Writ petition has been preferred questioning vires of Section 109 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'the Act of 1994'), requiring notice to be given to concerned Panchayat before institution of a suit with respect to matter enumerated in the section. Suit was proposed to be filed with respect to matter enumerated in the section.

Counsel appearing on behalf of petitioner has submitted that under Section 80(2) of the Code of Civil Procedure in urgent cases at present suit can be instituted in the Civil Court without notice, but no such provision has been made under Section 109 of the Act of 1994. Hence, provisions are arbitrary and ultra vires.

Counsel has also submitted that petitioner is left remedy less as this Court in Gram Panchayat Gangwa Vs. Bankatlal S/o Hanumanprasad & Ors., 2004(2) DNJ[Raj.] 723, opined that suit is not maintainable without complying the requirement of Section 109 of the Act of 1994 and suit was ordered to be dismissed.

After hearing learned counsel for petitioner, we are of the considered opinion that provisions contained in Section 109 of the Act of 1994 cannot be said to be ultra vires, it is rule of procedure only. Section 109 intends no suit or other civil proceeding against a Panchayati Raj Institution or against any member, officer or servant thereof or against any person acting under the direction of a Panchayati Raj Institution or any member, officer or servant thereof for anything done or purporting to be done under the Act in its or his official capacity shall be instituted until the expiration of two months after notice in writing, has been given. Notice containing such facts is intended to take appropriate action after duly considering grievance mentioned in the notice and to make amends, or settle the claim, if so advised, as held by the Hon'ble Supreme Court in the context of Section 80 CPC in Raghunath Das Vs. Union of India(UOI) and Anr., AIR 1969 SC 674, wherein the Apex Court has laid down thus:-

“8. The object of the notice contemplated by that section is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The provisions in Section 80, Civil Procedure Code are not intended to be used as boobytraps against ignorant and illiterate persons. In this case we are concerned with a narrow question. Has the person mentioned in the notice as plaintiff brought the present suit or is he someone else? This question has to be decided by reading the notice as a whole in a reasonable manner.”

In State of Punjab Vs. Geeta Iron & Brass Works Ltd., AIR 1978 SC 1608, Apex Court has laid down thus:-

“4. We like to emphasize that Governments must be made accountable by Parliamentary social audit for wasteful litigative expenditure inflicted on the community by inaction. A statutory notice of the proposed action under Section 80 C.P.C. is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted. Now Section 80 has become a ritual because the administration is often unresponsive and hardly lives up to the Parliament's expectation in continuing Section 80 in the Code despite the Central Law Commission's recommendations for its deletion. An opportunity for settling the dispute through arbitration was thrown away by sheer inaction. A litigative policy for the State involves settlement of Governmental disputes with citizens in a sense of conciliation rather than in a fighting mood. Indeed, it should be a