Srinagar Development Authority vs Mohd.Amin Jogoo

This revision petition is filed against the impugned order dated 9th August, 1994 passed by City Munsiff, Srinagar in a Civil Suit captioned

Mohd. Amin Jogoo and others versus Srinagar Development Authority. The petitioner is the defendant in the original suit before the lower court.

He has come with this revision stating therein that the court below in the aforementioned suit has framed issues. Issue No. 7 pertains to the

maintainability of the suit for want of issuance of notice under section 48 of Development Act. Issue No. 7 reads as under:

Whether the suit is not maintainable for want of notice under section 48 of the J&K Development Act? OPD.

Issue No. 8 is regarding the cause of action. These two issues were taken as preliminary issues and were argued before the court below which

passed the impugned order by virtue of which the court has held that the provisions of section 48 of the J&K Development Act have no

application in the suit and, therefore, held the suit maintainable in this count. This order has been assailed on the ground that the trial court has erred

in holding that Section 48 of Development Act is not applicable when it is clear from the Act itself that no suit can be instituted against the

Development Authority unless the defendants are given two month's notice.

Heard learned counsel or the parties at length and perused the record. Before entering into the discussion of the learned counsel for parties, it

will be in the fitness of things to quote Section 48 of J&K Development Act, 1970 which reads as under:

Notice to be given of suits;

(1) No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees, or any person acting under

the directions of the Authority or any member or any officer or other employees of the Authority in respect of any act done or purporting to have

been done In pursuance of this Act or any rule or regulation made thereunder until the expiration of two month's after notice, and in any other case,

delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature

of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaint contains a

statement that such notice has been so left or delivered.

(2) No suit such as is described in subsection (!) shall, unless it is a suit for recovery of immovable property or for a declaration of title thereto, be

instituted after the expiry of six months from the date on which the cause of action arises.

The suit has admittedly been filed without notice to the Development Authority as envisaged by the aforesaid Section. Learned Counsel for the

petitioner contends that the suit is not at all maintainable for noncompliance of Section 48. Learned counsel for the respondents, Mr. Murtaza, has

canvassed before me 'that Section 48 is not applicable on the ground that no act has been done by the petitioner defendant which has been

challenged by way of the suit. According to him, Section 48 applies only in the case where the suit is instituted against the authority or any member

thereof or any of its officers or other employees in respect of any act done or purporting to have been done in pursuance of the Act. He contends

that the Development Authority has not acted in pursuance of the Act. No action has been done by the Chairman, nor purporting to have been

done in the matter, so the respondents, who are plaintiffs in the suit, have not challenged or assailed any act of the petitioner which has been done

in pursuance of the Development Act. So, according to him, no notice was necessary. According to him, he has taken a step of preventive

measure by filing the suit for declaration and injunction that he be declared to be the owner of the land in dispute and no demolition be made.

Secondly, he has argued that no prior notice is required to be given to the Development Authority or its members, officers or employees in case

they have done an act not in pursuance of the Act. He wants to convey that in case the officer of the Authority do a thing in a pursuance of the Act

then only a notice is essentially to be given to them, otherwise not.

Learned Counsel for the other side has rightly contended that no suit can be instituted either for any act done or purporting to be done in future.

I have considered the arguments of the learned counsel for the parties. I think that the wording of Section 48 has been either misprinted or has

wrongly been incorporated. This must be against the intention of the Legislature. Words used in Section 48 are that, ""no suit shall be instituted

against the authority or any number thereof or any of its officers or other employees"" in respect of ""any act done or purporting to have been done.

My view is that the words ""purporting to have been done"" has wrongly been incorporated and is against the aims and objects of the Section. So far

as the ""act done"" is concerned, it is in accordance with the rationale but so far as ""purporting to have been done"" is concerned, these words also

pertain to the past acts. Basically the words ""purporting to have been done"" have wrongly been incorporated, it should be ""Purporting to be done

which covers both the acts of the past or acts to be done in future so that the intention of incorporating Section 48 is fulfilled. There are two

grounds for interpreting the words which have been put in Section 48 of the Act wrongly, as ""Purporting to have been done."" The purpose of

Section 48 is fulfilled. There are two grounds for interpreting the words which have been done"". The purpose of Section 48 is totally frustrated if

we take these words correct as in incorporated in Section 48"" in respect of act done or purporting to have been done"". The whole sentences refers

to the acts done by the Authority or its officers in the past and purporting to have been done"" also refers to the acts done in the past. In no case

this can be the intention of the Legislature that two months notice be given before filing a suit against the Development Authority only for the acts

they have done. If such is the position, this will leave open the field to frustrate the purpose of Section 48. Suppose an illegal construction is made

by ""A"". He comes to know that the Development Authority is going to take action for demolition. Before taking such action, he presents a suit for

perpetual injunction. According to the learned counsel for the respondents such suit is maintainable and it is not necessary to give two months

notice in such a case. Such interpretation makes the whole section as useless and leaves open to every body to frustrate the aims and objects of

the section

Section 48 of the Development Act is based on Section 80 of Code of Civil Procedure. Let us see the language used in section 80 CPC.

Wording of Section 80 CPC is that:

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 offer in his

official capacity until the expiration of two months next after notice in writing has been in the case of the Government delivered to, or left at the

office of the Chief Secretary to Government, and in the case of a public officer, delivered to him, or left at his office stating the cause of

action........

The words used in this section also are in respect of the act"" purporting to be done"" by such public officer in his official capacity. This language

used in Section 80 CPC lends support to my observation that the words used in Section 48 should be in respect of any act ""done or purporting to

be done"". Otherwise the whole section becomes meaningless. Secondly, if the intention of the Legislature was to refer to the acts done only in the

past, then the words ""purporting"" should not have been there, but it should have been ""purported to have been done"". On this count also I am

convinced that the interpretation which is given by the counsel for respondents is not tenable.

The learned court below has read the Section 48 of Development Act between the lines and has accepted it as it is. His interpretation is not

correct at all. Opening words of Section 48 are that no suit can be instituted against the authority. The suit is instituted against the Development

Authority no doubt through the Chairman, but it will make no difference. We have to stick to the interpretation which will fulfill the purpose of the

Section. After all the section has been enacted with some purposes behind it. Learned counsel has referred to me AIR 1969 SC page 227 in

which suits against the government and suits against public officers in respect of acts purporting to be done in official capacity have been discussed.

So far as the suits against the Government are concerned it has been held that:

So far as the suits against Governments are concerned, they cannot be validly instituted without giving a notice as required by Section 80 Civil

Procedure Code. But when we come to suits against public Officers, Section 80, Civil Procedure Code applies only to suits in respect of any 'act'

purpoting to be done by a public officer and that in his official capacity. Hence before section 80 can be relied on in any suit against a public

officer, it must be shown that it is a suit in respect of an 'act' purporting to be done by him in his official capacity, In view of the provisions of the

General Clauses Act, the expression ""act' also includes illegal commission purporting to be done by a public officer in his official capacity Section

80 will not have any application...........

This authority, I think, is more favourable to the petitioner rather than the respondents. Here in this case the suit has not been instituted against

the officers of the Development Authority, but the Authority itself through its Chairman. So notice is necessarily to be given to the Development

Authority when the suit is instituted against it or any of its officers, members or other employees under section 48 of the Act. Under the

Development Act, the Development Authority assumes the position of the Government. Present suit can not at all be stated to be against any

Officer or official of the Authority. The contention of the learned counsel for the respondents that the suit is against an officer of the Authority and

such suit is maintainable only when such officer has acted under the Development Act in official capacity is not tenable because the present suit is

not against the officer, but it is against the Development Authority itself. Section 48 has to be construed in the same tone and tenor as Section 80

CPC, where a suit is maintainable against the Government only when two month's notice is there, but it is maintainable against an officer of the

Government when the act is done in his official capacity.

For the foregoing reasons, the impugned order, in which it has been held by the lower court that Section 48 of the Act has no application, is not

tenable in law. So the order is setaside and the revision petition is accepted.