http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

CASE NO.: Appeal (civil)  1451 of 2007

PETITIONER: M/s. Bajaj Hindustan Sugar & Industries Limited

RESPONDENT: Balrampur Chini Mills Ltd. & Ors

DATE OF JUDGMENT: 19/03/2007

BENCH: Dr.AR. Lakshmanan & Altamas Kabir

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (c) No.1983 OF 2007) WITH  CIVIL APPEAL NO.         /2007 (Arising out of S.L.P. (c) No. 3855 OF 2007) M/s. Balrampur Chini Mills Ltd. &  Anr.             ..Appellants Versus Union of India & Ors.                                     ..Respondents

ALTAMAS KABIR, J.

       Leave granted in both  the special leave petitions.

       These two civil appeals  have been taken up one after the  other since both arise out of the same proceedings.  While Civil   Appeal  arising out of SLP (C) No. 1983 of 2007 was directed  against the interim order passed in the proceedings, the Civil  Appeal arising out of SLP (C) No. 3855 of 2007 was filed against  the final order.  The interim order from which the first appeal  was filed has since merged with the final order and has  therefore been rendered infructuous.           Civil Appeal arising out of SLP (C) No. 1983 of 2007 is  therefore dismissed as infructuous.         Civil Appeal arising out of SLP (C) No. 3855 of 2007 has  been filed by M/s. Balrampur Chini Mills Ltd. against the order  passed by the High Court of Uttar Pradesh, Lucknow Bench, in  Civil Revision Petition No. 16 of 2007, allowing the revision and  granting final relief in favour of the revisioner petitioner in the  High Court.   In order to appreciate the order passed by the High Court,  it is necessary to set out some of the facts leading to the filing  of the said revision petition.   The appellant before us is a registered company engaged  in the manufacture of sugar and has various industrial  undertakings at different sites in Uttar Pradesh.  On  31.08.1998, a press note was issued by the Industries’ Ministry  requiring compulsory licensing and it was also provided that  new sugar factories, when established, would have to maintain  a minimum distance of 15 Kms. from an existing sugar mill.   Alleging that M/s. Bajaj Hindustan Sugar & Industries  Limited (formerly known as the Pratappur Sugar & Industries  Limited), the respondent No. 5 in this proceeding, was setting  up a sugar mill at Itai Maida, which was within 15 Kms. of the  proposed unit of the appellant-company at Kalu Bankat, the  appellant filed a suit in the Court of Civil Judge (Senior  Division) Balrampur, being No. 2 of 2006, against the Union of  India and its authorities and M/s. Bajaj Hindustan Sugar &

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

Industries Limited inter alia for a decree declaring that on filing  of the Performance Bank Guarantee, the Kalu Bankat unit of  the appellant-company had become a new sugar factory, as  such, no proposed factory could be permitted within 15 Kms. of  the proposed unit of the appellant-company at Kalu Bankat. Since the suit was filed against the Union of India, an  application was also made under Section 80 (2) of the Code of  Civil Procedure (hereinafter referred to as ’the Code’, for short)  for grant of leave to proceed against the Government and its  authorities without service of notice under Section 80 (1) of the  said Code.  It was prayed that compliance as envisaged under  Section 80 (2) of the Code, be dispensed with on account of the  urgency involved.  The said application was taken up for  consideration by the learned Civil Judge on 18.01.2007.   Holding that on a perusal of the plaint, there was no urgency in  the matter, which warranted immediate relief, the leave prayed  for by the appellant was not granted and the appellant was  directed to ensure compliance of Section 80 (1) of the Code and  thereafter to place the suit.  The plaint was accordingly  returned to the appellant  (plaintiff) as per law. Aggrieved by the said order of the learned Civil Judge, the  appellants  herein filed Civil Revision No. 16 of 2007 in the  Allahabad High Court, Lucknow Bench.  In the revision, apart  from praying for the order dated 18.01.2007 of the learned Civil  Judge to be set aside, the appellants  also prayed for a direction  from the learned Civil Judge to register the case (emphasis  added) and to hear the application filed by the appellants on  merits and till the said application was decided, the  respondents be required not to take any steps which could  permit the respondent Nos. 5 and 6 to set up their industrial  undertaking at Itai Maida and also to restrain the others from  continuing their developmental activities from their site at the  said location. Initially, while admitting the revision petition, the High  Court directed the respondent Nos. 5 and 6 to maintain status  quo and they were restrained from continuing with any  developmental or construction activities at Itai Maida.  As  indicated hereinbefore, the first civil appeal was directed  against the said interim order.

After the revision petition had been admitted and the  interim order had been passed, the respondent Nos. 5 and 6  filed an application for vacation of the interim order passed on  25.01.2007.  Inasmuch as, a counter affidavit had also been  filed by the said respondents in the main revision petition, both  the revision petition as well as the application for vacating the  interim order, were taken up for hearing together for final  disposal on 20.01.2007 with the consent of the counsel for both  the parties.  After a contested hearing, the High Court decided  not to enter into the merits of the case and passed the following  order.

"The trial court, the Civil Judge (Senior  Division), Balrampur is directed to reconsider the  matter.  The revisionists may present the  application seeking interim relief before the  competent court of law and put forth their  respective versions and place the legal precedents.   Since the actions of the State Government and the  Government of India are also involved in this civil  revision, let their version may also be taken into  account.  It may be open for the parties to make all  these submissions before the trial court, competent  court and the same may be appreciated and  considered by the competent court.  It is expected

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

from the competent court to pass a reasoned and  speaking order or orders after judicially scrutinizing  the matter in accordance with law.  However, in the  interest of justice, it is made clear that the civil  court shall adjudicate the matter with an open and  independent mind.  It shall be free to pass any order  in accordance with law following relevant provisions  of C.P.C., Evidence Act and other laws without  being influenced by this order or the last interim  order passed by this Court on 25.01.2007.

With the above observations and directions,  the civil revision is finally disposed of.  The interim  order granted by this Court on 25.01.2005 is  vacated."

       It is against the said order of the High Court by which the  interim order was vacated and the Civil Revision was finally  disposed of that the second civil appeal has been filed.           Appearing in support of the appeal, Mr. Harish Salve,   Senior Advocate, and Mr. Rohington Nariman, Senior Advocate,  submitted that after the order passed by the High Court  directing the learned trial Judge to hear out the appellant’s  application for interim relief, the learned Civil Judge without  doing so had in fact by his order dated 23.02.2007 directed that  the appellant’s application under Section 80 (2) of the Code be  re-heard.  Mr. Salve submitted that the learned Civil Judge  should have decided the appellant’s application for interim relief  without re-opening the question of grant of leave under Section  80 (2) of the Code.  According to Mr. Salve, by directing the  learned Trial Judge to hear out the appellant’s application for  interim relief, it had dispensed with the requirement of Section  80 (2) of the Code or had impliedly allowed the appellant’s  application for leave.  It was, therefore, no longer open to the  learned Trial Judge to direct re-hearing of the appellant’s  application under Section 80 (2) of the Code instead of deciding  the application for interim relief on its merits.         Mr. Salve urged that even if the suit could not be  registered as far as the Union of India and its authorities were  concerned, the same could have been registered against the  private respondents instead of the plaint being returned to the  plaintiff.           On merits, Mr. Salve, contended that since the appellants  had filed an Industrial Entrepreneurship Memorandum (IEM)  for Kalu Bankat as well, the project of the respondent No. 5 to  set up a sugar mill at Itai Maida was in contravention of the  rules relating to maintenance of a minimum distance of 15  Kms. between two units.  Mr. Salve submitted that on such  score also, the respondent Nos. 5 and 6 were not entitled to  continue with the construction work at Itai Maida.           Mr. Salve urged that having granted an interim order on a  detailed discussion of the facts at the time of admission of the  revision, the High Court erred in vacating such order at the  time of final hearing and to direct the trial court to reconsider  the matter.  However, according to Mr. Salve, it was not only the  High Court which committed an error in remitting the matter to  the trial Judge for a fresh decision on the self-same matter, but  even the trial Judge misunderstood the scope of the order  passed by the High Court in reconsidering not the application  for interim order but the application for grant of leave under  Section 80 (2) of the Code.  Mr. Salve urged that both the orders  of the High Court as well as that of the trial Judge were liable to  be set aside with a further direction to hear out  the application  for interim orders.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

       Mr. Venugopal and Mr. Mukul Rohtagi along with Mr.  Rajiv Dutta, Senior Advocates, strongly opposed Mr. Salve’s  submissions and urged that neither the High Court nor the  learned trial Judge had committed any error and/or illegality  which required any correction in the instant special leave  petition. Mr. Venugopal submitted that upon a reconsideration  of the matter, the High Court, at the time of final hearing of the  revision petition and the application for vacating the interim  order, concluded that the trial Judge should consider the grant  of interim order in the suit and accordingly directed the trial  Judge to reconsider the matter.           Reference was made to the order of the High Court  impugned in the appeal where it had been  recorded that the   learned counsel of both  parties had  agreed  that the order of  the trial court dated 18th January, 2007, was a non-reasoned  and non-speaking  order  and in that factual  matrix the High  Court had remitted the  matter to the trial court for  reconsidering the matter.  In the process, the revisionists were   given the liberty to  also place their application for interim relief.   It was urged  that the matter  relating to grant of  leave had  been left to be decided  by the trial court.           On the merits, as argued by Mr. Salve, Mr. Venugopal  submitted that, in any event, the case made out by the  appellants  had no foundation, inasmuch as, the appellants had  ultimately decided as would be evident  from  their letter  dated  9th August, 2005, not to proceed with the proposal to set up a  separate sugar unit at Kalu Bankat, which was within 15 Kms.  of their establishment at Datauli.  Mr.  Venugopal urged that  the High Court had not committed any jurisdictional error  which warranted the interference of this Court in this Appeal.           Mr. Shanti Bhushan, learned senior advocate, who  appeared for the appellant at a  later stage of the proceedings,  urged that when the original court where the suit was to be filed  had refused  leave under Section 80 (2)  of the Code and the  plaint was returned,  the plaintiff was entitled to invoke the  revisional jurisdiction of the High Court under Section 115 of  the Code of Civil Procedure, as  amended  in its application to  Uttar Pradesh. He then urged that  when the trial   court  had refused to  grant leave, it was always  open to the revisional court to grant  such leave provided  it was satisfied that such a  case  had been   made out.   According to him, the language of Section 80 (2) of  the Code did not  restrict its application to the  court of original  jurisdiction alone. Mr. Shanti Bhushan  also urged that  leave could also be  said to have been granted by implication when no express  language   was used in that behalf.  In support of his  contention, Mr. Shanti Bhushan  relied on a decision of the  Calcutta High Court in Smt. Janak Rani Devi  vs. Chandrabati  Devi & Anr., reported in A.I.R. 2002, Calcutta, page 11, wherein  it was observed, inter alia  as follows;-

"................However,  my reading of sub- section (2) of Section 80 of the Code of  Civil Procedure  is that no separate  application and  an express order  are the  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 Section 80 could  be implied and could be granted from  what the Court does."

Mr. Shanti Bhushan also referred  to two  other decisions

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

of the Delhi High Court   and Kerala High Court reported in 111  (2004) Delhi Law Times, page 33  and AIR 1989 (Kerala) page  276, where similar views have been expressed. Mr. Shanti Bhushan submitted that when the High Court    remitted the matter to the trial court  for a decision on the  interim relief as well, it  could be presumed that leave to  file the   suit under Section 80 (2) of the Code had impliedly  been  granted. Mr. Shanti Bhushan  lastly submitted that the  superior   courts were always within their jurisdiction to  vary or reverse  the order passed by the lower courts in exercise of the powers  vested  in them  in  revision or in appeal.  According to learned  counsel, when leave had been refused by the trial court under  Section 80 (2) of  the Code   it was  always open to the High  Court to  grant such leave under its  revisional jurisdiction. A few decisions in this regard  with reference to Order  XXXIII  Rule 5 of the Code was  relied upon  by Mr. Shanti  Bhushan  wherein the High Court in revisional  jurisdiction   granted leave  to  the plaintiff to file his  suit as  forma pauperis   even though such prayer had  been refused by the trial court.   The same are as follows:-

1.      AIR 1952 Allahabad page 582 \026 S.E. Orde vs.  Mrs.T.C. Deacon  & Anr. 2.      AIR  1955 Patna, page 257 -  Raghuraj Singh  &  Anr. vs.  Mst. Sitapati Kuer & Ors. and 3.      AIR 1975 Gujarat, page 94 \026 Rambhai Punjabhai   Vinchiya vs. The Gujarat State Road Transport  Corporation, Ahmedabad & Anr.

Mr. Shanti Bhushan submitted that by the same principle  it must be held that the High Court had the jurisdiction to grant  leave under  Section 80 (2)  of the Code,  once such leave was  refused  by the court of original jurisdiction.             Although, the order passed by the learned trial Judge,  upon the matter being remitted by the High Court, is not the  subject matter of the special leave petition, it has been brought  to the notice of this Court that the matter was directed to be re- heard by the trial Judge on the question of grant of leave under  Section 80 (2) of the Code and the said application was  fixed by  the learned trial  Judge for filing of objections and disposal.  We have carefully considered the submissions made on  behalf of the respective parties and we fail to see how it can be  contended that the High Court had acted without jurisdiction or  in excess of jurisdiction in vacating the interim order and  directing the learned trial Judge to reconsider the matter.  The  High Court merely remitted the matter to the learned trial  Judge to re-decide the entire matter on the concession that the  impugned order passed by the trial court  on 18th  January,  2007, was a non-reasoned and  non-speaking  order.  The said   concession was obviously  with regard to the rejection  of  the  plaintiff’s prayer for grant of leave under Section  80 (2) of the  Code.    There can be no dispute that once the plaint was  returned, there was no suit pending before the trial Judge.   Without the suit being registered the question of considering  the application for interim orders also did not arise.  The  provisions of Section 80 (1) of the Code make it very clear that  except in the manner provided in sub-Section (2), no suit can be  instituted against the Government and its authorities in respect  of any act purported to have been done by such authority in its  official capacity until the expiration of two months after notice  in writing has been delivered to or left at the office of the  authorities named therein.  Admittedly, the defendant Nos. 1-4  in the suit, were the Union of India and its authorities and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

without notice under Section 80 (1) of the Code, the suit could  not have been instituted against them without compliance with  the provisions of Section 80 (2) of the Code.  The appellants   were fully aware of the said provision and accordingly, an  application was made under Section 80 (2) of the Code for grant  of such leave, which was refused.  Section 80(2) provides as  follows:-

"(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 in his official capacity,  may be instituted, with the leave of the Court,  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)."

From the above, it would be evident that a suit may be  filed against the Government or a public officer without serving  notice as required by sub-section (1) with the leave of the Court.   When such leave is refused, the question of institution of the  suit does not arise and accordingly, no interim relief could also  be granted at that stage.

The learned trial Judge does not also appear to have  committed any illegality in taking up the petitioners’ application  for grant of leave once again. The decisions cited by Mr. Shanti Bhushan on the  question of  implied leave was countered by Mr. Mukul Rohatgi    with the decision  of this Court in State of A.P. & Ors.  vs.  M/s.  Pioneer Builders, A.P., reported in  2006 (9) Scale page 520,  wherein  in paragraph 16 it  has been    observed as follows:-

"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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

reasonable  opportunity  of showing  cause in respect of relief prayed for  in  the suit."

The law, in our view, has been  succinctly  expressed in  the  aforesaid  judgment.  The language of Section 80 (2) of  the  Code  leads us to hold that if leave is refused by the  original  court, it is open to the superior courts to grant such leave as   otherwise  in an emergent situation a  litigant may be left  without  remedy   once such leave is refused and he is required   to wait  out the statutory  period of two months after giving  notice. However, in the instant case, the High  Court  has not  granted  such leave  while  disposing of  the revision filed by the  appellant-company  and the trial court was  bound to   reconsider the question of grant of leave in the light of the  observations made by the High Court.     In such circumstances, we see no reason to interfere with  the order passed by the High Court, impugned in this appeal  and the same is accordingly dismissed.   The learned trial court is directed to dispose of the  plaintiff’s application for grant of leave under Section 80 (2) of  the Code within  ten days from the date of the receipt of  this  order. There will be no order as to costs.