- (1.) THIS is a civil second appeal directed against the judgment and decree of the District Judge, Jaipur passed by him on 28th May, 1959 in a suit for injunction.
(2.) THE circumstances giving rise to the present appeal are that a suit for permanent injunction was instituted against Gram Panchayat, Aluda by Smt. Pushpa Kanwar on the ground that a 'baori' and certain building abutting thereto described in para 1 of the plaint were constructed by her ancestors in Smt. Year 1789 and were her property received by her in gift from her father-in-law. THE 'baori' was used • for irrigation of her fields. Recently a Panchayat came to be constituted in Aluda and elected one Narain as Sarpanch, who is hostile to the family of Smt. Pushpa Kanwar. THE Sarpanch took steps to make alteration in the property and, therefore, she instituted a suit seeking an injunction to prohibit him from his activities. THE Panchayat Aluda resisted the suit on the ground that the 'boari' in question is the property of the 'janta' of the village and Smt. Pushpa Kanwar never had possession over it. It was also pleaded that the suit was not maintainable for want of notice under sec. 80 Civil Procedure Code and under sec. 79 of the Panchayat Act. THE trial court decreed the plaintiff's suit. THE Panchayat preferred an appeal and canvassed before the District Judge only one point, namely, that the suit was bad for want of a notice under sec. 79 of the Panchayat Act. THE learned District Judge came to the conclusion that a notice under sec. 79 of the Panchayat Act was only necessary in those cases where an act was done by the Panchayat or the Panch under the provisions of the Panchayat Act. Since no order was passed by the Panchayat and none was pleaded in defence of its action, the learned District Judge held that it was not an action under the Panchayat Act and, therefore, he dismissed the appeal. THE Panchayat has now come up in second appeal. The learned counsel for the appellant submitted that the action taken by the Panchayat, Aluda was pursuant to the provisions of the Panchayat Act. The suit for injunction was instituted against the Panchayat for the acts done by it in the course of its duties. Therefore, a notice under sec. 79 was clearly necessary. The learned counsel for the respondent argued that the action complained against was not done by the Panchayat as a part of its duties. Therefore, it cannot be said that the action complained of was an act purporting to be done by the Sarpanch in that capacity. Even assuming that it was an act which the Panchayat was threating to do under the provisions of the Panchayat Act it was not an act "done" but only a "threatened action" and in view of some authorities which he cited and which I shall discuss later on notice under sec. 79 was necessary. Lastly, he argued that no notice was necessary because the action was brought against the Panchayat within six months of the alleged threat and if sec. 79 (2) (b) applied sec. 79 (2) (a) would not apply. Sec. 79 of the Panchayat Act reads as follows: "suits etc. against Panchayats - (1) No suit, prosecution or other legal proceedings shall be maintainable against any Panchayat or a Nyaya Panchayat or against any Sarpanch, Panch, Chairman, member, officer or servant thereof or against any person acting under the direction of any such Panchayat, Nyaya Panchayat, Sarpanch Panch, Chairman, Member, officer or servant, in respect of anything lawfully and in good faith done under this Act or any rule or byelaw made thereunder. (2) No suit against a Panchayat or a Nyaya Panchayat or against a Sarpanch, Panch, Chairman, member, officer or servant thereof or against any person acting under the direction of such Panchayat, Nyaya Panchayat, Sarpanch, Panch, Chairman, member, officer, or servant, for anything done of purporting to be done under this Act in its or his official capacity - (a) shall be instituted until the expiration of two months next after notice in writing stating the cause of action, the name and the place of abode of the intending plaintiff and the nature of the relief which he claims, has been, in the case of Panchayat or Nyaya Panchayat, delivered or left at its office and in the case of a Sarpanch, Panch, Chairman, member, officer, servant or person as aforesaid delivered to him or left at this office or usual place of abode and the plaint in such case shall contain a statement that such notice has been so delivered or left; or (b) shall be commenced otherwise than within six months next after the accrual of the alleged cause of action. " The first question which emerges for consideration is whether the act or threat complained of was an act purporting to be done within the meaning of sec. 79 (2) of the Panchayat Act. A reference to the plaint in this connection would determine whether the act complained of was purporting to be done under the Panchayat Act or outside it. Paragraph 6 of the plaint states that Shri Narain was taking undue advantage of the position as Sarpanch of the Panchayat, Aluda who after effecting certain repairs in the buildings abutting the 'baori' wanted to take improper possession thereof; and to fulfil the aforesaid purpose he had deposited at the Baori in August, 1955 some lime and 'bajri' (see paragraph 7 of the plaint ). Again, in paragraph 6 it is alleged that in the pride of his power and actuated by vindictiveness Narain wants to devour the property for the Panchayat. From these allegations it is difficult to disentangle the connection of the Panchayat, Sarpanch Shri Narain and his alleged action and or threat thereof. Their Lordships of the Federal Court examined the very familiar phrase "purporting to be done" in Dr. Hori Ramsingh vs. Emperor (1 ). While construing the provisions of sec. 270 of the Government of India Act, 1935 the learned Judges of the Federal Court observed that having regard to the ordinary and natural meaning of the words "purporting to be done," it is difficult to say that it necessarily implies "purporting to be done in good faith," for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. "the test is not that the offence is capable of being committed only by a public servant and not by any one, else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. " In Amrik Singh vs. State of Pepsu (2) their Lordships of the Supreme Court examined the provisions of sec. 197 of the Code of Criminal Procedure, where an identical phrase has been employed, and observed that, "if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. " On the plaintiff's own showing, as noticed earlier in paragraphs 6 and 7 of the plaint it is in his capacity as the Sarpanch of the Panchayat Aluda that Shri Narain actuated by ulterior motives was trying to usurp some property which the plaintiff claimed to belong to her. The action apparently has a semblance of relation between the official duties of the Sarpanch and the action complained against. My attention was invited by the learned counsel for the appellant to sec. 24 of the Panchayat Act and this when read with Schedule III Item (b) enumerates the duties of the Panchayat "including the cleaning of public streets, drains, bunds, tanks and wells", and in the sphere of public works, Part II of Schedule III, item (j) relates to "the management and control of bathing or washing ghats. " In these circumstances, urged the learned counsel that there was a transparent semblance of relationship between the action of Shri Narain and his official duties and, therefore, the act was purporting to be done under the provisions of the Panchayat Act. In my opinion, this argument of the learned counsel must prevail. The next submission of the learned counsel for the respondent in this connection calls for examination. His argument is that "purporting to be done" only relates to completed actions and not to mere threats. He has relied on Bai Jilekhabai Adreman vs. Competent Officer (Evacuee Interest Separation (3) and The State of Bihar1 vs. Raghimandan Singh (4 ). While examining the position under sec. 80 of the Code: of Civil Procedure their Lordships of the Gujarat High Court in Bai Jilekhabai's case observed: - "it is, therefore, clear that the words 'purporting to be done by such public officer' in sec. 80 C. P. C. refer to some act already done by the public officer. The word 'purporting' in sec. 80 C. P. C, also makes it clear that that section refers to an act done by a public officer. It is also clear from the decision of their Lordships of the Privy council in Revati Mohan Das vs. Jatindra Mohan Ghosh, 61 Indian Appeals, 171, where they observed as follows: 'in the case of a suit against a public officer it is only when the plaintiff complains of some act purporting to have been done by him in his official capacity that notice is enjoined. " In Raghunandan Singh's case (4) the learned Judge of the Patna High Court while repeating what was said in Bhagchand Dagdusa vs. Secretary of State (5) observed that - "sec. 80 is express, explicit and mandatory, and it admits of no implications of exceptions, Sec. 80 imposes a statutory and unqualified obligation upon the Court. It. is true if a suit a commenced by the plaintiff before the law allowed him to sue, he can get no relief in it either by declaration or otherwise. It is unsustainable in limine. This is the correct position in law if the suit is in respect of a past act or an act already completed. " It was further observed that notice under sec. 80 was not necessary for a suit for permanent injunction restraining the Government from settling the ghat in suit. Contrary to these two decisions are the cases reported in State of Madras vs. Chitturi Venkata Durga Prasadarao (6) and Smt. Abida Begum vs. Rent Control and Eviction Officer, Lucknow (7 ). The learned Judges of the Andhra Pradesh High Court observed - "sec. 80 as it stands applies to all suits, whether they are suits for declaration or suits for injunction, mandatory or prohibitory, and suits for damages. The expression 'act purporting to be done' takes in past acts as well as future acts. " In Smt. Abida Begum's case (7) the learned Judges of the Allahabad High Court expressed a similar opinion when they held relying on Bhagchand Dagdusa vs. Secretary of State (5) that it applies to all kinds of suits including suits of perpetual injunction. In Bhagchand Dagdusa's case (5) Viscount Summer, examined the difference of opinion between the High Court of Bombay on the one hand and all the other High Courts of India on the other to decide the true application of sec. 80 of the Code of Civil Procedure. They noted that a distinction was drawn in some cases that this section would not apply in suits to restrain by injunction the commission of some official act prejudicial to the plaintiff because the immediate result on the act would be to inflict irremediable harm and the section, therefore, did not compel the plaintiff to wait for two months before bringing the suit. The Privy Council after a detailed discussion of the divergent opinions observed as follows: "sec. 80 is express, explicit and mandatory, and it admits of no implications or exceptions. 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. Considering how long these and similar words have been read throughout most of the Courts in India in their literal sense, it is reasonable to suppose that the section has not been found to work injustice, but, if this is not so, it is a matter to be rectified by an amending Act. The construction placed on sec. 80, C. P. C. is in a language as emphatic as it is unequivocal. This opinion was expressed after noticing the view that the obligation of a notice in cases of threatened wrong could cause hardship. That view did not find favour. I do not find it possible to revive the controversy which has been finally settled by this case. A notice in my opinion is an advance intimation of an intended action enabling the receiver to make amends if he is so advised. Public bodies and functionaries have been ordinarily given this benefit presumably on the assumption that they would take notice of a notice and would take appropriate action, so that public time and money may be saved from being wasted in avoidable litigation. The argument of irremediable harm in a case of injunction put forcibly by the learned counsel for the respondent was also put before their Lordships of the Privy Council but it was not accepted. In my opinion, the reason for not accepting such an argument is that the Legislature in its wisdom trusts these public bodies that they shall not be actuated by anything excepting the dictates of their statutory duties uninfluenced by extraneous considerations. In a case of threatened injury, it is all the more important because before the threat materialises into action the person apprehending that threat intimates the public functionary not to act in a way he threatens to do. The distinction that has been drawn by the Patna and the Gujrat High Courts, with profound respect for the learned Judges, has not appealed to me. In places where the Legislature has in its wisdom not trusted some public functionaries then the statute itself has provided that in suits for injunctions no notice will be necessary. A reference in this connection may be made to the Rajasthan Municipalities Act, Sec. 271 ; the Jaipur Municipalities Act, Sec. 224 ; the Ajmer Merwara Municipal Regulations, 1925, Sec. 233, etc. Thus where no exception for suits of injunction is engrafted specifically by the Legislature and the language employed is in terms similar to those of sec. 80 C. P. C. then in my view the interpretation given by the Privy Council in Bhagchand's case (5) must prevail regardless of the fact whether the suit is for an "act done" or "threatened to be done". On the grammatical considerations also I am inclined to take the same view that the phrase "purporting to be done" is inclusive of threatened injury. In result, therefore, a notice under sec. 79 of the Panchayat Act in the appeal before me was necessary regardless of their relief claimed. Then remains one more argument of the learned counsel for the respondent to be considered. He urged that the conjuction "or" in between cls. (a) and (b) of sec. 79 sub-sec. (2) indicates that they must be read independent of one another. The first argument in this connection advanced by the learned counsel is that wherever a party takes immediate steps to seek redress in a court of law, that is, within a period of six months of the threatended injury or the injury done then no notice is necessary. He canvasses the acceptance of this interpretation firstly on the ground that "or" must be read as "or" and not as "and". The second argument is that this "or" fulfils the purpose which under the Municipalities Act the exclusion of suits for injunction from the necessity of a notice was aimed to serve and the third submission is that it advances remedy rather than suppressing it and is an interpretation which is beneficial for citizens and must be preferred. In other words, the result of reading "or" as "or" in between the cls. (a) and (b) of sec. 79 (2) would mean that wherever a person finds any action done or purporting to be done under the Panchayat Act and if he is quick enough to rush to the Court of law within six months he is not required to notify his legal action to the Panchayat or the functionaries as the case may be. On the contrary, if he wishes to enlarge his period of limitation, all that he has to do is to send a letter intimating that he proposes to take action and then he is relieved of the shrunken limitation provided in sec. 79 (2) (b) of the Panchayat Act. The injunction for such divergent results submitted by Mr. Bhandari is to exclude from the applicability of sec. 79 suits for injunction. The learned counsel tried to differentiate between actions which were urgent and if I may use its antonmy actions which were ordinary. I have noticed earlier that in statutes where injunctions were sought to be excluded from the operation of the notice clause the Legislature always chose to say so in specific terms I am not impressed by the argument that the Legislature employed this method of relieving a prospective litigant from the obligations of serving a notice by using the word "or". The second argument in this connection that it advances remedy and it should be construed in favour of the citizen does not impress me either. It is in the interest of public as well that actions taken by public bodies and their functionaries are not in doubt for a very long time and the earlier the question of their legality is settled the better for all concerned. In R. V. Oakes 'or' was read as 'and' for gathering an intelligible meaning of the provisions of sec. 7 of the Official Secrets Act, 1920, even when the construction was less favourable to the accused. In my opinion the conjunction "or" ought to be read as "and" in between cls. (a) and (b) of sec. 79 (2) in order to get an intelligible and rational meaning out of the two clauses. The intention was that before any Panchayat or any of the functionaries mentioned in the section is sued for any action or purported action under the provisions of the Act the first step is that a notice as required by sec. 79 (2 ( (a) is to be served and the second is that action must be commenced within six months from the date of the accrual of the cause of action. The word ''commenced" is indicative of the initiation of a legal proceeding and is clearly indicative of the period of limitation intended to be prescribed. It appears to me that the Legislature was desirous that the actions of the Panchayat are not kept open to scrutiny and consequent suspense for a longer period than the one prescribed by the Panchayat. No other point has been pressed before me. The result is that this appeal is accepted and the judgment and decree of the District Judge are set aside and the suit is dismissed for want of a notice under sec. 79 of the Panchayat Act. In the circumstances of this case I would make the costs easy throughout. Learned counsel for the respondent seeks leave to appeal. Leave is allowed. . ;