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2021 DIGILAW 6 (MEG)

Akki A. Sangma v. State of Meghalaya

2021-02-17

H.S.THANGKHIEW

body2021
ORDER 1. This application under Article 227 of the Constitution of India has been filed assailing the order dated 03.02.2021, passed by the Court of the Learned Assistant to Deputy Commissioner (Judicial), Williamnagar, East Garo Hills, whereby an application under Section 80(2) of the CPC was rejected. 2. In brief, the petitioner as plaintiff had instituted a declaratory suit before the Trial Court challenging the termination notice dated 29.10.2020, issued by the respondent No. 2, whereby a Lease Agreement dated05.03.2019, for an IMFL, Wet Canteen entered into between the petitioner and State respondents was sought to be terminated w.e.f., from 27.01.2021. The grievance of the petitioner is that with the rejection of the application under Section 80(2) of the CPC, he has been left remediless, hence the instant petition. 3. Mr. K. Talukdar, learned counsel for the petitioner, submits that the petitioner was granted a Lease to operate an IMFL, Wet Canteen for a period of five years w.e.f., from 01.03.2019, by Lease Agreement executed on 05.03.2019 between the respondent No. 2 and the petitioner. That thereafter the counsel submits, the petitioner had incurred substantial costs towards setting up the said establishment and was in full operation apart from paying all the required IMFL license and renewal fees as payable, when he was served with a termination notice dated 29.10.2020, whereby the Lease was sought to be terminated. Counsel submits that the petitioner thereafter, through his Advocate had on 13.01.2021, replied to the said termination notice but the respondent No. 2 did not respond to the same, or accept the request of the petitioner. 4. The learned counsel submits that as the termination notice was to be effective from 27.01.2021, the petitioner was compelled to approach this Court by way of a writ proceeding under Article 226, due to the closure of the Civil Courts at that point of time, and that this Court by order dated 28.01.2021 passed in WP(C) No. 14 of 2021 was pleased to grant liberty to the petitioner to present a suit on the same cause of action before a competent Civil Court, and also directed that in the meanwhile that status quo be maintained as on date for a period of two weeks. It is further submitted that apart from the other facts and in view of the order dated 28.01.2021 in WP(C) No. 14 of 2021, the petitioner filed a declaratory suit along with injunction application and a Misc. case being Misc. Case No. 3 of 2021 under Section 80(2) of the CPC for dispensation of notice. 5. Learned counsel submits that however, the Learned Trial Court by order dated 03.02.2021, rejected the prayer to exempt issuance of Section80 notice, by misconstruing the entire scope and purport of the provisions and powers as contained in Section 80(2) of the CPC. He contends that the Learned Trail Court did not consider the urgency of the matter and the reasons recorded in rejecting the prayer, is contrary to both Section 80(1) and (2) of the CPC, this too, inspite of acknowledging that termination of the Lease Agreement was w.e.f., from 27.01.2021. Instead, he submits, the Trial Court was of the opinion that compliance of the mandate of Section 80 would facilitate settlement without resorting to unnecessary litigation. Learned counsel argues that the termination having already been effected, the only remedy was by way of recourse to a judicial process as there was no further scope of settlement of the disputes between the parties, which the Trial Court failed to consider and appreciate. Learned counsel further submits that the fact that liberty had been granted by this Court to the petitioner vide order dated 28.01.2021, was also completely overlooked by the Trial Court. As such, he prays that the impugned order be set aside and quashed. 6. Mr. N. D. Chullai, learned AAG assisted by Ms. R. Colney, learned GA for the respondents, in his short submissions on the necessity of compliance to Section 80 of the CPC, has placed reliance on the judgment in the case of Beohar Rajendra Sinha & Ors. vs. State ofM. P & Ors. and Vice Versa reported in (1969) 1 SCC 796 , wherein the Hon'ble Supreme Court has held that in construing the notice, the Court cannot ignore the object of the Legislature namely, to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position. He has also placed reliance on the case of Bihari Chowdhary & Anr. Vs. State of Bihar & Ors. He has also placed reliance on the case of Bihari Chowdhary & Anr. Vs. State of Bihar & Ors. reported in (1984) 2 SCC 627 , wherein, it has been held that the Section had been enacted as a measure of public policy which would avoid unnecessary litigation and save public time and money by settling the claim without driving the person who has issued the notice to institute the suit, as unlike private parties, the Government is expected to consider the matter covered by the notice in a most objective manner. He concludes his submissions by supporting the impugned judgment by contending that, the same is perfectly in line with the provisions of Section 80 of the CPC, and that the Revision application being devoid of merit is liable to be dismissed. 7. I have heard learned counsel for the parties, considered their submissions and have carefully examined the materials as placed on record as well as the impugned judgment. A perusal of the same, reflects that the Learned Trial Court rejected the application of Section 80 (2) by holding as follows: "Having heard the learned counsels for the petitioner, this Court is of the opinion that compliance of the mandate of Section 80 of the Code of Civil Procedure, 1908, at this stage would facilitate settlement of the claim of the petitioner/plaintiff/2nd party to the agreement at the earliest without resorting to unnecessary litigation and undue delay which would have arisen by recourse to litigation without compliance to the mandatory provision of law, could be avoided. Sufficient time is available to the petitioner/plaintiff/2nd party to the agreement, as of today, to take necessary steps accordingly as contemplated under section 80 of the Code of Civil Procedure, 1908. For the reason stated above, this Court is not satisfied that there is urgency in the matter, so as to deprive the petitioner/plaintiff/2nd party to the agreement to institute suits accordingly upon due compliance with the provisions of law." An examination of the plaint, and the termination notice dated 29th October, 2020 which has been filed subsequently by way of an affidavit, reflects that the declaratory suit brought by the petitioner as plaintiff before the Trial Court, is directed against the termination notice which terminated the Lease Agreement w.e.f., from 27.01.2021. Urgency has been pleaded by the petitioner in the plaint and in the application under Section 80(2), and thefact that the petitioner has also approached this Court under Article 226 of the Constitution of India seeking relief cannot be overlooked while deciding this matter. 8. Another aspect which is to be taken into consideration is that, as per the termination notice which had terminated the Lease Agreement w.e.f., from 27.01.2021, a finality has been reached which would prevent effective reconsideration from the part of the respondents and such dispute would be best served, only if taken up by way of adjudication before a court of law. The question whether, the petitioner has violated the terms of the Lease to warrant termination as per the Lease Agreement is required to be determined by the Trial Court by evidence and whatever materials are placed before it by the parties. Such are the facts of the present case, that notwithstanding any other aspects such as the notice period as stipulated by the Lease Agreement having expired without any effective outcome, though reply to the termination notice had been submitted on 13.01.2021, as per the averments made in this petition, the nature of dispute is such that in the event the suit is not taken up immediately by the Trial Court, the whole purpose of filing the suit would be defeated. 9. The findings of the Learned Trial Court as quoted above, has not dealt with the question of urgency in a satisfactory manner and the conclusion arrived at that there is no urgency in the circumstances, deserves to be interfered with. The prayers as made out in the Title Suit as well as the interim prayers as set out in the application under Order 39 Rule 1 and 2 of the CPC would necessarily have to be decided by the Trial Court after issuing notice to the respondents and it cannot be said that prejudice will be caused, if the suit is taken on board by dispensing with prior notice. Further, Section 80(2) of the CPC has clearly provided as follows: "80. Further, Section 80(2) of the CPC has clearly provided as follows: "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:" There being enough safeguards for the State respondents provided by law in the taking up of urgent matters by the Trial Court, and no sufficient reasons being given by the Trial Court in the impugned order to show that there was no urgency, there should have been no perceived impediment in not allowing the application under Section 80(2) of the CPC. 10. Resultantly, in the facts and circumstances as stated above, the impugned order dated 03.02.2021 passed in Misc. Case No. 3/2021 arising out of Title Suit No. 1 of 2021 by the Assistant to Deputy Commissioner, Commissioner (Judicial), Williamnagar, East Garo Hills, is hereby set aside and quashed and the Trial Court is directed to proceed with the suit in accordance with law. 11. Needless to add, any observations made herein shall not influence the trial of the suit and such, observations shall remain confined to the disposal of this petition alone. 12. Petition is accordingly allowed and stands disposed of.