COLLECTOR AND ORS. Vs. GURUPRASAD MAHAKUD AND ORS.

JUDGEMENT

(1.) THE Plaintiffs as many as 9 number instituted a suit in the Court of the Munsif. Dhenkanal for a permanent injunction to restrain the three Defendants, viz., the Collector, Tahsildar, Sadar and Additional Tahsildar, Sadar of Dhenkanal from evicting them (Plaintiffs) from the suit land. Along with the plaint a petition was filed under Order 39, Rule 1, Code of Civil Procedure Code for a temporary injunction against the aforesaid Defendants praying that Defendant Nos. 1 to 3 may be restrained from evicting the Plaintiffs from the suit land, from breaking their shops and cabins and from interfering with their possession over the suit land during the pendency of the suit. The case of the Plaintiffs was that the suit land originally belonged to the State of Orissa. The same was transferred to the Dhenkanal Municipality by the Collector, Dhenkanal, and so, the land vested in the municipality. On this land the Plaintiffs contracted their shops and cabins on the portions allotted to them by the concerned authorities. After construction of the shops and cabins they are in occupation of the same. All on a sudden several encroachment cases under the Orissa Prevention of Land Encroachment Act, 1972 were started against them by the Tahsildar, Sadar, Dhenkanal for their eviction from the suit land. In spite of the Plaintiff's objection to those cases the Tahsildar, Sadar ordered eviction. In pursuance to the orders passed for eviction of the Plaintiffs the Tahsildar with the help of police was threatening to evict them from the suit land, to throwaway all their belongings kept in the shops and cabins and to break down the same. They would suffer irreparable loss and damage unless the Defendants were temporarily restrained from taking forcible possession of the 'suit land by breaking down the shops and houses thereon and by removing the articles therefrom.

(2.) THE Defendants opposed the application for temporary injunction mainly on the ground that the land in question had not been transferred to the Municipality of Dhenkanal and still belonged to the Government of Orissa; that the act of occupation by the Plaintiffs of the land in question and their construction of shops and houses on the said land were unauthorised ones that the cases under the Orissa Prevention of Land Encroachment Act, 1972 instituted against the Plaintiffs for their eviction were maintainable and the orders passed in those cases for eviction of the Plaintiffs were valid in law and that there being no notice under Section 80, Code of Civil Procedure prior to the institution of the suit, the suit itself was not maintainable and hence no order of temporary injunction could be passed in such a suit.

(3.) THE learned Additional Government Advocate raises only one contention. According to him, no notice under Section 80, Code of Civil Procedure having been served on the Defendants prior to the institution of the suit, the same was not maintainable, and so, an order of temporary injunction should not have been passed in such a suit. It is argued that the provisions of Section 80, Code of Civil Procedure are mandatory and law does not allow any exception. Reliance is placed for this contention on the following decisions, viz Sawai Dinghai v. Union of India : A.I.R. 1966 S.C. 1068, Union of India v. Baijnath, A.I.R. 1966 Cal. 56, Certificate Officer v. Kasturi Chand : A.I.R. 1970 Ori 239 and State v. Jiwan Das : A.I.R. 1971 Pat. 141. The case of Sawai Dinghai v. Union of India : A.I.R. 1966 S.C. 1068, is a suit under Order 21, Rule 63, Code of Civil Procedure instituted against Government. The Plaintiff had instituted the suit to set aside an order passed against him in a proceeding in execution. It was contended that Government being a party to the execution proceeding and the suit under Order 21, Rule 63, Code of Civil Procedure being only a continuation of the said proceeding no notice under Section 80, Code of Civil Procedure was necessary. Even in such a case. Gajendragadkar, C.J. held as follows: