Amar Kumar Chourasia vs State Transport Authority Gwalior and Others

Dipak Misra, J.

In this appeal preferred under Clause 10 the Letters Patent the appellant, Amar Kumar Chourasia, has called in question the soundness of the judgment passed by the learned Single Judge in F.A. No. 307/96, dated 22.3.1999 whereby the learned Single Judge has set aside the decree passed by the Court below and rejected the plaint under Order 7 Rule 11 (d) of the CPC (in short ''the Code'').

The present appellant instituted Civil Suit No.7A/96 for recovery of damages and mandatory injunction. His case before the Court below was that he was an unemployed educated person and had applied for grant of loan for purchase of a jeep in order to utilize the said vehicle as a taxi. The loan was obtained from the State Bank of India. It was pleaded that he obtained assurance from the Regional Transport authority that he would be granted a permit. On the basis of the said assurance he got the loan disbursed from the bank. Thereafter he purchased the jeep and got it registered as a taxi in the office of State Transport Authority, Gwalior. It was registered as MIJ-3325. After obtaining the registration certificate the plaintiff on 12.5.1987 applied for grant of a temporary permit to run the aforesaid vehicle as a taxi. A fitness certificate was granted by the defendant No.3. The formalities with regard to insurance of the vehicle were completed. Though he fulfilled the necessary formalities for obtaining the licence to run the taxi temporary permit was not issued in his favour by the Regional Transport Authority, Jabalpur. Notices served on the defendants fell on deaf ears and no order was passed, as a result of which he had to keep the vehicle idle since 12.5.1987.

According to the plaintiff as the vehicle remained idle he suffered financial loss to the extent of Rs. 500/- per day. It was urged in the plaint that due to unlawful and illegal action of the Regional Transport Authority no permit was granted and hence, he was entitled to damages of Rs. 22.000/- apart from the daily loss sustained by him. He also claimed interest at the rate of 12 percent per annum.

The claim of the plaintiff was resisted by the defendants by filling a written statement. It was putforth by the defendants that to obtain a permit is not a vested right and the same is issued on the basis of fulfilment of certain terms and conditions as required under law. The further case of the defendants was that the plaintiff had submitted an application on 17.01.1986 to the defendant No.3 for grant of permit and the same was duly dealt with by the said defendant that the application would be considered and permit would be granted if the conditions requisite under the law were fulfiled and in that backdrop it could not be treated as an assurance. With regard to the averment that the certificate of fitness was granted in respect of the vehicle it was stated that the vehicle was granted such a certificate, but the appellant was informed that if he wanted to apply for grant of permit he should make fibre or steel body of the jeep as per the Government Instruction No.22-50-84-VIII as the same was the condition precedent for grant of permit and such a condition has been introduced keeping in view the safety of the passengers. Despite the aforesaid intimation to the plaintiff he neither gave his consent nor did he change the body of the jeep, as a result of which his application for grant of permit was rejected. With regard to service of notice it was putforth that the notice of service is a matter of record and thence, it did not need any reply. The averment pertaining to grant of damage was controverted on the ground that refusal or permit was done as per law and the plaintiff could have preferred an appeal before the higher forum but as he had chosen not to do so, he cannot claim damages, on the base that the act in question is tortious in nature.

The learned trial Judge framed as may as five issues came to hold that the plaintiff was entitled to damages of Rs. 22,000/- and Rs 500/- per day.

Being dissatisfied the defendant preferred the aforesaid First Appeal The learned Single Judge adverted to the issue of notice u/s 80 of the Code and came to hold that there was no specific averment in the plaint regarding service of notice u/s 80 of the Code and even if it assumed that there was a notice u/s 80 of the Code the same was served on the appellant Nos. 1 to 3 but not on the appellant No.4, namely, the State of Madhya Pradesh. In view of this the learned Single Judge arrived at the conclusion that the provisions enshrined u/s 80 of the Code were not complied with. Being of this view the learned Single Judge dislodged the decree passed by the trial Judge and rejected the plaint under Order 7 Rule 11(d) or the Code.

Assailing the aforesaid judgment it is submitted by Mr. A.N.Choubey, learned counsel for the appellant that service of notice u/s 80 of the Code though mandatory, can be waived by the defendants and in the instant case by their stand in the written statement and the conduction they have waived it. It is putforth by him that no issue was framed with regard to service of notice u/s 80 of the Code and no objection was raised on that score and, therefore, it should be deemed that service of notice had been waived. To buttress his submission he has placed reliance on the decisions rendered in the cases of Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI), ; State of Bihar and Another Vs. Smt. Panchratna Devi and Another, ; Vasant Ambadas Pandit Vs. Bombay Municipal Corporation and Others, ; Mangilal Vs. Bardilal, 1996 (1) MPWN 117; and Veleyan Chettiar Vs. Government of the Province of Madras, 1947 PC 197. It is also canvassed by him that the learned Single Judge has grossly erred by not accepting the stand putforth on the plaint and taking a view to defeat a just claim of the plaintiff.

Per contra, Mr. A.K. Mishra, learned Deputy Advocate General for the State submitted that the plaintiff had not averred in the plaint in specific terms that the notice u/s 80 of the Code was served on the defendants and in absence of the specific averment the question of waiver does not arise. It is also putforth by him that issue of notice u/s 80 of the Code being mandatory, the principle of waiver does not apply. It is also propounded by him that though the State Government was made a party yet notices were not served on the State Government and, therefore, service of notices on other defendants is of no significance. Quite apart from the above, it has been contended by Mr. Mishra that even on merits the plaintiff-appellant has no case inasmuch as no assurance was given at any point of time and further when the statutory authority has passed the order in exercise of jurisdiction vested in him under the Statute, the question of grant of damages does not arise.

First we shall deal whether issuance of notice u/s 80 of the Code can be waived or not.

It has been held by the Courts that the aforesaid provision is mandatory. However, certain exceptions have been carved out. In the case of Vellayan Chettiar (supra) it was held as under :

....their appears to their Lordships to be no reason why the notice required to be given under S.80, should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required : if in the particular case he does not require that protection and says so, he can lawfully waive his right.

In the case of Dhian Singh Sobha Singh and another (supra) the Apex Court ruled thus:

... It is relevant to note that neither was this point taken by the respondent in the written statement which it filed in answer to the appellant''s claim nor was any issue framed in that behalf by the Trial Court and this may justly the inference that the objection under S. 80 had been waived.

In this context it is worth while to notice a Full Bench decision rendered by the Rajasthan High Court in the case of State of Rajasthan Vs. Girdharilal Chunnilal Modi, wherein the full Bench adopted the view that there can be waiver of notice u/s 80 of the Code :

In the case of Lalchand Chowdhury Vs. Union of India (UOI), it has been held as under :

If the provisions of law are waived in the course of a trial, they cannot afterwards be set up by way of objection to any step taken or about to be taken upon the footing of waiver. When the litigant had, without mistake induced by the opposite party, taken a particular position in the course of litigation, he must act consistently with it, especially, if to allow him to do otherwise would prejudice the opponent. If the defendant wanted to rely on the invalidity or insufficiency of the notice under S. 80 it was for him to raise a specific issue on this question.

This Court in the case of Union of India Vs. Chaturbhuj, in S.A. No. 19/ 92, decided on 16.12.1992 held that when objection with regard to notice u/s 80 of the Code was not raised the same would be deemed to have been waived.

In the case of State of M.P. Vs. Gorelal, S.A. No.24/85 decided on 2.12.1992 R.C. Lahoti (as his Lordship then was) placing reliance on P.P. Abubacker Vs. The Union of India (UOI), State of Orissa and another Vs. Bamadeb Panigrahi and another, AIR 1971 Ori 227, and State of Karnataka Vs. Nasiruddin Karim Saheb Patel, 1981 LIC 1125 Kant. came to hold that a plea as to denial or validity of notice u/s 80 of the Code not raised and pressed at the initial stage, cannot be allowed to be agitated in second appeal.

In this context we may profitably refer to another decision of this Court rendered in the case of Mangilal Vs. Bardibal, S.A. No. 315/77, decided don 9.3.1995, wherein it has been held that plea of non-service of statutory notice u/s 80 of the Code cannot be raised for the first time in first or second appeal.

In view of the aforesaid enunciation of law we have no hesitation in our mind to arrive at the conclusion that issuance of notice u/s 80 of the Code can be waived.

The next question that falls for consideration is whether in the instant case the defendants have waived the right and whether on the ground the plaintiff was entitled to enter into trial. Certain aspects emerge in this regard. It is not disputed at the Bar, that no issue was framed with regard to service of notice. The learned Single Judge in paragraph 6 of his order has clearly held that there is no specific averment in the plaint regarding service of notice u/s 80 of the Code, but there is some allegation that a notice dated 15.6.1987 was served. The learned single Judge has adverted to another facet that notice u/s 80 of the Code was served on the defendants No. 1 to 3 but not on the defendant No.4, the State of MP. In this back drop the learned Single Judge has held that there has been no notice u/s 80 of the Code. In this context we think it apposite to refer to certain decisions.

In the case of Thoudam Ningol Ningthoujam Ongbi Muktarei Devi Vs. The State of Manipur & Others, AIR 1978 Gua 17 the learned Single. Judge held that the plaint itself shall contain a statement to the effect that such a notice has been delivered or left with the defendant.

In the instant case the plaint filed by the plaintiff there is a vague allegation with regard to service of notice. It is not specific. Hence, it cannot be said that there was requisite and necessary averment in that regard. That apart, the State Government was not served with notice. In view of this, though no issue has been framed, it cannot be held that the defendants had waived the right of assail to contest on that score. We say so as the plaint was silent with regard to the nature of the notice and further there was no stand that notice was issued to the respondent No.4. it is the State Government which was the necessary party to the litigation. If there had been no notice as is perceptible from the averments made in the plaint, we are of the considered opinion that the doctrine of waiver would not be applicable to the present case.

Though we have dealt with the aforesaid technical plea, we think it apposite, for the sake of completeness to dwell upon the merits. The learned trial judge in paragraph six of the judgment discussed the evidence to some extent and thereafter arrived at the conclusion that the defendants should have taken the case of the plaintiff seriously and should have dealt with the application for grant of permit in an appropriate manner. She has further held that the regional Transport Authority did not grant him the permit but advised him to go to the Commissioner. The learned trial judge has also observed that when the fitness certificate was given it was not mentioned that the plaintiff was required to put steel and the fibre body. Basing on these premises, the learned trial judge came to hold that the plaintiff had sustained loss and, therefore, was entitled to damages as has been indicated hereinbefore. On a perusal of the reasoning given by the learned trial judge we find that she has totally misdirected herself. We have perused Ex.P/2 wherein the Regional Transport Authority, Jabalpur, vide letter 17.01.1986 had communicated as under :

With reference to your application cited above, it is hereby informed that no prior, assurance for grant of permit for any kind of motor vehicle can be given as the permit granting authority is a quasi judicial authority. If you apply for grant of a permit for new vehicle in the prescribed manner, the same will be considered according to law.

On a perusal of the aforesaid communication, by no stretch of imagination it can be conceived to be an assurance. That apart, giving of assurance in this regard is not permissible in law. The application for grant of permit is not a matter of right. The authority has to take no of various aspects, the law in vogue and the circulars governing the field to grant a permit. Assurance, if any, by the statutory authority functioning under the Statute is inconceivable. That apart, the document does not so indicate. On a perusal of Ex.P/3 dated 14.10.87 it reads as under :

Reject and inform. Under existing rules/instructions nothing is possible. Ask the applicant to approach the Govt.

In view of this documentary evidence we cannot find any fault with the authority. If the plaintiff was aggrieved by the order of rejection he ought to have taken recourse to the remedy provided under the relevant statute. Mr. Choubey, learned counsel for the appellant has drawn our attention to Section 80 of the Motor Vehicles Act, 1988. We are of the considered opinion, the said provision does not render any assistance to the plaintiff-appellant. Thus, we do not find any substance in this appeal. We unhesitatingly hold that the learned Trial Judge had totally paved the wrong path to award damages and the learned single Judge has rightly interfered in appeal.

For the foregoing reasons we find no substance in this Letters Patent Appeal and the same is dismissed. However, the parties shall bear their respective costs throughout.