The urgency shown by the petitioners for filing the suit prior to the expiry of the notice period under Section 80(1) and 80(2) of CPC was valid, and the court erred in rejecting the application under Section 80(2) of CPC.

JUDGMENT :

Parth Prateem Sahu, J.

1. As private respondents have not noticed before trial Court and they have not caused their appearance, I find it appropriate to finalize the writ petition without issuing notice to respondents.

2. Petitioners have preferred this writ petition under Article 227 of the Constitution of India challenging the order dated 23.12.2021 passed by Civil Judge, Class-II, Saja, District Bemetara, Chhattisgarh whereby learned trial Court has rejected the application filed by the petitioners under Section 80(2) of the Code of Civil Procedure, 1908 (for short 'CPC') and return the plaint.

3. Ms. Sharmila Singhai, learned senior counsel for the petitioners would submit that petitioners have filed civil suit before trial Court for declaration of title, injunction and removal of encroachment along with an application under Order 39 Rules 1 & 2 read with Sections 94 and 151 of CPC, application under Order 39 Rule 3 of CPC and an application under Section 80(2) of CPC on the ground that respondents No. 1 to 6/defendants, elected Sarpanch, Secretary and residents of village Morai Khurd have constructed one Jaystambh in front of land bearing Khasra Nos. 1099 and 652 owned by petitioners. Subsequently, respondents No. 1 to 6 further started construction of Sanskritik Bhawan (Cultural Building) encroaching upon the land of petitioners. As Panchayat resolved to construct Cultural Building in front of land of petitioners, notice under Section 80(2) of CPC read with Section 108 of Chhattisgarh Panchayat Raj Adhiniyam has been sent to State Government/respondent No. 7, respondent No. 3 as well as respondents No. 1 and 2 on 07.12.2021. Thereafter, when respondents No. 1, 2 and 4 to 6 started construction work by digging land, looking to the urgency, petitioners have filed civil suit before concerned Court on 22.12.2021 with application under Section 80(2) and under Order 39(3) of CPC. She submits that learned trial Court erroneously rejected application under Section 80(2) of CPC returned back the plaint observing that there is no urgency. She submits that in plaint, it has been categorically mentioned that on 18.12.2021, respondents started digging land of petitioners for raising permanent construction. In application under Order 39 Rule 3 of CPC and in application under Section 80(2) of CPC also, they have pleaded that respondents have already started construction by encroaching upon land of petitioners. While considering application under Section 80(2) of CPC, learned Court below without considering pleadings made in plaint as well as application under Order 39 of CPC in entirety, erroneously came to conclusion that there is no urgency and rejected the same. When there is urgency of seeking any relief against Government Officials or any authority, under the provision of Section 80(2) of CPC, suit can be instituted with the leave of Court, without serving any notice as required by sub-section (1) of Section 80 of CPC.

4. In the case at hand, petitioners have issued notice to respondents/defendants under Section 80(1) of CPC, prior to expiry of period of notice, respondents No. 1, 2 and 4 to 6 started construction over land of petitioners by encroaching upon it, hence, petitioners filed a civil suit with application for leave under Section 80(2) of CPC. Learned Court below wrongly came to conclusion that plaintiffs have not brought to the notice of the Court of their suffering. She also submits that demarcation report is not specific and it does not mention that there is no construction on the land of petitioners.

5. Per contra, Mr. Gurudev I. Sharan, learned Government Advocate for respondent No. 7/State opposes submissions of learned counsel for the petitioners and would submit that based on the direction issued by the Court, respondent No. 7 submitted affidavit of Sub-Divisional Officer along with supporting documents. From perusal of documents, it is apparent that no construction is being raised over the land of petitione