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2024 Supreme(Guj) 575
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Devan M. Desai, J.
Amreli District Panchayat & Anr. – Appellants
Versus
Shardaben Dhurlabjibhai & Anr. – Defendants
R/First Appeal No. 783 of 2003
Decided On : 04-04-2024
Important Points
Subject
Civil Law - Tort Law
Act Referred
Gujarat Panchayat Act: S.270, S.270(1), S.270(2)
Headnote
(B) Statutory Notice - The requirement under Section 80 of the Code is mandatory for suits against public officers in their official capacity. Absence of such notice renders the suit non-maintainable. (Paras 21, 29)
(C) Good Faith - The action taken by the officers of the Panchayat was argued to be in good faith but lacked sufficient evidence corroborating this claim and the damages. Court affirmed the need for the plaintiff to prove both negligence and damages with adequate evidence. (Paras 11, 12, 14).
Advocate Appeared:
For the Appellant : Mr H S Munshaw
For the Defendant : Mr Ashish M Dagli
| Table of Content |
|---|
| 1. appeal filed under section 96. (Para 1 , 2) |
| 2. plaintiff claims damages for mango tree loss. (Para 3 , 4) |
| 3. argument on requirement of statutory notice. (Para 6 , 10 , 11) |
| 4. good faith actions by panchayat. (Para 7 , 12) |
| 5. discussion of section 80 and its implications. (Para 8 , 9 , 14) |
| 6. mandatory notice under section 80 required. (Para 19 , 21) |
| 7. mandatory provisions of notice. (Para 22) |
| 8. power of attorney evidence issues. (Para 28) |
| 9. judgment quashed for notice failure. (Para 29) |
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. 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
