:p-< ^ '^ sw. ^ /^ HIGH CQURT OF JUNCATURE. CHHATTISGARH AT BILASPUR Writ Petition Np. 2858 of 2003 PBTiTIQNER: Si'6? v^^f, RESPQNDENTS: Suresh Piasad, S/o Late Shri Shivnaadaa Prasad, aged about 50 years, Occupation- A-4, Class Contractor, R/o Banaras Road, Ambikapur, District-Sarguja (C.G.S. -Versus- 1. The Executwe Engiueer, Public Works Departnient, Bridge Consta'uction Division, Ambikapur, District-Sarguja (C.G.). 2. Superintendio.g Engiueer, PubUc Works Department, Bridge Construction Circte, Raigarh (C.G.), 3. Chief Engiaeer, PubU.c Works Departinent, Bridge Construction Regiou, Raipur (C.G.j. 4. The Secretary, PubUc Works Departuient, Goverument of Chhattisgarh, Maatralaya, Raipur POST FOR ORDER ON^liiSEPTEMBER, 2003 Sd/- LC.Bhadoo Judge HSGH COURT OP JUDICATURE. CHHATHSGARH AT BILASPUR Writ Petition No. 2888 of 2003 PETITIONER; RESPONDENTS. Suresh Piasad, S/o Late Shri Shivuaadaa Prasad, aged about 50 years, Occupation- A-4, Class Contractor, R/o Banaras Road, Ambikapur, District-Sarguja (C.G.). -Versus- 1. The Executive En.giaeer, Public Works Department, Bridge Coustruction Division, Ambikapur, District-Sarguja (C.G.). 2. Superiutendiag Engiueer, Public Works Department, Bridge Construction Circle, Raigarh (C.G.), 3. Chief Engineer, Public Works Departinent, Bridge Construction Region, Raipur (C.G.). 4. The Secretary, Public Works Departinent, Govertunent of Chhattisgarh, Mauta'alaya, Raipur Shri Prashant Mishra, counsel for fhe petitioner. Shri Sanjay K. Agarwal, Deputy Advocate General for the Respoudent/ State. Before: Hoa'ble Shri L.C. Bhadoo, J. ORDER (Passed on^yar^September, 2003) 1.. The petitioner has filed this writ petition uuder Article 227 of fhe Constitution of India chatlengiag the order dated 4,9,2003 passed by fhe Distnct Judge Sarguja (Ainbikapur) in Civfl Suit No. 5-A/2003 by which leamed District Judge has rejected the application under section 80(2) ofthe C.P.C. and also rejected the application under Order 39 Rule 1 aad 2 of fhe Civil Proceditre ^. appUcation under Oider 39 Rule 1 and 2 of the Civil Procedure Code, and ftirther oidered that the plaiut be retunied to the petitiouer for filing after expiry of two nionths period froin fhe date ofnotiee dated 18.7,2003 sent by the petitioner to fhe defendaats. 2. The brief facts leading to filmg of this writ petition are fhat the respondents hereiu issued a uotice iavituig tender for consta'uction of bridge on Banas River at k.m. '/z Janakpur - Badwahi road on luinp sum teuder fonu-F. The petitioner subnutted his tender, wluch was accepted being competitive at Rs. 1,48,51,000/- on 30th November, 2002 and the work order was also issued to fhe petitioner. An agreeinent was entered into betweeu the parties. Petitioner also deposited Rs. 7,42.000/- as seciuily deposit. As per fhe agreement bridge was to be consta'ucted within 16 months excludiag fhe ram.y season aad it was to be coiapleted by 30th November 2004. Under the liunp sum tender contract fhe entire responsibility of testing of soil, preparation of drawing, submission of estiiaate etc. was upon the petitioner/tenderer. The petitioner conducted the lay out on fhe spot on 20th November, 2002 and took steps for digging of bore in Januai;', 2003. In consultation wifh fhe technical Advisor drawiug des^n of general construction was prepared and sent to the department on 10ttl March, 2003 which was the prescribed procedure of lump sum tender. The inap was hauded over to the petitioner after approval by the departmeut on 6th Jime 2003. However, the respondent No.l issued a show cause notice on 19fh May, 2003 even before approval ofthe diawiag. 3. Accorimg to the petitioner he had taken aB the steps for performance of the worik under the coutra.et with due diligence and with aSl projuiptitude wifh a view fhat if fhe petitioner would have been allowed to cany out the work he would be able to coniplete tihie work within the prescribed period. But the respondents canceUed the contract aud started making process for uivitmg fresh tenders. Accordin.gly, the petitioner filed a civfl suit for pennanent iujunction before the Distnct Judge aloag witihi an appUcatioa under section 80(2) ofthe C.P.C. and aiiofher application under Order 39 Rule 1 aad2. 4. Tlie respondents issued N.I.T. on 18.7.2003 for iD.viting fresh tender which is Aaiiexure P/6. The icspondeuts/defendaats submitted their reply to fhe applicatlons of the petitioner and bofli the applicatious were rejected by the trial Court by the iiapugned order. 5. Notice of the petitiou was accepted by the respondents/State. Mr. Sanjay K. Agarwal, Deputy Advocate Genei-al appeared on behatf of the respondents/ State he submitted that he is not filing reply to the petition as only legal questiou is involved ia this writ petition therefore he wfll argue the inatter. 6. Accordiagly the inatter was heard on admissiou, 7. In this petition the only questiou raised is about the valtdity ofthe order passed by fhe learued District Judge regarding rejection offtie prayer of the petitiouer made in the applicatlon under section 80(2) ofthe C.P.C. . 8, I have heard leamed counsel for fhe parties. 9. Lcamed counsel for the petitioner Mr. Mishra whUe drawuig attention of fhis Court to fhe irapugned order submitted that leanied lower Court has not rccoided aay findiug regaiding the urgency involved in the niatter aad , siuiply disallowed fhe appUcation on the ground that the petitioner had ak-eady sent a notice to the respondents under section 80 C.P.C. on 18.7.2003 aad fhereafter ou 318t July, 2003 he has presented the suit along wifh application under section 80(2) C.P.C. therefore bofh the ttungs caiinot go together. More over the application is not supported by any affidavit. He further argued fhat no findmg about the urgency has been recorded, tiierefore tius petition deserves to be atlowed aad the m.atter be sent back to the learued District Judge for disposins of the appUcation iu accoidance with the provisions of sub-section (2) ofSection 80 ofthe C.P.C. 10. Shri Mishra after placiag reUauce on the judgment of Kereral High Court in the case ofT.V.Paraagodan Vs. District CoUector Tiichur and ofhera reported in A.!.R. 1989 Keiala 276 further submitted tiiat even the form.al order is uot i^quired, it can be infen-ed froiu tlie circumstances fhat the unplied permission was aiready gran.ted as the leamed suboiduiate Court issued notice to the respondents, and ia tum ftiey had filed retuni, reply to the applicatious. Learued subordinate Court also heard on the application under Order 39 Rule 1 and 2 C.P.C. and disposed of that appUcation, fherefore iii the circuiustances the subordiaate Court was notwithin its rieht to reject the application of the petitioner under sub-section (2) of SectionSO C.P.C. 11. On the other haad Mr. Saajay K. Agarwal, Depiity Advocate General submitted that sub-section (2) ofSection 80 uiakes it clear fhat suit can only be proceeded with after leave is granted by the Court. Therefore, grantmg of leave uiuler sub-section (2) of the Section 80 is prerequisite for proceeding of the trial of the suit. He placed '^i reliance on fhe judginent of AUahabad High Court ui the case of Himar'lial Steel Rerollera and Fabricators Vs. The Union of India & othera reported m A.I.R. 1988 AUahabad. 191. 12. In ttus connection a perusat of relevant provision would be beueficial, Sub-section (1) of Section 80 lays down fhat °uo suit (shaU be instituted) agaio.st fhe Govenunen.t or agaiast any pubUc officer ia respect of auy act purporting to be done by such public ofEcer in his official capacity, untLl the expii^tion of two inonths next after notice ia writing has been delivered to, or left at the of&ce of ... . However, sub-section (2) of section 80 fa exceptiou to sub- section(l), which lays down that "A suit to obtain an urgent or imiuediate reUef agaiust the Govenunent or aay pubUc ofllcer iu respect ofaay act purportuig to be done by such pubUc ofBcer in his official capacily, may be instituted, wifh. the leave of the Court, wifhout serviag any notice as required by sub-section (1); but fhe Court shaU not grant reliefia the suit, whetiier iaterun or othenvise, except after giving to the Govermnent or public oificer, as the case may be, a reasonable opportunity of showiag cause in respect of the reUef prayed for ia fhe suit. Provided that fhe Coiut shaU, if it is satisfied, after heanng the parties, fhat uo urgent or iminediate relief need be granted in fh.e suit, retum the plamt for presentation to it after complyiag with the requireiaente of sub-section (1)." 13. Therefore, as per the provisions of sub-section(2) of Section 80 of the C.P.C. for obtaining fhe leave ofthe Court it is imperative fhat the plamtiff has to show urgen.cy for immediate relief aad fhe Court caa grant such leave only afiter satisfying that the matter iavolves ^ 6 urgent aud immediate reUef agaiust fhe Govt. and iu case uitenm stay is required thaa that is permissible only after giving notice to the Govt. 14,The proviso to sub-section (2) ofsection 80 further lays down that if the Court is satisfied after hearing the parties that no urgent or immediate relief need be gianted ia the suit, fhe Court shall rctum fhe plaiat for presentation to it after complying wifh. the requirements of sub-section(l). This shows fhat the Court is required to issue notice to the defendant on the application and the plaiat after satisfying fhat the niatter m.volves urgeucy and iminediate rcUef aud as per proviso after hearing the parties if the Court reaches to the conclusion that no urgent or inuaediate reUef need be granted then court should retum the plaint i.e. even at the initial stage ia order to satisfy itself the Court is required to look into the appUcation aad (he plaiut whether any urgency is iavolved and iaimediate relief is sought agamst the Govt. aud after satisfaction fhe Court is required to issue notice aad caa hear both fhe parties whether case of the plaintiff meets the rcquirement of sub-section(2) of Section 80 or not and can pass fhe order aflter hearfug the parties iu a particular case. . 15. In the case reported m A.I.R. 1988 AUahabad 191 it has been held fhat the suit has to be filed only with the leave of fhe Court, such leave must precede the institution of the suit. It is not possible to rcad iiito the language of above provisiou that a plaintiff can be permitted to obtaia such leave even subsequeat to the uistitution of fhe suit. The bar ofnotice under section 80(1) can. be removed only when requisite leave of the court has been obtained before or at the most while filing fhe plamt for institutiou of fhe suit. Ultmiately fhe Court held that since as per the provisions of sub-section (2) of Section 80 leave was not taken before or at the time ofiustitution of tfae suit the appeal is Uable to be and thus disinissed the appeal. 16, Whereas, ia the matter reported ia A.I.R. 1989 Kera]a_276 the High Court has held fhat sub-section (2) of Section 80 does not prescribe any form or manner in. which leave offhe Court for iastitutioii offhe suit wifhout notice uiider sub-section(2) has to be graated. What it says is only <\vifh the leave of the Court, without serving aay notice as rcquired by sub-section (1)". Leave need not be by a formal order. It can be iiaplied also aud could be gathered from what fhe Court does. Proceeding with the suit after fhe objection by considering aay relief could be a visible m.aaifestation of an tmplied leave caa be graated. That caunot be withdrawn at fhe final stage of the suit for disinissing on the question of m.am.taiuability when the remedy is lost by lapse oftune. In that case the inatter proceeded and eveu the defendaat appeared, he raised objection about the Biauitauiabiiity of fhe suit but the prayer of fhe plaintiff was not decided, the iajunction was considercd aad the sam.e was disallowed but the appellate Court attowed the uijunction appUcation aad fhe injuuction was granted and finatly the suitwas disposed ofaad then only fhe mamtauiabiUty was consyered and that too only on the hyper technical ground aad not on fhe merits. The High Court said that in the circumstances it was nnplied that the leave could be gianted and fhe Court also held that si&ce uo fomi has been prescribed even fhe prayer could be made ia the suit itself and no^ sepacate appUcation is required. In such case the mode or form of request or grant is not material. What is material is only ftie substaace whether fhere was a proper request and whefher it was considered and granted. Request with grounds, if aay, must be there and tbere need only be iadications as to whether it is aUowed or not, eveu though a reasoned orier may be good aud aa application is also appreciable. 17.Therefore, ia the light of the above judgments iu my opiaion ftie proper course under sub-section(2) of Section 80 C.P.C. for the plaiutiff is that a proper prayer should be made in. the plamt showiag the urgeucy aad unmediate reUefby the plamtiffas to what is the urgeucy and as to how the plaintiffneeds the imiaediate relief. [t should be properly aud categoricaUy uientioned ia the plamt and the Court afler satisiying itself caa grant the leave. Even an application can also be filed along with tiie plamt for seekiug the leave of the Court for dispensiag with the requirement of sub- section (1) of Section 80 but in that application also the plaintiffis required to indicate the facts aud circumstances showiag urgency iavolved ia the matter and also how the plaintiff is in need of the immediate reUef. Ifthe plamt or the application, as the case m.ay be, lacks ia particulEu-s showiag the urgency and iminediate reKef fhen tbe Court can reject the prayer and i^fuse the leave. 18. 2n fhis connection ifwe look into fhe provisions of sub-section (2) and the proviso fhereof there are two stages when the question of ^rant ofleave is to be cousidered by the Court. The first stage is that when the suit is fUed. When the Court is required to look into the prayer of fhe plaintiff and satisfy itself as to whether prima facie case is made out for grauting fhe leave to proceed witti ftie suit without notice under sub-section (1) ofsection 80 C.P.C. and in fhat case the Court wfll prima facie look uito the plaiat or application as fhe case inay be, as to whether the plaintiff has beeu able to inake out the case for urgency and uuuiediate relief aad the Court after satisfactiou, is required to issue notice to ttie opposite pardes. The second stage is that as per the proviso the defendant has a right to raise objection fhat no urgeucy is existmg in the niatter or inunediate relief is not icquired aad fhe Court caa after hearing both fhe parties pass the order regardm.g graatmg or refusiug the leave. But where the Court without passing any formal order grantuig leave issue notice to opposite party, written stateinent aud objection regarding niaintauiabiKty is fUed by the opposite party aud Court proceed with the trial of suit without deciding the question of maintamability under section 80 (2$ C.P.C. then at the final stage of the suit question of mauitaiuability casiwt be decided i.e. suit caunot be thrown on thls ground after lapse of loug tune as the rights of fhe plaintiff may be irreparably lost by lapse of time and in that case it can be treated the leave has been impUedly granted that is why that Court is requircd to first decide the question of leave under sub-section. (2) ofSection 80 ofC.P.C. 19,Now, coiniag to fhe piesent case, fhe sumiaons weie issued to the respoudents and the objection was raised about the maintainability of the suit by the defendsmts. A perusal of the plaiat filed by fhe petitioner before the suboidinate Court shows that in the plauit it is nowhere mentioued that what is the urgency, on account of the urgency or inunediate relief it is not possible for the petitioner to- 10 send iiotice under section 80 offhe C.P.C. nor any rcUefhas beeu sought in fhe plaiat dispensiag with the requirement of sub-section (1) of Section 80 C.P.C. Even the perusal of the appUcation shows that in pai^-2 of the appUcation ttie fact of sendiag of the noti.ee under section 80 C.P.C. on 18.7.2003 has been mentioned. In para- 3 ofthe appUcatiou simply it has been inen.tioned fhat looking to the urgent situation it wiU be reasouable to pass the order for exemption ofthe sending ofthe iiotice aud ifthe exemption is not grauted fhen fhe plaiatiff w31 suffer UTeparable loss aud he wfll be denied of the natural justice. Even iu fhis application fhe circumstauces and facts leadiag to fhe urgency has not been nientioned aud clearly speUed out namely as to how aad what urgency is iavolved ia fhe niatter. Therefore this application also lacks in materiat particulars. It is relevao.t to meutiou that mitiaUy the plaiuttff had sent a notice on 18.7.2003 to the respondents/defendants but on 318t July 2003 he filed ftie suit along with the appUcation under sub-section (2) of Sectiou 80 ofC.P.C. as weU. 20.The subordiuate Court after considering fhe arguiuents of counsel for fhe parties rejected fhe appUcation under Order 39 Rule 1 aad 2 and appUcation under sub-section (2) of Section 80 was also 21.8iace the plaint does not coiitain auy avennent regardiag seekins exemption from. complyiag with the requirement of sub-section (1) of Section 80 and fhe application filed for exeinption uuder sub-section (2) of Section SO regardiag exemptuig the plauitiff from sendias notice as envisaged ia sub-section(l) ofSection. 80, lacks ia material particulars aad does uot reflect the facts and circuinstauces in which fhe urgency was iavolved aud iinmediate reUefwas required, moi1e over ia. the niatter first notice under sub-section (1) of Section 80 C.P.C. was sent and befoie the expiiy ofnotice period suit was ffled, therefore the application ofthe p2aintiffwas r^htly rejected by the trial Court. 22. In the result, fhe petitiou has no foice; it is Uable to be aad is dismissed at the admission stage itsetf. LC.Bhadoo v