Full Judgment
ORDER
SHEET CS No.102 of 2016 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE PAM DEVELOPMENTS PVT.LTD.& ANR.
Versus STATE OF WEST BENGAL & ORS.BEFORE: The Hon'ble JUSTICE HARISH TANDON Date : 8th April, 2016.
Appearance: Mr.Priyankar Saha, Advocate with Mr.A.Pramanick, Advocate.
The Court :-The plaint is presented for leave under Clause 12 of the Letters Patent and dispensation of statutory period provided under Section 80(1) of the Code of Civil Procedure.
Before proceeding to consider whether the dispensation of statutory period under Section 80(2) of the Code could be granted, it would be relevant and profitable to quote Section 80 of the Code of Civil Procedure, which runs thus: “80.
Notice.- (1) Save as otherwise provided in sub-section (2).no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) 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 notice in writing has been delivered to, or left at the office of(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government; (b) in the case Government, of where a it suit against relates to the Central railway, the General Manager of that railway; (bb) in case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf; (c) in the case of suit against any other State Government, a Secretary to that Government or the Collector of the district; 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 plaint shall contain a statement that such notice has been so delivered or left.
(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer instituted, in with his the official leave of capacity, the may Court, be without serving any notice as required by sub-section (1).but the Court shall not grant 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; Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).(3) No against suit a instituted public against officer purporting to be done in the Government respect of any or act by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section(1).if in such notice(a) the name, plaintiff description had been so and the given residence as to of the enable the appropriate identify authority the person or the serving public the officer notice and to such notice has been delivered or left at the office of the appropriate authority specified in sub-section (1).and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.” From the reading of the aforesaid provision it appears that Sub-section (1) makes imperative that no suit shall be instituted against the government or against the public officer in respect of any act done in his official capacity until the expiration of two months, after the notice in writing is delivered or left at his office by incorporation of Sub-section (2) in the said Section.
The suit may be instituted with the leave of the Court without serving a notice under Sub-section (1) if the same is filed to obtain an urgent government or any public officer.
or immediate But, the relief interim against order the shall not be granted without affording an opportunity of showing cause in respect of relief claimed in the said suit.
One could see from the aforesaid provisions that the suit against the government or any public officer against any action in his official capacity shall not ordinarily be instituted without serving notice under the said Section, but an exception can further be seen from Sub- section (2) thereof.
It is not a mechanical or an automatic process to grant leave as and when sought for dispensation of notice on the ground of urgency and/or interim relief.
is required to record its satisfaction or The Court otherwise direct presentation of plaint after the expiration of period of notice.
There is no requirement of an application to be taken out for such leave which can be granted by presentation of the plaint.
the Court at the time of The aforesaid proposition can be forfeited from an observation of this Court in the case of Smt.
Janak Raji Devi -versus- Chandrabati Devi and another reported in AIR2002 Calcutta 11 in the following : “20.
However, my reading of Sub-section (2) of S.80 of the Code application of Civil and Procedure an express is order that are no the separate essential requisites; such leave could be presumed; the leave need not be granted by passing a formal order.
The leave under Sub-section(2) of S.
80 could be implied and could be gathered from what the Court does.
The prayer for leave could be in any form.
From the reading of the plaint plaintiff it appears that the has expressly prayed for leave to present the plaint under sub-section (2) of S.
80 of the Code of Civil Procedure and gave reasonable explanation in support of such prayeRs.hold that the trial Court has granted leave to I the plaintiff to present the plaint in exercise of its power under sub-section (2) of S.
80 of the Code of Civil Procedure.
I, further, hold that the requirements of S.
80(2) of the Code of Civil Procedure were substantially complied with.” The leave can be express or presumed depending upon the act of the Court and an action taken in furtherance of the suit.
The case made out in the plaint is that a notice inviting tender issued by the Superintending Engineer, Western Circle -II, Public Works Department for strengthening of Howrah-Amta Road from 7.90 Km.
to 11.80 Km.
by Bituminious and Mastic Asphalt work was duly published inviting bids from the intending contract ORS.The plaintiff was awarded the contract as a successful tenderer and an agreement in this regard was also executed way back in the year 2014.
It appears that there were certain disputes which cropped up between the plaintiff and the defendants which led to several actions being taken in the year 2014 including the imposition of penalty as well as contemplation to take a penal action.
further appears that the date for completion of the work It was extended from time to time and the bills were also raised by the plaintiff to the defendants.
However, a show cause notice was issued in the month of January, 2015 for taking action against the plaintiff acting in breach of the agreement and a penalty was sought to be imposed upon the plaintiff and the time to complete the construction was fixed till the month of March, 2015.
Since the work could not be completed within the extended period and the request for further extension was 07.05.2015 pending, upon the a show plaintiff cause for notice taking was issued stringent breach of the terms and conditions of the agreement.
steps on for It is stated in the plaint that in or about 7th July, 2015, it was brought to the notice of the plaintiff that the defendants have debarred him from participating in any future tender to be floated by the Public Works Department for a period of two years from the said date.
The said order was assailed before this Court in a writ proceeding and the petitioner was successful therefrom as the said order was set aside.
Subsequently, another notice dated 18th September, 2015 was issued alleging that the petitioner had failed to execute the work within the time period and asking the defendants to reply why the action should not be taken against him.
The petitioner replied the said notice and, according to him, he was waiting for a decision to be taken thereupon.
received whereunder another a notice Debarment dated Committee It is stated that the plaintiff 8th has March, been 2016 whereby constituted and and the plaintiff was required to present before the said Committee on 29th March, 2016.
In the suit the petitioner not only challenged the order of recession passed way back in the year 2015, but has also challenged the purported notice dated 8th March, 2016 to be illegal, null and void and be delivered up and cancelled.
In paragraph 49 of the plaint, the plaintiff states that there is a reasonable apprehension that the hearing at the meeting would be a mere formality as the committee members with pre- determined notion shall debar the plaintiff from participating in future tender.
The said notice was received on the same date which can be seen from the averments made in paragraph 45 of the plaint and it is only on 20th March, 2016 the petitioner issued a notice under affirmed the Section plaint 80 on of 30th the Code March, of Civil Procedure and The petitioner was 2016.
waiting for more than 20 days in issuing a notice under Section 80 of the Code of Civil Procedure and did not also promptly approach the Court before the scheduled date of hearing fixed by the said Committee.
Now, it is said that there is an urgency as the plaintiff may receive at any moment the decision of the committee and the entire suit would become infructuous.
As indicated above, the petitioner has not only challenged the order of recession passed on 29.05.2015, but also the notice constituting a Debarment Committee and fixing a date for hearing inviting the petitioner to appear.
If the petitioner can wait for nearly 10 months in challenging an order of recession and has also issued the notice under Section 80 of the Code of Civil Procedure a day before the scheduled date fixed by the said Committee, such conduct, in my opinion, does not invite the Court to dispense the statutory period of notice because of an urgency.
Furthermore, the plaint is filed after the scheduled date fixed in the notice dated 8th March, 2016 and it is now contended that there is an immediate urgent situation that has arisen and the leave under Sub-section (2) of Section 80 of the Code of Civil Procedure should be granted.
This Court is not satisfied on the plea of urgency.
The plaintiff is directed to present the plaint after the expiration of statutory period provided under Section 80 of the Code of Civil Procedure.
(HARISH TANDON, J.) nm/sp2.