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2001 DIGILAW 694 (DEL)

P. S. OCHANI v. WORLD HEALTH ORGANISATION

2001-12-04

J.D.KAPOOR

body2001
J. D. Kapoor ( 1 ) THROUGH this application, defendants have sought dismissal of the suit as being barred by law. Defendant no. 1 is a Specialised Agency of the united Nations within the meaning of the Charter of the united Nations. According to defendant no. 1, it enjoy complete immunity from every form of legal process under article III Section 4 of the Convention on the Privileges and Immunities of the Specialised Agencies of the United nations. ( 2 ) MR. RAJEEV Nayar, learned senior counsel for defendants contends that these immunities have been specifically recognised and conferred upon the defendants by virtue of the United Nations Privileges and Immunities act, 1947. By virtue of notification dated 16/12/1948, the provisions of the said Act were extended to the defendants. This immunity is further fortified by an agreement dated 9/11/1949 between the defendants and Government of India which; specifically confers immunity upon the defendants from every form of legal process except in so far as in any particular case this immunity is expressly waived by the Director General of the defendant organisation. Admittedly, the Director general of defendant - organisation has not till date waived this immunity. ( 3 ) IN response to the summons served upon the defendants through Ministry of External Affairs, a communication was received from defendant no. 1 to the effect that defendant no. 1 enjoys immunity from every form of legal process as the organization has not expressly waived its immunity following a request made through appropriate channels. The defendant also requested the external Affairs Ministry to take all necessary steps to ensure that the Court recognizes the immunity of the organization. However, defendant no. 1 made it clear on number of occasions that it was not waiving immunity from legal process which is available by virtue of Section 4 of the Convention on the Privileges and Immunities of the specialized Agencies ("the Convention") to which India acceded with respect, to the Organization in February 1949 as well as by virtue of Article IV of the Agreement signed in November 1949 between the Organization and the government of India concerning the privileges, immunities and facilities to be granted by the Government of India to defendant no. 1. ( 4 ) ACCORDING to Mr. Nayar, Section 86 of Code of civil Procedure does not apply to the defendant and so does the communication of 11. 4. 1. ( 4 ) ACCORDING to Mr. Nayar, Section 86 of Code of civil Procedure does not apply to the defendant and so does the communication of 11. 4. 2001. This fact was accepted by UOI vide letter dated 11. 4. 2001 wherein they informed the plaintiff that Section 86 of Code of Civil Procedure is not applicable in respect of defendant no. 1 as it relates to foreign state. At the same time, UOI also informed the plaintiff that defendant no. 1 has been requested to cooperate and assist the High Court in the matter. ( 5 ) ON the contrary, Dr. D. C. Vohra, learned counsel for the plaintiff contends that there is no dispute that defendant no. 1 enjoys status of foreign State and it was on the advice of the Central Government that plaintiff made a petition to the Central Government for the grant of consent to sue the defendants. It was in response to this petition that the Government of India informed the plaintiff through letter dated 11. 4. 2001 that the privileges and immunities of the international organizations are regulated in India under the UN (Privileges and immunities) Act, 1947. The Government of india also informed that Article II (Section 3) of UN convention provides that the UN "shall be inviolable, located and by whomsoever held, shall enjoy immunity from every form of legal process, except in so far;as in any particular case, it has expressly waived its immunity. Plaintiff was also informed that the officials of the UN are "immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity. " ( 6 ) ON the other hand, Dr. D. C. Vohra, learned counsel for the plaintiff has contended that it is the Central government which is the sovereign authority to legal matters relating to specialized agencies having the status of foreign State and since the Central Government has not refused the request of the plaintiff, it amounts to conferring the jurisdiction upon the High Court to adjudicate the matter in dispute. It is further contended by Mr. Vohra that the expression used by the Central government in the aforesaid letter that "defendant no. It is further contended by Mr. Vohra that the expression used by the Central government in the aforesaid letter that "defendant no. 1 has been requested to cooperate and assist the High Court in the matter" itself shows that the Central Government had granted consent referred to in sub-section (1) of section 86 of Civil Procedure Code. ( 7 ) RELEVANT extracts of Section 86 of Civil Procedure Code are as under;- "86. Suits against foreign Rulers, Ambassadors ami envoys :- (1 ). No foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government; (6) where a request is made to the Central government for the grant of any consent referred to in sub-section (1), the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard. " ( 8 ) EVEN if it is presumed that Section 86 is applicable in respect of defendants still the requirement of Section 86 is that until and unless the Central government gives a consent certificate in writing through its Secretary, no foreign State may be sued in any Court and that consent must be given with respect to a specified suit. Sub-section (6) of Section 86 provides that where a request is made to the Central Government for the grant of any consent referred to in sub-section (1), the Central government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard. ( 9 ) DEFENDANT no. 1 figures in sub-clause (g) of clause (ii) of Section 1 of Article I of the Convention on the Privileges and Immunities of the Specialized Agencies adopted by the First World Health Assembly on 17/07/1948 which relates to Property. Funds and Assets and is as under :- "the specialized agencies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case they have expressly waived the immunity. Funds and Assets and is as under :- "the specialized agencies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case they have expressly waived the immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution," ( 10 ) ARTICLE IV Section 5 of the Agreement between the Government of India and defendant no. 1 provides as under:- "the Organization and its property and assets located in India shall enjoy immunity from every form of legal process except in so far as in any particular case this immunity is expressly waived by the Director General of the Organisation or the regional Director as his duly authorized representative. It is, however, understood that no waiver of immunity shall extend to any measure of execution. "( 11 ) SECTION 3 of United Nations (Privileges and immunities) Act, 1947 provides as under :- 3. Power to confer certain privileges and immunities on other international organisations and their representatives and Officers :- where in. pursuance of any international agreement, convention or other instrument it is necessary to accord to any international organisation and its representatives and officers privileges and immunities in India similar to those contained in the provisions set out in the Schedule, the Central Government may, by notification in the official Gazette, declare that the provisions set out in the Schedule shall, subject to such modification, if any, as it may consider necessary or expedient for giving effect to the said agreement, convention or other instrument, apply mutatis mutandis to the international organisation specified in the notification and its representatives and officers, and thereupon the said provisions shall apply accordingly and, notwithstanding anything to the contrary contained in any other law, shall in such application have the force, of law in India. " ( 12 ) SECTION 2 of Article II of the Schedule reads as under: "the United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution. It is, however, understood that no waiver of immunity shall extend to any measure of execution. " ( 13 ) THE notification dated 16/12/1948 issued by Government of India extending the Act of 1947 to the defendant no. 1 reads as follows :- "in exercise of the powers conferred by section 3 of the United Nations (Privileges and immunities) Act. 1947 (XLVI OF 1947), the Central government is pleased to direct that the provisions of the Schedule to the said Act shall apply mutatis mutandis to the (i) International Civil Aviation organisation (ii) the World Health Organization and (iii) International Labour Organisation and their representatives and officers. " ( 14 ) AS is apparent from the conjoint reading of the aforesaid provisions, defendant no. 1 enjoys immunity from every legal process except in so far as it has expressly waived its immunity. In the instant case, defendant no. l has made it clear that at no stage, it has waived its immunity. ( 15 ) MERELY because the Central Government informed the plaintiff that it has requested defendant no. 1 to cooperate and assist the High Court in the matter does not tantamount to granting permission to the plaintiff to sue the defendant. Any immunity provided by any statutory provision cannot be waived or abridged either by requesting the party to cooperate or assist the court nor can it be taken away except by way of legal authority. The fact that the Central Government accepted the position that Section 86 Code of Civil Procedure is not applicable shows that neither has the Central Government granted permission to the plaintiff to sue defendant nor has the immunity been waived. The tenor of the communication dated 1. 4. 2001 rather demonstrates that the request of the plaintiff was not acceded to and rejected by the Central Government. ( 16 ) HOWEVER, to be fair to the plaintiff and on the premise of equity and natural justice coupled with the. nature of suit which arises out of contract between the parties, the Central Government is requested to settle the matter amicably by using its offices and getting the grievance of the plaintiff redressed, if any. ( 17 ) WITH this observation, this application is allowed and the suit is dismissed being not maintainable. The court fee be remitted to the plaintiff if he makes such a request.