1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8516 OF 2009 1 Sahebrao s/o Kamaji Kamble, age: 48 years, Occ: Business, R/o Risala Bazar, Hingoli, Tq. And District Hingoli. 2 Zaheerkhan s/o Kasim Khan Pathan, age: 50 years, Occ: Business, R/o as above. 3 Madhav s/o Laxhman Bhandare, age: 45 years, Occ: Business, R/o as above. 4 Shaikh A. Rehman s/o Sk.Chand, age: 37 years, Occ: Business, R/o as above. 5 Chandrakant Bhikaji Ujale, age: 50 years, Occ: Business, R/o as above. 6 Pratap s/o Baburao Khandare, age: 50 years, Occ: Business, R/o as above. 7 Liyaqatali s/o Wajidali, age: 44 years, Occ: Business, R/o as above. 8 Sd.Jaferali s/o Sd.Azgerali, age: 40 years, Occ: Business, R/o as above. 9 Tarachand s/o Bhikaji Uljale, age: 45 years, Occ: Business, R/o as above. 10 Bhikaji s/o Premji Uljale, age: 45 years, Occ: Business, 2 R/o as above. 11 Muneer Khan s/o Kasimkhan, age: 40 years, Occ: Business, R/o as above. 12 Bhaurao s/o Balu Bhagwat, age: 35 years, Occ: Business, R/o as above. 13 Lalchand s/o Fakirchand Ujale, age: 50 years, Occ: Business, R/o as above. 14 Sd.Kauserali s/o Ad. Wajidali, age: 35 years, Occ: Business, R/o as above. Petitioners Versus 1 The State of Maharashtra, through Collector, Hingoli, Administrative Building, Hingoli. 2 The Tahsildar, Tahsil Office, Hingoli. 3 The Superintendent, Animal Husbandry Department, Hingoli Division, Hingoli. 4 Sudhakar s/o Bhiwaji Gayakwad, R/o Hingoli. Respondents Mr.P.S.Agrawal, advocate for petitioners. Mr.K.M.Suryawanshi, A.G.P. For Respondents No.1 to 3. Mr.Manoj Shelke, advocate holding for Mr.Sachin Deshmukh, advocate for Respondent No.4. CORAM: R.M.BORDE, J. DATE : 30th April, 2010. ORAL JUDGMENT: 3 1 Heard Shri P.S.Agrawal, learned Counsel for petitioners, Shri K.M.Suryawanshi, learned A.G.P. For Respondents No.1 to 3 and Shri Manoj Shelke, learned Counsel holding for Shri Sachin Deshmukh, advocate for Respondent No. 4. Rule, made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 The order passed by trial Court on 30.11.2009 on an application tendered by petitioners under Section 80 (2) of the Code of Civil Procedure, is subjected to challenge in this petition. 3 Petitioners – original plaintiffs have presented suit claiming decree of injunction against State Government and Tahsildar so also against two other defendants. In the pending suit, considering urgency of the proceedings, an application seeking interim relief was presented. As the suit is presented against Government and Government officials i.e. defendants no.1 to 3, an application, as contemplated under Section 80(2) of the Code of Civil Procedure, was presented seeking exemption from issuing notice as contemplated under Section 80 of the Code of Civil Procedure. The trial Court, however, without recording any reasons, has rejected the application in view of order passed on 30.11.2009 and said order is subjected to challenge in this petition. 4 I have perused the application as well as impugned order and heard learned Counsel for respective parties. 5 Section 80 of the Code of Civil Procedure mandates issuance of notice before institution of suit. It is contended by learned Counsel for petitioners that in fact notice was issued on 26.11.2009, however, considering urgency of the situation, as certain action was initiated by State Government in respect of 4 disputed property, plaintiffs were constrained to rush to the Court. In view of the urgency of situation, an application was presented seeking exemption from issuing notice, as contemplated under Section 80(2) of the Code of Civil Procedure. Section 80 of the Code of Civil Procedure mandates issuance of notice to the State Government or Government officials two months prior to institution of suit. However, sub-section (2) of Section 80 provides for exemption in emergent situation. Sub-section (2) of Section 80 is quoted as below: 80 (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). 6 Considering urgency of the suit, plaintiffs, in fact, have presented an application to the trial Court. The trial Court, however, without recording any reasons, has directed plaintiffs to comply with provisions of Section 80 of the Code of Civil Procedure. In fact, it was incumbent upon the trial Court to consider the application presented by plaintiffs. Without looking to the urgency of the situation, trial Court proceeded to issue impugned direction to the plaintiffs. Merely because notice was issued earlier on 26.11.2009, cannot be the reason for refusal on the part of trial Court to consider the application. As the plaintiffs were seeking interim injunction, the trial Court ought to have considered the emergent situation and ought to have passed appropriate orders on the 5 application tendered under Section 80 (2) of the Code of Civil Procedure. Section 80 of the Code of Civil Procedure itself provides sufficient safeguard in the matter of consideration of applications seeking interim orders against the State Government and provides for a mandate that no interim order shall be issued against the State without extending an opportunity of hearing and issuing notice in that behalf to the State Government or Government officials. It was incumbent for the trial Court to issue orders in consonance with the provisions of Civil Procedure Code. 7 In this view of the matter, in my opinion, the non speaking order passed by trial Court on 30.11.2009 deserves to be quashed and set aside and same is accordingly quashed and set aside. The trial Court is directed to decide application presented by plaintiffs under Section 80(2) of the Code of Civil Procedure, expeditiously. 8 Rule is accordingly made absolute. However, in the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/wp851609