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2019 DIGILAW 2591 (ALL)

Rama Shankar Singh v. State of U. P.

2019-11-18

SANGEETA CHANDRA

body2019
JUDGMENT : Sangeeta Chandra, J. 1. Heard learned Counsel for the petitioner, learned Standing Counsel appearing for the State-respondents, Shri Akhila Nand Pandey, learned Counsel appearing for the Caveator who is respondent No. 6 in the present petition and Shri Ramesh Chandra Upadhyay, learned Counsel appearing for the Land Management Committee of Village Khumha Devri, Pargana Deogaon, Tehsil Lalganj, District Azamgarh. 2. Learned Counsel for the petitioner submitted that one Parshuram Singh s/o. Sita Ram who was related to the petitioner of his grandfather's side died issueless but has executed an unregistered Will (Khuski) on 14.3.1982 regarding his moveable and immovable properties. The petitioner was made beneficiary. Parshuram Singh later on died on 25.3.1982. 3. The petitioner filed a mutation application before the Tehsildar Lalganj, District Azamgarh on the basis of such Khuski. 4. The contesting respondent No. 6 filed his objections on the basis of an alleged Will deed dated 6.3.1983. The Tehsildar found that the application for mutation was contested and, therefore, submitted a report on 2.12.2000 before the Sub Divisional Magistrate, Tehsil Lalganj, District Azamgarh. 5. The petitioner filed his objection before the Sub Divisional Officer, Tehsil Lalganj, District Azamgarh against the said report. The Sub Divisional Officer however, on 21.9.2002 ordered the property of late Parshuram Singh to be recorded in the name of Gaon Sabha. 6. Aggrieved by the order dated 21.9.2002, the petitioner filed Writ Petition No. 46623 of 2005 (Raj Nath and others v. State of U.P. and others). This petition was disposed of on 30.6.2005 by this Court leaving it open for the petitioner to file a regular suit under section 29-B of the U.P.Z.A. & L.R. Act. 7. The contesting respondent No. 6 also filed a writ petition against the same order dated 21.9.2002. The said writ petition was also dismissed on the ground of statutory remedy available under section 29-B of the U.P.Z.A. & L.R. Act. The contesting respondent No. 6 thereafter filed a suit on 14.5.2005 before expiry of the prescribed period of two months as provided under section 80 of C.P.C. 8. When the petitioner came to know of filing of the said suit after expiry of 60 days, he filed objection against the maintainability of the suit. 9. The Sub Divisional Officer rejected the petitioner's objection. The petitioner thereafter approached the learned Divisional Commissioner, Azamgarh Division, Azamgarh. When the petitioner came to know of filing of the said suit after expiry of 60 days, he filed objection against the maintainability of the suit. 9. The Sub Divisional Officer rejected the petitioner's objection. The petitioner thereafter approached the learned Divisional Commissioner, Azamgarh Division, Azamgarh. The revision has also been rejected by the impugned order dated 9.8.2019. 10. It has been submitted by the learned Counsel for the petitioner that while rejecting the objection regarding maintainability of the suit, it has wrongly been observed by the learned Courts below that the suit has not been filed against the Gaon Sabha and, therefore, the mandatory 60 days' notice period cannot be raised as technical objection for maintainability of the suit. Learned Counsel for the petitioner has brought on record a copy of the Khatauni i.e. records of rights of the year 1422 to 1427 fasli wherein the name of Parshuram Singh S/o. Sita Ram has been expunged and the name of Gaon Sabha/Government of U.P. had been directed to be recorded. 11. It has been submitted by the learned Counsel for the petitioner that the Hon'ble Supreme Court in Bihari Chowdhary and another v. State of Bihar and others,: AIR 1984 SC 1043 has observed that a suit against the Government or a public officer, to which the requirement of a prior notice under section 80 C.P.C. is attracted, cannot be validly instituted until the expiration of the period of two months next after the notice in writing has been delivered to the authorities concerned in the manner prescribed for in the section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable. 12. It has been submitted that on the basis of the said judgment and also a Constitution Bench decision of the Hon'ble Supreme Court in the case of Sawai Singhai Nirmal Chand v. The Union of India, AIR 1966 SC 1068 , that the suit was not maintainable as the required notice period was not duly followed by the contesting respondent before instituting the said suit. 13. The learned Counsel for the petitioner has also brought to the notice of this Court a copy of the notice submitted by the contesting respondent Veer Virendra Vikram Singh regarding the proposed suit under section 80 of C.P.C. read with section 106 of the Land Revenue Act. 13. The learned Counsel for the petitioner has also brought to the notice of this Court a copy of the notice submitted by the contesting respondent Veer Virendra Vikram Singh regarding the proposed suit under section 80 of C.P.C. read with section 106 of the Land Revenue Act. He has referred to submission made in paragraph 08 of the said notice dated 18.10.2005 indicating that the notice was being served two months prior to the institution of the suit. However, the suit in question was filed on 14.9.2005 much before the period of expiry. 14. This Court has perused the judgment cited as aforesaid. The Hon'ble Supreme Court in the judgment rendered in Bihari Chowdhary and another (Supra) has observed that there is clearly a public purpose underlying the mandatory provision contained in section 80 C.P.C. insisting on the issuance of a notice setting out the particulars of the proposed suit and giving two months' time to Government or a Public Officer before a suit can be instituted against them. The object of the section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation in the matter. It has also been served by the Hon'ble Supreme Court that when the language used in the Statute is clear and unambiguous, it is the duty of the Court to give effect to it and considerations of hardship will not be a legitimate ground for not faithfully implementing the mandate of the legislature. 15. Relevant extract of paragraph No. 3 of the judgment rendered by the Hon'ble Supreme Court in Bihari Chowdhary and another (Supra) is being quoted herein below:-- "3. .....................The effect of the section is clearly to impose a bar against the institution of a suit against the Government or a public officer in respect of any act purported to be done by him in his official capacity until the expiration of two months after notice in writing has been delivered to or left at the office of the Secretary to Government or Collector of the concerned district and in the case of a public officer delivered to him or left at his office, stating the particulars enumerated in the last part of sub-section (1) of the Section. When we examine the scheme of the section it becomes obvious that the section has been enacted as a measure of public policy with the object of ensuing that before a suit is instituted against the Government or a public officer, the Government or the officer concerned is afforded an opportunity to scrutinise the claim in respect of which the suit is proposed to be filed and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by setting the claim without driving the person, who has issued the notice, to institute the suit involving considerable expenditure and delay. The Government, unlike private parties, is expected to consider the matter covered by the notice in a most objective manner, after obtaining such legal advice as they may think fit, and take a decision in public interest within the period of two months allowed by the section as to whether the claim is just and reasonable and the contemplated suit should, therefore, be avoided by speedy negotiations and settlement or whether the claim should be resisted by fighting out the suit if and when it is instituted. There is clearly a public purpose underlying the mandatory provision contained in the section insisting on the issuance of a notice setting out the particulars of the proposed suit and giving two months' time to Government or a public officer before a suit can be instituted against them. The object of the section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation." 16. In Sawai Singhai Nirmal Chand (Supra), the Constitution Bench of the Hon'ble Supreme Court was considering the provisions of Order XXI Rule 63 C.P.C. and also the applicability of section 80 C.P.C. to a suit filed under the said Order. The Hon'ble Supreme Court in paragraph Nos. 06 & 07 of the said judgment observed as under:-- "6. In Sawai Singhai Nirmal Chand (Supra), the Constitution Bench of the Hon'ble Supreme Court was considering the provisions of Order XXI Rule 63 C.P.C. and also the applicability of section 80 C.P.C. to a suit filed under the said Order. The Hon'ble Supreme Court in paragraph Nos. 06 & 07 of the said judgment observed as under:-- "6. In considering the question whether this suit falls within the purview of section 80 of the Code, it is necessary to read the relevant portion of section 80 itself, it provides, inter alia, that no suit shall be instituted against the Government until the expiration of two months next after notice in writing has been delivered to or left at the office of the authorities specified by clauses (a), (b) and (c); and it further provides that such notice shall state the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that, such notice has been so delivered or left. 7. It would be noticed that the material words used in section 80 are wide and unambiguous : they are "express, explicity and mandatory", and it would be difficult to except from their operation any proceeding which can be regarded as a suit against the Government. While dealing with the applicability of section 80, the question to ask is : is it a suit against the Government or not? If it is, then section 80 by the very force of its words must apply....................." 17. The Hon'ble Supreme Court considered the argument that a suit under Order XXI Rule 63 C.P.C. is continuation of attachment proceedings and cannot be regarded as suit properly instituted within the purview of section 80 C.P.C. However, it rejected the said argument and held that the suit in question could not be said to be outside the purview of section 80 C.P.C. 18. The Hon'ble Supreme Court in Sawai Singhai Nirmal Charid (Supra) has observed that a suit in which an injunction is prayed for is a suit within the words of section 80 and to read any qualification into it is an encroachment on the function of the legislature. Section 80 should not be considered to be merely a rule of procedure. 19. Section 80 should not be considered to be merely a rule of procedure. 19. From a perusal of the orders impugned it is evident that in the order dated 3.4.2019 the Sub Divisional Officer, Lalganj has observed that since the suit was being filed in pursuance of the order passed by this Court in Writ C No. 52426 of 2005 dated 28.7.2005, it could not be rejected on technical grounds and should be considered on merits. It was also observed on the basis of judgment rendered by the Board of Revenue in the case of Santosh Kumar v. Ram Swamp 1996 RD 588, that a suit against the Government cannot be filed after expiry of 60 days only but the plaintiff Veer Virendra Vikram Singh had not sought any relief against the State Government, the suit was only against the Gaon Sabha, therefore, the suit is maintainable. 20. The observations made by the Sub Divisional Officer, Lalganj, District Azamgarh are clearly against the law as under section 341 of the U.P.Z.A. & L.R. Act, it has been provided that unless there is an exception expressly carved out under the Act, the provision of the Indian Court Fees Act, the Code of Civil Procedure, 1908, and the Limitation Act (including section 5 thereof) shall apply to proceedings under the Act. 21. A declaratory suit under section 229-B of the U.P.Z.A. & L.R. Act may be filed by the Bhumidhar for declaration of his rights against the co-tenure holder or a predecessor or an Assamee also. In this case name of Gaon Sabha was recorded in the Khatauni by an order dated 13.11.2004. Not only the Gaon Sabha but the State Government was also recorded as owner of the and in question, in pursuance of the order passed by the Sub Divisional Officer challenged in the said suit. 22. As per the provisions of the U.P.Z.A. & L.R. Act, no suit against the Gaon Sabha is maintainable without giving prior notice to the Gaon Sabha. The provisions of section 80, therefore, clearly apply. The rejection of the objection of the petitioner is patently erroneous. The petitioner's revision has been rejected arbitrarily by the Additional Commissioner (Judicial), Azamgarh Division, Azamgarh. The orders impugned dated 3.4.2019 and 9.8.2019 are hereby set aside. 23. The provisions of section 80, therefore, clearly apply. The rejection of the objection of the petitioner is patently erroneous. The petitioner's revision has been rejected arbitrarily by the Additional Commissioner (Judicial), Azamgarh Division, Azamgarh. The orders impugned dated 3.4.2019 and 9.8.2019 are hereby set aside. 23. The Sub Divisional Magistrate, Azamgarh shall consider the objections of the petitioner afresh and pass necessary orders for return of plaint for compliance with the provision of giving prior notice in its letter and spirit leaving it open for the plaintiff therein i.e. the contesting respondent No. 6 to file a fresh suit after expiry of notice period. 24. The writ petition is allowed to this extent only.