NIMESHBHAI NAVINCHANDRA DESAI vs MANISHBHAI KIRITBHAI SHAH
- Court
- Gujarat High Court
C/CRA/421/2025 JUDGMENT DATED: 21/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 421 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
✓
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NIMESHBHAI NAVINCHANDRA DESAI
Versus
MANISHBHAI KIRITBHAI SHAH & ORS.
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Appearance:
MR. ADIT V PANCHOLI(14657) for the Applicant(s) No. 1
MS TEJAL A VASHI with MS DIVYA RAVAL
(2704) for the Applicant(s) No. 1
MR DHAVAL A PARMAR, AGP for the Opponent(s) No. 6
MR ARPIT KATARIA(11981) for the Opponent(s) No. 1,2
MR SP MAJMUDAR(3456) for the Opponent(s) No. 1,2
NOTICE SERVED BY DS for the Opponent(s) No. 3,4,5
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CORAM: HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 21/04/2026
JUDGMENT
1. Present Civil Revision Application is filed by the
applicant – original defendant No.1 under Section 115 of the
Code of Civil Procedure, 1908 (hereinafter referred to as “the
Code”) for setting aside common order dated 05.04.2025
passed below Exhibit–16 and Exhibit–18 in Regular Civil
Suit No.11 of 2024 by Principal Senior Civil Judge, Karjan.
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2. Heard learned advocate Ms. Tejal A. Vashi with learned
advocate Ms Divya Raval for the applicant and learned
advocate Mr. S.P majmudar for the respondent Nos.1 and 2.
3. Rule returnable forthwith. Learned advocate Mr. S.P.
Majmudar waives service of notice of Rule for respondent
Nos.1 and 2.
4. With the consent and request of learned advocates for
the parties, the present application is taken up for final
disposal.
5. Brief facts are as under:-
5.1. It is the case of the plaintiffs that the father of
defendant No.1 was allotted a land admeasuring about 518
square metres of Survey No.488/A situated in Mouje Saghli,
Taluka-Shinore, District-Vadodara by defendant No.4-
District Collector, Vadodara. An application for seeking
commercial construction was rejected by defendant No.2-
Talati-cum-Mantri of Saghli Gram Panchayat. As defendant
No.1 without any permission of competent authority started
commercial construction on the suit land, plaintiffs issued
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legal notices dated 20.10.2023 and 26.12.2023 to defendant
Nos.2 to 4 for taking appproriate actions and for removal of
constructions. As no steps were taken by defendant Nos.2 to
4, plaintiffs filed the suit praying for declaration that
construction carried out by defendant No.1-present
petitioner be declared as illegal and defendant Nos.2 to 4-
present respondent Nos.1 and 2 be directed to remove
construction together with a relief of permanent injunction
restraining defendant No.1 from raising further construction
and restraining defendant No.1 from transferrig and /
selling the suit property. Defendant No.1 and defendant
Nos.2 to 4 filed separate applications below Exhibit-16 and
18 respectively under Order VII Rule 11 of the Code for
rejection of plaint.
5.2 Learned Trial Court after hearing the parties rejected
both the applications. Defendant No.1 being aggrieved and
dissatisfied with the rejection of the application, is before
this Court. It is informed by learned advocates for the
parties during the course of the hearing that defendant
Nos.2 to 4 have not assailed the order of rejection of
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application under Order VII Rule 11 of the Code and it has
attained finality so far as defendant Nos.2 to 4 are
concerned.
6. Learned advocate for the petitioner contended that the
suit of the plaintiff is a premature suit. It is contended that
before institution of the suit, the plaintiff was required to
issue a statutory notice under Section 270 of the Gujarat
Panchayat Act, 1993. It is submitted that the alleged notice
is sent on 26.12.2023 and the suit is filed on 17.01.2024. It
is further contended that the alleged notice is not as per the
requirements of Section 270 (2) of the Act. It is further
submitted that there is a clear bar of action against
Panchyat or its officers or agents or members of the
Panchyat, untill expiration of one month notice in wrirting is
left or delivered, no suit shall be instituted. Section 270 (2)
of the Act also mandates that the notice needs to be sent to
the residence of the officer or agents or servant of panchayat
against whom an action is intended to be taken. Learned
advocate for the petitioner submitted that the suit is hit by
lack of statutory notice as contemplated under Section 80 of
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the Code. As per the Section 80 of the Act, no suit shall be
instituted against a Government or a public officer in
respect of any act purportedly done by such officer in their
official capacity, unless two months written notice has been
given. Plaintiffs have not issued any such notice and
therefore, the plaint is required to be rejected under Order
VII Rule 11 (d) of the Code. It is on a pretext of an illusory
cause of action, the suit is filed. It is also submitted that all
necessary permissions have been taken by defendant No.1
from the competent autority and therefore, the construction
is valid and legal. It is further contended that defendant
Nos.2 and 3 have tendered a pursis declaring that the
permission granted to defendant No.1 vide Resolution No.83
dated 14.07.2023 is in operation and has not been
cancelled. Defendant Nos.2 to 4 have never stopped the
construction activity which was going on the suit land. The
plaintiff has filed the suit which is not maintainable. Except
above, no other submissions were made by learned advocate
for the applicant.
7. Per contra , learned advocate for respondent Nos.1 – 3 –
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original plaintiffs have supported the order and contended
that the plaintiffs have asserted in the plaint that defendant
No.1 has raised illegal construction without any permission
of defendant Nos.2 – 4. It is also submitted that the
defendant No.2 – 4, by Resolution dated 03.10.2023,
rejected the application for the permission to construct any
commercial construction on the suit land. The plaintiffs
have alleged public nuisance being committed by defendant
No.1 by raising illegal commercial construction. The
plaintiffs has also registered their objections before
defendant Nos.2 – 4 by a communication dated 20.10.2023,
however, no steps were taken by the authority which
constrained plaintiff to issue a statutory notice dated
26.12.2023 as contemplated under Section 270 (2) of the
Gujarat Panchayat Act. The said notice is also issued under
Section 80 (2) of the Code. It is contended that the suit is
filed in the representative capacity and after due permission
being granted by Court, notice/summons were issued to
defendants. Since the question involved in the suit is with
regard to legality of the construction and demolition of
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illegal construction, plaint cannot be rejected at the
threshold of the trial by invoking provisions of Order VII
Rule 11 (d) of the Code. The allegations made in the plaint
are required to be gone into during the trial.
8. So far as, the contentions of non-maintainability of the
suit for want of a statutory notice as contemplated under
Sub-Section (2) of Section 270 of the Act is concerned, it is
contended that the bar of action against Panchayat or its
officers, agents or members for the action done by
Panchayat or any member, officer, servant or agent can be
raised only by defendant Nos.2 to 4 and defendant No.1 has
no right to raise the contention of non-issuance of a
statutory notice either under Section 270 (2) of the Act or
under Section 80 of the Code. Defendant Nos.2 to 4 had
also filed an application Exhibit–18 under Order VII Rule 11
(d) of the Code and the learned Trial Court has also rejected
the application. Defendant Nos. 2 – 4 have not assailed the
order and, therefore, the contention of non-maintainability
of the suit for want of statutory notice has been put to a
rest. There is no jurisdictional error committed by the
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learned trial Court while rejcting the application. Except
above, no other submissions were made by learned advocate
for the respondents.
9. Having considered the submissions of learned
advocates for the parties and on reading the plaint, it
surfaces on record that plaintiffs have alleged in the plaint
that defendant No.1 is raising commercial construction in
suit land despite rejection of the permission to raise
construction of a commercial nature in the suit land, which
is situated at Survey No.488/A Mujhe Saghli Taluka –
Shinore, District – Vadodara. The allegation of plaintiffs are
that by a Resolution dated 03.10.2023, an application
seeking permission to raise construction in the disputed
land came to be rejected by defendant Nos.2 – 4. It is also
alleged by plaintiffs that by raising such construction,
public nuisance would be created and there would be
hurdle of traffic on public road. Plaintiffs, therefore, issued
notices dated 20.10.2023 and 26.12.2023 respetively to
defendant Nos.2 to 4 for removal of illegal construction. As
defendant Nos.2 to 4 did not take any action agaisnt
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defendant No.1, plaintiffs filed a representative suit, in
whch, the Court granted permission to plaintiffs to file a
reprsentative suit. The defendant No.1 and defendant No.2 –
4 filed separate applications below Exhibit–16 and Exhibit –
18 respetively under Order VII Rule 11 of the Code praying
for rejection of the plaint. The sum and substance of both
the applications are that the suit of the plaintiff is not
maintainable as there is no cause of action to file the suit
and there is a violation of mandatory provisions of Section
270 (2) of Act and violation of Section 80 of the Code. It is
the core contention of learned advocate for the petitioner
herein that as no staturoty notice has been issued by
plaintiffs before institution of the suit as contemplated
under Section 270 (1) of the Act and under Section 80 of the
Code, the plaint requires to be rejected. Sub-Section 2 of
Section 270 of the Gujarat Panchayat Act which is
reproduced hereunder:-
“ Section 270 Bar of action against Panchayat
etc. and previous notice before institution.
(2) No action shall be brought against any panchayat or
any member, officer, servant or agent of such panchayat
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or any member of a committee of a panchayat acting
under its direction for anything done or purporting to
have been done by or under this Act, until the expiration
of one month next after notice in writing has been left or
delivered at the office of the panchayat, and also at the
residence of the member officer, servant or agent
thereof against whom the action is intended to be
brought; the notice shall state the cause of action, the
nature of the relief sought; the amount of compensation
claimed and the name and place of abode of the person
who intends to bring the action.”
10. Section 270 refers to bar of action against the
panchayat and issuance of a notice previous to an action
being taken against the panchayat or any member, officer,
servant or agent of panchayat, any member of a Committee
of Panchayat in respect of anything in good faith done under
the Act or under any rule or by-law made thereunder. Sub-
Section (2) of Section 270 is a mandatory provision. The
said provision mandates that until expiration of one month,
notice in writing has been left or delivered at the office of the
Panchayat and also at the residence of the member, officer,
servant or agent thereof against whom the action is
intended to be brought, no action shall be brought against
any Panchayat or any member, officer, servant or agent of
such Panchayat. From reading the above provision, it is
clear that a person who intends to take any legal action
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against panchyat or its members, officer, servants, agents
must serve a notice of one month in writing. The intention
of the legislature is unambiguous. When there is any wrong
committed by panchyat or its officers, agents, members,
such act can be questioned in a Court of law. Thus, the
question must involve an aggrieved person on one hand and
panchayat or its members, servants, agents, officers on the
other hand. The objection of non-issuance of a statutory
notice can only be raised by the panchayat or its officers,
members, agents. A third party who is not an aggrieved
party for the acts done by panchayat or by its officers,
members, agents cannot take sheleter of sub-Section (2) of
Section 270 of the Act. Such third party has no locus to
raise the objection of non-issuance of a statutory notice to
panchayat or its servants, agents, members. Similarly,
Section 80 of the Code which is pari materia with sub-
Section (2) of Section 270 of the Act runs in the same
direction. For convenience, Section 80 (1) of the Code is
reproduced as under:-
“ 80. Notice -[(1)] Save as otherwise provided in
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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 of a suit against the Central
Government where it relates to a railway, the
General Manager of that railway;
(bb) in the 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 a 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.”
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11. In nutshell, Section 270 is referring to any action done
or purporting to have been done by Panchayat or any
officer, member, servant or agent under the Act. Whether
the action done or purporting to have been done under the
Act is done in good faith or not under the Act or under any
rule or by-law under the Act is a pure question of fact.
Whether the cause of action for filing the suit is right or
wrong and whether the plaintiffs are entitled to reliefs
sought for in the plaint is a subject matter of trial. In the
given set of facts, unless the parties are put to evidence, the
plaint cannot be rejected by invoking the provisions of Order
VII Rule 11 of the Code. One of the disputes in the present
case, is between the plaintiff and defendant Nos.2 to 4 who
have allegedly remained silent in not stopping the illegal
commercial construction. The prayers in the plaint are
threefold:-
a) Demolition of illegal construction by defendant
Nos.2 to 4.
b) Restraining defendant No.1 from raising any
further construction in the suit land.
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c) Restraining defendant No.1 from transferring /
selling the suit land.
So far as the prayers sought for in the plaint are
concerned, the first prayer is for removal of construction by
defendant Nos.2 to 4. The second prayer is sought for
against respondent No1. Restraining defendant No.1 from
raising illegal construction in the suit land and third
prayers is seeking relief of permanent injunction restraining
defendant No.1 from transferring / selling the suit land to
any third person. Thus, plaintiffs have sought for multiple
prayers in the plaint and if for one of the prayers, the suit is
not maintainable, the entire plaint cannot be rejected by
invoking the provisiosn of Order VII Rule 11 of the Code.
Learned advocate for the petitioner has also contended that
all necessary permission for the construction has been
obtained from the concerned authority and the construction
in question was never stopped by Gram Panchyat or Taluka
Development Officer. Such contention cannot be considered
at the stage of deciding the application under Order VII Rule
11 of Code. Only the avermens made in the plaint and the
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documents in support of the plaint are relevant so far as
deciding any application under Order VII Rule 11 of Code.
12. The cause of action pleaded in the plaint as well as the
prayers sough for in the plaint, requires oral evidence to be
led by parties. So far as non-maintainablity of the suit for
want of statuorty notice under Section 270 of the Act as well
as under Section 80 of the Code, has been put to a rest as
the rejection of an application Exhibit-18 has not been
taken further by defendant Nos.2 to 4.
13. An objection regarding non-maintainability of a suit for
want of statutory notice can primarily be raised by
government or public authority / official entitled to the
notice, as it is a protective right that can be waived. The
plea of want of notice is open only to the government, public
body or public officer to whom the notice was intended and
not to a private individual. A private defendant cannot
challenge a suit based on a lack of notice given to
government, public body or a public officer. Right to wavie a
notice is open to the government, public body / public
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officer only and the right to waive notice is not the right of a
private individual.
14. It is a well-settled proposition of law that the
jurisdiction of the High Court under Section 115 of the Code
of Civil Procedure is limited to correcting the jurisdictional
error in the orders passed by the learned lower Courts. In
view of the above discussion and keeping the aforesaid facts
in mind, the order impugned is required to be sustained and
the present Civil Revision Application is rejected. The
learned Trial Court shall not be influenced by the
observations made hereinabove and shall decide the suit
strictly on the basis of evidence and as per the provisions of
law.
(D. M. DESAI,J)
HIMAKSHI
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