Patna High Court
The State Of Bihar And Anr. vs Jiwan Das Arya on 7 April, 1970
Equivalent citations: AIR1971PAT141, AIR 1971 PATNA 141
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalia, J.
1. In this second appeal by the defendants, the foremost--rather, ultimately, the only question which has fallen for decision is the true meaning and scope of Section 80 of the Code of Civil Procedure hereinafter called the Code.
2. It is not necessary to give the details of all the facts leading to the institution of the suit by the plaintiff respondent. Suffice it to say that the plaintiff claimed that the suit land is his kasht land and as such did not vest in the State of Bihar defendant No. 1, under the Bihar Land Reforms Act. The case of the plaintiff was that on the 8th of June, 1961, he came to know from Shri T.K. Misra, Land Reforms Deputy Collector, defendant No. 2, that he was purporting to make settlement by auction of an alleged fishery right in the tank said to be existing in the suit land on the ground that it had vested in the State of Bihar under the Bihar Land Reforms Act. The plaintiff filed an objection asserting that the property had not vested in the State. Ignoring that objection, the settlement proceedings continued, and the plaintiff's right was thus threatened by the intended settlement of the alleged fishery right. The plaintiff asserted that the land in suit was not a tank and there was no fishery right which could be settled by the State. Accordingly the suit was filed for declaration of title of the plaintiff to the suit land and for permanent injunction restraining the defendants from settling the lands in suit to any person or from interfering with the possession of the plaintiff.
3. In paragraph 20 of the plaint it was stated that the defendants were threatening interference with the plaintiff's possession by inviting offers for the settlement and hence no notice under Section 80 of the Code was necessary, which section is attracted only when the suit is in respect of past act completed or begun. The plaintiff, however, had given a notice under Section 80 of the Code but he could not wait for the requisite period of two months for the institution of the suit inasmuch as the suit would be rendered in-fructuous if the plaintiff refrained from filing the suit immediately, which he filed on the 17th June, 1961; it may be stated here that the notice had been served only two days earlier on the 15th June. He further pleaded that the defendants will be deemed to have waived their right to have a notice under Section 80 of the Code inasmuch as without any intimation to the plaintiff, they threatened to interfere with his right.
4. Facts pleaded to establish the title of the plaintiff as a raiyat of the land were controverted in the written statement filed on behalf of the defendants. Since ultimately, according to the decision which I am going to give, the plaint has to be rejected as having been filed without compliance with the mandatory provision of law contained in Section 80 of the Code, it has not been necessary either to state the details of the facts of the plaintiff's case or to recite the facts controverting it. In regard to the question of Section 80 notice, however, it was pleaded in paragraph 3 of the written statement that the suit is not maintainable for want of notice under Section 80 of the Code. In paragraph 14 it was stated that the statement in paragraph 20 of the plaint is not true and it is not correct that notice under Section 80 of the Code is not necessary or that there is waiver of the right to get that notice.
5. Both the courts below have held in favour of the plaintiff on the question of right, title and interest in the property as claimed by him and both of them have also held that the suit is not barred for want of requisite notice under Section 80 of the Code. This second appeal has been preferred by the defendants and the sole respondent is the plaintiff. When it came for hearing before a learned Single Judge of this Court, he referred it to a Division Bench as in the view of his Lordship, the decisions of this Court in Province of Bihar v. Kamakshya Narain Singh, AIR 1950 Pat 366 and State of Bihar v. Kamaksha Prasad Sharma, AIR 1962 Pat 303 laying down that a notice under Section 80 of the Code being for the benefit of the State can be waived by it in certain circumstances require reconsideration in view of the decision of the Supreme Court in Sawai Singhai Nirmal Chand v. The Union of India, AIR 1966 SC 1068.
6. Learned Advocate-General who appeared in support of this appeal in the first instance strenuously argued that the suit was bad as having been filed before the expiry of two months from the date of service of notice under Section 80 of the Code. He also submitted that the decisions of the courts below even on merits were erroneous and fit to be interfered with in second appeal. We intimated that if we hold the suit to be bad on the ground of want of proper and adequate notice under Section 80 of the Code, we shall, as has been done in several cases, direct the rejection of the plaint under Order 7 Rule 11 (d) of the Code and shall not examine the propriety or legality of the decisions of the courts below as to the plaintiff's title to the suit land and his claim for a decree for injunction. Since after having heard learned Counsel for the parties we are of the view that the first point urged on behalf of the appellants has to succeed, we did not hear any argument on merits of the appeal.
7. The relevant words of Section 80 of the Code are:
"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...... ".
There are two parts of the section. One in regard to the institution of the suit against the Government and the other against a public officer. The inhibition contained in the Section as to the institution of suit against the Government is unqualified. No suit can be instituted against the Government or, as a matter of that, against the State or the Union until the expiration of two months next after notice in writing has been given to the proper authority. It matters little whether the suit relates to the past action of the Government or is in relation to the threatened action or injury and the suit is in the nature of a bill quia timet. But if the suit is to be filed against a public Officer, notice is mandatory only when it is in respect of any act purporting to be done by such public officer in his official capacity. If the act is not one purporting to be done by the officer in his official capacity, no notice is necessary.
Learned Advocate-General submitted that the expression "any act purporting to be done" must mean the past act purported to have been done by the public officer in his official capacity; it cannot relate to a future act intended to be done by such public officer in his official capacity if the future act is unconcerned or unconnected with any past act. If the suit is filed against a public officer in respect of any act intended to be done by him in future purporting to act in his official capacity, which act is unconnected with any past act or order communicated to the plaintiff or brought to the knowledge of the plaintiff by the officer concerned, learned Advocate-General submitted that no notice under Section 80 would be necessary. But if the future act is the act of the Government in pursuance of any decision taken in the name of the Governor or the President, as the case may be, and if the act is sought to be enforced through any public officer by utilising his services to act on behalf of the Government, the suit in such a case for proper relief will have to be filed against the Government, the State or the Union, and, in that event, contention of the learned Advocate-General was that notice under Section 80 of the Code will have to be given as the section is mandatory and admits of no exception.
On the basis of the several authorities, some of which I am going to review in my judgment, I have to accept as correct the contention as put forward by the learned Advocate-General. But, I am afraid, the section, when so interpreted in relation to the suit to be instituted against the Government, invites the risk of being constitutionally invalid on the ground of infraction of the fundamental right of a citizen under Article 19 (1) (f) of the Constitution. To illustrate the point, supposing the Government without intimating any decision to a property-holder intends to dispossess him from his property illegally within 24 hours, the person concerned comes to know of the proposed action of the Government and wants a relief of injunction in a Civil Court, On this strict interpretation of the- first part of Section 89, he cannot file the suit against the Government before expiration of 'two months next after notice in writing has been given to the authority concerned. This, in my opinion, would be putting unreasonable restriction on the fundamental right of a citizen in regard to the procedural aspect of the law. It may well be that the remedy of Article 32 or 226 of the Constitution will be available to such a citizen. But that apart, in a proper and emergent case, it may be necessary for the citizen to reach the nearest forum of Civil Court for the redress of his grievance and the law will not permit him to do so.
I am, therefore, inclined to think that occasion may arise where considering this aspect of the matter even the first part of the section as respects the institution of the suit against the Government will have to be so interpreted as a matter of construction so as not to make it constitutionally invalid or if it cannot be so interpreted, the section will have to be struck down as such. But since the point has not been raised and argued in the manner indicated by me, as at present advised, I do not propose to go into this question either to cut down the scope of Section 80 in relation to the suit against the Government or to strike down the section as being invalid; on the authorities, this view does not seem to be possible at present.
8. In the Secretary of State for India in Council v. Gajanan Krishnarao Mavlankar, (1911) ILR 35 Bom 362 it was observed that where there was a serious injury so imminent that it could only be prevented by an immediate injunction, a Court would not be debarred from entertaining the suit and issuing injunction though the section required previous notice if it was owing to the immediate need of the injunction that the plaintiff had come to the Court for relief before giving the required notice. In another Bombay case, Naginlal Chunilal v. The Official Assignee, Bombay, (1913) ILR 37 Bom 243 it was pointed out that a suit against a public officer to restrain him from doing an act as such an officer could be brought without giving notice as required by Section 80 of the Code. It was observed at page 250--
"The real object of the suit is to obtain relief by injunction against an act, not done, or purporting to be done, but merely threatened, namely, the act of causing the furniture to be sold by auction."
And, although in the alternative the plaintiff had sought an award for compensation, it was held that the really substantial claim in the suit was the claim for injunction and hence a notice under Section 80 of the Code was not necessary.
The view as so baldly put by the Bombay High Court has not been approved by Viscount Sumner delivering the judgment on behalf of the Board in the well known case of Bhagchand Dagdusa Gujarathi v. Secy. of State for India, AIR 1927 PC 176. The High Courts of Calcutta, Madras and Allahabad had taken the view that Section 424 of the Code of 1877 and Section 80 of the Code of 1908 had to be strictly complied with and were applicable to all forms of action and all kinds of relief. The Bombay High Court, however, has taken a different view to the effect that if the immediate result of the Act would be to inflict irremediable harm, Section 80 does not compel the plaintiff to wait for two months before bringing his suit, though, if nothing is to be apprehended beyond what payment of damages would compensate, the rule is otherwise and the section applies. Viscount Sumner pointed out at page 184 (column 2)--
"Section 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,"
The argument before the Board that the act purporting to be done by the Collector of that case in his official capacity in respect of which the suit was begun was his threatened enforcement of payment was held to be fallacious since the illegality, if any, was in the order for recovery of tax the order which was made and communicated previously; if that order was valid, there was nothing to be restrained and hence though the act to be restrained was something apprehended in the future, the act alone in respect of which the suit lay, if at all, was the order already completed and issued. From these observations it may be culled out, as was argued by the learned Advocate-General, that if the suit relates to the threatened action of a public officer intending or purporting to act in his official capacity and if his past act or order communicated and known to the plaintiff is not necessary to be challenged, a notice under Section 80 of the Code may not be necessary.
The Supreme Court in a recent decision in AIR 1966 SC 1068 has reiterated the view enunciated by the Judicial Committee of the Privy Council in Bhagchand's case, AIR 1927 PC 176. Although the point which fell for decision before the Supreme Court was in relation to a different type of facts but the principle decided by the Privy Council was reiterated, that Section 80 applied to all forms of suit irrespective of the relief sought including a suit for injunction. On the authority of this decision of the Supreme Court, therefore, it is clear that the law, as it stands interpreted so far, is that a notice under Section 80 is mandatory and no suit can be filed before expiration of two months of service of such notice against the Government or the State even if the only relief claimed in the suit is in the nature of an injunction. The position, as explained above, is somewhat different in relation to suits which are filed only against the public officers.
9. It is no doubt true that notice under Section 80 of the Code is for the benefit of the Government or the public officer as the case may be and the right which the State or the officer has under Section 80 to get such a notice before the institution of the suit is capable of being waived as held by the Privy Council in Vellayan Chettiar v. Govt. of the Province of Madras, AIR 1947 PC 197. But it is one thing to say that the right can be waived and quite another to say whether in a particular kind of suit notice is not mandatory. I fail to understand how in a suit where a decree for injunction has been asked for to restrain the defendant from a threatened future action if the suit is against the Government or the State, it can be said that merely because the threatened action was imminent, the Government will be deemed to have waived the right to two months' notice under Section 80 or the Code. In my opinion, such a view which has been adopted in some of the decisions is not sustainable at all. As pointed out by Lord Simonds in Vellayan's case, AIR 1947 PC 197 that the notice under Section 80 is for the protection of the authority and if in the particular case he does not require that protection and says so, he can lawfully waive his right. It is, however, difficult to accept the view that merely because the threatened or the imminent action is to take place in a period shorter than the requisite period of two months required for giving notice under Section 80 of the Code, the authority concerned waives the protection of Section 80. If there is any lacuna in the Act in this regard, as there seems to be, it is for the competent Legislature to remove the lacuna. But in face o£ several authorities, it is not possible to take the view that in such a situation either notice is not necessary to be given or the authority concerned will be deemed to have waived the protection afforded to it under that Section.
10. In AIR 1950 Pat 366 it was not decided that if the suit is in the nature of a bill quia timet, no notice under Section 80 of the Code is mandatory. This decision is often misunderstood. In paragraphs 8 and 9 of the judgment of Reuben, J., as he then was, contentions in support of this view were noted and thereafter it was observed that these were difficult questions to be tried at the suit and hence the case before their Lordships was not a fit one where temporary injunction during the pendency of the suit should be refused.
11. In AIR 1962 Pat 303 the point decided was that it is competent for the authority for whose benefit the right to notice under Section 80 of the Code is provided to waive that right. This point does not require any consideration, and it must be taken to have been settled by now. But the other part of the decision is against the respondent. It is pointed out by Kanhaiya Singh, J., that causation of serious and irreparable damage resulting from serving a notice under Section 80 of the Code and waiting for a statutory interval of two months cannot be regarded as a ground for dispensing with the service of notice under Section 80 as held by their Lordships of the Privy Council in Bhagchand's case, AIR 1927 PC 176 nor that this case can be taken to be tantamount to waiver of right of getting a notice under Section 80 of the Code. I respectfully agree with this view.
12. In the State of Bihar v. Raghu-nandan Singh, AIR 1960 Pat 530, Raj Kishore Prasad, J., sitting singly, held that "The true meaning and the correct interpretation of the words 'in respect of any act purporting to be done', occurring in Section 80 of the Code, is that they cover only a past act and do not include a future act. Section 80 as such comes into play only when the suit begun is in respect of past acts, completed, or begun, but incomplete, but it does not apply to future or threatened acts."
In that case also the State of Bihar was the chief defendant as in this case. The interpretation put to the words "in respect of any act purporting to be done" with reference to the State or the Government, in my opinion, and I say so with great respect, by the learned Judge is not correct. That phrase does not relate to the institution of suit against the Government or the State. The use of the words "such public officer" after that phrase clearly shows that if the suit is to be filed against a public officer only in respect of any act purported to have been done by such public officer in his official capacity, then and then only that interpretation is possible that it must relate to past act and not to the future one. It will bear repetition to say that if the suit is against the public officer in respect of the threatened or the future action only, notice under Section 80 of the Code will not be necessary, but if in order to get relief against the threatened or the future action the past act or the order has to be challenged in the suit, without challenging which the relief of injunction as against the future action cannot be asked, notice, as pointed out by the Privy Council in Bhagchand's case, AIR 1927 PC 176 will have to be given. But this consideration is immaterial when the suit is against the Government or the State or the Union as the case may be. In support of the conclusion arrived at by the learned Judge in AIR 1960 Pat 530 a few lines said to be the observations of Viscount Sumner in Bhagchand's case, AIR 1927 PC 176 have been quoted in paragarph 31 of the judgment. But I may point out with respect that these lines occur in that portion of the judgment where his Lordship was stating the law as laid down by the Bombay High Court which ultimately was not approved by the Privy Council,
13. In Union of India v. Promode Narain Singh, AIR 1963 Pat 190, Ahmad, J., as he then was, sitting singly seems to have accepted the contention put forward before his Lordship that if the decision to terminate the service of the respondent was to take effect within a period which was shorter than two months and notice under Section 80 of the Code was not possible to be given, it will be deemed that the right to get the notice in such a situation has been waived by the authority. I say with very great respect that such a view is repugnant to the notion or conception of the law of waiver. If a Statute makes it imperative to do something which creates a protection or right in favour of the authority, the mere fact of there being tremendous difficulty in compliance with that requirement even going to the extent of impossibility would not attract the principle of waiver and cannot lead to the conclusion that in such a situation the authority will be deemed to have waived its right to get the notice. It may well be that in cases of this kind the law may not be just and, as I have indicated above, either may be interpreted narrowly or struck down as being invalid or may require amendment by the appropriate Legislature, but that apart, it is difficult to cull out the principle of waiver from such a situation. In my opinion, therefore, the two cases referred to above decided by the learned Single Judge were not correctly decided in so far as they go against the principle laid down hereinbefore.
14. For the reasons stated above, it has to be held in this particular case that the suit filed against the State of Bihar before expiry of the requisite period of notice under Section 80 of the Code was not maintainable. And since it was a joint suit against the State and its officer, it was not maintainable even against the latter. In the result, the appeal is allowed, the judgments and decrees of the Courts below are set aside and the plaint of the plaintiff respondent is rejected under Order 7, Rule 11 (d) of the Code. In the cir cumstances, the parties are directed to bear their own cost throughout.
A.N. Mukherji, J.
15. I agree.