Union of India, New Delhi v. R. K. Binodo Singh — 1970 DIGILAW 57 (GAU)

JUDGMENT This Misc. Civil Appeal by the Union of India, the Chief Commissioner, Manipur, the Deputy Commissioner, Manipur, and the Sub-Deputy Collector, Imphal West, is directed against the order dated 8-9-1969 by which the Subordinate Judge, Manipur, issued temporary injunction restraining them, at the instance of the plaintiffs-respondents of Suit No. 48 of 1969, from executing against the latter the orders dated 4-5-1959 (passed by the Deputy Commissioner) and 4-8-1969 (made by the Chief Commissioner), or taking action pursuant to notices dated 19-8-1969 issued by the Sub-deputy Collector, Imphal West, calling upon them (Plaintiffs-respondents) to vacate the plots in dispute by dismantling the buildings standing thereon. 2. The facts of the suit brought by the plaintiffs, briefly summarised, are that they had constructed some buildings on plots bearing C. S. Dag Nos. 758 to 763, measuring 15 acres in all, as lessees and had been in possession thereof for a long time. The Deputy Commissioner, Manipur, made an order on 4-5-1959 directing that the plaintiffs should be evicted from the possession of those plots by dismantling the buildings constructed by them. The plaintiffs having felt aggrieved challenged the validity of that order by filing Revenue Appeal No. 26 of 1959 in the Court of the Chief Commissioner. That appeal was dismissed on 4-8-1969, almost 10 years after it was instituted. After the dismissal of that appeal, the Sub-deputy Collector issued notices to the plaintiffs on 19-8-1969 intimating them that they shall be evicted from the plots on 25th or 26th or 28th or 30th of August 1969. It appears that a part of the buildings was dismantled by the plaintiffs after the receipt of notices dated 19th August and the land underneath vacated. However, apprehending that part dismantling of the buildings and partial surrender of the land would not meet the requirements of the notices dated 19-8-1969, the plaintiffs filed a suit on 23-8-1969, claiming the relief of permanent injunction restraining the defendants from executing the orders dated 4-5-1959 and 4-8-1969 or giving effect to the notices dated 19-8-1969. Along with the plaint of the suit, the plaintiffs filed an application under Rules 1, 2 and 3 of Order XXXIX, Civil Procedure Code, hereinafter called the Code, claiming temporary injunction until the disposal of the suit. Along with the plaint of the suit, the plaintiffs filed an application under Rules 1, 2 and 3 of Order XXXIX, Civil Procedure Code, hereinafter called the Code, claiming temporary injunction until the disposal of the suit. That prayer having been allowed by the trial Court by order dated 8-9-1969, the defendants have come up in appeal to assail the validity thereof. 3. The fate of this appeal will depend on reply to the question whether the suit of the nature instituted by the plaintiffs is maintainable without first giving notice enjoined by Section 80 of the Code. That section provides in substance 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 until the expiration of two months next after notice in writing has been delivered to, or left at the office of, the Government or the public officer. The dispute between the parties counsel centred around the true meaning of the expression "any act" used in Section 80. Shri Imo Singh urged for the plaintiffs-respondents that the word "act" of that expression means and connotes a past act and not an act threatened to be done but not yet done. Shri Ibotombi Singh, representing the defendants-appellants, submitted on the other hand, that the terms of Section 80 are of imperative nature and admit of no exceptions or implications. In other words, his contention was that the Section takes in acts both past and future. Shri Imo Singh placed reliance on AIR 1960 Pat 530 . State of Bihar v. Raghunandan Singh, in support of his contention, whereas Shri Ibotombi Singh cited AIR 1927 PC 176, Bhagchand v. Secy. of States for India, AIR 1960 SC 1309 , State of Madras v. C. P. Agencies, AIR 1957 Andh Pra 675. State of Madras v. Chitturi Venkata, and AIR 1959 All 675 , Smt. Abida Begum v. Rent Control and Eviction Officer, to shore up his submission. He also invited the attention of this Court to the latest authority of the Supreme Court bearing on the scope of Section 80 which is reported in AIR 1969 SC 227 , Amalgamated Electricity Co. v. Municipal Committee. He also invited the attention of this Court to the latest authority of the Supreme Court bearing on the scope of Section 80 which is reported in AIR 1969 SC 227 , Amalgamated Electricity Co. v. Municipal Committee. After examining the rival contentions in the light of the authorities relied upon in support thereof, I have reached the conclusion that the stand taken by Shri Ibotombi Singh appears to be more sound and in accord with the letter and spirit of Section 80 of the Code and so it must prevail. 4. The Privy Council held in the case of Bhagchand, AIR 1927 PC 176 (supra) that Section 80 is to be strictly complied with and that it is applicable to all forms of action and all kinds of relief including that of injunction. This view of the Privy Council was approved by the Supreme Court in the case reported in AIR 1960 SC 1309 . The Supreme Court held therein that Section 80 is express, explicit and mandatory and admits of no implications or exceptions, and that object of the Section is manifestly to give the Government or the public officer concerned sufficient notice of the case which is proposed to be brought against it or him so that it or he may consider the position and decide for itself or himself whether the claim of the plaintiff should be accepted or resisted. It was observed further that in order to enable the Government or the public officer to arrive at a decision it is necessary that it or he should be informed of the nature of the suit proposed to be filed against it or him and the facts on which the claim is founded and the precise reliefs asked for. It is apparent that it is in the context of this object of Section 80 and on the plain reading of its phraseology that the expression "any act" has to be interpreted. 5. Firstly, I would like to discuss the merits of the suit on the basis of interpretation of the expression "any act" as canvassed by Shri Imo Singh. I have reproduced above the salient allegations made in the plaint and the nature of the relief sought. The plaintiffs have assailed the validity of the orders dated 4-5-1959 and 4-8-1969 and also prayed that the defendants be restrained from executing those orders. I have reproduced above the salient allegations made in the plaint and the nature of the relief sought. The plaintiffs have assailed the validity of the orders dated 4-5-1959 and 4-8-1969 and also prayed that the defendants be restrained from executing those orders. Both the orders, it is obvious, had been made before the suit was filed on 23-8-1969. The notices which were issued by the Sub-deputy Collector were in compliance with the direction given in the order made by the Deputy Commissioner on 4-5-1959 which was subsequently confirmed by the Chief Commissioner on 4-8-1969. Therefore, on the pleadings of the plaintiffs themselves it is manifest that it is not a threatened act in future mentioned in the notices dated 19-8-1969 which alone is the subject of dispute, but two previous orders of which that threatened act, if I may so, is the offspring which are really in question. The facts of the instant case, I believe are on all fours identical with the case of Bhagchand which the Privy Council happened to decide in 1927. I reproduce a part of the first para of the Privy Counsils judgment to illustrate the point. That part of the para runs as under: "In this action forty-eight plaintiffs joined in suing the Secretary of State for India and the Collector and District Magistrate of Nasik for two kinds of relief: (a) a declaration that certain official notices and orders were ultra vires and invalid, and (b) an injunction permanently restraining all executive action thereunder. Unless the right to the first relief was made out, the prayer for the second necessarily failed. The suit was begun less than two months after notice of the intention to bring it had been given to the respondents." Likewise, in our case unless the order made by the Deputy Commissioner on 4-5-1959, as confirmed by the Chief Commissioner on 4-8-1969, is declared invalid, the notices issued by the Sub-deputy Collector on 19-8-1969 will hold good. Therefore, assuming that the expression "any act" relates to acts done in past and does not embrace the acts threatened to be done in future, the plaint filed by the plaintiffs shall have to be rejected for want of notice under Section 80 of the Code. 6. Therefore, assuming that the expression "any act" relates to acts done in past and does not embrace the acts threatened to be done in future, the plaint filed by the plaintiffs shall have to be rejected for want of notice under Section 80 of the Code. 6. However, since elaborate arguments had been addressed at the bar respecting the true import of the expression "any act" used in Section 80, I deem it necessary to express my opinion as to which of the two rival contentions is sound in law. In the case of Bhagchand the Privy Council repelled the contention that any additional words should or can be read into Section 80 to find out its exact scope. The precise point that arose for determination before the Privy Council was whether Section 80 includes within its ambit suits for injunction. The Privy Council gave the reply in the affirmative because on its plain reading no variety of suits were excluded. The Privy Council emphatically observed that the section "is applicable to all forms of action and to all kinds of relief". The Privy Council appears to be of the opinion that if any exceptions were contemplated by the Legislature some suitable words would have been used by it to give practical shape to that intention. As an instance of such an exception, I may cite the proviso to Section 233 of the Ajmer Merwara Municipality Regulation. The main body of that section respecting suits against public officials is an exact reproduction of Section 80 of the Code. The proviso to the section enacts that nothing in the section shall apply to any suit instituted under Section 54 of the Specific Relief Act, 1877. It looks reasonable to assume that if the Central Legislature meant to graft any exception of the nature contained in the proviso to Section 233 of the Municipality Regulation just mentioned, to Section 80 of the Code, it would have done so quite easily. Therefore, according to the accepted principles of interpretation of statutes there is no justification for reading more than what is evident from the plain words used in Section 80 of the Code. The expression "any act purporting to be done by such public officer in his official capacity" used in Section 80 can surely include past as well as future acts of the public officer concerned. The expression "any act purporting to be done by such public officer in his official capacity" used in Section 80 can surely include past as well as future acts of the public officer concerned. If the Legislature actually meant Section 80 to cover only past acts of public officers then the relevant words in the section would have read something like: "any act purported to have been done by such public officer in his official capacity." Therefore, the contention canvassed on behalf of the plaintiffs-respondents looks to be without substance and so has to be negatived. 7. There appears to be some judicial conflict on the precise import of the word "act" used in Section 80. It was held in the case of Bai Jilekhabai v. Competent Officer, AIR 1961 Guj 85 , that the words "purporting to be done by such public officer" in Section 80 of the Code refer to some act already done by the public officer. Likewise, it was held by the Patna High Court in the case of AIR 1960 Pat 530 , that the true meaning and the correct interpretation of the words "in respect of any act purporting to be done" occurring in Section 80 is that they cover only a past act and do not include a future act. It was stated further that S. 80, as such, comes into play only when the suit begun is in respect of past acts, completed, or begun but incomplete, and that it does not apply to future or threatened acts. It may be mentioned that whereas the Gujarat High Court relied upon the Privy Council case of Bhagchand in support of its conclusion reproduced above, the Patna High Court distinguished that case on facts and so obviously it did not draw any help therefrom to strengthen its own view. The Lahore High Court, however relied upon the same Privy Council decision in support of the view that Section 80 applies to suits which relate to mandatory injunctions in respect of the acts which have already been performed as well as suits in which prohibitory injunctions in respect of threatened acts are asked for, vide AIR 1946 Lah 247, Subedar Shingara Singh v. Brigadier Callaghan. The reason given by the Lahore High Court in support of its view is that "since protection was by statute intended by the Legislature to be given to the Crown or its public officers to make amends for the act if they would care so to do or for taking legal advice before deciding their course of action in regard to an action which had already been taken or to a contemplated action, it could not be taken away simply because a plaintiff considered that he would suffer an irreparable injury or because he chose to add a prayer for an injunction in his suit." This view of the Lahore High Court was shared by the High Court of Madhya Bharat in the case of Babulal v. State, AIR 1955 Madh Bha 75, and that of Andhra Pradesh in the case of AIR 1957 Andh Pra 675. I am inclined to agree, if I may say so with respect, with the view taken by the High Courts of Lahore, Madhya Bharat and Andhra Pradesh. That view has the advantage that it is not in conflict with the plain wording of the section, and, in addition, it serves the object with which Section 80 was enacted inasmuch as the Government and public officers can get an opportunity to re-assess the situation and settle the dispute with the potential plaintiff, if they so desire, before they are dragged to the Court, and it also draws support from the Privy Council decision in the case of Bhagchand. It can bear repetition to state that the Privy Council held in that case that Section 80 is to be strictly complied with and that it is applicable to all forms of action and all kinds of relief. These words of the Privy Council are of such wide amplitude as to encompass suits brought against public officers to restrain them from executing the threatened acts. The public officers, it looks highly desirable, must be afforded an opportunity to examine the advisability of dispute being taken to a Court of law in respect of acts they have got to do as in respect of acts already done by them.Therefore, the view expressed by the Lahore, Madhya Bharat and Andhra Pradesh High Courts looks to be more practical and in accord with the phraseology as well as the object of Section 80 and so has to be preferred. 8. Before parting with the case I would like to point out that Section 80 refers to, firstly, suits against the Government, and, in the second place, to suits against the public officers. In terms of the section, no suit against the Government can be instituted until the notice of the nature and the duration mentioned therein is given. In other words if the suit is to be filed against the Government the notice is a sine qua non, irrespective of the fact what is the nature of the suit. However, if the suit has to be filed against a public officer then one of the essential conditions is that the suit should be "in respect of any act purporting to be done by such public officer in his official capacity." Since in the present suit the Union of India is a party, therefore the suit against it is altogether incompetent because of want of notice under Section 80. In this respect I invite attention to the latest pronouncement of the Supreme Court in the case of Amalgamated Electricity Co., AIR 1969 SC 227 (supra) wherein it was held that so far as suits against the Government are concerned, they cannot be validly instituted without giving a notice as required by Section 80 of the Code. 9. If the suit instituted by the plaintiffs-respondents cannot proceed as held above, in the absence of a notice under Section 80 of the Code, the trial Court could not have accepted their prayer for temporary injunction because one of the essential conditions for granting that relief is that the plaintiff should have a prima facie good case. Since the suit instituted by the plaintiffs cannot proceed for the legal lacuna mentioned, it cannot be contended that the plaintiffs have a prima facie good case for trial. 10. In the result, I allow the appeal and on setting aside the order dated 8-9-1969 of the trial Court I reject the application for temporary injunction made by the plaintiffs. The appellants shall also get the costs of this appeal. Advocates fee Rs. 32/-. Appeal allowed.