IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 847 of 2010 (M/S) Madan Singh ………..Petitioner Versus State of Uttarakhand and others …….Respondents Shri Siddhartha Singh and Shri Siddhartha Sah, learned counsel for the petitioner. Shri R.C. Arya, learned Brief Holder for the State. Dated: 14h June, 2010 Hon’ble V.K. Bist, J. Heard learned counsel for the parties. Present petition has been filed by the petitioner for quashing the order dated 29.05.2010 passed by Civil Judge (Sr. Div.), Roorkee in Misc. Case no.25/2010 “Madan Singh Vs. State of Uttarakhand and others” whereby the learned Civil Judge (Sr. Div.), Roorkee, Haridwar has refused to grant exemption to the petitioner as provided under Section 80(2) Code of Civil Procedure, 1908 (for short C.P.C.) and did not permit the petitioner to file suit without prior service of notice on the Government. Brief facts of the case, as emerge out of the writ petition, are that there is a plot Khasra no.231 measuring 0.128 hectare situated at village Fatehullahpur/Telpura, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar out of which petitioner is the owner of a portion measuring 0.093 hectare, while non-party Ritu Jain and Surendra Jain are owners of remaining portion measuring 0.035 hectare of land. 2 The case of the petitioner is that the respondents want to construct a road and drain in Khasra no.665 and are trying to construct the same by encroaching the land of plaintiff without adopting the procedure provided in law. The petitioner instituted a suit “Madan Singh Vs. State of Uttarakhand and others” in the Court of Civil Judge (Sr. Div.), Roorkee for relief of permanent injunction against the respondents (consisting of the State of Uttarakhand, its District Officers and Public Works Department) restraining them from interfering in the peaceful possession of the petitioners and further restraining them from constructing any road over Schedule “C” property given in the plaint, along with an application under Section 80(2) of C.P.C. seeking permission of the Court to grant leave to institute the suit without issuing the notice under Section 80 C.P.C., which was registered as Misc. Case no.25/2010 “Madan Singh Vs. State of Uttarakhand and others”. Petitioner also filed an application for ad-interim injunction restraining the respondents from constructing road over suit Schedule “C” property. In support of his case, the petitioner filed 5 different documents, through a list i.e. certified copy of Khatauni and Khasra pertaining to 1412-1417 Fasli, copy of Shajra (Revenue Map) so as to prove the ownership and possession of the petitioner and the location of the property and the location and existence of passage/rasta/road situated in Khasra no.665. On 16.03.2010,the petitioner also moved an application before Joint Magistrate, Roorkee (S.D.M. Roorkee) to the effect that Khasra no.231 of the petitioner be measured and demarcated, on which Joint Magistrate passed an order addressing to Tehsildar Roorkee for enquiry and measurement. In compliance of the order passed by the S.D.M. Roorkee, the Lekhpal of the village measured the land of the petitioner and also measured the Khasra number 665 of road and raasta and a Memo was prepared by him on 04.04.2010. After the measurement of the land of the petitioner, the petitioner constructed a boundary wall towards the road so as to demarcate the property. It is submitted by the petitioner that respondents in garb of constructing a metallic road over Khasra no.665, despite knowing the fact that the existing raasta situated in Khasra no.665 is not equal widthwise either according to the Shajra or according to the spot, with the help of its instrumentalities demolished the wall constructed by the petitioner. The 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 filed 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 boundary wall of the petitioner was demolished on 24.05.2010 and in these circumstances there appears no need to grant permission of leave under Section 80(2) C.P.C. 4 Learned counsel for the petitioner submitted that the learned Trial Court has failed to consider the aspect that the boundary wall was demolished on 24.05.2010 and the suit alongwith notice waiver application, was filed on 29.05.2010. According to him, this could not have been the sole ground for rejection of the said application, 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 that the Trial Court has failed to exercise its 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 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) “17. Thus from a conjoint reading of sub-sections (1) and (2) of Section 80, the legislative intent 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 the court is a condition 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 grant relief, whether interim or otherwise, except after giving the Government or a public officer a reasonable opportunity of showing cause in respect of relief prayed for in the suit”. 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.” On the other hand, learned Brief Holder for the State, Shri R.C. Arya submitted that since the petitioner has encroached upon the Government land, 6 his boundary wall was rightly demolished by the authorities. He further submitted that 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 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).” 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 for automatic relief because Sub-section (2) of section 80 of the C.P.C. also provides that in such matter the Court shall not grant any 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. The learned Civil Judge rejected the application of the petitioner on the ground that boundary wall was demolished on 24.05.2010 and in such 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 boundary wall 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 boundary wall. Section 80(2) of C.P.C. clearly provides that after granting the 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 the boundary wall was demolished on 24.05.2010. Suit was instituted after demolition of boundary wall 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 his boundary wall. In view of this fact the petitioners’ application under section 80(2) of C.P.C. appears to be genuine. It is for the Trial 9 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 the aforesaid discussion, the writ petition is allowed. Order dated 29.05.2010 passed by Civil Judge (Sr. Div.), Roorkee in Misc. Case no.25/2010 “ Madan Singh Vs. State of Uttarakhand and others” is 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. (V.K. Bist, J.) Arpan 14.06.2010