PADMANABHAN NAIR v. K. S. E. BOARD — 1987 DIGILAW 14 (KER)

Judgment :- 1. In the year 1979, a member of the learned profession of law, Shri. V. Padmanabhan Nair of Parur, sought the help of the court for the vindication of a right on behalf of the consumer-public. The action was against the Kerala State Electricity Board and an Engineer working under it. It was complained that electricity charges demanded were much in excess of his actual and legal liability. 2. Due to an unfavourable trend in the wind, the plaintiff's skiff got stranded on a rocky gorge: the courts below took the view that the suit was bad for non-compliance with S.80 of CPC, which mandates a notice to Government as a pre-condition for initiation of litigation. The courts below took the view that the Electricity Board is 'Government' as the term is referred to in S.80, and that the Assistant Engineer of the Board is a'public officer', as defined in S.2(17) of the CPC. The absence of notice according to those courts, was fatal to the maintainability of the suit. 3. The correctness of the view so taken by the courts below is challenged in the second appeal. 4. The material portion of S.80 reads as follows: "Save as otherwise provided in sub-s. (2), 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 term 'public officer' is defined in S.2(17); it is defined as a person falling under any of the descriptions enumerated as clauses.(a) to (h). For the purpose of this case, only clauses.(e) to (h) are relevant. 5. It is no doubt true that to the lay mind, the concepts of 'State' and 'Government' may not signify much of difference. Courts of law have, however, to be precise in the delineation of the contours of these concepts. 6. Electricity Boards constituted under the Electricity (Supply) Act, 1948, bad figured in important judicial decisions by the highest court, which had to assess the true character and legal status. Rajasthan Electricity Board's case is a legal classic in itself. (Vide AIR 1967 SC 1857). The guidelines contained therein have been helpful in understanding the legal nature and character of other statutory bodies too. Rajasthan Electricity Board's case is a legal classic in itself. (Vide AIR 1967 SC 1857). The guidelines contained therein have been helpful in understanding the legal nature and character of other statutory bodies too. The issues settled by the decision, and others of later times which have sometimes amplified and sometimes explained the earlier ideas, is simply this: An Electricity Board is a State within the meaning of Art.12 of the Constitution. It would then follow as a corollary that in relation to its acts and activities, the Board has necessarily to conform to the provisions of Art.14 and 16 of the Constitution. The question whether the Electricity Board is Government, however, did not arise in that decision. 7. There is a vital and clear difference between 'Government' and 'State'. The jurisprudential position is explained by authoritative and helpful legal literature explaining and elucidating the concept of State and Government. Salmond and Paton, Dias and Allen and other jurists have commented upon the concepts, The theory of the State by J. K. Bluntschli contains much of thought on State and Government. It is, however, unnecessary to attempt an elaborate discussion on that topic as the connected ideas have been exhaustively discussed by the Supreme Court in Pashupati Nath v. Nem Chandra, AIR 1984 SC. 399. It was pointed out therein: "A State Implies the existence of a community or group of people occupying a geographical area or territory in which they permanently reside possessing internal sovereignty and independence of foreign control and a political organisation or agency through which the collective will of the people is expressed and enforced. The last of the elements of a State referred to above is generally called as a Government. From the legal point of view, Government may be described as the exercise of certain powers and the performance of certain duties by public authorities or officers, together with certain private persons or corporations exercising public functions. The structure of the machinery of Government and the regulation of the powers and duties which belong to the different parts of this structure are defined by the law which also prescribes to some extent the mode in which these powers are to be exercised or these duties are to be performed. (See Halsbury's Laws of England, Fourth Edition. Vol. 8. (See Halsbury's Laws of England, Fourth Edition. Vol. 8. Para.804.) Government generally connotes three estates, namely, the Legislature, the Executive and the judiciary while it is true that in a narrow sense it Is used to connote the Executive only." (emphasis supplied) 8. Reference has been made to the earlier decisions of the Supreme Court such as the Gurugobind Basu v. Sankari Prasad Ghosal, AIR 1964 SC 254, Union of India v. Sankal Chand Himatlal Sheth, AIR 1977 SC 2328 and Hargovind Pant v. Dr. Raghukul Tilak, AIR 1979 SC 1109 where the status of the Comptroller and Auditor-General of India at also the judges of the Supreme Court and of the High Courts had been discussed as to whether they were Government servants or not. 9. The principles laid down as gatherable from the discussions on the topic would definitely be helpful in understanding the distinctions between the State and the Government in the present context toe. 10. A statutory body whether it be Electricity Board or the Food Corporation or Urban Development Corporation or any of that category may be an instrumentality of the State within the meaning of Art.12 of the Constitution. It nevertheless would not answer the description of Government as understood in law and as it is understood in the context of S.80 CPC 11. The precise question had been considered by the Karnataka High Court in Shivamurthy v. Chairman, K. E. Board, ILR (Karnataka) 1980 (1) 686. The scheme of the Electricity Supply Act and the legal principles applicable, have been surveyed in that decision. The ultimate finding is that the Electricity Board, is not a Government and its officers are not public officers, in the context of S.80 CPC. The neat analysis of the legal and constitutional provisions as attempted by the learned judge has my unreserved approval. The conclusion is: "inspite of the control and supervision exercised by the State Government on the funds and the activities of the Board, it cannot be held to constitute a 'Government' for the purpose of S.80 of the CPC." 12. The Civil Procedure Code does maintain the distinction between Government and State in its provisions. O.27 refers to suits by or against Government or public officers in their official capacity. R.8 B gives the definition of the Government and Government Pleader. The Civil Procedure Code does maintain the distinction between Government and State in its provisions. O.27 refers to suits by or against Government or public officers in their official capacity. R.8 B gives the definition of the Government and Government Pleader. That is not particularly helpful in as much as it only brings out the distinction between the Central Government and the State Government and the cause of action against the one or the other. S.84 to 87 B contain references to State. S.79 specifically states that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be in the case of a suit by or against a State Government, the State. To describe the Kerala State Electricity Board as the State in a suit filed against it, would be totally inapposite. Equally jarring would be the position when a Government Pleader could take notice or act on behalf of the Electricity Board, pressing into service the provisions of O.27 dealing with suit by or against the State Government. 13. The question has been discussed in the context of other statutory bodies like the Urban Development Corporation and the like. The High Courts of Patna, Punjab and Haryana and Karnataka have taken the view that such authorities would not be 'Government' within the meaning of S.80 CPC. The reasoning in those decisions will apply with equal force to the present case. 14. Equally unsustainable is the view taken by the courts below about the scope and ambit of the term 'public officer', as occurring in S.80 CPC and defined in S.2(17). As noted earlier, the only clauses which could have any relevance in the present context are clauses.(e) to (h). An Assistant Engineer of the Electricity Board is not one empowered to place or keep any person in confinement as visualised in clause. (e). He is not an officer of the Government entrusted with the duty such as the prevention of offences as indicated in clause. (f). Nor is he an officer to whom the duty has been assigned as referred to in clause. (g), on behalf of the Government, or affecting the pecuniary interests of the Government or doing any act in relation to or for the protect-tion of the pecuniary interests of the Government, as visualised in clause.(g). (f). Nor is he an officer to whom the duty has been assigned as referred to in clause. (g), on behalf of the Government, or affecting the pecuniary interests of the Government or doing any act in relation to or for the protect-tion of the pecuniary interests of the Government, as visualised in clause.(g). An Assistant Engineer is not an officer in the service or pay of the Government nor one remunerated by fees or commission as indicated in clause.(h). Sivamurthy's case supra states: "Thus, the officers of the Board are appointed by the Board and not by the State Government and their salary is paid by the Board. They are not in the service or pay of the Government. They are in the service of the Board and are paid by the Board. Further, the Officers of the Board being in the services of the Board, cannot be said to perform any of the duties on behalf of the Government as enumerated in clause.(g) of S.2(17) of the Code of Civil Procedure. Thus, the officers and the employees of the Board cannot be held to be 'public officers' as defined in S.2(17) of the C.P. Code" An earlier decision of that court State of Mysore v. CITB Mysore, 1969 (1) KLJ 337, would also justify the above conclusion. 15. It is unfortunate that this aspect happened to be overlooked by the courts below. The courts below have committed a grievous error on substantial questions of law. They have necessarily to be corrected. 16. The appellant-plaintiff was doing a commendable public service by espousing a cause common to the large number of consumers of electricity. Ordinarily, a harassed individual consumer, would be unable to fight and finance a costly litigation, even while suffering gross injustice. The relevance of a strong consumer movement in the present context has been now emphasised by judicial decisions and recognised by enlightened public opinion. The endeavour of the plaintiff in the case nearly a decade back should have ordinarily earned an appreciatory laurel. He has persisted in his fight even in the face of concurrent adverse decisions in the courts below. He shall now have the satisfaction of having a legal principle established. He richly deserves, and is therefore hereby granted, his entire costs in all the courts. He has persisted in his fight even in the face of concurrent adverse decisions in the courts below. He shall now have the satisfaction of having a legal principle established. He richly deserves, and is therefore hereby granted, his entire costs in all the courts. In the result the second appeal is allowed; the judgments and decrees of the courts below are set aside. The trial court will take up the suit and dispose it of afresh on merits.