High Court of Orissa

Bhagaban Khatua and Ors. Vs. State of Orissa and Ors.

MANU/OR/0666/2017

23.10.2017

Civil

The service of notice under Section 80 of CPC is a condition precedent for the institution of a suit against the Government or a public officer.

Present is a Plaintiffs' appeal against affirming judgment. Trial Court held that, no prior notice under Section 80 of Code of Civil Procedure, 1908 (CPC) had been issued to Defendant Nos. 1 to 8. The mandatory provisions of Section 80 of CPC and Section 138 of the Orissa Grama Panchayat Act, 1964 ("O.G.P. Act") had not been complied with. The Plaintiffs failed to prove that, they had got exclusive right to ferry in Baideswar ghat. Unsuccessful Plaintiffs challenged the judgment and decree of the trial Court before the Additional District Judge, which was eventually dismissed.

Section 80 of CPC, imposes a statutory and unqualified obligation upon the Court and in the absence of compliance with Section 80 of CPC, the suit is not maintainable. The service of notice under Section 80 of CPC is, a condition precedent for the institution of a suit against the Government or a public officer. The service of notice under sub-section (1) of Section 80 of CPC 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) of CPC, 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. Section 80 of CPC prescribes that, the plaint itself would mention that the notice was served. When from the perusal of the plaint it appears that, there is contravention of Section 80 of CPC by non-mention in the plaint that a notice had been served, the plaint should be rejected in limine without issuing summons to the defendants to appear. Admittedly, no notice under Section 80 of CPC was issued to the Defendant Nos. 1 to 6 before institution of the suit. Due to non-compliance of the mandatory provision of Section 80 of CPC, the suit was not maintainable.

Sub-section 1 of Section 138 of the Orissa Gram Panchayat Act, provides that no suit or other legal proceedings shall be instituted against a Grama Sasan or a Grama Panchayat or against member, Sarpanch, Naib-Sarpanch, officer or other employee of the Grama Panchayat or against any person acting under its or his direction for anything done or purporting to have been done under this Act, until the expiration of one month next after notice in writing has been, in the case of Grama Sasan or Grama Panchayat, delivered in or left at the office of the Panchayat and in the case of a member, officer or servant or any person acting under his direction or the direction of the Grama Panchayat, delivered to him or left at his office or place of residence, explicitly stating the cause of action, the nature of the reliefs sought, the amount of compensation, if any, claimed and the name and place of residence of the intending plaintiff; and the plaint shall contain a statement that such notice has been so delivered or left. Sub-section (3) provides that, no suit or other legal proceeding referred to in Sub-section (1) shall be instituted after the expiry of a period of six months from the date of the accrual of the alleged cause of action. The aforesaid provision is mandatory in nature.

After promulgation of Orissa Estate Abolition Act, 1951 ("OEA Act"), the estate vested in the State. Section 5 of the OEA Act, provides for consequences of vesting of an estate in the State. It provides that notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification in the Gazette under Sub-section (1) of Section 3 or Sub-section (1) of Section 3A or from the date of the execution of the agreement under Section 4 as the case may be the consequences enumerated in clause (a) shall ensue. Clause (a) provides that, subject to the subsequent provisions of the said Chapter the entire estate including all communal lands and porambokes, other non-raiyati lands, waste lands, trees, orchards, pasture lands, forests, mines and minerals (whether discovered or undiscovered, or whether being worked or not inclusive of rights in respect of any lease of mines and minerals) quarries, rivers and streams, tanks and other irrigation works, water channels, fisheries, ferries, hats and bazaars, and building or structures together with the land on which they stand shall vest absolutely in the State Government free from all encumbrances and such intermediary shall cease to have any interest in such estate other than the interests expressly saved by or under the provisions of this Act.

It is clear that, notwithstanding anything contained in any other law, the consequences enumerated in clause (a) shall ensue. Ferries have been mentioned in clause (a). Thus, ferries vested in the State Government free from all encumbrances. Section 5 of Act, contains a non-obstante clause. The same has the overriding effect of the Bengal Ferries Act, 1885. Thus, reliance placed on Bengal Ferries Act is misplaced. The appeal is dismissed.

Tags : Notice Service Right to ferry

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