Back
2010 Supreme(UK) 352
2010 (2) UAD 545
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice V.K. Bist
Writ Petition No. 847 of 2010 (M/S)
MADAN SINGH – Petitioner
Versus
STATE OF UTTARAKHAND & ORS. – Respondents
Decided on : 14.06.2010
For the Respondents: Mr. R.C. Arya, Brief Holder
Headnote:Civil Procedure Code, 1908, Sec. 80(2) — Application under — Consideration of — Court is required to consider the urgency in the matter — Where the Trial Court finds that the matter is extremely urgent — And immediate relief is required to be given to the plaintiff, in the interest of justice — The Trial Court may grant leave to such litigant to sue without serving any notice as required by sub-sec (1) of Sec 80 of Civil Code — Also grant of such permission does not entitle a person for automatic relief because Sub-sec (2) of sec 80 of Code also provides that in such matter the Court shall not grant any 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. (Paras 8 to 11)
nhokuh izfd;k lafgrk] 1908] /kkjk 80¼2½ ds vUrxZr nk;j izkFkZuk i= ij fopkj fd;k tkuk & U;k;ky; dks ekeys dh izkFkfedrk ds vk/kkj ij lquokbZ djuh vko';d gS & tc fopkj.k U;k;ky; }kjk ekeyk vR;Ur xaHkhj le>k tkrk gS vkSj U;k; ds fgr esa oknh dks rRdky jkgr nh tkuh visf{kr gS rc fopkj.k U;k;ky; }kjk ,sls ifjoknh dks fcuk uksfVl rkehy djk;s okn nk;j djus dh vkKk /kkjk 80 lhihlh dh mi/kkjk ¼1½ ds vUrxZr iznku dh tk ldrh gS & ,slh vkKk fey tkus ls dksbZ O;fDr Lor% gh vuqrks"k ikus dk vf/kdkjh Hkh ugha cu tkrk D;ksafd /kkjk 80 lhihlh dh mi/kkjk ¼2½ esa ;g fn;k x;k gS fd ,sls ekeyksa esa U;k;ky; }kjk vUrfje vFkok vU; izdkj dk ,slk dksbZ vuqrks"k ljdkj vFkok yksd vf/kdkjh tSlh Hkh fLFkfr gks ds vfrfjDr vU; dks ugha iznku fd;k tk,xk & okn esa vuqrks"k dh ;kpuk ds lEcUèk esa dkj.k crkus dk volj iznku fd;k tk,xkA ¼izLrj 8 ls 11½
Heard learned counsel for the parties.
2. Present petition has been filed by the petitioner for quashing the order dated 29.05.2010 passed by Civil Judge (Sr. Div.), Roorkee in Misc. Case No. 25/2010 “Madan Singh Vs. State of Uttarakhand and others” whereby the learned Civil Judge (Sr. Div.), Roorkee, Haridwar has refused to grant exemption to the petitioner as provided under Section 80(2) Code of Civil Procedure, 1908 (for short C.P.C.) and did not permit the petitioner to file suit without prior service of notice on the Government.
3. Brief facts of the case, as emerge out of the writ petition, are that there is a plot Khasra no. 231 measuring 0.128 hectare situated at village Fatehullahpur/Telpura, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar out of which petitioner is the owner of a portion measuring 0.093 hectare, while non-party Ritu Jain and Surendra Jain are owners of remaining portion measuring 0.035 hectare of land. The case of the petitioner is that the respondents want to construct a road and drain in Khasra no. 665 and are trying to construct the same by encroaching the land of plaintiff without adopting the procedure provided in law. The petitioner instituted a suit “Madan Singh Vs. State of Uttarakhand and others” in the Court of Civil Judge (Sr. Div.), Roorkee for relief of permanent injunction against the respondents (consisting of the State of Uttarakhand, its District Officers and Public Works Department) restraining them from interfering in the peaceful possession of the petitioners and further restraining them from constructing any road over Schedule “C” property given in the plaint, along with an application under Section 80(2) of C.P.C. seeking permission of the Court to grant leave to institute the suit without issuing the notice under Section 80 C.P.C., which was registered as Misc. Case No. 25/2010 “Madan Singh Vs. State of Uttarakhand and others”. Petitioner also filed an application for ad-interim injunction restraining the respondents from constructing road over suit Schedule “C” property. In support of his case, the petitioner filed 5 different documents, through a list i.e. certified copy of Khatauni and Khasra pertaining to 1412-1417 Fasli, copy of Shajra (Revenue Map) so as to prove the ownership and possession of the petitioner and the location of the property and the location and existence of passage/rasta/road situated in Khasra no. 665. On 16.03.2010, the petitioner also moved an application before Joint Magistrate, Roorkee (S.D.M. Roorkee) to the effect that Khasra no. 231 of the petitioner be measured and demarcated, on which Joint Magistrate passed an order addressing to Tehsildar Roorkee for enquiry and measurement. In compliance of the order passed by the S.D.M. Roorkee, the Lekhpal of the village measured the land of the petitioner and also measured the Khasra Number 665 of road and rasta and a Memo was prepared by him on 04.04.2010. After the measurement of the land of the petitioner, the petitioner constructed a boundary wall towards the road so as to demarcate the property.
4. It is submitted by the petitioner that respondents in garb of contructing a metallic road over Khasra no. 665, despite knowing the fact that the existing raasta situated in Khasra no. 665 is not equal widthwise either according to the Shajra or according to the spot, with the help of its instrumentalities demolished the wall constructed by the petitioner. The respondents are bent upon to encroach the land of the petitioner for the construction of road without any acquisition or requisition and the petitioner is legally entitled to safeguard his rights and property. The respondents are not legally entitled to encroach the land of the petitioner. Application filed by the petitioner under Section 80(2) C.P.C. was considered by the learned Civil Judge (Sr. Div.), Roorkee on 29.05.2010 and the learned Trial Court rejected the application of the petitioner on the ground that the boundary wall of t
