IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16294 of 2009 1. KAMLENDRA MISHRA S/O LATE BRAJ NANDAN MISHRA R/OVILL NAGDAHA, NARA PER TOLA SUDISHT MISHRA, P.S. MALLAHI, DISTT- EAST CHAMPARAN Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR EAST CHAMPARAN 3. THE SUB- DIVISIONAL OFFICER ARERAJ, EAST CHAMPARAN 4. THE CIRCLE OFFICER, ARERAJ BLOCK, EAST CHAMPARAN 5. THE EXECUTIVE ENGINEER, R.E.O. EAST CHAMPARAN ----------- 2 12.1.2010 Petitioner has filed this writ application for virtually permanent injunction restraining the respondent-State and its instrumentality on encroaching upon his land appertaining to plot no. 2106, Khata no. 597 and plot nos. 2107 and 2144 appertaining to Khata no.598 as well as plot no. 2103 appertaining to Khata no. 594 and plot no. 2104 appertaining to Khata no. 595 in village Nagdhaha, P.S. Mallahi,, District- East Champaran. It is asserted that the said lands were purchased by the petitioner’s father and they have been in exclusive peaceful possession thereof. It is further asserted that neither in revisional survey khatian nor in revisional survey map there is any public road which is shown over these lands of the petitioner. Notwithstanding the aforesaid the State through Rural Engineering Organization are trespassing on petitioner’s land to construct a public road without either acquiring the land or without notice to the petitioner, which is wholly illegal and unconstitutional. Petitioner is said to have made representations complaining about the same to different officials of the State but as they have more interest in constructing the public 2 road, no one has chosen to look into the matter and are violating the rights of the petitioner. In my view, the proper remedy for the petitioner is to approach the Civil Court for redressing of his grievances. Learned counsel for the petitioner submits that in terms of Section 80 of the Code of Civil Procedure , two months notice is mandatorily required to be given before such a suit could be instituted and it is only thereafter that an injunction payer would be considered. It is further submitted that if one has to wait for such a long time for the State to respond after the suit is filed before an interim injunction is granted, the whole purpose of the suit would stand defeated. In my view, the contention, as raised on behalf of the petitioner, is misconceived. A reference may be made to Section 80(2) of the Code of Civil Procedure which clearly stipulates that a suit to obtain an urgent relief can be filed without notice, with leave of the Court, on grounds being made to dispense with notice, which is obviously the urgency of matter and irreparable injury, which is likely to be caused. The Civil Courts are not powerless to appreciate such urgency and entertain such suit , without notice, in such situation. Further once such suit is filed and notice of the suit is given to the Government Pleader/Government Advocate representing the State then if facts are such that irreparable injury would be caused to the petitioner ,Court is not powerless rather is duty bound to grant ad interim injunction or order for maintaining of status quo if facts showing cause of 3 irreparable injury either by way of permanent construction or demolition are pleaded. In my view, it shall be the duty of the Civil Court to permit such suit to be filed without notice and grant ad interim injunction and failure to grant such ad interim injunction on those facts would be failure to exercise their jurisdiction. Once cause is shown by the State then the Court is not powerless to vacate the ad interim injunction immediately if the cause shown so justifies provided State co-operate in the proceedings in the Court . That was there will be no irreparable injury to either party. The Civil Court would pass ad interim injunction on well recognized principle of prima facie case, balance of convenience and irreparable injury likely to be caused and keep in mind that if an ad interim injunction, which would be temporary, till cause is shown by the State it can always be vacated if facts so demand. Another aspect the Civil Courts would keep in mind is the very purpose of notice under Section 80 C.P.C. to State. Once any such notice is given, like in the present case objecting to the trespass or notice in an emergent suit after its filing then State must respond immediately. None response by State would be an aspect to be taken adverse to the State. In the present case , representations to various authorities were made by the petitioner, akin to notice objecting to trespass, but there has been no response. The trespass continues. That is not how the State has to behave. In that view of the matter , in my view, the remedy of 4 approaching the Civil Court is adequate and efficacious. Petitioner is then not without remedy in case he does not get protection in the matter from the Civil Court ,for he has appellate and revisional remedy as well. In that view of the matter, petitioner is directed to approach the Civil Courts for proper remedy and relief. In view of the aforesaid for a period of four weeks from today, parties shall maintain status quo, which order would be subject to any order- ad interim/interim or otherwise that is passed by the Civil Court on a suit being filed. While considering the matter of ad interim injunction or status quo, the Civil Court would be obliged to consider the fact that the petitioner has been protesting the authority and the authority have chosen not to respond at all ignoring the rights of the petitioner and protest of the petitioner. Learned counsel for the petitioner submits that the general attitude of the Civil Court is not to pass orders even of status quo in such matters even though urgency and the basic facts are clearly pleaded . That is a cause of concern to this Court as in such situation persons like the petitioner avoid moving the Civil Court and flood this Court with unnecessary litigations to protect their rights , which relief they can easily get from Civil Court virtually as a matter of course. With the aforesaid observations and directions this writ petition stands disposed of. Singh (Navaniti Prasad Singh, J.)