High Court · 2025
Legal Reasoning
108.CRA-186-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCivil Revision Application No.186 Of 20241.Zilla Parishad, AhmednagarThrough Chief Executive Officer,Zilla Parishad, Ahmednagar,District Ahmednagar.2.Block Development Officer,Panchayat Samittee, Ahmednagar,District Ahmednagar.3.Grampanchayat Hamidpur,Through Village Development Officer,Grampanchayat Hamidpur,District Ahmednagar... Applicants Versus1.Sandip Madhav KhaseAge : 45 years, Occ: Business,R/o : At Hamidpur, Post Higangaon,Tal. Nagar, District Ahmednagar.2.Sarpanch, Grampanchayat Hamidpur,Grampanchayat Hamidpur,Tal: Nagar, District Ahmednagar.3.Upsarpanch, Grampanchayat Hamidpur,Grampanchayat Hamidpur,Tal: Nagar, District Ahmednagar... Respondents****** Advocate for the Applicants :Mr. Pratik P. Kothari* Advocate for the Respondent No.1 :Mr. M. G. Kolse Patil *****[1] 108.CRA-186-2024.odt CORAM : SHAILESH P. BRAHME, J. RESERVED ON : 21st JULY 2025 PRONOUNCED ON : 28th JULY 2025 J U D G M E N T :1.Heard both sides finally. 2.Revision Applicants who are original Defendant Nos. 1 and3 have invoked jurisdiction of this Court under Section 115 of theCivil Procedure Code, taking exception to order dated 01.10.2024below Exhibit-25 passed by 2nd Joint Civil Judge, Senior Division,Ahmednagar, Ahmednagar in RCS No.652/2024. Their applicationto reject plaint under Order VII Rule 11 of CPC has been turneddown. Respondent No.1 is the Plaintiff in RCS No.652/2024 filedfor the relief of declaration and injunction. 3.Respondent No.1 was allotted shop no.3 by ApplicantNo.1/Zilla Parishad on deposit of Rs.5000/- with effect from27.12.1999. He accordingly runs a grocery business. It ispleaded that he is punctual in paying rent and taxes. The shop inquestion is in good condition. Due to political rivalry, he has beentargeted and the Respondents decided to evict him from theshop. Without giving him any opportunity, order was passed on01.03.2024. In pursuance of that he was issued eviction notice of15.07.2024, directing him to vacate the shop within fifteen days.He has thus challenged report, order dated 01.03.2024 and thenotice dated 15.07.2024 by filing above referred suit on30.07.2024. [2]
Legal Reasoning
108.CRA-186-2024.odt4.Applicants submitted application Exhibit-25 under Order VIIRule 11 on the ground that no notice under Section 280 of theMaharashtra Zilla Parishads and Panchayat Samitis Act, 1961(Zilla Parishads Act) was issued to the Applicant Nos. 1 and 2. Nonotice under Section 80 of Civil Procedure Code (hereinafterreferred as CPC) was issued by the Respondent No.1. It is furthercontended that it was mandatory to issue notice under Section180 of Maharashtra Village Panchayats Act, 1959, as DefendantNos. 3 to 5 are the authorities under the concerned Act.Respondent No.1 contested the application by filing his Say. Byimpugned order, application was rejected holding that issueregarding waiver of notice period would be dealt with on meritsduring the course of proceeding and there is sufficientcompliance of notices as contemplated under various Act. 5.Applicants have placed on record plaint, notice dated15.07.2024 by which Respondent No.1 is called upon to vacatethe premises and a notice dated 24.07.2024 which was issued byRespondents before filing of the suit. 6.Learned Counsel for the Applicants Mr. Kothari submits thatthere is no compliance of Section 80 of the CPC, Section 280 ofthe Zilla Parishads Act and Section 180 of the MaharashtraVillage Panchayats Act and the suit is not entertainable. He wouldadvert my attention to the dates of issuing notice and filing ofthe suit to demonstrate non-compliance of the mandatoryprovisions. He would submit that plaint is silent regarding anywaiver of notice period or the immense urgency for which[3] 108.CRA-186-2024.odtPlaintiff could not have waited for the notice period. He wouldsubmit that observations of learned Judge in paragraph no.8 arepatently illegal. He would submit that no leave was securedunder Section 80(2) of CPC. Hence the suit is not maintainable.It is further submitted that filing of separate application atExhibit-48 soliciting waiver of notice period is inconsequentialand afterthought. 7.Mr. Kolse Patil learned Counsel for the Respondent No.1supports impugned order. He would submit that Applicants haveresorted to eviction arbitrarily and highhandedly withoutextending opportunity of hearing. He would submit that noticedated 24.07.2024 is the sufficient compliance of Section 80 andfor the purpose of waiver, application Exhibit-48 has been filedwhich is under consideration. It is further submitted thatimpliedly the notice period has been waived considering urgencyin the matter. My attention is adverted to the paragraph no.5 ofthe plaint. It is further submitted that present Revision ispremature as application Exhibit-48 is still pending. 8.Respondent No.1 has filed RCS No.652/2024 for declarationand injunction by which action of eviction is under challenge. Forthe purpose of inquiry under Order VII Rule 11, I need not dealwith the submissions of Respondent No.1 regarding validity ofimpugned action of eviction. Undisputedly Respondent Nos. 1and 2 are the authorities under the Zilla Parishads Act.Respondent Nos. 3 to 5 are authorities under the VillagePanchayats Act. Respondents discharged public function and they[4] 108.CRA-186-2024.odtare public Officers. There is no dispute that on 24.07.2024,Respondent No.1 issued a notice and suit was filed on30.07.2024. Suit has been filed within period of nine days afterissuance of notice. 9.Section 80 of CPC contemplates notice period of twomonths and sub-section (2) pertains to leave of the Court forwaiver of the notice period. It is mandatory to issue such notice.The provisions of Section 280 of the Zilla Parishads Act andSection 180 of the Village Panchayats Act are not analogues toSection 80 of CPC. Under Zilla Parishads Act or VillagePanchayats Act, there is no provisions for waiver of the noticeperiod. Both the acts contemplate notice period of three months. 10.I have gone through plaint which does not spell out anypleadings regarding waiver of notice period under Section 80 ofCPC or under Section 280 of the Zilla Parishads Act or underSection 180 of the Village Panchayats Act. There is no pleadingfor the urgency to file civil suit by dispensing the notice period.When the suit was filed, there was nothing before trial Court togrant any waiver for notice period. Application Exhibit-25 wasdecided on 01.10.2024 and thereafter application Exhibit-48 wasfiled on 19.03.2025 soliciting waiver of notice period. 11.The notices referred above are mandatory considering thestatus of the Defendants. Impugned order does not reflect thatlearned Judge has perceived the difference between Section 80of CPC and Section 280 of Zilla Parishads Act or Section 180 of[5] 108.CRA-186-2024.odtthe Village Panchayats Act. The Sections are quoted for readyreference :Section 180 in The Maharashtra Village Panchayats Act, 1959 :180. Bar of action against Panchayats etc. and previous notice before institution.(1)No action shall lie against any member, officer, servant or agent of Panchayat [* * **] [The words 'or Nyaya Panchayat' were deleted by Maharashtra 13 of 1975, Section33.] acting under its direction, in respect of anything in good faith done under this Actor any rule or bye-law.(2)no action shall be brought against any Panchayat [* * * *] [The words 'or NyayaPanchayat' were deleted by Maharashtra 13 of 1975, Section 33.] or any member,officer, servant or agent or such Panchayat [* * * *] [The words 'or Nyaya Panchayat'were deleted by Maharashtra 13 of 1975, Section 33.] acting under its direction foranything done or purporting to have done by or under this Act, until the expiration ofthree months next after notice in writing has been left or delivered at the office or thePanchayat [* *] [The words 'or Nyaya Panchayat' were deleted by Maharashtra 13 of1975, Section 33.] and also at the residence of the member, officer, servant or agentthereof against whom the action is intended to be brought. The notice shall state thecause of action, the nature or the relief sought, the amount of compensation claimedand the name and place of abode of the person who intends to bring the action.(3)Every such action shall be commenced within six months after the accrual of thecause of action, and not afterwards.(4)If any Panchayat [* * * *] [The words 'or Nyaya Panchayat' were deleted byMaharashtra 13 of 1975, Section 33.] or person to whom a notice under sub-section (2)is given shall, before action is brought, tender sufficient amends to the plaintiff and payinto Court, the amount so tendered, the plaintiff shall not recover more than theamount so tendered. The plaintiff shall also pay all cost, incurred by the defendantafter such tender.Section 280 in The Maharashtra Zilla Parishads and PanchayatSamitis Act, 1961 :280. Limitation of suits, etc.(1)No suit shall be commenced against any Zilla Parishad or against any officeror servant of, or working under, a Zilla Parishad or any person acting under the ordersof a Zilla Parishad or Panchayat Samiti for anything done, or purporting to have beendone, in pursuance of this Act, without giving to such Zilla Parishad officer, servant, orperson one month's previous notice in writing of the intended suit nor after threemonths from the date of the act complained of. The notice shall state the cause ofaction, the nature of the relief sought, the amount of compensation claimed and thename of place of abode of the person who intends to bring the action.[6] 108.CRA-186-2024.odt(2)In the case of any such suit for damages, if tender of sufficient amends shallhave been made before the action was brought, the plaintiff shall not recover morethan the amount so tendered, and shall pay all costs incurred by the defendant aftersuch tender.12.Unlike Section 80(2) of CPC, there is no descretion with thetrial Court to dispense with period of notice, while entertainingchallenge to the action of authorities under Zilla Parishads Act orVillage Panchayats Act. In other words, trial Court has nojurisdiction to entertain suit by dispensing with the notice period.Hence the findings recorded under impugned order are perverse.The purport of the notice under three enactments referred aboveis to provide opportunity to rectify the mistake or to do theneedful. Those are mandatory requirements and in the absenceof the compliance, the suit is not entertainable. 13.Learned Judge only cursorily referred to two months noticeperiod which is to be dealt with during the course of trial. Thereis no provision of waiver of notice period when action ofauthorities under Section of Zilla Parishads Act or action ofauthorities under Village Panchayats Act, is challenged. LearnedJudge has committed error of jurisdiction in considering theprovisions of Section 80(2) of CPC only. 14.Respondent No.1 filed application Exhibit-48 after passingof the impugned order. When plaint was silent and applicationExhibit-25 was already decided, remedial measure taken by theRespondent No.1 is inconsequential. Otherwise also I havealready observed that granting waiver of the notice period is not[7] 108.CRA-186-2024.odtwithin jurisdiction of the trial Court so far as notice under Section280 of the Zilla Parishads Act and notice under Section 180 ofthe Village Panchayats Act ar concerned. I find that Applicantshave made out a case for invoking powers under Order VII Rule11.15.Applicants have relied on the judgment in the matter ofState of A.P. and Ors. Vs. Pioneer Builders, A.P., AIR 2007 SC113. In that case, Contractor had filed suit against action ofexpulsion from contract. The maintainability of the suit wasobjected by the Defendant. Three applications were filed by theContractor/Plaintiff. Out of that, one was for dispensing withnotice period under Section 80 of CPC. Those applications wereallowed. Thereafter suit was decreed. The Defendantunsuccessfully challenged decree before High Court andultimately they were before Supreme Court. The maintainabilityof the suit for want of notice under Section 80 was one of thechallenges. My attention is adverted to Paragraph Nos. 12, 15and 16. The purport laid down by the Apex Court in thoseparagraphs cannot be disputed. However facts of that case aredistinguishable. Those cannot be made applicable to the case athand which involve question of rejection of plaint. 16. Further reliance is placed on the judgment of Govt. ofKerala and Ors. Vs. Sudhir Kumar Sharma and Ors.,MANU/SC/0892/2013. My attention is adverted to ParagraphNos. 26 to 28 of the judgment. In that case application underOrder VII Rule 11 was rejected before application seeking waiver[8] 108.CRA-186-2024.odtof notice period under Section 80(2) of CPC was decided. In thatcontext, it was held that unless application under Section 80(2)is decided, application under Order VII Rule 11 should not havebeen decided. In the case at hand, application Exhibit-48 u/s80(2) of CPC not filed and pending before rejection of applicationExhibit-25. Additionally case at hand involves mandatory noticeunder Section 280 of Zilla Parishads Act and Section 180 ofVillage Panchayats Act. This judgment will not help theApplicants. 17.Further reliance is placed on the judgment of PatilAutomation Private Limited and Ors. Vs. Rakheja EngineersPrivate Limited, AIR 2022 SC 3848. The facts of the case aredistinguishable. Those would not help Applicants. 18.Learned Counsel Mr. Kolse Patil relied on the judgments ofState of A.P. and Ors. Vs. Pioneer Builders, A.P., AIR 2007 SC113 and Ghulam Rasool and Another Vs. State of Jammu andKashmir and Another, (1983) AIR (SC) 1188. Both thejudgments are in respect of statutory notice under Section 80 ofCPC. I have already distinguished judgment of Supreme Court incase of State of A.P. and Ors. (supra) which is also cited by theApplicants. In the matter of Ghulam Rasool and Another (supra),issues germane in the case at hand, were not before the ApexCourt and the same cannot be made applicable.19.Further reliance is placed on the judgment in the matter ofChandrashekhar Purushottam Rathi Vs. State of Maharashtra and[9] 108.CRA-186-2024.odtAnother, (2002) 2 MhLJ 181. It was a case involving a noticeunder Section 80 of CPC only and unlike the case at hand, thenotices under other enactments were not under consideration.Therefore no reliance can be placed on the judgment. 20.Further reliance is placed on the judgment of full bench inthe matter of Vasant Ambadas Pandit Vs. Bombay MunicipalCorporation and Others, (1981) AIR (Bombay) 394. It was also inrespect of notice under Section 80 of CPC only. It was in respectof the suit instituted on 01.07.1970 when unamended provisionof Section 80 was in force. Hence it would not enure to thebenefit. 21.Lastly, reliance is placed on the judgment of K.K. SharmaVs. Punjab State and Others, (1989) AIR (Punjab) 7. Only noticeunder Section 80 was under consideration and not themandatory notices under other enactment which did not providefor waiver of the notice period. Hence this judgment will not helpthe Respondent No.1. 22.Considering the above referred reasons, I find thatApplicants are entitled to succeed and the plaint is liable to berejected. I, therefore, pass following order :ORDER(i)Impugned order dated 01.10.2024 below Exhibit-25passed by 2nd Joint Civil Judge, Senior Division, Ahmednagar in[10] 108.CRA-186-2024.odtRCS No.652/2024 is quashed and set aside and plaint in RCSNo.652/2024 shall stand rejected. (ii)Civil Revision Application is allowed in above terms. SHAILESH P. BRAHME JUDGENajeeb..[11]