Chattisgarh High Court

Awdhesh Prasad Sharma vs Smt. Reeta Mishra on 3 February, 2022

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                                                                            NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR

                           WP227 No. 36 of 2022

1.     Awdhesh Prasad Sharma, S/o Late Lakhan Prasad
       Sharma, Aged About 65 Years.

2.     Smt. Kumari Bai Sharma, Wd/o Late Lakhan Prasad
       Sharma, Aged About 80 Years.

       Both       R/o      Village      Beltara,      Thana        and      Tehsil
       Thankhamhariya, District Bemetara (Chhattisgarh).

                                                                ---- Petitioners
                                     Versus
1.     Smt.      Reeta       Mishra,      Sarpanch,        Gram       Panchayat
       Somaikhurd, District Bemetara (Chhattisgarh).

2.     Shriman Rajendra Sonwani, Secretary, Gram Panchayat,
       Somaikhurd, District Bemetara (Chhattisgarh).

3.     Smt. Kanti Dhruw, Chief Executive Officer, Janpad
       Panchayat Saja, District Bemetara (Chhattisgarh).

4.     Shriman Lakshmi Narayan, S/o Tetku Sahu

5.     Narayan, S/o Danho Sahu

6.     Paretan, S/o Danho Sahu,

       Respondents No.4 to 6 are R/o Gram Somaikhurd, Tehsil
       Saja and District Bemetara (Chhattisgarh).

7.     State of Chhattisgarh, Through Collector Bemetara,
       District Bemetara (Chhattisgarh).

                                                             ---- Respondents

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For Petitioners : Ms. Sharmila Singhai, Sr. Advocate with Mr. Kawaljeet Singh Saini, Advocate

For Respondent No.7/ : Mr. Gurudev I. Sharan, Govt. Advocate State

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(Proceedings through Video Conferencing)

Hon'ble Shri Justice Parth Prateem Sahu

Order on Board 03.02.2022

1. As private respondents have not noticed before trial Court

and they have not caused their appearance, I find it

appropriate to finalize the writ petition without issuing notice

to respondents.

2. Petitioners have preferred this writ petition under Article 227

of the Constitution of India challenging the order dated

23.12.2021 passed by Civil Judge, Class-II, Saja, District

Bemetara, Chhattisgarh whereby learned trial Court has

rejected the application filed by the petitioners under Section

80(2) of the Code of Civil Procedure, 1908 (for short 'CPC')

and return the plaint.

3. Ms. Sharmila Singhai, learned senior counsel for the

petitioners would submit that petitioners have filed civil suit

before trial Court for declaration of title, injunction and

removal of encroachment along with an application under

Order 39 Rules 1 & 2 read with Sections 94 and 151 of CPC,

application under Order 39 Rule 3 of CPC and an application

under Section 80(2) of CPC on the ground that respondents

No.1 to 6/defendants, elected Sarpanch, Secretary and

residents of village Morai Khurd have constructed one

Jaystambh in front of land bearing Khasra Nos.1099 and 652

owned by petitioners. Subsequently, respondents No.1 to 6

further started construction of Sanskritik Bhawan (Cultural

Building) encroaching upon the land of petitioners. As

Panchayat resolved to construct Cultural Building in front of

land of petitioners, notice under Section 80(2) of CPC read

with Section 108 of Chhattisgarh Panchayat Raj Adhiniyam

has been sent to State Government/respondent No.7,

respondent No.3 as well as respondents No. 1 and 2 on

07.12.2021. Thereafter, when respondents No.1, 2 and 4 to 6

started construction work by digging land, looking to the

urgency, petitioners have filed civil suit before concerned

Court on 22.12.2021 with application under Section 80(2) and

under Order 39(3) of CPC. She submits that learned trial

Court erroneously rejected applcation under Section 80(2) of

CPC returned back the plaint observing that there is no

urgency. She submits that in plaint, it has been categorically

mentioned that on 18.12.2021, respondents started digging

land of petitioners for raising permanent construction. In

application under Order 39 Rule 3 of CPC and in application

under Section 80(2) of CPC also, they have pleaded that

respondents have already started construction by

encroaching upon land of petitioners. While considering

application under Section 80(2) of CPC, learned Court below

without considering pleadings made in plaint as well as

application under Order 39 of CPC in entirety, erroneously

came to conclusion that there is no urgency and rejected the

same. When there is urgency of seeking any relief against

Government Officials or any authority, under the provision of

Section 80(2) of CPC, suit can be instituted with the leave of

Court, without serving any notice as required by sub-section

(1) of Section 80 of CPC.

4. In the case at hand, petitioners have issued notice to

respondents/defendants under Section 80(1) of CPC, prior to

expiry of period of notice, respondents No.1, 2 and 4 to 6

started construction over land of petitioners by encroaching

upon it, hence, petitioners filed a civil suit with application for

leave under Section 80(2) of CPC. Learned Court below

wrongly came to conclusion that plaintiffs have not brought to

the notice of the Court of their suffering. She also submits

that demarcation report is not specific and it does not

mention that there is no construction on the land of

petitioners.

5. Per contra, Mr. Gurudev I. Sharan, learned Government

Advocate for respondent No.7/State opposes submissions of

learned counsel for the petitioners and would submit that

based on the direction issued by the Court, respondent No.7

submitted affidavit of Sub-Divisional Officer along with

supporting documents. From perusal of documents, it is

apparent that no construction is being raised over the land of

petitioners/plaintiffs and construction is being done over

Khasra Nos. 649 and 650, which is Government grass land,

hence, learned Court below justified in rejecting application

under Section 80(2) of CPC and returning plaint to petitioners

to file after expiry of the period of notice under Section 80(1)

of CPC. There is no illegality in the order passed by Court

below. He also pointed out that Revenue Inspector submitted

a demarcation report on the basis of application filed by

petitioners, in which, it is mentioned that land bearing Khasra

No.1099, measuring 0.900 hectare is of petitioner No.1

where pond is situated and land bearing Khasra No.629,

measuring 0.29 hectare is in possession of petitioner No. 1.

6. I have heard learned counsel for the parties.

7. From the pleadings made in plaint as also application under

Order 39 Rules 1 and 2, application under Section 80(2) of

CPC, and 39 Rule 3 CPC, it is apparent that petitioners have

very specifically pleaded in plaint at paragraph No.8 of plaint

that on 18.12.2021, respondents have started digging over

land bearing Khasra Nos.1099 and 1100 for raising

permanent construction. Resolution dated 26.02.2021

(Annexure P/4) would further mentions that place of

construction of Sanskritik Bhawan (cultural building) near

Shiv Temple and hand pump, but subsequently vide

resolution dated 22.11.2021, village panchayat resolved to

raise construction over Khasra Nos.649 and 650, which is

grass land adjacent to land of petitioners. Petitioners sent

notice under Section 80 to respondents on 07.12.2021.

8. At this stage, I find it appropriate to extend provisions of

Sections 80(1) and 80(2) of CPC for ready reference :

"80. Notice.-(1) [Save as otherwise provided in sub-section (2), no suits [shall be instituted] against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such 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-

(a) in the case of a suit against the Central Government, [except where it relates to a railway], a Secretary to that Government;

[[(b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;]

[(bb) in the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;]

(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 this 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.

[(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub- section (1)."

9. Inspection report dated 29.01.2022 submitted by Revenue

Inspector is enclosed with the affidavit filed by State. Order

impugned is dated 23.12.2021. On the date of passing order

by learned Court below, there was no document on record to

controvert the plea of urgency to grant leave to file suit before

expiry of notice period under Section 80 of CPC. While

considering the application for leave to file suit under Section

80(2) of CPC, Court is only required to consider whether the

plaintiff/applicant able to make out a case of urgency and not

to consider whether there is any merit or not.

10. At the time of considering application under Section 80(2) for

leave to file suit, trial Court has to consider the nature of

plaint, its averment and it is also necessary to read it in

meaning full manner to find out real intention behind the suit.

11. Hon'ble Supreme court in case of Bajaj Hindustan Sugar &

Industries Ltd. v. Balrampur Chini Mills Ltd. And others

reported in (2007) 9 SCC 43 held as under :-

"34. The law, in our view, has been succinctly expressed in the aforesaid judgment. The language of Section 80(2) of the Code leads us to hold that if leave is refused by the original court, it is open to the superior courts to grant such leave as otherwise in an emergent situation a litigant may be left without remedy once such leave is refused and he is required to wait out the statutory period of two months after giving notice."

12. In view of above, in the opinion of this Court, when specific

pleading is made by petitioners with respect to starting of

digging for raising construction over the land of petitioners,

there was urgency shown by petitioners for filing of suit prior

to expiry of notice period and learned Court below erred in

rejecting the application under Section 80(2) of CPC and not

granting leave. There is no discussion in the order as to why

ground of urgency pleaded is not meeting the requirement of

Section 80(2) of CPC.

13. For the foregoing, writ petition stands allowed. Impugned

order passed by Court below is set aside. Application filed

under Section 80(2) of CPC is allowed. Trial Court is directed