ANNA ALAI Vs. DY COMMISSIONER

JUDGEMENT

(1.) THIS civil revision was filed way back on 28th Sept. 1985 against the order dated; 13.9,1985 passed by the Learned District Judge, Pulwama, The facts in brief to appreciate the controversy are that land measuring about two kanals under survey No. 1276 of village Trilhal was exchanged in lieu of land under survey No. 281 -min in the same village by the person of the petitioner with the Government in Kacharai land and the purpose of such exchange as envisaged from the records was for producting the trees which were planted inside the Kacharai land (common grazing land) and the petitioner on the other hand alleges that after the exchange was duly sanctioned vide Dy. Commissioner, Pulwamas order and the land was identified, he fenced it and started construction of his residential house etc., The respondents on the other hand i.e. Dy. Commissioner and the Revenue authorities alleged that instead of making the land useful for construction he has in -fact encroached upon some other land of the kacharai as because kacharai land under survey No. 1276 is a long chauk of land consisting of 20 kanals and 8 marlas and it is out of this land which is being encroached upon and is being converted for residential purposes by the petitioner. The petitioner was constrained to file a civil suit in the court of Munsiff, Pulwama where from not only notice was issued to the respondents -revenue authorities but also temporary injunction seems to have been issued by the learned Munsiff, vide his order dated: May 25,1986 and by the said order the learned Munsiff is supposed to have not only issued interim injunction but also allowed leave to file the suit, without notice under the provisions of Section 80 of the Code of Civil Procedure. The order passed by the learned Munsiff was challenged in appeal before the learned District Judge, Pulwama. After hearing the parties, the learned District Judge, had passed the impugned order on September 13,1985 wherein the learned District Judge has accepted the appeal and quashed the order passed by the learned Munsiff on May 25,1985 and has remitted the case back for trial in the light of the law and other facts brought on record and directed the parties to appear before the trial court on Sept. 25,1985. The plaintiff -petitioner before me feeling aggrieved of the said appellate courts order filed the present revision.

(2.) AS I have stated that nobody is present in the matter, so no assistance was given by any counsel or by the parties in the matter. However I have perused the filed and the records which are made available before me. The points which require determination are whether the suit filed against the State Government can be deemed to be constituted without having issued the notice under section 80 CPC, secondly, whether the court had jurisdiction to entertain the suit and pass orders and thirdly, whether by way of the order passed by learned Munsiff, on May 25,1985 which was challenged in appeal, the learned Munsiff has complied with the procedure in allowing the suit to be instituted without filing notice and so on. From the perusal of the records and the law it can be narrated that section 80 of the Code of Civil procedure as amended till date do envisage: "Save as otherwise provided in sub -section

(3.) ), no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after the notice in writing has been, in the case of the Government, delivered to, or left at the office of the Chief Secretary to Government and, in the case of a public officer, delivered to him or left at his office stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left." ¦ ¦ ¦.............. ................... .............