# Central Board of Waqfs v. Sri Gopal

- **Citation:** (2012) 1 ILRA 487
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-13
- **Case number:** Civil Misc. Writ Petition No. 18125 of 2012
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/central-board-of-waqfs-v-sri-gopal-42212
- **Pages:** 6

## Headnote

Code
of
Civil
Procedure-Section-80Maintainability
of
Election
Petitiondefect of Non Compliance of 80 C.P.C.-
raised by individual and not by State
Govt.-held-in view of Full Bench decision
of Sunni Central Board-objection of non
compliance of 80 C.P.C.-can not be
raised by individuals-rejection orderproper.

Held: Para 4

In view of above exposition of law laid
down by Special Bench, it is quite clear
that objection with respect to want of
notice under Section 80 CPC cannot be
taken by a private individual since it is
for the benefit of Government and its
officials and, therefore, it can be taken
only by them and would be considered if
it is pressed by those for whose benefit
the provision has been made. A private
individual
cannot
challenge
the
proceeding by taking the plea of want of
notice under Section 80CPC.
Case law discussed:
2010 ADJ Page 1 (SFB) (LB); 1984 (2) SCC
627; (1900) ILR 24 (Mad.) 271; AIR 1969 SC
674; AIR 1978 SC 1608; AIR 1927 PC 176; AIR
1947 PC 197; AIR 1949 PC 143; AIR 1966 SC
1068; AIR 1958 SC 274; AIR 1955 SC 425; AIR
1964 SC 1300; AIR 2002 SC 1745; AIR 1981
Bombay 394; 1963 (1) SCR 657; 2001 (1) SCC
555; ILR (1903) 25 All 187; AIR (29) 1942
Bombay 339; AIR 1969 (Kerela) 280; AIR 1969
Alld. 161

## Text

1 All] Smt. Rekha V. Smt. Veermati and another
487
to demonstrate that he has been appointed
in the institution under the provisions of
the Intermediate Education Act or under
the provisions of the U.P. Act No. 05 of
1982. The appointment of the petitioner
appears to be purely contractual. The
petitioner may seek his remedy, qua
payment of salary, against the manager by
way of Civil Suit.

10. The judgment relied upon by the
counsel for the petitioner is clearly
distinguishable in the facts of the present
case.

11. For the reasons recorded above,
the present writ petition is dismissed.
---------
ORIGINAL JURISDICTIONAL
CIVIL SIDE
DATED: ALLAHABAD 13.04.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 18125 of 2012

Smt. Rekha

 ...Petitioner
Versus
Smt. Veermati and another

 ...Respondents

Counsel for the Petitioner:
Sri Ratnakar Upadhyaya

Counsel for the Respondents:
C.S.C.

Code
of
Civil
Procedure-Section-80Maintainability
of
Election
Petitiondefect of Non Compliance of 80 C.P.C.-
raised by individual and not by State
Govt.-held-in view of Full Bench decision
of Sunni Central Board-objection of non
compliance of 80 C.P.C.-can not be
raised by individuals-rejection orderproper.

Held: Para 4

In view of above exposition of law laid
down by Special Bench, it is quite clear
that objection with respect to want of
notice under Section 80 CPC cannot be
taken by a private individual since it is
for the benefit of Government and its
officials and, therefore, it can be taken
only by them and would be considered if
it is pressed by those for whose benefit
the provision has been made. A private
individual
cannot
challenge
the
proceeding by taking the plea of want of
notice under Section 80CPC.
Case law discussed:
2010 ADJ Page 1 (SFB) (LB); 1984 (2) SCC
627; (1900) ILR 24 (Mad.) 271; AIR 1969 SC
674; AIR 1978 SC 1608; AIR 1927 PC 176; AIR
1947 PC 197; AIR 1949 PC 143; AIR 1966 SC
1068; AIR 1958 SC 274; AIR 1955 SC 425; AIR
1964 SC 1300; AIR 2002 SC 1745; AIR 1981
Bombay 394; 1963 (1) SCR 657; 2001 (1) SCC
555; ILR (1903) 25 All 187; AIR (29) 1942
Bombay 339; AIR 1969 (Kerela) 280; AIR 1969
Alld. 161

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. This writ petition is directed
against the order dated 13.01.2012 passed
by District Judge, Baghpat whereby
objection with regard to defect in election
petition on account of non-compliance of
Section 80 C.P.C. has been rejected.

2. Besides that election petition is
not defective for non-compliance of
Section 80 C.P.C., this Court is also of the
view that such objection cannot be raised
at the instance of a private party if State
has not taken such an objection.

3. This issue has been considered by
a Special Bench of this Court in Sunni
Central Board of Waqfs Vs. Sri Gopal
Singh Visharad and others, 2010 ADJ
Page 1 (SFB)(LB) and in the judgment
delivered
by
myself
(concurred
by
488 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Hon'ble S.U. Khan, J. on this issue), it has
been said:

"622. Now we come to the second
part of this issue i.e. 10 (b). The
legislative intent of Section 80 is to give
the Government sufficient notice of the
suit which is proposed to be filed against
it so that it may reconsider the decision
and decide for itself whether the claim
made could be accepted or not. The object
of the section is advancement of justice
and securing public good by avoidance of
unnecessary
litigation
(Bihari
Chowdhary and another Vs. State of
Bihar and others 1984 (2) SCC 627;
State of Andhra Pradesh and others Vs.
Pioneer Builders AIR 2007 SC 113).

623. We, however, proceed to
consider certain authorities cited on
behalf of the defendant no. 10 to press
upon their submission that in case of non
compliance of Section 80 C.P.C., it is the
duty of the Court to reject the plaint
outright even if no objection is raised by
anyone since it is a jurisdictional issue.

624. Prior to Section 80 C.P.C.,
1908, similar provision existed in Section
424 of C.P.C., 1882. Considering the
purpose and objective of such a provision,
in Secretary of State for India In
Council Vs. Perumal Pillai and others
(1900) ILR 24 (Mad.) 271 it was held:

"... object of the notice required by
section 424, Civil Procedure Code, is to
give the defendant an opportunity of
settling the claim, if so advised, without
litigation."

625. With reference to Section 80
C.P.C. of 1908, the objective and purpose
came to be considered in Secretary of
State for India In Council Vs. Gulam
Rasul Gyasudin Kuwari (1916) ILR XL
(Bom.) 392 wherein it was held as under :

"... the object of section 80 is to
enable the Secretary of State, who
necessarily acts usually through agents,
time and opportunity to reconsider his
legal position when that position is
challenged by persons alleging that some
official order has been illegally made to
their prejudice."

626. In Raghunath Das Vs. Union
of India and another AIR 1969 SC 674,
in para 8, the Court said :

"8.
The
object
of
the
notice
contemplated by that section is to give to
the concerned Governments and public
officers opportunity to reconsider the
legal position and to make amends or
settle the claim, if s0.00"o advised without
litigation. The legislative intention behind
that section in our opinion is that public
money and time should not be wasted on
unnecessary
litigation
and
the
Government and the public officers
should be given a reasonable opportunity
to examine the claim made against them
lest they should be drawn into avoidable
litigations. The purpose of law is
advancement of justice. The provisions in
Section 80, Civil Procedure Code are not
intended to be used as boobytraps against
ignorant and illiterate persons."

627. The object and purpose of
enactment of Section 80 C.P.C. was also
noticed in State of Punjab Vs. M/s.
Geeta Iron and Brass Works Ltd. AIR
1978 SC 1608 as under :

"A statutory notice of the proposed
action under S. 80 C.P.C. is intended to
1 All] Smt. Rekha V. Smt. Veermati and another
489
alert the State to negotiate a just
settlement or at least have the courtesy to
tell the potential outsider why the claim is
being resisted."

628. The requirement of notice under
Section 80 C.P.C. has also been held
mandatory. In Bhagchand Dagaduss Vs.
Secretary of State for India in Council
AIR 1927 PC 176, it was held that the
provision
is
express,
explicit
and
mandatory. It admits no implications or
exceptions. It imposes a statutory and
unqualified obligation upon the Court.
Therein a noticed was issued under
Section 80 C.P.C. on 26.6.1922, but the
suit was instituted before expiry of the
period of two months from the said date.
The Judicial Committee Observed:

"To argue as appellants did, that the
plaintiffs had a right urgently calling for
a remedy, while Section 80 is mere
procedure, is fallacious, for Section 80
imposes a statutory and unqualified
obligation upon the Court."

629. This decision was followed by
Judicial Committee in Vellayan Chettiar
Vs. Government of Province of Madras
AIR 1947 PC 197.

630.
In
Government
of
the
Province of Bombay Vs. Pestonji
Ardeshir Wadia and Ors. AIR 1949 PC
143 it has been held that provisions of
Section 80 of the Code are imperative and
should be strictly complied with.

631. A Constitution Bench of the
Apex Court in Sawai Singhai Nirmal
Chand Vs. Union of India AIR 1966 SC
1068 also took the same view. Following
the
above
authorities
in
Bihari
Chowdhary (supra), the Apex Court, in
para 6, observed:

"6. It must now be regarded as
settled law that a suit against the
Government or a public officer, to which
the requirement of a prior notice under
Section 80 C.P.C. is attracted, can not be
validly instituted until the expiration of
the period of two months next after the
notice in writing has been delivered to the
authorities concerned in the manner
prescribed for in the Section and if filed
before the expiry of the said period, the
suit
has
to
be
dismissed
as
not
maintainable."

632. In none of the above noted
cases, the Courts had the occasion to
consider
whether
a
Suit
for
non
compliance of Section 80 C.P.C. ought to
be dismissed even if the authority for
whose benefit the provision has been
made is not inclined to press this
objection or is interested to get the
decision on merits from a competent
Court of law. On the contrary, slight
divergent view was also going on
simultaneously as is evident from some of
the authorities of the Apex Court.

633. In Dhian Singh Sobha Singh
Vs. Union of India AIR 1958 SC 274
(page 281), the Court observed that
Section 80 C.P.C. must be strictly
complied with but that does not mean that
the terms of Section should be construed
in a pedantic manner or in a manner
completely divorced from common sense.
It observed :

"The Privy Council no doubt laid
down
in
Bhagchand
Dagadusa
v.
Secretary of State AIR 1927 PC 176 that
the terms of section should be strictly
490 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
complied with. That does not however
mean that the terms of the notice should
be scrutinised in a pedantic manner or in
a manner completely divorced from
common-sense. As was stated by Pollock,
C. B., in Jones v. Nicholls, (1844) 13
M&W 361=153 ER 149 "we must import
a little commonsense into notices of this
kind." Beaumont, C. J., also observed in
Chandu Lal Vadilal v. Government of
Bombay, AIR 1943 Bom 138 "One must
construe Section 80 with some regard to
common-sense and to the object with
which it appears to have been passed."

634. In para 17 of the judgment
while referring to and relying on its
earlier decision of Sangram Singh Vs.
Election Tribunal, Kotah, AIR 1955 SC
425, the Apex Court said:

"Section 80 of the Code is but a part
of the Procedure Code passed to provide
the regulation and machinery, by means
of which the Courts may do justice
between the parties. It is therefore merely
a part of the adjective law and deals with
procedure alone and must be interpreted
in a manner so as to subserve and
advance the cause of justice rather than
to defeat it."

635. The protection provided under
Section 80 is given to the person
concerned. If in a particular case that
person does not require protection, he can
lawfully waive his right. This is what was
held in Dhirendra Nath Gorai and
Sabal Chandra Shaw and others Vs.
Sudhir Chandra Ghosh and others AIR
1964 SC 1300 where considering a pari
materia provision, i.e. Section 35 of
Bengal Money Lenders Act, 1940 the
Apex Court held that such requirement
can
be
waived.
Similarly,
while
considering
Section
94
of
the
Representation of People Act, 1951, the
above view was reiterated in S. Raghbir
Singh Gill Vs. S. Gurucharan Singh
Tohra and others 1980 (Suppl.) SCC
53. All the aforesaid decisions have been
followed in Commissioner of Customs,
Mumbai Vs. M/s. Virgo Steels, Bombay
and another AIR 2002 SC 1745 and it
has been held that notice in such a case
can be waived.

636. A Full Bench of the Bombay
High Court in Vasant Ambadas Pandit
Vs. Bombay Municipal Corporation
and others AIR 1981 Bombay 394 while
considering a similar provision contained
in Section 527 of Bombay Municipal
Corporation Act, 1888 held "The giving of
the notice is a condition precedent to the
exercise of jurisdiction. But, this being a
mere procedural requirement, the same
does not go to the root of jurisdiction in a
true sense of the term. The same is
capable of being waived by the defendants
and on such waiver, the Court gets
jurisdiction to entertain and try the suit."

637. In Amar Nath Dogra Vs.
Union of India 1963 (1) SCR 657; State
of Punjab Vs. Geeta Iron and Brass
Works Ltd. 1978 (1) SCC 68 and
Ghanshyam Dass Vs. Dominion of
India 1984 (3) SCC 46 the Apex Court
also held that notice under Section 80
C.P.C. or similar provisions of other Acts
are for the benefit of a particular
authority. The same can be waived as they
do not go to the root of jurisdiction in the
true sense of the term. Referring to the
aforesaid judgments as well as the Full
Bench judgment of Hon'ble Bombay High
Court in Vasant Ambadas Pandit
(supra), the Apex Court in Bishandayal
and sons Vs. State of Orissa and others
1 All] Smt. Rekha V. Smt. Veermati and another
491
2001 (1) SCC 555 (para 16) said that
there can be no dispute to the proposition
that a notice under Section 80 can be
waived.

638. In fact we find in Ghanshyam
Dass and Ors. Vs. Dominion of India
and Ors. (supra) wherein a three judges
Bench considered the correctness of the
decision of this Court in Bachchu Singh
Vs. Secretary of State for India in
Council, ILR (1903) 25 All 187,
Mahadev
Dattatraya
Rajarshi
Vs.
Secretary of State for India AIR 1930
Bom 367 and earlier decision in S.N.
Dutt Vs. Union of India, AIR 1961 SC
1449. Though the facts of that case are
slightly different but what has been
observed by the Apex Court is of some
importance. The Apex Court while
reiterating
the
Privy
Council's
observations in Bhagchand Dagadusa
(supra) that requirement of Section 80
C.P.C. of giving notice is express, explicit
an
mandatory
and
admits
of
no
implications
or
exceptions,
however
observed that one must construe Section
80 with some regard to common sense
and to the object with which it appears to
have been passed. It also observed that
our laws of procedure are based on the
principle that "as far as possible, no
proceeding in a court of law should be
allowed
to
be
defeated
on
mere
technicalities". The Apex Court overruled
its decision in S.N. Dutt (supra) as also
the Bombay High Court's decision in
Mahadev Dattatraya Rajarshi (supra)
and this Court's decision in Bachchu
Singh (supra). In the case before the
Apex Court though notice was issued but
on a closer scrutiny, the High Court found
that it was not a valid notice under
Section 80 C.P.C. and therefore non
suited the plaintiff. This judgment was
reversed by the Apex Court making the
abovesaid
observations.
The
Court
reiterated that the object of notice
contemplated by Section 80 is to give to
the Government and public officers an
opportunity to consider the legal position
and to make amends or settle the claim, if
so advised, without litigation so that
public money and time may not be wasted
on unnecessary litigation.

639. Considering the objective of
such enactment and the fact that party
concerned can waive it, we are of the
view that the plea of want of notice under
Section 80 cannot be taken by a private
individual since it is for the benefit of the
Government and its officers.

640. A Division Bench of Hon'ble
Bombay High Court in Hirachand
Himatlal
Marwari
Vs.
Kashinath
Thakurji
Jadhav
AIR
(29)
1942
Bombay 339 said "In the first place
defendant 3 is not the proper party to
raise it, and in the second place the
receivers in our opinion must be deemed
to have waived their right to notice. It is
open to the party protected by S. 80 to
waive his rights, and his waiver binds the
rest of the parties. But only he can waive
notice, and if that is so, it is difficult to see
any logical basis for the position that a
party who has himself no right to notice
can challenge a suit on the ground of
want of notice to the only party entitled to
receive it. We think therefore that this
ground of attack is not open to defendant
3; and for our view on this point direct
support may be obtained from 32 Cal.
1130."

641. The same view has been taken
by Kerala High Court in Kanakku Vs.
Neelacanta, AIR 1969 (Kerala) 280
492 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
holding that the plea of want of notice
cannot taken by private individuals.

642. A Single Judge of this Court in
Ishtiyaq Husain Abbas Husain Vs.
Zafrul Islam Afzal Husain and others
AIR 1969 Alld. 161 has also expressed
the same view:

"It appears to me that the plea of
want of notice is open only to the
Government and the officers mentioned in
section 80 and it is not open to a private
individual. In this particular case the
State Government did not even put in
appearance. The notice, therefore, must
be deemed to have been waived by it."

643. We respectfully endorse the
aforesaid view of the Hon'ble Single
Judge.

644. The entire issue 10 (a) and 10
(b) (Suit-3) is, accordingly, decided in
favour of plaintiffs (Suit-3). We hold that
a private defendant cannot raise objection
regarding maintainability of suit for want
of notice under Section 80 C.P.C."

4. In view of above exposition of
law laid down by Special Bench, it is
quite clear that objection with respect to
want of notice under Section 80 CPC
cannot be taken by a private individual
since it is for the benefit of Government
and its officials and, therefore, it can be
taken only by them and would be
considered if it is pressed by those for
whose benefit the provision has been
made.
A
private
individual
cannot
challenge the proceeding by taking the
plea of want of notice under Section
80CPC.

5. In view thereof the order
impugned in this writ petition warrants no
interference.

6. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2012

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 19624 of 2012

Atul Kumar Goel

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Singh

Counsel for the Respondents:
C.S.C.
Sri Ravi Shankar Prasad

U.P. Basic Education (Teachers) Service
Rules 1981-Rule 8-Promotion on post of
Head Master-petitioner being appointed
on
compassionate
ground-remained
untrained-held-in absence of minimum
requisite
qualification-can
not
be
appointed/promoted as Head Mastergeneral Mandamus issued-claim of parity
with other similarly situated persons
appointed and working Head Master-No
mandamus to perpetuate illegality can
be issued.

Held: Para 5

So far as the second ground raised by
the petitioner is concerned, suffice is to
record that the minimum qualifications
prescribed for appointment on the post
of Headmaster have been laid down in
Rule 8 of the Rules, 1981. Training is a
must for appointment on the post of
Headmaster/Headmistress
in
senior
basic schools as well as in junior basic