Akshaya Kumar Rath JUDGMENT
Akshaya Kumar Rath, J.
1. This is a plaintiffs' appeal against affirming judgment. The suit was for declaration that the order dated 25.07.1985 passed by the Collector & District Magistrate, Cuttack, defendant No. 2, as null and void and permanent injunction.
2. The plaintiffs instituted a suit in the representative capacity for and on behalf of the Ghatias of Baideswar Ferry Ghat. It was pleaded that the river Mahanadi is flowing from west to east in the Banki Sub-Division near Baideswar. Baideswar is situated in southern side of Mahanadi. Baramba Tahasil is situated opposite to it in the northern side. There is hillock in the river Mahanadi known as Singhanath Mundia. To the south and hillock, jurisdiction of Banki begins. Due to the peculiar geographical situation, different ferry ghats were originated to cross the river from time immemorial. In the southern side of the river Mahanadi from west to east, Baideswar, Sampur, Kurumchain, Ranapur, Bedapur and Karban ferry ghats are existing. All these ghats are private ghats. The same were registered under Sec. 22 under Bengal Ferries Act (Act 1 of 1885) which was published in Calcutta Gazette Part-1-B dated 21.3.1888. Baideswar ferry ghat is a private ferry in Sl. No. 1 of the registered maintained in Banki Tahasil office. In the said register the name of forefathers of the plaintiffs are recorded and subsequently some change was made. The area of operation of Baideswar ferry extends from Hati gadani upto Satakhanda on the southern side embankment of river Mahandi. Just on the opposite side the northern embankment of river Mahanadi, area of operation starts from Sankhameri to Bangerisingha. The plaintiffs from the time of their forefathers are operating their country boats within their territorial limits of the private ferry. While matter stood thus, in the year 1982, the defendant No. 2 wanted to put Baideswar ferry ghat as well as other ferry ghats of river Mahanadi into auction. Baideswar ferry ghat was not put into auction, since the State Government had not declared the Baideswar ferry ghat as public ferry ghat. Again by order dated 25.07.85, defendant No. 2 directed to defendant No. 5 to put Baideswar and Gopinathapur ferry ghats to auction in the presence of defendant Nos. 6 to 8. It was indicated in the order that Baideswar ferry ghat was managed by Gopinathapur G.P., defendant No. 7. At no point of time, Baideswar ferry ghat had vested in any G.P. There was no notification under Sec. 6 read with Sec. 22 of Bengal Ferries Act that Baideswar ferry ghat is a public ferry. Challenging the same, the plaintiffs filed an application on 03.09.1985 before defendant No. 2 for modification of the order dated 25.07.1985. But no order was passed. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.
3. Defendant Nos. 3 and 6 have filed a written statement denying the assertions made in the plaint. The case of the defendants 3 and 6 is that by order dated 25.7.1985, the Collector, Cuttack put the Gopinathapur ferry ghat of Baramba Block and in another end to Baideswar village of Banki Block in auction. The said order did not relate to Baideswar ghat.
4. Defendant Nos. 4 and 5 filed a written statement. It was pleaded that Gopinathapur ferry ghat had been transferred to Gopinathapur Gram Panchayat by the S.D.O., Athagarh on 06.03.1969. The said ferry ghat was put to auction every year. The authorised ghatias of Gopinathapur gram panchayat used to ply boats on the ferry ghats over river Mahanadi from village Gopinathapur to Baideswar side. The plaintiffs created disturbance, for which a joint enquiry was made by the S.D.O., Athagarh, S.D.O., Banki and the Collector, Cuttack. Basing on the report, the Collector, Cuttack on 25.07.85 directed that Gopinathapur Gram Panchayat shall maintain both ghats and the income of the ferry ghats shall be apportioned equally between Gopinathpur and Baideswar Gram Panchayat. Twenty per cent of the income shall be invested for maintenance of ferry ghat. The B.D.O., Baramba was directed to put the ferry ghat into auction every year in presence of B.D.O. Banki, Sarpanch, Gopinathapur Gram Panchayat, Baideswar Gram Panchayat. After receipt of the order, steps had been taken by the B.D.O., Baramba. It was further pleaded that the Collector, Cuttack being the competent authority passed orders regarding management of Gopinathapur ferry ghat, which vested with Gopinathapur Gram Panchayat under Sec. 72 of Orissa Gram Panchayat Act, 1964 read with Rule 81-A of the Orissa Gram Panchayat Rules, 1963.
5. Defendant No. 7, the Sarpanch of Gopinathapur Gram Panchayat, had filed separate written statement stating therein that the suit is not maintainable as the plaintiffs do not represent the entire ghatias of Baideswar ferry ghat. Neither plaintiffs, nor their forefathers were operating country boats within the territorial limits. Pursuant to the order dated 25.07.85 passed by the Collector, Gopinathapur ferry ghat had been put into auction twice. Gopinathapur Gram Panchayat is managing the Baideswar ghat. Baideswar ghat is just opposite to Gopinathapur. In the joint co-ordination meeting, it was decided to put Gopinathapur ghat into auction. The income shall be apportioned between two gram panchayats equally. Accordingly, Gopinathapur ghat was put into auction on 30.09.85 as per the order of the Collector, Cuttack dated 25.7.85.
6. Defendant Nos. 1 and 2 adopted the written statement filed by the defendant Nos. 3 and 6.
7. Stemming on the pleadings of the parties, the learned trial court struck eleven issues. Both the parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that no prior notice under Sec. 80 CPC had been issued to defendant Nos. 1 to 8. The mandatory provisions of Sec. 80 CPC and Sec. 138 of the Orissa Grama Panchayat Act ("O.G.P. Act") had not been complied with. The suit was filed in the representative capacity. But then, the provisions of Order 1 Rule 8 CPC had not been complied with. The plaintiffs failed to prove that they had got exclusive right to ferry in Baideswar ghat. Held so, it dismissed the suit. Unsuccessful plaintiffs challenged the judgment and decree of the learned trial court before the learned Second Additional District Judge, Cuttack in T.S. No. 37 of 1989, which was eventually dismissed.
8. The Second Appeal was admitted on the substantial questions of law. The same are:-
"(a) Whether the suit would fail for non-compliance of Sec. 80 CPC?
(b) Whether the provision of Sec. 138 of the Orissa Gram Panchayat Act has at all got any application?
(c) Whether Order 1 Rule 8 CPC has got any application?"
9. Heard Mr. R.C. Rath, learned counsel for the appellants, Ms. S. Mishra, learned ASC for respondent Nos. 1 to 6 and Mr. R.K. Mohanty, learned Senior Advocate for respondent No. 7.
10. Mr. Rath, learned counsel for the appellants submitted that Baideswar ferry ghat is a private ferry ghat. The Bengal Ferries Act, 1885 was applicable to the province of Orissa. Sec. 6 thereof provides Provincial Government from time to time shall declare what ferries shall be deemed public ferries, and the respective districts in which, for the purposes of this Act, they shall be deemed to be situate, take possession of a private ferry and declare it to be a public ferry, establish new public ferries where in opinion they are needed, define the limits of any public ferry, change the course of any ferry and discontinue any public ferry which it deems unnecessary. Every such declaration, establishment definition change or discontinuance, shall be made by notification. The control of all public ferries shall be vested in the Magistrate of the district, subject to the direction of the Commissioner under Sec. 7 of the Act. Private ferries include all ferries other than those declared to be public ferries or established as such, under Sec. 6 of this Act. There was no notification by the Provincial Government with regard to Baideswar ferry ghat. Since time immemorial the Ghatias of the village Baideswar eke out their livelihood by plying boats. Neither the State Government, nor the Gram Panchayat had any authority to interfere with the affairs of private ferries. The courts below had committed a manifest illegality and impropriety in holding, inter alia, that the mandatory provisions of Sec. 80 CPC and Sec. 138 of the O.G.P. Act had not been complied with. He further submitted that 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. The Collector, defendant No. 2 had no authority to interfere with the affairs of the private ferry. Sec. 80 CPC shall not come into play. Thus before institution of suit, notice under Sec. 80 CPC to Government and Sec. 138 of O.G.P. Act to the Gram Panchayat was not at all required. He further submitted that the plaintiffs have instituted the suit for themselves and on behalf of the Ghatias of Baideswar ferry ghat. Order 1 Rule 8 CPC shall not come into play. Further the learned trial court allowed the plaintiffs to take notice under Order 1 Rule 8 CPC. Notice was sent immediately. Thus the mandatory provision has been complied with.
11. Per contra, Ms. Mishra, learned ASC submitted that the mandatory provisions of Sec. 80 CPC as well as Sec. 138 of O.G.P. Act had not been complied with. She further submitted that the plaintiffs had instituted the suit in the representative capacity. The mandatory provision under Order 1 Rule 8 CPC had not been complied with.
12. Mr. Mohanty, learned Senior Advocate submitted that the suit would fail for non-compliance of Sec. 80 CPC, Order 1 Rule 8 CPC and Sec. 138 of O.G.P. Act.
13. In State of A.P. and others v. Pioneer Builders, A.P., MANU/SC/8520/2006 : (2006) 12 SCC 119, the apex Court held thus:
"14. From a bare reading of sub-section (1) of Section 80, it is plain that subject to what is provided in sub-section (2) thereof, no suit can be filed against the Government or a public officer unless requisite notice under the said provision has been served on such Government or public officer, as the case may be. It is well-settled that before the amendment of Section 80 the provisions of unamended Section 80 admitted of no implications and exceptions whatsoever and are express, explicit and mandatory. The Section imposes a statutory and unqualified obligation upon the Court and in the absence of compliance with Section 80, the suit is not maintainable. (See Bhagchand Dagdusa & v. Secy. of State for India in Council, Sawai Singhai Nirmal Chand v. Union of India and Bihari Chowdhary v. State of Bihar). The service of notice under Section 80 is, thus, a condition precedent for the institution of a suit against the Government or a public officer. The legislative intent of the Section is to give the Government sufficient notice of the suit, which is proposed to be filed against it so that it may reconsider the decision and decide for itself whether the claim made could be accepted or not. As observed in Bihari Chowdhary (supra), the object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.
xxx xxx xxx
17. Thus, from a conjoint reading of sub-sections (1) and (2) of Section 80, the legislative intent is clear, namely, service of notice under sub-section (1) is imperative except where urgent and immediate relief is to be granted by the Court, in which case a suit against the Government or a public officer may be instituted, but with the leave of the Court. Leave of the Court is a condition precedent. Such leave must precede the institution of a suit without serving notice. Even though Section 80(2) does not specify how the leave is to be sought for or given yet the order granting leave must indicate the ground(s) pleaded and application of mind thereon. A restriction on the exercise of power by the Court has been imposed, namely, the Court cannot grant relief, whether interim or otherwise, except after giving the Government or a public officer a reasonable opportunity of showing cause in respect of relief prayed for in the suit.
14. In Manmohan Das v. Madhunagar Powerloom Weavers' Cooperative Society and others, MANU/OR/0186/1975 : 1975 (1) CWR 366, this Court held that the section is mandatory and a suit without issue of such notice is liable to be dismissed in limine. Sec. 80 CPC enjoins that the plaint itself would mention that notice under Sec. 80 has been served. Sec. 80 is a condition precedent to the institution of the suit. Sec. 80 prescribes that the plaint itself would mention that the notice was served. When from the perusal of the plaint it appears that there is contravention of Sec. 80 by non-mention in the plaint that a notice had been served, the plaint should be rejected in limine without issuing summons to the defendants to appear. The obligation has been cast on the plaintiff to serve notice under Sec. 80 and mention that fact in the plaint. Absence of notice touches the root of the matter and affects the jurisdiction of the court, unless there is waiver.
15. On a conspectus of the decisions cited supra, it is evident that Sec. 80 CPC imposes a statutory and unqualified obligation upon the Court and in the absence of compliance with Sec. 80 CPC, the suit is not maintainable. The service of notice under Sec. 80 CPC is, thus, a condition precedent for the institution of a suit against the Government or a public officer. The service of notice under sub-section (1) of Sec. 80 CPC is imperative except where urgent and immediate relief is to be granted by the Court, in which case a suit against the Government or a public officer may be instituted, but with the leave of the Court. Leave of the Court is a condition precedent. Such leave must precede the institution of a suit without serving notice. Even though Sec. 80(2) does not specify how the leave is to be sought for or given yet the order granting leave must indicate the ground(s) pleaded and application of mind thereon. A restriction on the exercise of power by the Court has been imposed, namely, the Court cannot grant relief, whether interim or otherwise, except after giving the Government or a public officer a reasonable opportunity of showing cause in respect of relief prayed for in the suit. Sec. 80 CPC prescribes that the plaint itself would mention that the notice was served. When from the perusal of the plaint it appears that there is contravention of Sec. 80 CPC by non-mention in the plaint that a notice had been served, the plaint should be rejected in limine without issuing summons to the defendants to appear.
16. Admittedly, no notice under Sec. 80 CPC was issued to the defendant Nos. 1 to 6 before institution of the suit. Due to non-compliance of the mandatory provision of Sec. 80 CPC, the suit was not maintainable.
17. Sub-section 1 of Sec. 138 of the Orissa Gram Panchayat Act provides that no suit or other legal proceedings shall be instituted against a Grama Sasan or a Grama Panchayat or against member, Sarpanch, Naib-Sarpanch, officer or other employee of the Grama Panchayat or against any person acting under its or his direction for anything done or purporting to have been done under this Act, until the expiration of one month next after notice in writing has been, in the case of Grama Sasan or Grama Panchayat, delivered in or left at the office of the Panchayat and in the case of a member, officer or servant or any person acting under his direction or the direction of the Grama Panchayat, delivered to him or left at his office or place of residence, explicitly stating the cause of action, the nature of the reliefs sought, the amount of compensation, if any, claimed and the name and place of residence of the intending plaintiff; and the plaint shall contain a statement that such notice has been so delivered or left. Sub-section (3) provides that no suit or other legal proceeding referred to in Sub-section (1) shall be instituted after the expiry of a period of six months from the date of the accrual of the alleged cause of action. On a bare reading of the aforesaid provision it is clear that the same is mandatory in nature.
18. The suit was instituted on 23.01.1986. A contention was raised that the notice under Sec. 138 of the O.G.P. Act was not issued to the defendant No. 7, Grama Panchayat. It was submitted by the plaintiff that during pendency of the suit, notice was issued. By order dated 25.08.87, the learned trial court deferred the matter holding that the suit shall be taken up at the time of hearing. For non-issuance of notice under Sec. 138 of the O.G.P. Act, the suit would fail.
19. The suit was instituted in the representative capacity. Thus notice under Order 1 Rule 8 CPC was a sine qua non. The same had not complied with.
20. After promulgation of Orissa Estate Abolition Act ("OEA Act"), the estate vested in the State. Sec. 5 of the OEA Act provides for consequences of vesting of an estate in the State. It provides that notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification in the Gazette under Sub-section (1) of Sec. 3 or Sub-section (1) of Sec. 3A or from the date of the execution of the agreement under Section 4 as the case may be the consequences enumerated in clause (a) shall ensue. Clause (a) provides that subject to the subsequent provisions of the said Chapter the entire estate including all communal lands and porambokes, other non-raiyati lands, waste lands, trees, orchards, pasture lands, forests, mines and minerals (whether discovered or undiscovered, or whether being worked or not inclusive of rights in respect of any lease of mines and minerals) quarries, rivers and streams, tanks and other irrigation works, water channels, fisheries, ferries, hats and bazaars, and building or structures together with the land on which they stand shall vest absolutely in the State Government free from all encumbrances and such intermediary shall cease to have any interest in such estate other than the interests expressly saved by or under the provisions of this Act.
21. On a conspectus of the said provision it is crystal clear that notwithstanding anything contained in any other law, the consequences enumerated in clause (a) shall ensue. Ferries have been mentioned in clause (a). Thus the conclusion is irresistible that the ferries vested in the State Government free from all encumbrances.
22. Sec. 5 contains a non-obstante clause. The same has the overriding effect of the Bengal Ferries Act. Thus reliance placed on Bengal Ferries Act is totally misplaced. The substantial questions of law are answered accordingly.
23. A priori, the appeal fails and is dismissed. No costs.
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