State Of Orissa And Another v. Bamadeb Panigrahi And Another, Orissa High Court, Judgment, Law, casemine.com

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Case Number

Second Appeal No. 429 of 1966

Judges

Hon'ble Mr. Justice Abhimanyu Misra

Acts

Section 49 of the Madras Court of Wards Act
Orissa Estates Abolition Act

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Smart Summary

Factual and Procedural Background

The appeal arises from a confirming judgment of the Additional Subordinate Judge, Berhampur. The plaintiff had been leased certain forest areas by the ex-intermediary of Mandasa (defendant No.3) for 18 months commencing 1-12-1961 for collection of timber, bamboo and other minor forest products. Under the Orissa Estates Abolition Act the forest vested in the State of Orissa. Prior to vesting, defendant No.3 had agreed to obtain timber transit permits for the plaintiff. There was litigation between defendant No.3 and the State; a compromise resulted in the State taking over the forest with effect from 1-4-1962 and entering into an agreement (Ext.2) recognizing the plaintiff as lessee. Timber transit permits, required for removal of forest produce from the forest area, were not issued to the plaintiff until 21-8-1962. As a result, the plaintiff could not remove timber for about nine months and sought a mandatory injunction restraining the State from holding a public auction (notified 10-2-1964) and to permit the plaintiff to continue as lessee for a further nine months, alternatively claiming damages. Defendant No.3 did not contest; defendants 1 and 2 denied entitlement, alleging the plaintiff could have collected and stored materials earlier and was contributorily negligent. The lower courts granted the plaintiff an extension for nine months; the State appealed.

Legal Issues Presented

Whether the suit was defective or not maintainable for want of a valid notice under Section 80 of the Code of Civil Procedure (CPC) and, relatedly, whether any omission in compliance with Section 80 could be treated as waived.
Whether the plaintiff is entitled to possession of the forest areas for a further period of nine months on the same terms as Ext. 2 (the agreement recognizing the plaintiff as lessee).
Whether the alternate relief of damages claimed by the plaintiff is appropriate and, if so, what the quantum of damages should be.
Whether the suit as framed (valued at Rs. 200 for injunction) was the appropriate procedure to obtain the relief granted by the courts below (i.e., possession for nine months), or whether other procedural or pleading defects affected maintainability.

Arguments of the Parties

Plaintiff's Arguments

The plaintiff asserted his existing leasehold right (originally from defendant No.3 and recognized by Ext.2) and sought continuation of lessee rights for an additional nine months because timber transit permits were delayed (until 21-8-1962), preventing him from working the forest from 1-12-1961 to 21-8-1962.
He alleged that officers of the State had indicated that extension would be obtained if he paid the balance of lease money; he paid the arrears on that assurance but no extension was granted.
He served a telegram notice dated 7-2-1964 (Ext.6) which he stated was sent under Section 80 of the CPC (though the plaint also acknowledged the defendants might not strictly be entitled to that notice).
The plaintiff sought a mandatory injunction restraining the State from auctioning the forest areas and to be permitted to continue as lessee for nine months more; alternatively, he claimed damages.

Defendants' (State and District Forest Officer) Arguments

While admitting delay in issuance of timber transit permits, the State contended the plaintiff was not prevented from collecting and storing forest materials during that period and thus exhibited contributory negligence in not doing so.
On this basis the defendants contended the plaintiff was not entitled to an extension of lease period nor to damages.
The defendants also pleaded that no statutory notice under Section 80 CPC had been served as required and therefore the suit was not maintainable and the plaint was liable to be summarily rejected.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sawai Singhai v. Union of India, AIR 1966 SC 1068	Affirmed the mandatory nature of the notice requirement under Section 80 CPC.	The court acknowledged this decision to state that notice under Section 80 is mandatory; it formed part of the backdrop but the court proceeded to consider the separate doctrine of waiver as developed in subsequent authorities.
Bhagchand Dagdusa v. Secretary of State, AIR 1927 PC 176	Earlier authority approving the mandatory character of notice requirements (approved in Sawai Singhai).	The decision was noted as being approved in Sawai Singhai and contributed to the statement that Section 80's mandatory nature is well-settled.
Basudeb v. Padmanav, ILR (1959) Cut 258	Held that objection to absence of Section 80 notice, if not raised and not made an issue in the trial court, may be deemed waived and cannot be raised for the first time in appeal to dismiss the suit.	The court relied on this line of authority to consider whether defendants had waived the protection of Section 80 by conduct (failure to press the point in trial/appellate courts) and to deny the State's belated contention in second appeal.
Anadi Charan Parida v. Banamali Muduli, (1962) 4 O.J.D 13	Explained the doctrine of waiver: a right (such as notice) can be waived expressly or impliedly and waiver must be by a person who has full knowledge of the facts; once waived it cannot ordinarily be resurrected.	Used to support the proposition that protection under statutory notice rules can be waived, and that omission to frame an issue on the point or to press it may indicate waiver.
Venkataswami v. Mahalakshmi, AIR 1949 Mad 747	Described waiver as abandonment of a right and that waiver can be implied from conduct if the party had knowledge of the facts.	Quoted to explain the conditions under which waiver operates and to justify treating an unraised/unchallenged Section 80 objection as waived in appropriate circumstances.
Rajasthan State v. Girdharilal, AIR 1959 Raj 126 (Full Bench)	Adopted the view that the notice required under statutes similar to Section 80 may be waived by the authority entitled to receive it.	Quoted with approval and used to reinforce the line of authorities allowing waiver of statutory notice by conduct of the public authority.
Vellayan Chettiar v. Government of the Province of Madras, AIR 1947 PC 197	Held there is no reason why the notice required under Section 80 should not be waived if the authority entitled to such notice chooses to waive it.	Quoted in support of the proposition that the protection of Section 80 is for the defendant's benefit and may be waived.
Dhian Singh v. Union of India, AIR 1958 SC 274	Indicated that the absence of a Section 80 objection in the written statement and lack of issue framed on it may justify inferring waiver.	The court cited this authority to justify drawing an inference of waiver where the point was not raised in trial pleading or framed as an issue.
Lalchand v. Union of India, AIR 1960 Cal 270	Held that if statutory provisions are waived during trial they cannot later be set up to challenge steps taken on the footing of such waiver; and a litigant must act consistently with positions previously taken.	Relied upon to support the conclusion that the State's belated reliance on Section 80 in second appeal was not permissible after earlier conduct in the proceedings.
Manindra Chandra Nandi v. Secretary of State, (1907) ILR 84 Cal 257	Earlier Calcutta authority consistent with waiver jurisprudence concerning statutory notice requirements.	Referenced by the court as part of the Calcutta line of authorities endorsing the waiver principle.
Bhola Nath Ray v. The Secretary of State for India in Council, (1913) 17 Cal WN 64	Another Calcutta authority aligning with the principle that statutory notice can, under circumstances, be treated as waived.	Used to support the historical development of the waiver doctrine in the Calcutta decisions cited by the court.

Court's Reasoning and Analysis

The court proceeded in two principal phases of analysis: (A) procedural/Section 80 issue, and (B) merits relating to entitlement to extension/possession/damages.

A. Section 80 CPC — mandatory requirement vs waiver

The court acknowledged the clear jurisprudence that Section 80 notice is mandatory (citing Sawai Singhai AIR 1966 SC 1068 and earlier Judicial Committee authority Bhagchand Dagdusa AIR 1927 PC 176).
However, the court recognized a substantial and authoritative current of decisions that the protection conferred by Section 80 may be waived by the authority entitled to it — waiver may be express or implied from conduct (citing Basudeb v. Padmanav; Anadi Charan Parida; Venkataswami; Rajasthan Full Bench; Vellayan Chettiar; Dhian Singh; Lalchand; and related Calcutta precedents).
In the present case the State did plead lack of Section 80 notice in its written statement, but no issue upon that point was framed in the trial court and the matter was not canvassed in the trial court or the first appellate court. The objection was raised for the first time in the memorandum of second appeal (ground No.3).
The court examined the telegram relied upon by the plaintiff (Ext.6) and found it was not in conformity with Section 80's requirements, and that the plaint did not contain the statement required by Section 80 that such notice had been delivered or left.
Balancing the authorities, the court concluded that because the defendants had not raised and pursued the notice point at trial (no issue framed) and had not canvassed it in the earlier appellate proceedings, it would be prejudicial to the plaintiff to permit the State to set up the want of statutory notice for the first time in second appeal. Consequently, the court would not permit the contention that the suit is bad for want of notice to be mooted at this late stage.

B. Merits — entitlement to extension, nature of relief and damages

The court accepted the factual position that Ext.2 (dated 26-4-1962) recognized the plaintiff's status as lessee following the compromise of 1-4-1962, and that timber transit permits were not issued until late August 1962, meaning the plaintiff could not remove timber for about 8 months and 20 days (approximately nine months).
The court observed that timber transit permits are required for removal of timber from the forest area but are not necessary for processing timber within the forest; thus there was some merit to the defendants' contention that the plaintiff might have worked within the forest and deferred removal until permits were issued — an aspect the courts below had not examined.
The court further analyzed the nature of relief granted below. The plaintiff's suit was valued at Rs. 200 for injunction; the courts below, however, granted a decree conferring nine months' possession on the same terms as Ext.2. The court found this problematic because an injunction suit framed and valued as such was not the appropriate vehicle for awarding possession for nine months without examining the legal basis for such a mandatory direction.
The court identified practical and equitable difficulties with the decree as granted below: the passage of time (more than seven years since the events) would have allowed natural regrowth and changes to the forest assets; awarding the plaintiff possession now for a past nine-month period could give him more benefit than he would have obtained by actually working the forest in the relevant period. The court also noted that the trial court had found the plaintiff was not entitled to damages because no specific sum had been claimed, whereas damages were an alternate relief and, if sustainable, should be assessed by a proper decree.
Because the lower courts omitted to address these issues — maintainability, the legal basis for mandatory possession relief, whether the plaintiff could have worked within the forest and removed later, and the assessment of damages — the appellate court found it could not properly uphold the decree without further enquiry.

Holding and Implications

Holding: The appeal is allowed. The court remitted the matter to the trial court for re-determination of specified questions.

Core Ruling: APPEAL ALLOWED; matter remitted to the trial court.

Implications and consequences:

The court refused to permit the defendants to succeed on a belated Section 80 objection raised for the first time in second appeal, treating the defendants' prior conduct and the absence of an issue at trial as precluding such belated reliance in these circumstances.
The decree of the courts below granting nine months' possession on the terms of Ext.2 is set aside for reconsideration because the lower courts did not examine critical questions of law and fact (maintainability, the legal basis for a mandatory direction awarding possession, whether the plaintiff could have worked within the forest, and the appropriate assessment of damages).
The matter is remanded to the trial court to re-determine expressly the following questions (as listed by the court):
1. Is the suit as laid maintainable?
2. Is the plaintiff entitled to possession for a further period of nine months of the forest areas in this suit?
3. Is the relief of damages as claimed appropriate and, if so, what are the damages?
The trial court is directed to consider whether amendments to pleadings are necessary and whether further evidence should be permitted on matters not earlier considered. Costs are to abide the result.
The opinion does not purport to lay down any new precedent; it applies existing authorities on the mandatory nature of Section 80 and on the circumstances in which its protection may be treated as waived, and it remands the case for further fact-finding and legal determination of entitlement to relief.

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State Of Orissa And Another v. Bamadeb Panigrahi And Another

1. The defendants — the State of Orissa and the District Forest Officer, Berhampur Division are in appeal against a confirming judgment of the learned Additional Subordinate Judge, Berhampur.

2. The plaintiff instituted the suit for directing defendants 1 and 2 to allow him to work as a lessee in certain forest areas as detailed for a period of nine months more. Alternately he claimed relief of damages. The ex-intermediary of Mandasa, defendant No. 3, was admittedly the owner of the disputed forest till under the Orissa Estates Abolition Act the forest areas vested in the State. Before vesting defendant No. 3 had entered into an agreement with the plaintiff as a result of which the disputed forest was leased out to the plaintiff for a period of 18 months beginning from 1-12-1961 for the collection of timber, bamboo and other minor forest products. Timber transit permits are necessary for working out the forest by a lessee and such permits are to be issued by the State Government and its officers. As per the agreement defendant No. 3 was to obtain necessary timber transit permits from the Government and make them over to the plaintiff as lessee. There was a litigation going on in the Supreme Court between defendant No. 3 and the State of Orissa regarding the forest and ultimately they entered into a compromise as a result of which the State Government took over the forest with effect from 1-4-1962. They entered into an agreement (Ext. 2) with the plaintiff recognising his right as a lessee of the said forest. The 18 months' period with effect from 1-12-1961 was to lapse on 31-5-1963.

3. Even though the State of Orissa entered into the agreement with the plaintiff and recognised his right as a lessee, timber transit permits were not issued to the plaintiff until 21-8-1962. Thus from 1-12-1961 till 21-8-1962 for a period of about 9 months the plaintiff could not work the forest. The authorised officers of the State of Orissa impressed upon the plaintiff that if he paid the balance of the lease money necessary extension would be obtained. Accordingly the plaintiff deposited all the arrears, but ultimately no extension was granted. As the lease expired, the plaintiff could not make necessary use, of the lease. He has thus lost. In these circumstances he came to court asking for a decree for mandatory injunction restraining the defendants to hold public auction as notified on 10-2-1964 of the forest areas and to allow the plaintiff to continue to exercise the right of a lessee for a period of nine months more or alternatively for appropriate relief of damages. Defendant No. 3 did not contest the suit. Defendants 1 and 2 in a joint written statement contended that though there was delay of 9 months in issuing the timber transit permits the plaintiff had not been prevented from collecting and storing forest materials during the previous 9 months, and there was contributory negligence on the part of the plaintiff in not having done so. Thus he was neither entitled to the extension of the lease period nor any damages.

4. The original agreement is not on record. It had been taken away by the Tahsildar, Parlakimedi. He had granted a receipt to the plaintiff in token of having taken away the original lease deed. That has been marked as Ext. 1. The subsequent agreement is marked as Ext. 2 which has been entered into between the plaintiff and the State of Orissa. The courts below have taken the view that the plaintiff is entitled to an extension of 9 month's period on the basis that there was delay in issuing of the timber transit permits as a result of which the plaintiff has not been able to work the forest areas as he could have if such permits had been granted in time.

5. Admittedly no notice as required under Section 80 of the CPC had been given in this case. In paragraph 11 of the plaint it was stated,

“That the plaintiff has also sent a telegram notice under Section 80 of the CPC to the 1st and 2nd defendants on 7-2-1964 though strictly they are not entitled to notice, and the plaintiff reliably understands that the 1st defendant is not going to comply with his request. As the plaintiff apprehends injury to his rights by the threatened act of D-1 that he would hold the auction, this suit is filed.”

6. In the written statement in paragraph 10 it was stated:

“The plaintiff not having served on defendants Nos. 1 and 2 previous notice of the institution of the plaint as required under Section 80 of the CPC the suit is not maintainable, and the plaint is liable to be summarily rejected.”

7. In the face of such pleadings an issue about the validity of notice under Section 80 of the CPC was bound to arise. But as it appears, no issue was struck nor was this point canvassed either in the trial court or in the court of appeal. For the first time in the memorandum of second appeal this question has been raised in the shape of ground No. 3 which is to the following effect:

“For that the defendants were entitled to a notice under Section 80 of the CPC and the fact of such notice having not been pleaded in the plaint, the plaint should have been summarily rejected.”

8. Section 80 of the CPC is to the following effect:—

“No suit shall be instituted against the Government including of the State of Jammu and Kashmir or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of—

(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the District.

and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.”

9. That a notice under Section 80 of the CPC is mandatory and the question is no more open to doubt in view of the decision of their Lordships of the Supreme Court in AIR 1966 SC 1068, Sawai Singhai v. Union of India. Position was always well settled and as early as 1927 their Lordships of the Judicial Committee had also stated so. The decision of their Lordships of the Judicial Committee in AIR 1927 PC 176, Bhagchand Dagdusa v. Secretary of State was approved in the aforesaid Supreme Court decision. But there is also another current of judicial thought which cannot be ignored. Courts have taken the view that the protection available under Section 80 of the CPC either to the State Government or a public officer can be waived and raising of a plea in the written statement and not joining an issue in the trial Court have been held to be waiver. In this Court there are two decisions directly on the point. In ILR (1959) Cut 258, Basudeb v. Padmanav, G.C Das, J., held,

“When an objection that a suit is not maintainable in the absence of a notice under Section 80 is not raised in the trial Court and no issue is joined on this point and the suit is decreed the plea as to want of notice must be deemed to have been waived and when the plea is taken for the first time in appeal, the appellate Court is not entitled to dismiss the suit on the ground of absence of notice under Section 80.”

10. The same view has been reiterated by Barman, J., as he then was, in (1962) 4 O.J.D 13, Anadi Charan Parida v. Banamali Muduli, considering a similar question which arose with reference to Section 49 of the Madras Court of Wards Act (I of 1902) which has the same language as Section 80 of the CPC, Viswanath Sastri, J., in AIR 1949 Mad 747, Venkataswami v. Mahalakshmi, held:—

“Waiver is an abandonment of a right and may be express or implied from conduct and to be effectual must be by a person who has full knowledge of the facts. A person who has taken a plea based on the want of notice to which he is entitled, may waive it and allow the action to proceed as though the required notice had been given to him and this can be done so long as the action is pending and has not been finally determined.”

11. A Full Bench of the Rajasthan High Court in AIR 1959 Raj 126 (FB), Rajasthan State v. Girdharilal adopted the self-same view. They quoted with approval the observations of their Lordships of the Judicial Committee in AIR 1947 PC 197, Vellayan Chettiar v. Government of the Province of Madras, where it was stated.

“There appears to their Lordships to be no reason why the notice required to be given under Section 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.”

12. In AIR 1958 SC 274, Dhian Singh v. Union of India, their Lordships stated,

“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 justify the inference that the objection under Section 80 had been waived.”

13. Mr. Justice Mitra of the Calcutta High Court in AIR 1960 Cal 270, Lalchand v. Union of India stated,

“If the provisions of law were 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 Mr. Ghosh therefore wanted to rely on the invalidity or insufficiency of the notice under Section 80 of the CPC it was for him to raise a specific issue on this question.”

14. Reliance was placed by Mitra, J., on an earlier decision of their Court in (1907) ILR 84 Cal 257, Manindra Chandra Nandi v. Secretary of State. To the self-same effect there is an authority in (1913) 17 Cal WN 64, Bhola Nath Ray v. The Secretary of State for India in Council. In the present case a plea was taken in the written statement, but a suitable issue on this aspect was not raised nor has this point been canvassed in the trial Court. Though in the lower appellate court a ground was in the memorandum of appeal on this question it does not seem to have been canvassed, nor is it alleged in this Court that such a point was raised in the lower appellate court and the learned Appellate Judge has omitted to refer to it. In such circumstances and in view of this state of the legal position I think the contention that the suit is bad for notice cannot be permitted to be mooted. The telegram notice is Ext. 6. It is certainly not in conformity with the requirement of Section 80 of the CPC. Besides, the provision in the Code that “the plaint shall contain a statement that such notice has been so delivered or left” does not appear to have been satisfied. If this provision was deemed to be mandatory so that its compliance could not be waived by that category of defendant to whom Section 80 of the CPC applies, the position must have been different. But in view of the series of decisions referred to above, I do not propose to take a different view. The plea of want of notice cannot be permitted to be raised for the first time in second appeal to the prejudice of the plaintiff who is bound to lose if the plea is now raised and he is nonsuited on that technical score.

15. Mr. Sahu, the learned Additional Standing Counsel next raised a contention attacking the merit of the matter. Admittedly Ext. 2 is dated 26-4-1962. On 1-4-1962, there was a compromise between the ex-intermediary and the State Government. Thereafter the State Government recognised the existing relationship between the outgoing intermediary and the plaintiff. It is also not disputed that until late in August 1962 timber transit permits had not been issued by the defendants to the plaintiff. The fact that for a period of 8 months and 20 days the plaintiff could not remove the timber from the forest must be taken to have been accepted. Timber transit permits are not necessary for the processing of the timber within the forest area. They are necessary for the purpose of removal of timber from the forest beyond the forest zone. There is some basis in the contention of the defendants that it was open to the plaintiff to work within the forest and have them removed after the timber transit permits were granted. The courts below have not examined that aspect.

16. The Courts below have also not examined another aspect which is material. The plaintiff in this suit asked for a mandatory direction that he may be permitted to continue under the lease for a period of 9 months more. In the courts below the basis of such a right, the nature of the claim and under what provision in law such a claim could be conceded have not been examined. The suit seems to be one for injunction only. In paragraph 12 of the plaint it was stated,

“The plaintiff values the suit at Rupees 200/- for injunction and he pays a court-fee of Rs. 25.50 nP. under the Court-fees Act.”

17. A suit of that type where the relief was one for injunction only could not have brought about the relief in question as granted in the courts below. There was an alternate prayer for appropriate damages. Court-fee has been undertaken to be paid after ascertainment.

18. In the courts below a decree for 9 months' possession on the same terms as under Ext. 2 has been granted. This may bring about a lot of hardship and inconvenience. It would be difficult to ascertain at present as to what were the existing assets in the forest area during the material period of subsistence of the lease in respect whereof the plaintiff would be entitled to appropriation during the extended period of 9 months. In the forest areas there are bound to be new growths and the time lag is more than 7 years by now. The forest must have added to its assets during this period by natural process. To give a decree to the plaintiff at this point of time in the manner done in the courts below would certainly mean putting the plaintiff to more advantages than he would have got by working the forest for 9 months more at the relevant point of time. That apart when the plaintiff has valued his suit at Rupees 200/- for injunction he would not certainly be entitled to the relief of possession of the forest areas for another period of 9 months. Issue No. 3 in the trial court was as to whether the plaintiff was entitled to damages. The trial court came to hold that the plaintiff was not entitled to any damages in this suit as no specific sum was claimed as damages. That was an alternate relief. If the plaintiffs claim for damages was sustainable in law, it could have been worked out by an appropriate decree. Omission to consider these aspects has certainly led to a peculiar position. Though on the question of notice I have negatived the contention of the State in Second Appeal I think there is substantial force in these aspects of the matter and it is difficult to uphold the decree without an examination of these questions. I would, therefore, allow the appeal and remand the matter to the trial court for a re-determination of the following questions:—

(1) Is the suit as laid maintainable?

(2) Is the plaintiff entitled to possession for a further period of 9 months of the forest areas in this suit?

(3) Is the relief of damages as claimed appropriate and, if so, what are the damages?

19. I must say before I leave this matter that the courts below did not handle the matter appropriately bestowing that amount of care which the matter deserved. This has led to the unfortunate position of remanding the matter at this stage. I have no other option but to remit the matter to the trial court for a consideration of these questions. If in the view of the trial court any amendment to the pleadings is necessary and applications are made, it would deal with them. It would be open to the trial Court to decide as to whether a fresh opportunity need be given to the parties to lead evidence on any of the aspects which had not been taken into consideration on the earlier occasion.

20. The appeal is accordingly allowed.

21. Costs would abide the result.

22. Appeal allowed.

State Of Orissa And Another v. Bamadeb Panigrahi And Another

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's Arguments

Defendants' (State and District Forest Officer) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

State Of Orissa And Another v. Bamadeb Panigrahi And Another

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