Anna Alai vs Commissioner & Others

This civil revision was filed way back on 28th Sept. 1985 against the order dated: 13.9.1985 passed by the Learned District Judge, Pulwama. The

facts in brief to appreciate the controversy are that land measuring about two knals under survey No. 1276 of village Trilhal was exchanged in lieu

of land under survey No. 281 min in the same village by the person of the petitioner with the Government in Kacharai land and the purpose of such

exchange as envisaged from the records was for producing the trees which were planted inside the Kacharai land (common grazing land) and the

petitioner on the other hand alleges that after the exchange was duly sanctioned vide Dy. Commissioner, Pulwama's order and the land was

identified, he fenced it and started construction of his residential house etc., The respondents on the other hand i.e. Dy. Commissioner and the

Revenue authorities alleged that instead of making the land useful for construction he has infact encroached upon some other land of the kacharai

as because kacharai land under survey No. 1276 is a long chauk of land consisting of 20 kanals and 8 marlas and it is out of this land which is

being encroached upon and is being converted for residential purposes by the petitioner. The petitioner was constrained to file a civil suit in the

court of Munsiff, Pulwama where from not only notice was issued to the respondentsrevenue authorities but also temporary injunction seems to

have been issued by the learned Munsiff, vide his order dated: May 25,1985 and by the said order the learned Munsiff is supposed to have not

only issued interim injunction but also allowed leave to file the suit, without notice under the provisions of Section 80 of the Code of Civil

Procedure. The order passed by the learned Munsiff was challenged in appeal before the learned District Judge, Pulwama. After hearing the

parties, the learned District Judge, had passed the impugned order on September 13,1985 wherein the learned District Judge has accepted the

appeal and quashed the order passed by the learned Munsiff on May 25,1985 and has remitted the case back for trial in the light of the law and

other facts brought on record and directed the parties to appear before the trial court on Sept. 25,1985. The plaintiffpetitioner before me feeling

aggrieved of the said appellate courts' order filed the present revision.

As I have stated that nobody is present in the matter, so no assistance was given by any counsel or by the parties in the matter. However I have

perused the filed and the records which are made available before me.

The points which require determination are whether the suit filed against the State Government can be deemed to be constituted without having

issued the notice under section 80 CPC, secondly, whether the court had jurisdiction to entertain the suit and pass orders and thirdly, whether by

way of the order passed by learned Munsiff, on May 25,1985 which was challenged in appeal, the learned Munsiff has complied with the

procedure in allowing the suit to be instituted without filing notice and so on.

From the perusal of the records and the law it can be narrated that section 80 of the Code of Civil procedure as amended till date do envisage:

Save as otherwise provided in subsection(3), no suit shall be instituted 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 expiration of two months next after the notice in writing has been, in the

case of the Government, delivered to, or left at the office of the Chief Secretary to Government 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

plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left.

A suit to obtain an urgent or immediate relief against the Government including the Government of India, the Government of any other State in India

or the Government of any Union Territory, or ariy 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 subsection(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.

So in the light of the statutory law no suit shall be deemed to have been instituted against the Government or against the Public Officer unless and

until a notice in writing has been delivered prior to two months before the institution of such suit. The provisions of section 80 are mandatory,

unambiguous and clear and institution of the suit as defined in section 26 of the CPC envisaged and lays down that every suit shall be instituted by

the presentation of a plaint or in such other manner as may be prescribed. So whenever a suit is being filed against the Government or Public

Officer in respect of any act purporting to be done by such officer in his official cap city, the suit shall be deemed to be instituted if prior to the

institution or filing of such suit a notice of two months in writing has been delivered or left at the office of the Chief Secretary of the Government

and in the case of the officer delivered to his office etc. etc,. Now in the light of the exception which has been enacted in proviso (3) of the said

section wherein it has been provided that suit to obtain an urgent or immediate relief against the Government or Public Servant in respect of any act

purporting to be done by such Public Officer in his official cap city may be instituted with the leave/ permission of the court without serving any

such notice as required by subsection(l) of section 80 of the CPC. So in the exigency where the matter is of an urgency or where the need arises

the legislature has provided subsection(S) in the act itself to which recourse can be had by the intending plaintiff to approach to the court seek

permission to file such suit/institute such suit. So the scheme of the provisions of the Act that at the time of the institution on the suit first permission

is to be sought from the concerned court of jurisdiction where the suit is to be instituted with the permission/leave of the said Court, is to be sought

by the intending plaintiff and after such leave is granted the petitioner or the plaintiff will be permitted to institute a suit against the State without

serving a notice as is required in subsection(l) of Sec. 80 CPC and without such permission no suit in the eyes of law shall be deemed to have been

instituted in a court of law against the State Government or against any functionary for his acts done or purported to be done unless and until a

notice as per provisions of subsection (1) of section 80 CPC has not been given. So as and when a person of the plaintiff or the petitioner intends

to file a suit and take recourse to proviso (3) of section 80 and claim exemption for having issued a notice prior to the filing of the such suit, so the

first thing he has to do is to obtain permission from the said court. The said court after applying its mind may or may not grant the permission and in

case of permission having been granted but even then one more rider has been kept by the statutory law and that rider is that the court shall not

grant relief in the suit whether in"" term 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.

So that means that even if the permission to file the suit without notice under section 80 CPC has been granted to a person or a plaintiff by the

competent court but no interim relief shall be granted to such plaintiff or the petitioner unless a reasonable notice has been given to the

respondentState or Public Officer as the case may be, and affording him a reasonable opportunity of showing cause as to why the relief prayed for

by the plaintiff or the petitioner in the suit/application shall not be granted. So there is no dispute and doubt on the count that no suit shall be

deemed to have been instituted unless notice under section 80 or a leave of the court granted in subsection (3) of Section 80 has been obtained by

the plaintiff before instituting such suit. Hon'ble Apex Court in a judgment reported as AIR 1966 SC 1068 have clearly and unequivocally laid

down:

It would be noticed that the material words used in section 80 are wide and unambiguous, they are ""express, explicit and mandatory"". While

dealing with the applicability of Section 80, the question to ask is: Is it a suit against the Government or not? If it is, then Section 80 by the very

force of its words must apply. Therefore, on a fair and reason, able construction of section 80, we do not see how it is possible to hold that a suit

filed under 0.21 R. 63 CPC can be taken out of provisions of section 80 of the Code"".

It may be also noted that the Hon'ble apex court while laying the law has taken recourse to the judgments passed by the Privy Council wherein it

has been held that section 80 applied to all forms of suits and whatever the relief sought including the suit for injunction. In dealing with the question

about the construction of section 80 CPC, Privy council took notice of the fact that some of the decision which attempted to exclude from the

preview of section 80 suits of injunction, were influenced by the assumption as to the practical object with which it was confirmed. They also

proceeded on the basis that section 80 was a rule of procedure and that any construction which may lead to injustice is one which ought not to be

adopted. Since it would be repugnant to the notion of Justice. Justice Viscount Summer, who spoke for the Privy Council observe that: ""the Act,

albeit a procedure code, must be read in accordance with natural meaning at its words and he added that section 80 is express, explicit and

mandatory and it admits of no implication or exceptions. That is why it was held that a suit in which an injunction is prayed is still a suit within the

words of the section and to read any qualification into it is an encroachment on the function of the Legislation"". This view has been following in AIR

1970 Orissa 239. So in that view of the fact that serving of a notice under section 80 CPC is a must but the same can be dispensed with in the

provisions of section 80 (1) in case a leave has been obtained before institution of such suit. So incase a suit has been instituted without issuing

notice under subsec. (1) of section 80 or without asking permission or leave of ii /the court for institution. In the legal parlance 5 it would be

deemed that the suit is not properly instituted or no suit at all shall be deemed to have been instituted) In the light of this law, when we look to the

order passed by the court of Munsiff, Pulwama dated: May 25, 1985 we do find that the learned Munsiff had entertained the suit and it also gave

leave of the court to institute such suit but the leave has been granted at the fag end of the order and has to put out before the horse. He was under

law required to first consider the prayer for granting the leave to institute a suit with out notice against the Dy. Commissioner or the Revenue

authorities for their purported act of having proceeded under section 26 of the Agrarian Reforms Act or Section 133 of the land Revenue Act for

removing the encroachments alleged to have been made by the person of the plaintiffpetitioner over the kacharai land reserved for common

purpose of grazing and to remove any such encroachment. But the procedure which has been followed by the learned Munsiff has been rightly

appreciated and set aside by the learned District Judge that the learned Munsiff had not granted leave to file such suit but has in fact proceeded

with the interim relief in the first instance and after having disposed of that had casually referred at the fag end and the leave under the provisions of

SubSec. (3) of Sec. 80 CPC seem to have been granted and in this composite order this procedural irregularity which has been committed by the

learned Munsiff has been well appreciated by the learned District Judge and has come to the conclusion that without affording the leave/granting a

leave to the plaintiff no suit shall be deemed to have been instituted or was pending before the learned Court in which ad interim relief has been

granted. So the first thing which the learned trial, court should have done was to first consider the application for permission to file a suit without

having issued a notice against the person of the Government or the functionaries of the Government against whome a suit was to be filed or

intended to be filed by the plaintiffpetitioner. The suit of the petitioner which has been numbered a Civil suit No. 105 has been presented on

10.5.1985 in the court below. Along with the said suit an application for issuance of a temporary injunction also seems to have been moved before

the court below and an application under subsec. (3) of Sec. 80 CPC also seems to have been moved before the court below on the said date.

The learned Munsiff while dealing with the matter of passing of interim relief on May 25,1985 nod doubt after hearing the parties/their counsel has

passed the interim order but the legal plea which has been taken that the requisite permission for filing the suit without leave of the court to dispense

with the notice under the provisions of Sec. 80 CPC which is the mandatory one was not granted at the relevant time. So in legal parlance it can be

concluded that there was no suit legally instituted which was pending before the court at the time of passing of interim directions on the relevant

date. Both the questions which were posed in the foregoing paras stand replied accordingly. Now the third question which needs consideration is

whether the civil court had jurisdiction to hear the matter as because it is stated that the land over which the person of the petitioner claims that he

has obtained one kanal of land in exchange of his land measuring one kanal under survey No. 281min and that exchange was sanctioned in his

favour, was being consturcted upon for purposes of dwelling house by the plaintiffpetitioner but the same was being interfered with and obstructed

to by the revenue authorities on the count that the land over which he had constructed and has in fact raised plinth was not the land which was

given in exchange to the plaintiffpetitioner but was in fact an encroachment on the kacharia land. It was some other land adjacent to the kacharai

land which was being encroached upon by the plaintiffpetitioner and over which he was raising his proposed consturctim These being the questions

of fact which ' squire determination and also whether the suit of the plaintiff was maintainable and the court had jurisdiction to entertain such suit

regarding kacharai /encroachments thereon is a matter to be determined by the court below. I need not return any finding on these this fact.

Revisional court has to look to the order which is being revised before me by the petitioners and has been passed by the learned District Judge on

Sept. 13,1985. I do not find from the perusal and the appreciation of the material brought on record that any jurisdictional or procedural error has

been committed by the learned District Judge in passing the order while disposing of the appeal filed against the order of Munsiff dated: May

25,1985. /The revision filed is misconceived and is being dismissed in the light of the observations made herein above. The records are sent back

to the court below. He shall proceed in accordance with law.

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