Shyam Lal v. State of Uttarakhand and others

defendants/respondents without due course of law and without any acquisition proceedings by sheer force have forcibly dismantled damaged plaintiff/petitioner over the Khasra nos.313 and 317 and are proceeding further with construction of a road therein without adopting the procedure provided in law. In the plaint, the relief sought was that the defendants/respondents be restrained by decree of permanent injuction from directly indirectly interfering or constructing road over the disputed property in Khasra nos.313 and 317. Along with the suit the petitioner preferred application under Order 39 Rule 1 and 2 read with section 151 C.P.C. seeking temporary injuction pertaining the disputed property against the defendants/ respondents directly or indirectly interfering or constructing road over the disputed Khasra nos.313 and 317. Alongwith the plaint an application under section 80(2) of C.P.C. was also preferred by the plaintiff/ petitioner seeking exemption of notice under section 80 C.P.C. against the State Government. The petitioner also filed on record the copies of the Khara Khatuni, Sajra etc. It is submitted by the petitioner respondents are bent upon to encroach the land of the petitioner for the construction of road without any acquisition or requisition and the petitioner is legally entitled to safeguard his rights and property. The respondents are not legally entitled to encroach the land of the petitioner. Application field by the petitioner under Section 80(2) C.P.C. was considered by the learned Civil Judge (Sr. Div.), Roorkee on 29.05.2010, and the learned Trial Court rejected the application of the petitioner on the ground that the tin shed on the land of the plaintiff has already been destroyed/ dismantled and except this, no other necessity has been shown on the basis of which, the plaintiff be exempted from giving notice u/s 80(2) of C.P.C. The revision of the petitioner, since not having been admitted, was registered as Misc. no.203/2010 “Shyam lal Vs. Uttarakhand Sarkar and others and vide order dated 01.06.2010 the learned District Judge, Haridwar rejected the same. According to learned counsel for the petitioner, this could not have been the sole ground for rejection of application u/s 80(2) C.P.C. as the learned Trial Court was also required to look into another aspect of the matter i.e. requirement of urgent and immediate relief. He further submitted that legally, grant of leave under Section 80 C.P.C. is a Rule and rejection is an exemption, simply because merely granting the permission to file a suit without issuing notice to the defendant does not entitle the plaintiff for any interim relief as is clear from the Section itself. He further submitted that the ground of permission to the petitioner would not, in any way, prejudice the rights of the defendants and the respondents. He also submitted the Trial Court has failed to exercise jurisdiction by not appreciating the graveness of the facts and the overt act of the defendants. Learned counsel for the petitioner submitted that in view of the facts and circumstances of the case the order passed by the Trial Court is liable to be set aside and the petitioners’ application under Section 80(2) C.P.C. deserves to be allowed. In support of his arguments he placed reliance on the Judgment of Apex Court in “Bajaj Hindustan Sugar & Industries Vs. Balrampur Chini Mills Ltd & others” reported in (2007) 9 SCC 43 and referred paragraph 33 and 34 of the same. Paragraphs 33 and 34 of the Judgment are being quoted below: “33. The decisions cited by Mr Shanti Bhushan on the question n of implied leave was countered by Mr Mukul Rohatgi with the decision of this Court in State of A.P. v. Pioneer Builders, A.P. wherein in para 16 it has been observed as follows: (SCC p.126 para 17) intent is a legislative condition “17. Thus from a conjoint reading of sub-sections (1) and (2) of Section 80, is clear, namely, service of notice under sub-section (1) is imperative except where urgent and immediate relief is to be granted by the court, in which case a suit against the Government or a public officer may be instituted, but with the leave of the court. Leave of precedent. Such leave must precede the institution of a suit without serving notice. Even though Section 80(2) does not specify how the leave is to be sought for or given, yet the order granting leave must indicate the ground(s) pleaded and application of mind thereon. A restriction on the exercise of power by the court has been imposed, namely, the court cannot otherwise, Government reasonable opportunity of showing cause in respect of relief prayed for in the suit”. relief, whether interim giving or a except officer public a law, in our view, has been the aforesaid

#34. The succinctly expressed 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.” On the other hand, learned Brief Holder for the State, Shri R.C. Arya submitted that since petitioner has encroached over the Government land, tin shed on the land of the plaintiff was rightly destroyed/dismantled by the authorities. He further submitted the writ petition deserves to be dismissed as petitioner is an encroacher and has not come with clean hand. I have considered the submissions made on behalf of the parties. Sub-section(1) of Section 80 bars the institution of the suit against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiry of two months next after notice in writing has been served to them. Sub-section (2) of Section 80 of the C.P.C. is exception to sub-section (1). Sub-section (2) of Section 80 is reproduced below: “(2) A suit to obtain an urgent or immediate relief against the Government (Including the Government of the State of Jammu and 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 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: otherwise, 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).” From the reading of sub-section (2) of Section 80 C.P.C., it is clear that where the plaintiff is to obtain an urgent and immediate relief against the Government or any public officer in respect of any act purporting to have been done by such public officer in his official capacity he may, with the leave of the Court, institute a suit to seek such relief without serving such notice as required under Section 80 (1) of the C.P.C. Such permission is given in urgent matters and in those cases where litigant cannot wait for the period of two months. Therefore, while considering the application under Section 80(2) of C.P.C., the Court is required to consider the urgency in the matter. In other words, where the Trial Court finds that the matter is extremely urgent and immediate relief is required to be given to the plaintiff, in the interest of justice, the Trial Court may grant leave to such litigant to sue without serving any notice as required by sub-section (1) of section 80 of the C.P.C. It should also be kept in mind that grant of such permission does not entitle a person automatic relief because Sub-section (2) of section 80 of the C.P.C. further provides that in such matter the Court shall not grant any relief in the suit whether interim or otherwise, except after giving 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. The learned Civil Judge rejected the application of the petitioner on the ground that tin shed on the land the plaintiff was demolished and circumstances there is no need to grant permission of leave under section 80(2) of the C.P.C. In my view the learned Civil Judge was required to examine and discuss the requirement of urgent and immediate relief of the plaintiff. The relief prayed by the petitioner in the suit was not in respect of the tin shed on the land, which was demolished prior to filing of the suit. The relief claimed by the petitioner / plaintiff was in respect of the property mentioned in Schedule “C” of the plaint. The learned Trial Court did not at all consider this aspect and rejected the said application only on the ground of demolition of tin shed. Section 80(2) of C.P.C. clearly provides that after granting permission to the plaintiff to file a suit without issuing notice to the defendants, the Court is required to give reasonable opportunity to the Government or public officer of showing cause in respect of the relief prayed in the suit. Such notice is necessary before granting any relief whether interim or otherwise. In view of this fact the argument of the learned Brief Holder for the State that since the petitioner has encroached the defendant’s land, he is not entitled for exemption under Section 80(2) of the C.P.C. is misconceived. In the present case, it is undisputed that tin shed was demolished on 25.05.2010. Suit was instituted after demolition of tin shed and relief was sought against the defendants / respondents not to encroach over the property mentioned in the Schedule “C” of the plaint. The apprehension of the plaintiff was not without any basis, as defendants/ respondents have started interfering in his peaceful possession by demolishing the tin shed. In view of this fact the petitioner’s application under section 80(2) of C.P.C. appears to be genuine. It is for the Trial Court to consider plaintiffs’ application for interim relief on its own merit. Grant of permission for instituting suit under section 80(2) of C.P.C. has nothing to do with the merit of interim injunction application. In view of aforesaid discussion, the writ petition is allowed. Order dated 29.05.2010 passed by Civil Judge (Sr. Div.), Roorkee, District Haridwar in Misc. Case no.26/2010 “Shyam Lal Vs. M.S. Bedwal and others” and order dated 01.06.2010 passed by the Court of District Judge, Haridwar in Misc. Case no.203/2010 “Shyam Lal v/s Uttarakhand Sarkar and other” are quashed. Application filed by the plaintiff/petitioner before the Civil Judge (Sr. Div.), Roorkee under Section 80(2) of C.P.C. is allowed. Learned counsel for the petitioner also prayed that since the Civil Court is closed till 30.06.2010 for summer vacation, the Trial Court may be directed to consider his application under Rule 13 of General Rules Civil, liberally. No such direction is being issued to the Trial Court but it is observed that it will be open for the petitioner / plaintiff to move such application before the Trial Court, which shall be decided in accordance with law. No order as to costs.

14.06.2010 Arpan (V.K. Bist, J.)