STATE OF ANDHRA Vs. PRASADA RAO
LAWS(APH)-1955-8-1
HIGH COURT OF ANDHRA PRADESH
Decided on August 30,1955

STATE OF MADRAS (NOW ANDHRA) REPRESENTED BY THE COLLECTOR EAST GODAVARI Appellant
VERSUS
CHITTURI VENKATA DURGA PRASADA RAO Respondents


Cited Judgements :-

FATEHSINH MADHUSINH RATHOD VS. COMMI OF POLICE [LAWS(GJH)-1975-2-5] [REFERRED]
BANDI MURUGULU VS. STATE [LAWS(APH)-1960-10-19] [REFERRED TO]
CHUNDURU CHENCHURAMAIAH SETT VS. DEPUTY COMMISSIONER HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS ANDHRA PRADESH KURNOOL [LAWS(APH)-1964-10-2] [REFERRED TO]
CICILIA DSOUZA VS. RENT CONTROLLER [LAWS(KAR)-1990-9-21] [REFERRED TO]
GRAM PANCHAYAT OF VILLAGE ALUDA VS. SH PUSHPA KANWAR [LAWS(RAJ)-1966-4-30] [REFERRED TO]
UNION OF INDIA, NEW DELHI AND OTHERS VS. R.K. BINODO SINGH AND OTHERS [LAWS(GAU)-1970-7-9] [REFERRED TO]
STATE OF KERALA VS. SANKARAN [LAWS(KER)-1961-11-33] [REFERRED TO]
LANCO INFRATECH LIMITED AND ORS. VS. CC, CE & ST [LAWS(CE)-2015-4-5] [REFERRED TO]


JUDGEMENT

SATYANARAYANA RAO, J. - (1.)THIS Civil Revision Petition was directed to be posted before a Bench by Govinda Menon J., when the matter was pending in the High Court of Madras, as it raised an important question of law regarding the construction of Section 80 of the Civil Procedure Code. The suit was instituted by the 1st respondent in theDistrict Munsif's Court, Rajahmundry, for a declaration that defendants 1 and 2, i. e,, the State of Madhya Pradesh represented by the Chief Secretary, and the Divisional Forest Officer, South Bastar Division (Jagadalpur), were not entitled to levy any alleged forest dues from him and for a permanent injunction restraining the defendants from levying any money by distraint of properties or otherwise. The District Collector of East Godavari was impleaded as the 3rd defendant. In the plaint it was alleged that one Ramachandrayya represented to the plaintiff that he was the auction-lessee for gathering tumki leaf (used in the manufacture of beedie) from the Konta and Gollapalli Ranges of the forest in the South Bastar Division of the Bastar State for Rs. 1,18,000/- to be paid in ten instalments in three years, i. e. 1949, 1950 and 1951, that the plaintiff and Ramachandrayya entered into an agreement of partnership on 5th March 1949 for working the said forest ranges, on the understanding, that Ramachandrayya should get the leases transferred in the name of the plaintiff and that the plaintiff should advance the necessary funds for carrying on the business. Ramachandrayya was unable to secure a transfer of the leases. The plaintiff however paid a sum of Rs. 38,000/- by way of instalments of forest revenue on behalf of the said Ramachandrayya and the Forest Department created troubles by reason of the fact that the permits were in favour of Ramachandrayya and so there were considerable difficulties in gathering and transporting leaf to the market at Rajahmundry. The plaintiff paid three instalments but fearing that Ramachandrayya was not in solvent circumstances, the 2nd defendant, in collusion with him, wrote a letter on 15-12-1949 to the plaintiff stating that he was willing to transfer the said lease in his favour. Transfer forms were also sent but the plaintiff refused to enter into an agreement. Notwithstanding the refusal of the plaintiff to enter into a contract with the 2nd defendant, with a view to collect the amount of arrears from the plaintiff, the 2nd defendant sent directions requesting the 3rd defendant. Collector of East Godavari, as the plaintiff owns properties, movable and immovable, in Mirtipadu in Rajahmundry taluk, to distrain the properties of the plaintiff for the forest dues. The Collector communicated the said direction to the Tahsildar, Rajahmundry, and he threatened to distrain the properties of the plaintiff. It is therefore alleged that the action of the 2nd defendant in moving the 3rd defendant to attach and distrain the properties of the plaintiff was highly illegal and that the plaintiff was entitled to pray for a declaration and for a permanent injunction, restraining the defendants from proceeding with the threatened distraint of the plaintiff's movable and immovable properties. Objection was taken also to the action of the 3rd defendant in threatening, by issuing an order of distraint in pursuance of the direction of the 2nd defendant, and that such an action is illegal and ultra vires and arbitrary. For this reason also, he prayed that the 3rd defendant should be restrained by a permanent injunction from proceeding with the threatened action. Cause of action is said to have arisen on the 1st day of August 1951 when the plaintiff came to know that the 3rd defendant under the directions of the 1st and 2nd defendants was threatening to distrain the properties of the plaintiff at Mirtipadu within the jurisdiction of the District Munsif s Court of Rajahmundry. He therefore claimed the two reliefs as stated above. The sum and substance of the defence on behalf of the defendants was that Ramachandrayya requested the transfer of the lease in favour of the plaintiff and that the plaintiff also put in an application on 17th of March 1949 to transfer the lease in his name, which was accepted by the 2nd defend ant. Though the execution of a formal document was delayed there was a concluded contract between the plaintiff and the 2nd defendant and the plaintiff was bound to pay the arrears. Objection was taken in the written statement that as no notice under Sec. 80, C. P. C., was given to any of the defendants, the suit was not maintainable. On the pleadings eight issues were framed, and the fifth issue which covers the contention based on Sec. 80 C. P. C. was tried as a preliminary issue, and the learned District Munsif recorded a finding on that issue that the suit was not bad for want of notice under Sec. 80, C. P. C. The le'arned Judge felt that he was bound by a later decision of the Madras High Court in Krishnaswami Sastry v. Syed Ahmed , which interpreted the decision of the Privy Council in Bhagchand Dagadusa v. Secretary of State For India . Against this order the Government have filed this revision, and the applicability of Sec. 80 C. P. C. to the suit as framed was the only point debated before us on behalf of the petitioner. Besides supporting the judgment of the lower court, the 1st respondent's Learned Counsel also raised the question that Sec. 80, C. P. C., offends Article 14 of the Constitution and must therefore be held to be invalid and ultra vires. Judicial opinion was not unanimous regarding the interpretation of Sec. 80, C. P. C. Prior to the decision of the Privy Council in Bhagchand Dagadusa v. Secretary of State for India the Calcutta and Allahabad High Courts held that the section applied to all suits whether they were suits for injunc tion or for other reliefs and that the fact that irremediable harm would ensue to the plaintiff if the strict rule under Sec. 80, C. P. C., were enforced did not find favour with the learned Judges of those two High Courts. The Bombay High Court was however of a different opinion and held that as a remedy by way of injunction in respect of threatened actions related to future acts and as irreparable harm would be done to the plaintiffs if the two months' notice is insisted on, Sec. 80 should not be applied to such cases. In Madras the opinion was fluctuating. The earlier view in Secretary of State v. Kalekhan was that for all suits Sec. 80, applied, and this was the opinion followed in The Superintending Engineer, II Circle, Bezwada v. Chitturi Ramakrishna . In a later decision Arunachalam Chetty v. David , Ramesam and Reilly, JJ., followed the Bombay view. In Krishnaswami Sastri v. Syed Ahmed Gurgenven, J., after the decision of the Privy Council in Bhagchand Dagadusa v. Secretary of State for India applied the decision in Arunachalam Chetty v. David on the ground that in spite of the decision of the Privy Council futtre acts in respect of which relief by way of injunction is asked for in a suit, did not attract the provisions of Sec. 80, C. P C., and the suit without notice was maintainable. It is this decision that was followed by the learned District Munsif as he felt he was bound by that decision. The correctness of the Madras view was canvassed before us by the learned Government Pleader, and that is the point for decision. It will be useful to consider the language of the section before adverting to the conflicting views regarding its interpretation. The section so far as it is pertinent to the discussion of the present question is as follows :
" 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........."
Apart from authority, the section clearly applies to all suits, whether they are suits for declaration or suits for injunction, mandatory or prohibitory and suits for damages. There is nothing in the language of the section to support the view that suits for injunction are outside the purview of the section. What was the class of suits to which the restrictions of the section were intended by the Legislature to be applied ? The suit instituted against the Government or public officer should be "in respect of any act purporting to be done by such public officer in his official capacity." The language does not concern itself by restricting the suit to particular reliefs which may be prayed in the suit, but the suit must be in respect of any act purporting to be done by such public officer in his official capacity. The expression " act purporting to be done " was the subject-matter of criticism in some of the decisions. One interpretation is, which is strictly grammatical, that it takes in past acts as well as future acts. The other interpretation based upon an idiomatic interpretation of the language is that it should be restricted to past acts. The expression "in respect of" is of very wide amplitude as the contemplated suit may be for any relief which flowed from the allegations in the plaint, but the suit must have relation to or must have reference to an act purporting to be done by a public officer in his official capacity. If the allegations in the plaint relate to acts purporting to be done by such public officer, whatever the relief may be that was prayed, the section is attracted and the notice is mandatory. In the case of a threatened injury which is sought to be restrained by an injunction, it is difficult to imagine a plaint which does not contain allegations on which the fear of the threat complained of could be justified. The allegations or the acts complained of must necessarily be acts which preceded the suit and therefore must necessarily be past acts. The issue of an order or a notification which is sought to be enforeed but in respect of which the relief of injunction is asked for is an act purporting to be done by a public officer in his official capacity and in respect of which the plaintiff complains in the suit by moulding his relief appropriate to his allegations in the plaint. Construing the section in this view it does not matter in the least whether the exression "acts purporting to be done", relate to past acts or future acts. It is also unnecessary to express an opinion whether the grammatical construction is to be preferred to the narrower and restrictive construction based on the idiom of the English language. Most of the conflict in the decisions can be avoided if the section is interpreted in the manner stated above. The decision of Sundara Ayyar and Sadasiva Ayyar, JJ. in Secretary of State v. Kalekhan was under the Code of 1882, the corresponding section being 424, the language of which is the same as Sec. 80 of the present Code. It was there laid down that notice was necessary in all suits against the Secretary of State whether it was a suit for injunction or for damages. The argument considered in that case was that the expression "purporting to be done" excluded from its ambit suits for injunction. THIS contention was not accepted. The argument based on hardship in the case of irremediable damage to the plaintiff if the requirement regarding notice of two months was insisted upon, was negatived by the learned Judges. The matter was examined somewhat critically by Ramesam and Reilly, JJ., in Arunachalam Chetty v. David. The suit there was for a declaration that the suit property belonged to the plaintiff and defendants 3 and 4 in the action and that the Official Receiver, who advertised the properties for sale, should be restrained by a perpetual injunction from selling the properties as properties belonging to the 2nd defendant. Ramesam J., pointed out that the phrase " purporting to be done " uses the present indefinite form and was grammatically wider than the phrase " purporting to have been done." In this view it would include past as well as future acts. But the learned Judge thought that as a matter of ordinary idiom the whole phrase "an act purporting to be done" would ordinarily refer to past acts only, whether finished or begun but incomplete and does not refer to future acts. Unless the meaning is made clear by appropriate language to include future acts it was held that the phrase ought to be ordinarily limited to past acts. When the argument was addressed before the learned Judge that there was already a past act of the Official Receiver as he had advertised the property for sale and therefore the suit was in respect of that act and that even on the interpretation placed by the learned Judge on the expression " act purporting to be done " the suit was within the mischief of Sec. 80, the answer of the learned Judge was that the cause of action for the suit was furnished, no doubt, by the advertisement or some other past act of the Official Receiver but it did not follow from that, that the suit was in respect of that act. He then emphasized the relief in the suit, which was for an injunction and treated it as a suit to restrain the intended sale. The learned Judge, with great respect, is over stressing the importance of the relief in the suit by construing the expression "in respect of" as identical with the relief sought for in the suit. If the cause of action was the advertisement for sale, which is a past act, the suit, whatever the relief might be that was asked in it, based on that cause of action is undoubtedly a suit in respect of an act purporting to be done by an officer in his official capacity. The question of relief does not at all come into the picture on the language of the section. The learned Judge ultimately held that the section applied only in the case of past acts completed or begun but not to incomplete and threatened acts. In other words, reading the judgment as a whole, the learned Judge seems to imply that if the relief is asked for in respect of a threatened injury, based upon past acts, relied on as constituting the cause of action in the plaint, such a suit would be outside the ambit of Sec. 80, C. P. C. The learned Judge does not refer to Secretary of State v. Kalekhan but he adverts to the decision of Mr. Justice Sadasiva Iyer and Mr. Justice Spencer in the The Superintending Engineer, II Circle, Bezwada v. Chitturi Ramakrishna in which it was held that Sec. 80 applied even to a suit for injunction. The suit in that case was against the Superintending Engineer restraining him from enforcing an order directing the removal of an image. Sadasiva Aiyer J. dealt with the argument based on hardship and pointed out that the proper course was to appeal to the Legislature to enact an exception providing for such contingencies and the section, as it stood, made no exception. The acts, on which a threat to future injuries was based, might be a speech, a writing, a notice, a message and so on. The learned Judge held that the cause of action for the suit arose when the Superintending Engineer threatened to remove the image and pandal, which was not merely a mental act of the Superintending Engineer but was a physical act, as there was a written order signed by him and communicated to the plaintiffs. Spencer, J., disposed of the case on other grounds as well and the learned Judge also referred to Secretary of State v. Kalekhan and agreed with Sadasiva Aiyer, J., in construing the word "act " as including words spoken or written which may cause the plaintiff to apprehend some injury in the future. Bhagchand Dagadusa v. Secretary of State for India is the decision of the Judicial Committee, on which strong reliance was placed by the learned Government Pleader as settling the law on the question. That was also a suit for a declaration that certain final notices and orders were ultra vires and invalid and for an injunction permanently restraining all executive action thereunder, so that there were past acts on which the threatened injury was sought to be justified and in respect of which the relief for injunction was asked. Actually a notification was published by the Government in the Bombay Government Gazette. It was the validity of that notification that was attacked in the suit. Though notice under Sec. 80 was given by the plaintiffs, the suit was filed before the lapse of a period of two months on the ground that it was a suit for injunction, which did not require notice. THIS of course was based on the Bombay view then obtaining. The policy underlying Sec. 80 C. P. C., was the protection intended to be afforded to all officers of the Government. The provisions are strict and are mandatory. The Judicial Committee adverted to the conflicting views in the High Courts, and the decisions of the English Courts under the Public Authorities' Protection Act were also considered. At page 746 Their Lordships observed : "A view therefore about a bill for an injunction against serious and irreparable damage requiring the intervention of the Court almost undisputed in the court of appeal would not be any guide to the meaning of the Civil Procedure Code, where the clause applies to all Officers of Government and to all their official acts, and where the words " in respect of" a term going beyond " for any thing done or intended to be done" show it to be wider than the statutes on which the English authorities were decided." Again at page 747 it is stated : " A suit in which inter alia an injunction is prayed is still 'a suit' within the words of the section, and to read any qualification into it is an encroachment on the function of legislation." Adverting to the argument based on hardship, their Lordships pointed out that " Sec. 80 imposes a statutory and unqualified obligation upon the Court " and does not recognize any exceptions. At the bottom of page 747 the contention that the act purporting to be done by the Collector in his official capacity in respect of which the suit was begun, was his threatened enforcement of payment was rejected as fallacious, since the illegality, if any, was in the order for recovery of the tax and not in the threatened act. If the order was valid, there was nothing to be restrained. "Hence," observed their Lordships, "though the act to be restrained is something apprehended in the future the act alone 'in respect of which' the suit lies, if at all, is the order already completed and issued." The foundation for the action is the past act, namely the illegal notification and in respect of that the suit lies. Though the act to be restrained is something in the future, the illegality complained of is in respect of the act already done. THIS, in our opinion, supports the construetion which we are inclined to place upon the section. Read in this light, there is no scope for any doubt that suits for injunction are within the purview of Sec. 80, C. P. C. Curgenven, J,, dealt with this case in Krishnaswami Sastri v. Syed Ahmed and he thought that notwithstanding the Privy Council case, Bhagchand Dagadusa v. Secretary of State for India the decision in Arunachalam Chetty v. David was still good law. But at page 994 the learned Judge observed that all that was decided by their Lordships of the Judicial Committee was that Section 80 will apply to any kind of suit, whatever the relief sought, including a suit for an injunction. He, however, concedes that it may very well be that a suit for an injunction may be based upon past acts, and not merely upon an apprehension of future action, and that, in fact was the case there, because the relief asked for was in the first place a declaration that certain official notices and orders were ultra vires and invalid, and secondly, for an injunction permanently restraining all executive action thereunder. He further stated that their Lordships expressly say that unless the right to the first relief was made out, the prayer for the second necessarily failed, and it is apparent that the first relief could not have been claimed against the defendants unless they had notice under Sec. 80. It is difficult to imagine a plaint which does not lay a foundation for a suit in respect of feared or threatened acts by reference to something in the past which justified the fear of the future. If such a suit without such allegations is ever filed, it of course will naturally be dismissed on the merits. The fear of threat must always be founded upon some past act or acts and if that is done the suit would u ndoubtedly be within Section 80 of the Civil Procedure Code. An exhaustive review of the cases on the point is to be found in the latest case of the Lahore High Court in Shingara Singh v. C.H.D.O. Callaghan, a decision of Abdur Rahman, Mahajan and Marten JJ. Abdur Rahman J., who delivered the judgment of the Court, subjected the decision of the Madras High Court in Arunachalam Chetty v. David to severe criticism as well as the decision of Curgenven, J., in Krishnaswami Sastri v. Syed Ahmed . The learned Judges held that a suit for injunction is also within the purview of Sec. 80, C. P. C. We respectfully agree with the decision of the learned Judges. In the present case there is a prayer for declaration which it is not disputed requires notice, and the prayer for injunction also according to our view is governed by the principles laid down by the Privy Council in Bhagchand Dagadusa v. Secretary of State for India, and requires notice under S. 80, C. P. C. As this notice was not admittedly given by the plaintiff, the suit must fail. The argument of the 1st respondent's counsel based on Article 14 of the Constitution need not detain us long. What is contended for is that an invidious distinction was introduced in the Code between ordinary litigants and officers of the Government for which there is no justification. That it is permissible notwithstanding Article 14 to enact a piece of legislation based on reasonable classification to achieve a particular object has now been well established by decisions. We do not propose to cover the same ground once again as the matter was exhaustively dealt with by the learned Chief Justice and my learned brother Bhimasankaram J. in Writ Appeal No. 1 of 1955 '. In view of the above principles, in our opinion Section 80 was based upon a reasonable classification for the protection of the interests of the Government and its officers to enable them to have sufficient time to take legal advice and to adjust the matter if possible without the necessity of a suit. As pointed out by the Judicial Committee in Bhagchand Dagadusa v. Secretary of State for India , the section was intended for the protection of the officers of the Government and that is the object. The distinction is between officials and ordinary private citizens, which in our view is a reasonable classification and the section has relation to the end in view as it requires that the Government should have a period of two months before the suit is filed. It does not absolutely prohibit the suit but only postpones the action for a period of two months. It is difficult, therefore, to hold that the section violates the protection afforded by Article 14 of the Constitution. The result is the revision petition must be allowed and the order of the learned District Munsif must be set aside and the suit dismissed with costs. In the C. R. P. the petitioner is entitled to his costs which we fix at Rs. 150/-. T. A. B.
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