ORDER : 1. This appeal has been filed under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as, “the Code”). 2. Being aggrieved and dissatisfied by the judgment and decree dated 7.02.2003 passed by the learned Civil Judge (Senior Division), Amreli in Special Civil Suit No.82 of 1996 wherein the suit of plaintiff came to be decreed thus, the appellant is before this Court. The learned trial Court decreed the suit. 3. The brief facts of the present case are that the original plaintiff filed a suit for damages against the appellants-original defendants. Plaintiff is the owner of Survey No.31 paiki acre 5.15 guntha situated in Village Matanmala, Taluka Dhari, District Amreli and plaintiff had planted 78 mango trees, in a land bearing Survey No. 31, a canal is passing by, which is of the ownership of Shardaben Durlabhbhai. During monsoon, water is passing through this canal. In Survey No.31 total 78 mango trees are planted by plaintiff. The defendants-appellants had made one "ubhar" on the Nehru because of the said “ubhar”, the land became unfertile and due to running water, the plantation of mango trees were damaged. The plaintiff filed a suit for damages of Rs.6,00,000/- together with 18% interest against defendants-appellants and also asked for a temporary injunction also. Defendants appeared and filed written statement Exh.14. 4. The following issues were framed vide exhibit No 35:- “1) Whether this court has jurisdiction to try and decide this suit? 2) Whether the plaintiff proves that the deft. No.2 and 3 have restricted the natural flow of water? 3) Whether the plaintiff proves that the deft. No.2 and 3 have caused the damage of their wrongful act as alleged in para-03, 04 and 05 of the plaint, Vide par1-01? 4) Whether the plaintiff proves that he is entitled to get suit amount from the defts.? If yes, at what rate? 5) Whether the defts. Proves that their act in this matter is in favour and benefit at public at large? 6) Whether the plaintiff proves that he is entitled to get relief, as mentioned in para-10 of the plaint? 7) What order and decree? 5. The plaintiff was examined her Power of Attorney holder Dhurlabhjibhai vide Exh.58. Plaintiff also examined one Bhikhnagar at Exh.69. Defendants examined Ghansyambhai vide Exh.85. 6. 6) Whether the plaintiff proves that he is entitled to get relief, as mentioned in para-10 of the plaint? 7) What order and decree? 5. The plaintiff was examined her Power of Attorney holder Dhurlabhjibhai vide Exh.58. Plaintiff also examined one Bhikhnagar at Exh.69. Defendants examined Ghansyambhai vide Exh.85. 6. Learned counsel for the appellant submitted that the judgment and decree passed by the learned trial court is erroneous. It is further submitted that prior to filing of the suit, no notice has been given to the appellant. 7. Learned Council for the appellant submitted that the judgment and decree passed by the learned trial Court is erroneous. It is submitted that the suit is filed without giving notice under Section 80 of the Code. It is further submitted that no notice under section 270 of the Gujarat Panchayat Act, 1993 (hereinafter referred to as “the Act”) was given by the plaintiff before the filing of the suit. It is further submitted that the work of “ubhar” was completed before 1 year of the Institution of the suit. The construction of the “ubhar” was made out of good intention for the development of villages and only for stopping the rainwater from damaging the fields of the villagers. It is submitted that plaintiff has not suffered any loss or damage as alleged. Plaintiff has not proved the quantum of damages. In absence of any proof of damage the Learned trial Court has committed in an error by granting an amount of Rs.2,00,000/- towards damages. Plaintiff 's husband has also filed a suit for damages bearing Suit No. 82 of 1996. The learned trial Court has presumed 78 trees of mangoes in the field. The learned trial Court has calculated quantum of damages merely on presumption. 8. Learned counsel for the appellants has relied upon Section 270 Act, which is reproduced hereinbelow:- “270. Bar of action against panchayat etc. and previous notice before institution. (1)No action shall be brought against any panchayat or any member, officer, servant or agent of a panchayat or any member of a committee of a panchayat acting under its direction, in respect of anything in good faith done under this Act or under any rule or bye-law made thereunder. and previous notice before institution. (1)No action shall be brought against any panchayat or any member, officer, servant or agent of a panchayat or any member of a committee of a panchayat acting under its direction, in respect of anything in good faith done under this Act or under any rule or bye-law made thereunder. (2)No action shall be brought against any panchayat or any member, officer, servant or agent of such panchayat or any member of a committee of a panchayat acting under its direction for anything done or purporting to have been done by or under this Act, until the expiration of one month next after notice in writing has been left or delivered at the office of the panchayat and also of the residence of the member, officer, servant or agent thereof against whom the action is intended to be brought; the notice shall state the cause of action, the nature of the relief sought; the amount of compensation claimed and the name and place of abode of the person who intends to bring the action. (3)Every such action shall be commenced within six months after the accrual of the cause of action, and not afterwards. (4)If any panchayat or person to whom the notice under subsection (2) is given shall, before an action is brought, tender sufficient amount to the plaintiff, and pay into Court the amount so tendered, the plaintiff shall not recover more than the amount so tendered the plaintiff shall also pay all costs incurred by the defendant after such tender.” 9. Learned advocate for the Appellant has also placed reliance upon Section 80 of the Code, which is reproduced hereunder:- “80. Learned advocate for the Appellant has also placed reliance upon Section 80 of the Code, which is reproduced hereunder:- “80. [(1)] [Save as otherwise provided in sub-section (2), no suits 3 [shall be instituted] against the Government (including the Government of the State of Jammu and Kashmir)] or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been [delivered to, or left at the office of] (a) in the case of a suit against the Central Government, 5 [except where it relates to a railway] a Secretary to that Government; [(b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway; [(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorized by that Government in this behalf;] (c) in the case of a suit against 8[any other State Government], a Secretary to that Government or the Collector of the district; 910 and, in the case of a public officer, delivered to him or left at his office, stating 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. [(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 (I); 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: Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1). (3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (I), if in such notice (a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]” 10. It is submitted that the requirement of the statutory notice is mandatory and in absence of such notice, the learned trial court has committed an error of law in allowing the suit. 11. It is further submitted that there is a specific contention in the written submission that the suit is barred by Section 270 of the Act, however, the trial court has not considered this aspect and decreed the suit. 12. It is next contended that the officers of the defendants have acted in the good faith and looking to the averments made in the plaint, the suit pertaining to the acts done by the officer of the Panchayat. 13. The construction of “ubhar” was done in the previous year, however, when the construction activity was carried on, the respondent-plaintiff never obstructed and allowed the “ubhar to be completed. The purpose of constructing “ubhar” was to raise the water level of the adjoining land of the villages and to diminish the scarcity of water. 13.1. It is further submitted that because of construction of “ubhra”, the level of water in the well has also increased, which has also benefited the irrigation activities carried out by the farmers. The husband of present respondent has also filed another Special Civil Suit No.81 of 1996 against the present appellants for the same relief of damages. Without any direct and substantial documentary evidence, learned trial court has granted Rs.2,00,000/- towards damages with 9% interest p.a. In absence of any evidence with regard to the rate of interest prevailing at the relevant time, the learned trial court ought not to have granted interest at the rate of 9% p.a. to the plaintiff. 13.2. Without any direct and substantial documentary evidence, learned trial court has granted Rs.2,00,000/- towards damages with 9% interest p.a. In absence of any evidence with regard to the rate of interest prevailing at the relevant time, the learned trial court ought not to have granted interest at the rate of 9% p.a. to the plaintiff. 13.2. It is further submitted that though the learned trial court has observed that there is no evidence to substantiate the claim of damage to the tune of Rs. 6,00,000/-, the learned trial Court has without any documentary evidence granted Rs. 2,00,000/- as damages. 14. From the evidence on record, it is clear that plaintiff has failed to establish that the acts done by the appellants were attributed to negligence and there is neither any averments nor any proof, which can lead to a conclusion that the acts done by the officers of the appellants were not in good faith as prescribed in the Act, Rule or By law framed under the Act. 15. Further submission of the learned counsel for the appellant is that the learned trial court has committed an error in misreading the evidence. The reliance placed upon by the learned trial court on the commission’s report is also against the settled principle of law. The commission’s report cannot be made a base in arriving at a conclusion that there was a water logging in the field of plaintiff. It is submitted that in case of claiming damages, the plaintiff has not only to prove either the breach or action done in a malafide manner or the action was not done in good faith under the Act. Even if the action of officers of the Panchayat is not done in good faith, the plaintiff has to prove and establish the quantum of damages by leading independent evidence. In the present case, there is no evidence on record to establish the claim of damages. 16. Learned Counsel for the plaintiff-respondent has supported the judgment and decree passed by the learned Trial Court. 17. It is submitted that learned trial Court has considered the oral as well as documentary evidence and thereafter came to the conclusion that no survey work was carried out by the appellant before the construction of “ubhar”. Even no proceedings of acquisition were undergone by the appellant before the construction of the “ubhar”. 17. It is submitted that learned trial Court has considered the oral as well as documentary evidence and thereafter came to the conclusion that no survey work was carried out by the appellant before the construction of “ubhar”. Even no proceedings of acquisition were undergone by the appellant before the construction of the “ubhar”. There is no material placed by the appellants to disprove the case of the plaintiff respondents. It is submitted that because of the construction of the “ubhar” water sprayed in the field and has resulted into damage of mango plantation. It is further submitted that because of construction of said “ubhar”, the flow of the water has changed which resulted into water logging. The roots of the mango trees were submerged in the water. Resultantly, the plantation failed. The action of the officers of the Panchayat was so grave that the plaintiff has suffered loss to the tune of Rs. 6,00,000/-. 18. I have considered the submissions, proceedings placed on record. 19. Before dwelling into the facts the first issue which requires consideration is whether action on the part of the officers of the Panchayat was done in good faith or not and the connected issue of damages/loss being sustained by the plaintiff because of such action on the part of the appellant. The primary question which requires to be considered is whether the suit is maintainable for want of statutory notice and whether the learned trial court is correct in taking a view that the plaintiff are entitled to the damages. 20. At this stage, the provisions of Section 80 of the Code are apposite to be referred, which is reproduced hereunder:- “80. 20. At this stage, the provisions of Section 80 of the Code are apposite to be referred, which is reproduced hereunder:- “80. [(1)] [Save as otherwise provided in sub-section (2), no suits [shall be instituted] against the Government (including the Government of the State of Jammu and Kashmir)] or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been [delivered to, or left at the office of] (a) in the case of a suit against the Central Government, 5 [except where it relates to a railway] a Secretary to that Government; [(b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway; [(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorized by that Government in this behalf;] (c) in the case of a suit against [any other State Government], a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him or left at his office, stating 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. [(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 (I); 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: Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1). (3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (I), if in such notice (a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]” 21. Section 80 of the Code deals with the notice to be given when a suit is filed against the government or against the public officer in respect of any act purporting to be done by such public officer in his official capacity. Sub-Section 1 of Section 80 of the Code contemplates that no suit shall be instituted against the government or against the public officer in respect of any act purporting to be done by such public officer in his official capacity until two months’ notice in writing has been served upon, thus, notice under Section 80 (1) of the Code is mandatory provision. 21.1. Sub-section 2 of Section 80 of the Code gives a liberty to the party who is seeking urgent or immediate relief against the government or any public officer in respect of any act purporting to be done by such public officer in his official capacity. 21.2. Sub-Section 2 of Section 80 of the Code provides for Institution of suit for obtaining and urgent and immediate relief where such relief is essential with the leave of the court. Except in cases where Sub-Section 2 of Section 80 of the Code applies, compliance of Section 80 of the Code is mandatory in respect of all suits against government and suits against public officers in respect of acts purporting to be done by those public officers in their official capacity. The object of notice under Section 80 of the Code is to give to the government or public officer concerned an opportunity to re-consider the decision and weather the claim of the claimant should be accepted or not. Section 80 of the Code has two parts. The object of notice under Section 80 of the Code is to give to the government or public officer concerned an opportunity to re-consider the decision and weather the claim of the claimant should be accepted or not. Section 80 of the Code has two parts. It relates firstly to the suits against Government and secondly to suits against public officers. The words purporting to be done qualify the public officers. So when a notice under Section 80 of the Code is necessary for all suits except as provided in Sub-Section 2 against government, notice is mandatory against public officers when the suit is in respect of an act purporting to be done by him in official capacity. 21.3. Sub section 2 of Section 80 of the Code gives a right to a party to seek leave of the court where reliefs of urgent or immediate nature are sought for. 21.4. In the present case, at the time of filing the suit, a separate application for ad-interim injunction Exh.5 was also filed wherein urgent reliefs of injunction were sought for. The Permission was granted by learned trial Court as per Section 80(2) of the Code. Granting the permission of the learned trial court is always meant for the reliefs claimed under Order 39 Rule 1 and 2 i.e. Exh.5 which was filed alongwith plaint. Admitted position of record is that the suit is filed without statutory notice under Section 80 (1) of the Code. Thus, for want of Notice under Section 80 (1) of the Code, no suit shall be instituted for the acts done by the Public Officer. 21.5. The provisions laid down under Section 270 of the Act clearly puts a restriction on the person who wishes to take action against the Panchayat or any of its members, officer, servant, agent acting in respect of anything done in good faith under the Act. Thus, Section 270 (1) of the Act puts a clear embargo and a restriction against any proposed action to be taken against any member, officer etc of the Panchayat. 22. However, such restriction is not complete. Sub- Section (2) of Section 270 of the Act gives a right to the party who wishes to take any action against any member, officer etc of the Panchayat for the act done or purported to have been done until one month notice is given. 22. However, such restriction is not complete. Sub- Section (2) of Section 270 of the Act gives a right to the party who wishes to take any action against any member, officer etc of the Panchayat for the act done or purported to have been done until one month notice is given. This being a statutory provision, no party can waive such mandatory provision. 23. In the present case, the plaintiff is claiming relief of damages pursuant to the actions taken by the Panchayat and its officers in pursuance of the act. 24. Admittedly, the plaintiff has not given any notice which is contemplated under Sub-Section (2) of Section 270 of the Act to the defendants before institution of the suit. So, the condition precedent for institution of a suit is issuance of notice under Section 270 (2) of the Act and once such condition is fulfilled, the burden would be on the officer of Panchayat to establish that the act done or purporting to have been done were done under god faith and the same are not contrary to Rules, by laws framed under the Act. 25. On the meaningful reading of the plaint as well as oral evidence of the plaint, the allegations of the plaintiff is evident that the act done by the officers of the Panchayat was not done in good faith. 26. What is being harped upon by the plaintiff in the plaint as well as in the examination-in-chief of Power of Attorney holder of plaintiff is that the construction of “ubhar” has resulted into the destruction of plantation of mango trees, which has resulted into the loss but plaintiff has not given any statutory Notice under Section 270(2) of the Act before filing of the Suit. 27. The learned Trial Court has in my opinion committed an error by not considering the basic mandatory requirement of non-issuance of the statutory notice. Though there is a specific averment in written statement of non-issuance of Notice under the Code the suit must fail. 28. It is also pertinent to observe that plaintiff Sharda Durlabhjibhai has not entered into the witness box and her power of attorney holder, Durlabhjibhai has been examined. The xerox copy of the power of attorney (Exh.59) was produced on record which is dated 3.7.2002. Undisputably, the power of attorney is subsequent to filing of the suit. 28. It is also pertinent to observe that plaintiff Sharda Durlabhjibhai has not entered into the witness box and her power of attorney holder, Durlabhjibhai has been examined. The xerox copy of the power of attorney (Exh.59) was produced on record which is dated 3.7.2002. Undisputably, the power of attorney is subsequent to filing of the suit. The suit of the plaintiff fails on two grounds:- a. In the line of decisions, as laid down by the Hon’ble Apex Court that evidence of power of attorney can only be considered with regard to the acts done after the execution of Power of Attorney. The evidence prior to power of attorney cannot be considered by the Court. b. It is also evident from the record that plaintiff has not produced the original power of attorney dated 3.7.2002 and an Exhibit is given to xerox copy. In absence of the original power of attorney, the xerox copy of the power of attorney can only be admissible in evidence if the provisions contained in the Indian Evidence Act, 1892 are fulfilled. By placing reliance upon the xerox copy of the power of attorney, the learned trial Court has committed an error. The xerox copy of Power of Attorney is inadmissible in evidence. The same cannot be considered. In such view of the fact, it can be presumed that there is no oral evidence on behalf of plaintiff. And in absence of oral evidence, suit must fail. 29. Since the suit itself is not maintainable for want of statutory notice other aspect with regard to awarding damage to the plaintiff and the assessment of the claim of damage does not arise. Thus, the judgment and order dated 7.02.2003 passed by the learned Civil Judge (Senior Division), Amreli in Special Civil Suit No. 82 of 1996 is hereby quashed set aside. No order as to costs.

Amreli District Panchayat v. Shardaben Dhurlabjibhai