Srinagar Development Authority through its chairman vs Mohd.Amin Jogoo, S/o Abdul Majid Jogoo.: Gh.Mohd.Mir, S/o Abdul Aziz Mir :Mohd.Yousuf Sheikh, S/o Ghulam Mohd.and others

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

Mohd. Amin Tangoo and other V/s SrinagarDevelopment Authority. The petitioner is the defendant in the orignal suit before the lower court He

has come up 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 u/s 48 of the Development Act. Issue No. 7 reads as under :

Whether the suit is not maintainable for want of notice u/s 8 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 provision of section 48 of the J&K Development Act have no application

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

section the Development Act is not applicable when it is not clear from the Act itself that that no suit can be instituted against the Development

Authority unless the defendants are giver, two months notice.

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

be in the fitness of the 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 other 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 this Act or any rule or regulation made

thereunder until the expiration of two months after notice, and in other cases, 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 as such is described in subsection (1) 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 non complaince of Section 48. Learned Counsel for the respondents, Mr. Murtaza, has

convassed before me that Section 48 is not applicable on the grounds that no act has been done by the petitionerdefendant 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 employee's 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 plaintiff 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 injuction 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 of 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 officers of the Authority to do a thing in pursuance of the Act than 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 misprinted or has wrongly been

incorporated. This must be against the intention of the Legislature. Words used in Sec. 48 are that, "" No suit shall be instituted against the Authority

or any member therof or any of its officers or other employees "" in respect of"" any act done, pr purporting to have been done."" My view is that the

words ""purporting to have been done"" has wrongly been incorporated and is against the amis 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 pertains 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 totally

frustrated if we take these words correct as is incorporated in section 48 "" in respect of the act done or purporting to have been done"". The whole

sentence refers to the acts done by the Authority or its officers in the past and ""purporting to have been done"" also reffers to the act 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 the section 48. Suppose an illegal

constructure is made by ""A"". He comes to know that the Development Authority is going take action for the demolition. Before taking such action,

he presents a suit for perpetual injuction. According to the learned counsel for the respondent 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 and used in the section 80 CPC.

Wordings of the Section 80CPC is that

No suit shall be instituted against the Government or against a public officer in respect of any 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, in the case of 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 the 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 act done only in the

past, then the word ""purporting"" should have not 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 the respondents is not tenable.

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

correct at all. Opening words of the section 48 are that no suits can be instituted against the Development Authority no doubt about 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

anacted with some purpose behind it. Learned counsel has referred to me AIR 1969 SC page 227 in which 'suit against the Government and suits

against public officers in respect of act 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 of against the Govt. are concerned, they cannot be validy 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 suit in respect of any 'act'

purporting 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' supporting to be done by him in his official capacity. In view of the provision of the

General Clause Act, the expression 'act' also includes legal omissions. Therefore, if the suit' does not rely to any 'act' or any omission 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 Authority itself through the 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 its employees under section 48 of the Act. Under the development Act, the Development Authority

assumes the position of the Govt. 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 when such officer has acted under

the Development Act in official capacity is not tenable because the present suit is not against the Development Authority itself. Section 48 has to be

constructed in the same tone and tenor as section 80 of CPC, where a suit is maintainable against the Government only when two months notice is

there, but it is maintainable against an officer of the Government when this act is in his official capacity.

For the forgoing 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 set aside and the revision petition is accepted.

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