired an occupancy right thereon. The State of Orissa was subsequently added as a party-Defendant after the vesting of the Zamindari of Shergada in the State Government. The State Government raised an objection that since no notice u/s 80 of the CPC was served on the State, the suit was not maintainable against the State Government.
Finding of the Court:
The court held that the State Government had waived its right to notice u/s 80 of the CPC by its conduct. The court relied on the decision of the Privy Council in Vellayan Chettair and Ors. v. The Government of the Province of Madras AIR 1947 P.C. 197, which held that the notice u/s 80 is for the protection of the public authority concerned and can be waived if the authority does not require that protection and says so.
Issues: Whether the State Government had waived its right to notice u/s 80 of the CPC by its conduct.
Ratio Decidendi: The court held that the State Government had waived its right to notice u/s 80 of the CPC by its conduct. The court relied on the decision of the Privy Council in Vellayan Chettair and Ors. v. The Government of the Province of Madras AIR 1947 P.C. 197, which held that the notice u/s 80 is for the protection of the public authority concerned and can be waived if the authority does not require that protection and says so. The court also relied on the decisions of the Calcutta High Court in Charuchandra v. Snigdendhu Prasad and Ors. AIR 1948 Gal. 150 and the Allahabad High Court in The District Board, Banaras Vs. Churhu Rai and Another, which held that when an objection that a suit is not maintainable in the absence of a notice u/s 80 is not raised in the trial court and no issue is joined on this point, the plea as to want of notice must be deemed to have been waived.
Final Decision: The court set aside the order of the lower appellate court and directed the learned Subordinate Judge to hear the appeal on merits and dispose it of in accordance with law.
JUDGMENT :
Das, J. - This is a petition filed by the Plaintiffs against an order of the learned Additional Subordinate Judge of Berhampur remanding their suit u/s 151 of the CPC for a de novo trial. The Plaintiffs representing the villagers of village Laxmanapalli filed a suit impleading the Defendants, being some of the villagers of village Debabhumi, in their representative capacity. Their whole case was that certain lands were being used as grazing grounds by the villagers of Laxmanpalli from time immemorial through which an ancient water channel, also passed carrying water to their fields from a 'Rojo' for purposes of irrigation. The 'Rojo' is situated between two villages in survey No. 1660 in Debabhumi and runs through survey No. 1649. Their allegation was that the Defendants were converting the grazing grounds into arable land and were filling up the water-course. They are alleged to have dug a new channel beyond the aforesaid grazing ground and thus interfering with the Plaintiffs' right of pasturage and the right to take water through a defined channel for purposes of irrigation. The Plaintiffs, accordingly, prayed for a declaration that they had the right to take water through the defined channel from the reservoir in survey No. 1660 as also to use survey No. 1649 as the grazing ground. The third relief claimed was for a permanent injunction.
2. The Defendants by their written statement denied the existence of any such channel or the grazing ground or any cart-tract or foot-path thereon. According to the Defendants the new channel was an ancient channel and the disputed lander were the private mango-tope of the Zamindar of Shergada who was the landlord of the village Debabhumi. The Zamindar had granted the said mango-tope to the deity Raghunath Swami who had acquired an occupancy right thereon. The water reservor having been damaged, with the permission of the Zamindar the Defendant started to restore it to its former condition by dressing it up in Aswin 1951 which was alleged by the Plaintiffs to be the new channel. The trial court decreed the suit against the villagers of village Debabhumi but dismissed it as against Defendant No. 13, the State of Orissa, who was subsequently added as a party. The villagers-Defendants preferred an appeal against this decree impleading the 13th Defendant as a Respondent. In appeal the Government Pleader appearing on behalf of the State for the first time raised an objection that since no notice u/s 80 of the CPC was served on the State, the suit was not maintainable against the State Government. This objection prevailed with the lower appellate Court. Without discussing the merits of the case, he set aside the decree passed by the learned Munsif on this preliminary ground and ordering the 13th Defendant to be expunged from the suit records for the time being. He, however, directed the Plaintiffs to add the State of Orissa as a party-Defendant after service of a notice u/s 80 of the Code of Civil Procedure. It is against this order that the present application is directed.
3. Mr. H.G. Panda, learned Counsel for the Petitioners contended that no objection having been taken by the State Government regard in, the issue of a notice u/s 80, it must be taken that the objection has been waived by the Government In order to appreciate the point raised by Mr. Panda more fully, it would be necessary to state the facts in a little more detail. Admittedly the stands on survey No. 1660 and the tope on survey No. 1649 through which a permanent artificial channel passes. This belonged to the Zamindari of Shergada which is now vested in the State Government by operation of law. The suit (T.S. No. 10 of 1953) was filed in January, 1952. The Zamindar of Shergada was not made a party to this suit. The villagers of Debabhumi in their representative character were sued and they filed a written statement on March 10, 1952. During the pendency of the suit the estate of the intermediary that is the Zamindari o
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