Bombay High Court
Baldev Krishnan Ashta vs The Maharashtra Industril Development ... on 6 February, 2020
Author: M.G. Giratkar
Bench: S.B. Shukre, M. G. Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
C.A.O. NO.668 OF 2019 IN
M.C.A. St. No.25642 OF 2018 FOR REVIEW
IN W.P. NO. 5880 OF 2018 (D)
Baldev Krishan Ashta
VS.
State of Maharashtra through Maharashtra Industrial Development
Corporation and Ors.
Office Notes, Office Court's or Judge's orders
Memoranda of Coram,
Appearances, court's
orders or directions and
Registrar's orders
Petitioner in person.
Mr. Kasat, Advocate for respondent Nos. 1 to 5.
Smt. Ketki Joshi, learned Addl. P.P. for respondent
Nos. 6, 7 and 8.
CORAM : SUNIL B. SHUKRE AND
M.G. GIRATKAR, JJ.
DATE : 06.02.2020.
Reply filed by respondent Nos. 1 to 5 is taken on record.
Civil Application No.668 of 2019.
Heard.
For the reasons stated in the application, delay is condoned.
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2/17 1 CAo 668.19.odt MISC. CRI. APPLICATION (REVIEW) ST.NO.25642/2018
1. Petitioner had filed a Writ Petition being W.P.No.5880 of 2018 against Maharashtra Industrial Development Corporation, (the Corporation "for short") joined in this application as respondent Nos. 1 to 4 seeking a writ of mandamus directing concerned officials of the Corporation to send their reply to the notice sent by the petitioner to the Corporation under Section 80 of the Code of Civil Procedure (for short "CPC"). Petitioner entertained a belief that the reply was mandatory and absent the reply, he would be disabled to institute a suit against the Corporation for some contractual claim that he had against the Corporation. The Writ Petition was, however, dismissed by this Court by an order passed on 11.09.2018. This Court recorded briefly the reasons for dismissal of the petition. By this application, review of order dated 11.09.2018 has been sought by the petitioner.
2. As we can see from the grounds taken in the application the petitioner does not seem to be satisfied with ::: Uploaded on - 26/02/2020 ::: Downloaded on - 07/06/2020 21:18:37 ::: 3/17 1 CAo 668.19.odt reasons recorded for dismissal of the petition. It further appears that the petitioner is desirous of knowing in details the reasons for dismissal of the petition. It also appears that the petitioner is of the view that this Court dismissed the petition while completely ignoring the law laid down by Hon'ble Apex Court in the case of Salem Advocate Bar Association Vs. Union of India, reported in 2005 (6) SCC 344, wherein the Hon'ble Apex Court has held that it is better, in the interest of good administration and a good litigation policy that whenever the law requires, notice for filing of suit or other proceeding be issued to the State Government or the State or the statutory authorities and whenever such notice is issued, it is to be responded to by the concerned State or Government or statutory authority by sending a proper reply.
3. The review petitioner, who appears in person, submits that his expectation from the Corporation is very modest. He submits that he expects nothing more from the Corporation than its reply to him to the notice sent by him to the Corporation under Section 80 of the C.P.C. He ::: Uploaded on - 26/02/2020 ::: Downloaded on - 07/06/2020 21:18:37 ::: 4/17 1 CAo 668.19.odt submits that Salem Advocate Bar Association, T.N. vs. Union of India cited supra, squarely applies to the facts of the present matter and, therefore, it is mandatory for the Corporation to have sent its reply to his Section 80 CPC notice.
4. Mr. Kasat, learned counsel for the respondent Nos. 1 to 4 resisting the argument submits that had it been the requirement of law, the Corporation would certainly have given its reply to the petitioner. But, that being not so here, no reply was given to the petitioner. He also points out that this Court has already held that the provisions of Maharashtra Industrial Development Act, 1961 (for short "MID Act") do not warrant any such notice (see paragraph 3 of the order under review) and the same view was earlier expressed by this Court in its order dated 25.06.2018. He submits that it would only mean that the petitioner was and is always at liberty to institute a civil suit or any other proceeding while complying with the requirement of notice to be issued under Section 80 of the CPC and he still can do so subject to the law of limitation and any other relevant ::: Uploaded on - 26/02/2020 ::: Downloaded on - 07/06/2020 21:18:37 ::: 5/17 1 CAo 668.19.odt questions affecting the maintainability of the suit.
5. Mr. Kasat, Advocate for respondent Nos. 1 to 4 further submits that the Corporation is not Government within the meaning of Section 80 CPC and that it is capable of suing or being sued in its name and, therefore, the provision of Section 80 CPC are not applicable to the Corporation. He relies upon a similar view taken by learned Single Judges of different High Courts, in such cases as, V. Padmanabhan Nair Vs. State Electricity Board reported in AIR 1989 Kerala 86; Chairman, Electricity Board, Bihar, Patna and another Vs. Binay Kumar Jh reported in AIR 2011 Patna, 187.
6. Learned Addl. G.P. for the non applicant Nos. 6 to 8 is of the same view as expressed by Mr. Kasat, learned counsel for the Corporation.
7. Section 80 of the CPC and Section 3 of the MID Act are relevant for the purpose of this review application. Section 80 of the CPC reads thus:
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80. Notice.- [(1)] [ Save as otherwise provided in sub-section (2), no suit shall be instituted] [against the Government (including the Government of the State of Jammu and Kashmir)] 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-
(a) in the case of a suit against the Central Government, [except where it relates to a railway], a Secretary to that Government;
[(b)] in the case of a suit against the Central Government where it relates to a railway, the General Manager or that railway;] [***] [(bb)] in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;]
(c) in the case of a suit against [any other State Government], a Secretary to that Government or the Collector of the district, [***] and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
[(2)] A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub- section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit;
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with ::: Uploaded on - 26/02/2020 ::: Downloaded on - 07/06/2020 21:18:37 ::: 7/17 1 CAo 668.19.odt the requirements of sub-section (1).
(3) No suit 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 shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-
(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.] Section 3 of the MID Act is as given below:-
"3. (1) for the purposes of securing and assisting in the rapid and orderly establishment and organisation of industries in industrial areas and industrial estates in the State of Maharashtra, there shall be established by the State Government by notification in the Official Gazette, a Corporation by the name of the Maharashtra Industrial Development Corporation.
(2) the said Corporation shall be a body corporate with perpetual succession and a common seal, and may sue and be sued in its corporate name, and shall be competent to acquire, hold and dispose of property, both movable, and immovable, and to contract, and do all things necessary for the purposes of this Act."
On reading the Section 80 CPC, it would be clear that it would be attracted only when a suit or other proceeding is proposed to be filed against the Government or a public officer in respect of any act purported to be done by such a public officer in his official capacity. The ::: Uploaded on - 26/02/2020 ::: Downloaded on - 07/06/2020 21:18:37 ::: 8/17 1 CAo 668.19.odt CPC does not define Government in any way although it defines "public officer" in Section 2(17). In this definition, various categories of public officers are described, out of which, the one described in category (h) is relevant. It lays down that every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty would be a Public Officer.
8. In the present case, Maharashtra Industrial Development Corporation is a separate entity having been created under the statute called MID Act. This entity as per the provisions contained in Section 3 of the MID Act, which we have just seen, has been set up as a Corporation having corporate name as "The Maharashtra Industrial Development Corporation". It is such constitution of the MIDC which would define itself as an entity different from the Government. This conclusion is further bolstered up by the provisions contained in sub-section (2) of Section 3 of the MID Act. The Corporation has been made a body corporate having perpetual succession and a common seal. If the Corporation was to be identified as a Government ::: Uploaded on - 26/02/2020 ::: Downloaded on - 07/06/2020 21:18:37 ::: 9/17 1 CAo 668.19.odt itself, there was no need for the legislature to make a provision like this and clothe the entity with perpetual succession having its own seal under sub-Section 2 of Section 3. Further provisions have been made for distinguishing the Corporation from the Government making it a separate and distinct entity. These provisions deal with such matters as the manner in which the Corporation may sue or be sued, its competence to acquire, hold and dispose of property, both movable and immovable, and also it's capacity to enter into contract in it's own name and do all things necessary for the purposes of the MID Act.
9. Afore-stated provisions contained in Section 3 of the MID Act indicate that the Corporation can sue or be sued in its corporate name i.e. the Maharashtra Industrial Development Corporation, that it can acquire, own and possess in its corporate name the property (movable and immovable) and that it can enter into or execute contracts not in the name of the Government but in its own corporate name. These provisions contained in Section 3 of the MID ::: Uploaded on - 26/02/2020 ::: Downloaded on - 07/06/2020 21:18:37 ::: 10/17 1 CAo 668.19.odt Act clearly establish separate identity and entity of the Corporation apart from the Government and if it were not so, these provisions would not have been made at all.
10. Once it is seen that the Maharashtra Industrial Development Corporation is a separate entity established under the MID Act, it would defy any logic to say that "the Corporation" is equivalent to or identical to the concept of "Government" used in Section 80 of the CPC. The Corporation, of course having in its capital the share of the Government and also having been under the extensive control of the Government would be an instrumentality of the State of Maharashtra and for that purpose, it would be "State" as defined in Article 12 of the Constitution of India. But, being an instrumentality of the State and thus a "State" within the meaning of Article 12 of the Constitution of India, the Corporation would not be a synonym of the Government and be the Government itself as idea of "State" under Article 12 is generic and not specific to an entity called the Government. In fact, Article 12 prescribes an inclusive definition of the words "the State" laying down ::: Uploaded on - 26/02/2020 ::: Downloaded on - 07/06/2020 21:18:37 ::: 11/17 1 CAo 668.19.odt that such entities and bodies as the Government, Parliament, State Legislatures and all local or other authorities within India or under the control of the Government would be within it's sweep. This would show that "the State" defined in Article 12 is a class formed by various sub-groups just referred to and that would mean that one sub-group of the class cannot be mistaken for or identified as other sub-group, here the Corporation for the Government and vice-versa. If such mixing is done, it would produce anomalous results. Anomaly would be in the freedom to identify the Corporation or even the Government the way one would like to. Sometimes, the Corporation would be called State Government and or the Government as the Corporation. This has to be avoided while interpreting any provision of the Constitution or the law and that meaning is to be ascribed which arises naturally, literally and grammatically, when the provision is clear and unambiguous, and which makes it sensible. Doing so, we find that the Corporation, though a "State" under Article 12 of the Constitution of India, is not the "Government" within the meaning of Section 80 of the CPC ::: Uploaded on - 26/02/2020 ::: Downloaded on - 07/06/2020 21:18:37 ::: 12/17 1 CAo 668.19.odt and so section 80 CPC does not apply to the Corporation.
11. In the case of Chairman, Electricity Board, Bihar, Patna and Anr. Vs. Binay Kumar Jh cited supra, learned Single Judge of Patna High Court relying upon the view expressed by its previous Bench in K.P. Sen and another Vs. Regional Manager Food Corporation of India and others 1974 BLJR H 28 held that State Electricity Board may be an instrumentality of State within the meaning of Article 12 of the Constitution of India but found that there was a vital difference between the terms "Government" and "State" and then held that officers of any corporation established under a State statute could not be called as "public officer" and would not be covered by expression "public officer" defined in Section 17 sub- section (2) of the CPC.
12. In the case of V. Padmanabhan Nair Vs. State of Electricity Board cited supra learned Single Judge of Kerala High Court held that a statutory body whether it be Electricity Board or the Food Corporation or Regional ::: Uploaded on - 26/02/2020 ::: Downloaded on - 07/06/2020 21:18:37 ::: 13/17 1 CAo 668.19.odt Development Corporation or any other statutory body of the same category, may be an instrumentality of the State within the meaning of Article 12 of the Constitution of India, it would nevertheless fail to answer the description of Government as understood in law and as it is understood in the context of Section 80 of the C.P.C.
13. View expressed by the learned Single Judges in the aforesaid two cases with the reasons stated therein, , commends to us and we see no ground to form any different opinion.
14. Speaking about the definition of "public officer"
given in clause (h) of section 2 (17), we must say that here it is nobody's case that every officer of the Corporation is in the service or pay of the Government. It is not in dispute that the officers of the Corporation are in the service of the Corporation and receive pay from the Corporation. So, even from this view point the Corporation would be out of the reach of Section 80 CPC.
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15. In Salem Advocate Bar Association Vs. Union of India, Hon'ble Apex Court has extensively dealt with object of Section 80 and its effect on the litigant desirous of suing the Government, its departments and statutory authorities. It has observed that there are may cases in which the notice is not replied and there are a few cases where a reply is sent and even when it is sent, the reply given is generally vague and evasive. Hon'ble Apex Court has found that such apathy and cavaliar approach results in defeating the provisions of Section 80 CPC or any similar provision in applicable law. It has further observed that it not only gives rise to litigation otherwise avoidable but also leads to incurring of heavy expenses and costs by the Government, its departments and statutory authorities. Hon'ble Apex Court has, therefore, held that these provisions cast a duty on the employees of the Government and the statutory authorities, if bound by a similar provisions, to send appropriate reply to the notice.
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16. Petitioner has placed much emphasis upon the afore-stated law. He says that duty thus cast upon the Corporation requires it to send reply which not been discharged by it and so the, Corporation has committed breach of mandate of Hon'ble Apex Court given in the said case of Salem Advocate Bar Association T.N. Vs. Union of India. Learned counsel for the respondent Nos. 1 to 4 and learned Addl. G.P., however, disagree and we find ourselves to be with the disagreement so shown by them to the stand taken by the petitioner. Hon'ble Apex Court has laid down that whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against Government, Central or State or any statutory authority, such Government or authority shall nominate, within a period of three months, an officer for ensuring that reply to any such statutory notice under Section 80 CPC or similar provisions of law is sent within the period stipulated in that particular provision of law. The relevant observations, as they appear in paragraph 39, are reproduced as below.
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16/17 1 CAo 668.19.odt "39. These provisions cast an implied duty on all Government and States and statutory authorities concerned to send appropriate rely to such notices. Having regard to the existing state of affairs, we direct all Government, Central or State or other authorities concerned, whenever any statute requires service of notice as a condition precedent for filing of suit or other officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation".
17. In the MID Act there is no provision made which requires that a prior notice before filing of suit or proceeding be sent to the Corporation. We have also found that Section 80 CPC does not apply to the Corporation. Therefore, in our respectful submissions, the law laid down by Hon'ble Apex Court would not help the case of the petitioner, rather it would stand in good stead for the Corporation.
18. All these aspects of the case, as we see from the impugned order, have already been dealt with though they may not have been adverted to the way the petitioner would have liked them to be. But, the fact remains that all these aspects of the matter have been considered, may be in a brief manner, and now we too have considered them ::: Uploaded on - 26/02/2020 ::: Downloaded on - 07/06/2020 21:18:37 ::: 17/17 1 CAo 668.19.odt quite at length, and so we do not find that there is any substance in this review. There is no good reason for us to interfere with the impugned order. The application stands, dismissed. No costs.
JUDGE JUDGE
Manisha
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