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Judgment
T. C. Raghavan, J.—The appellants'' suit u/s 114 (2) of the Travancore-Cochin Hindu Religious Institutions Act has been dismissed by the lower court for want of notice u/s 124 (1) of the same Act; and the question for consideration is whether that decision is correct. Section 114 reads:
(1) If any dispute arises as to whether an institution falls within the term ''institution as defined in Part II of this Act, such dispute shall be decided by the Board and the decision of the Board shall be published in the Gazette.
(2) Any person affected by a decision of the Board under sub-section (1) may within six months from the date of publication of the decision of the Board in the Gazette, institute a suit in the court to modify or set aside such decision.
(3) Subject to the final decree in the suit provided for in sub-section (2), the decision of the Board shall be final.
Section 124 (1) lays down that no suit shall be instituted against the Board until the expiration of two months after a notice in writing has been delivered or left at the office of the Board stating the cases of action, the relief sought and the name and place of abode of the intending plaintiff; and the plaint shall contain a statement that such notice has been so delivered or left. The other sub-section of the section is not relevant.
The argument of the appellants'' counsel is that the suit u/s 114 (2) is only a continuation of the proceeding under sub-section (1) of the same section; and the finality of the decision of the Board under sub-section (I) is only subject to the result of the suit under sub-section (2). That is what is provided by sub-section (3). On the other hand, the contention of the Board, which found favour with the lower court, is that the notice contemplated by section 124 (1) is akin to the notice u/s 80 of the Code of Civil Procedure; and that the compliance with such notice is absolute and cannot be relaxed in any suit whatever.
The counsel of the Board has invited my attention to two or three decisions of the Madras High Court arising u/s 14 of the Madras Surveys and Boundaries Act of 1923. The relevant provisions of the Act provide for the fixation of boundaries by the survey officer in case of dispute; and section 14 provides for a suit by any party aggrieved by the decision of the survey officer. Section 13 lays down that unless the survey is modified by the decree in the suit u/s 14, the determination by the survey officer shall be conclusive. The first decision is Rangasami Goundan Vs. (Zamindar Kumarakurupara) Ramanatha Malayandi Errappa Gounder, , wherein Venkatasubba Rao J. has held that the statutory suit prescribed by section 14 is a suit within the meaning of section 49 of the Madras Court of Wards Act. Section 49 of the Court of Wards Act provides that no suit relating to the person or property of a ward shall be instituted in any civil court until the expiration of two months after notice in writing has been delivered to or left at the office of the District Collector, etc. The argument is that section 49 of the Court of Wards Act is similar to section 80 of the CPC and also to section 124 (1) of the Travancore-Cochin Hindu Religious Institutions Act. The counsel has drawn my attention to two more decisions under the same provisions; and they are: Srimathu Raja Muthu Vijaya Raghimatha Doraisingham v Muthu K. R. M. Muthayya Chettiar (A. I. R. 1936 Mad. 383) by Varadachariar J.; and Province of Madras v Sri Sri Sri Vikrama Deo Varma Maharajulungaru (A. I. R. 1943 Mad. 284) by Happell J. These decisions hold that in a suit to set aside the order of the survey officer u/s 14 of the Surveys and Boundaries Act against the Court of Wards, the notice u/s 49 of the Court of Wards Act has to be given.
On the other hand, the counsel of the appellants draws my attention to the Division Bench ruling of the Patna High Court in Hiraluxmi Pandit v Income Tax Officer (A. I. R. 1955 Pat. 404). Sinha J., who spoke for the Court, observes in paragraph 8 of the judgment that though the notice u/s 80 of the Code is imperative in a suit against the Union of India or against a public officer in respect of any act purporting to have been done by such officer in his '' official capacity, a different consideration may arise if the suit is merely a continuation of the previous proceeding under the Public Demands Recovery Act (in that case). The learned Judge refers to the Madras decision by Somayya J. in Muhammad Yusuf Sahib v Province of Madras (A. I. R. 1943 Mad. 341), wherein Somayya J. refers to the earlier decision of Happell J. Somayya J., after considering the decision of Happell J. and other earlier decisions, refers to the Division Bench ruling of the same High Court in Rajah of Ramnad v Subramania Chettiar (I. L. R. 52 Mad. 465) and observes that he was bound to follow that decision rather than the decision of Happell J. The decision of Somayya J. indicates that though the learned Judge does not in so many words express his dissent from the decision of Happell J., it does not appear that he approves of that decision. In fact, the earlier Division Bench ruling holds otherwise. The Division Bench ruling of the Patna High Court also takes the same view.
In view of the wording of section 114, I am inclined to take the view that the suit under sub-section (2) of the section is but a continuation of the proceeding under sub-section (1). Under sub-section (1) the Board is given the power to decide the question, if any dispute arises, whether an institution falls within the term "institution". Sub-section (2) then provides that any person affected by such decision of the Board may within six months from the date of publication of the decision in the Gazette institute a suit in the civil court to modify or set aside such decision. Sub-section (3) proceeds to provide that subject to the final decree in the said suit the decision of the Board shall be final. The scheme of this section, in my considered opinion, is that the decision of the Board shall be final only subject to the final decree in the suit under sub-section (2). Such a suit cannot be considered to be a suit against the Board, which will come within the mischief of section 124(1); and it will only be a continuation of the proceeding under sub-section (1) of section 114.
In this connection, it is instructive to note the purpose behind the notice u/s 80 of the Code. As laid down by the Supreme Court in The The State of Madras Vs. C.P. Agencies and Another, , the object of section 80 is manifestly to give the Government or the public officer sufficient notice of the case, which is proposed to be brought against it or him, so that it or he may consider the position and decide for itself or himself whether the claim of the plaintiff should be accepted or resisted. In a suit coming u/s 114(2) of the Travancore-Cochin Hindu Religious Institutions Act, no such question of acceptance or insistence can arise as far as the Board is concerned. The Board having taken the decision under sub-section (1), there is no further question for it to consider and accept the claim of the affected party, who seeks to file the suit under sub-section (2). I may not be understood to lay down that in every case the purpose of the suit has to be considered in deciding the necessity or otherwise of a notice u/s 80 of the Code or of a notice u/s 124 of the Hindu Religious Institutions Act. I am drawing attention to the purpose of the notice only to strengthen my reasoning that if a suit is but a continuation of the previous proceeding, no notice u/s 80 of the Code or section 124 of the Hindu Religious Institutions Act is necessary. It is thus apparent that the dismissal of the suit by the lower court on the preliminary ground is erroneous. The appeal is therefore allowed, the dismissal of the suit is set aside and the suit is restored to file. The lower court is directed to dispose of the suit on merits. The respondent-Board will pay the costs of the appellants in this Court; and the costs of the lower court will be costs in the cause.