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Bhairabendra Narayan Bhup Vs. State of Assam - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberFirst Appeal No. 19 of 1951
Judge
ActsSpecific Relief Act, 1877 - Sections 42; Code of Civil Procedure (CPC) , 1908 - Sections 80; Government of India Act, 1935 - Sections 299
AppellantBhairabendra Narayan Bhup
RespondentState of Assam
Appellant AdvocateP.N. Mitter, B.C. Barua and S.N. Choudhuri, Advs.
Respondent AdvocateD.N. Medhi, Adv.
DispositionAppeal dismissed
Excerpt:
- - according to the contention of the defendant, the offending act which should be better described as a bill, had not come into operation on any of these dates. and in particular, take into account the desirability of introducing any amendments recommended in his message; it is perfectly true that to entitle a plaintiff to maintain a suit for declaration under section 42, specific relief act, 1877, he must prove that he has a present existing interest and no cause of action accrues to him until there is some infringement or threatened infringement of his right; i may as well quote the passage here: the policy of the legislature is not only to secure to a wronged party possession of the property taken away from him, but also to see that he is allowed to enjoy that property peacefully...... sarjoo prosad, c.j. 1. the questions involved in this appeal are: (1) whether there was a cause of action for the suit; and (2) whether the notice under section 80, civil p. c. was adequate and valid. the point whether such a notice was actually served upon the defendant does not at present arise. these questions were taken up at a preliminary stage and answered against the plaintiff by the learned district judge, lower assam districts, who dismissed the suit; and hence the present appeal. 2. in the action, the plaintiff sued for declaration that a certain bill, which subsequently became an act, was ultra vires the provincial legislature, and that it offended against the provisionsof section 299, government of india act, 1935, and alsothat in any event the bill in question did not.....
Judgment:

Sarjoo Prosad, C.J.

1. The questions involved in this appeal are: (1) whether there was a cause of action for the suit; and (2) whether the notice under Section 80, Civil P. C. was adequate and valid. The point whether such a notice was actually served upon the defendant does not at present arise. These questions were taken up at a preliminary stage and answered against the plaintiff by the learned District Judge, Lower Assam Districts, who dismissed the suit; and hence the present appeal.

2. In the action, the plaintiff sued for declaration that a certain Bill, which subsequently be

came an Act, was ultra vires the Provincial Legislature, and that it offended against the provisions

of Section 299, Government of India Act, 1935, and also

that in any event the bill in question did not apply

to the Estate of the plaintiff which was held under

a special contract with the Government of India.

The Province of Assam was a party defendant to

the suit actually came to be instituted on 28-11-

1949. The cause of action, according to the plaint,

is said to have arisen on 31-3-1949, when the Bill

was passed by the Assam Legislature and also on

9-11-1949, when the Act was published in the Assam

Gazette.

3. I may have to refer to the relevant details given in the plaint in regard to the claim of the plaintiff at some other stage of this judgment. Substantially he alleged that the Bijni Raj, of which he was the owner, was held by him and his predecessors in sovereign right which was never annexed to the Government of India, and the possession of the successive owners under their original title was never disturbed or extinguished. On the other hand, it was stated that the Crown or the Government of the day acknowledged the original title of the Rajas under which alone they held possession of the Raj and there was a sort of treaty or agreement between the Government, the paramount power, as it were, and the tributary State of Bijni. The plaintiff referred to certain facts which, according to him constituted a historical background for the treaty or the agreement in question. In that view, his claim was that his right to possession of the State by virtue of the implied agreement with the paramount power could not be affected by any Act of the Provincial Legislature of Assam; and any such legislation affecting the plaintiff's right to possession of the Bijni State would be outside the competence of the Provincial Legislature. I have, in short, referred to these allegations merely for the purpose of appreciating the nature of the plaintiff's claim. The plaint then proceeds to state that in March, 1949, the Provincial Legislature of Assam had passed two Bills,--one, The Assam Management of Estates Bill, and another, The Assam State Acquisition of Zemindaries Bill,--under which the

Government of Assam had sought to be armed with powers which may seriously encroach upon the plaintiff's right in respect of his Estates, and the plaintiff had reasonable grounds to apprehend that, on the assent of the Governor General to the Bill in question, which was likely to be given in due course, the Government of Assam would take action so as to deprive the plaintiff of the possession of his estates.

4. It appears that the Assam Management of Estates Bill, after being passed by the Assam Legislature, was reserved by the Governor of the Province for the assent of the Governor General, which assent was given to the Bill on 25-10-1949, and the Assam Management of Estates Act (Act 17 of 1949) was published as such in the Assam Gazette on 9-11-1949. Under the provisions of the Act, Sub-section (3) of Section 1, it was to come into force on such date as the Provincial Government might by notification appoint in this behalf, and such a notification was issued by the Government on 12-11-1949. The Act had thus come into operation before the suit came to be filed on the 28th of that month.

5. It is, however, pertinent to observe that according to the recital in the plaint, a notice under Section 80, Civil P. C., had been served on the Government of Assam on 19-6-1949; in other words long before the bill had received the assent of the Governor General or had come into force by virtue of the notification of the Provincial Government, as already stated.

6. The defendant raised certain preliminary objections to the maintainability of the suit on the ground that notice under Section 80, Civil P. C., was not proper, sufficient and valid and that the plaintiff had no cause of action for the suit either on 31-3-1949 or on 9-11-1949, as alleged by him in the plaint. According to the contention of the defendant, the offending Act which should be better described as a bill, had not come into operation on any of these dates.

7. These preliminary points were heard by the learned District Judge and decided against the plaintiff by his judgment under appeal. The learned District Judge held that at the time of the notice under Section 80, Civil P. C., which was served on the State of Assam on 19-6-1949, no cause of action had arisen to the plaintiff, as the bill had not even become an Act at that stage by receiving the assent of the Governor General, nor had it come into force by any notification of the Provincial Government. Under the circumstances, it was impossible for the State to take any action under Sub-section (1) of Section 3 of the Act, so as to affect the estate of the plaintiff, if at all. It was, therefore, impossible for the plaintiff to challenge the Bill in question, which had not acquired the force of an Act, in a Court of law; and a notice served under Section 80, C. P. C. at a time when no cause of action had arisen, was premature and invalid and did not satisfy the requirements of Law. The learned District Judge also held that Section 42, Specific Relief Act did not apply to a case where the validity of an Act or a Statute was in question. On these grounds he found that the preliminary objections were bound to succeed and dismissed the suit as not maintainable. The decision of the learned Judge has been challenged in appeal on all the grounds.

8. There appears to be no doubt that on the date when the Section 80, C. P. C. notice was alleged to have been served on the State of Assam, the Act impugned had not come into being. It is true that in March 1949, the Assam Management of Estates Bill had been passed by the Provincial Legislature of Assam, but under Section 60 of the then

Government of India Act of -1935, the Provincial Legislature consisted of His Majesty represented by the Governor and of a Chamber of the Legislature where there was only one Chamber. Section 75 of the Act required that a bill which had been passed by the Provincial Legislative Assembly should be presented to the Governor and the Governor of the Province should declare either that he withheld assent therefrom or that he reserved the bill for the consideration of the Governor General. Under the law, it was also open to the Governor to return the bill with a message requesting the Chamber or Chambers to reconsider any bill or any specified provision thereof; and in particular, take into account the desirability of introducing any amendments recommended in his message; and when a bill was so returned, the Chamber or Chambers had to reconsider it accordingly. The assent of the Governor, therefore, was not a mere formal matter to be given in due course, but it was in the nature of a legislative function to be exercised by the Governor after a thorough consideration of the provisions of the proposed legislation. In the present case, it is not disputed that the Governor did not directly give his assent to the Bill but reserved it for the consideration of the Governor General. Section 76 of the Act similarly vested the Governor General with powers either to give his consent or to withhold such consent or to refer the bill back to the Provincial Legislature concerned with a recommendation for amendments. Until, therefore, the assent had been given, the legislation could not be deemed to have passed out of the legislative anvil, because all that had happened was that one branch of the Legislature had passed it. It was still awaiting consideration by another branch; and an important branch at that.

9. The question then is: whether the plaintiff could have any cause of action at that time to serve a notice under Section 80, Civil P. C. on the defendant. The learned counsel for the appellant has drawn our attention to the draft copy of the plaint annexed to the notice under Section 80, Civil P. C. The recitals in that draft are substantially identical to the recitals made in the plaint itself, except that it talks of the Bill, and not of any fullfledged Act or legislation. He contends that this gave adequate notice to the defendant of the nature of the plaintiff's claim. The plaintiff definitely said in that draft that the bill had been already passed by the Provincial Legislature, and that it contained provisions which vouchsafed far-reaching powers to the Government of Assam seriously encroaching upon the rights of the plaintiff in his estates; and that the plaintiff had reasonable grounds to apprehend that the assent of the Governor would be given in due course, whereafter the Government of Assam was likely to take action so as to deprive the plaintiff of the possession of his estates. The learned counsel contends that such a suit was justified under Section 42, Specific Relief Act and the reliefs mentioned in the draft plaint could be obtained in such a suit., According to his submission, it is not necessary that there should be an actual invasion of the plaintiff's right in order to entitle him to the declaration prayed for, and it was not necessary for the plaintiff to wait until the bill had been passed into law, or until after its coming into force the Government had actually taken action under Section 3 of the Act by notifying their intention to take possession of the plaintiff's estate.

10. The relevant portion of Section 42, Specific Relief Act runs thus:

'Any person entitled to any legal character or to any right as to any property may institute

a suit against any person denying or interested to deny his title to such character or right, and the Court, may, in its discretion, make therein a declaration that he is so entitled....'

It is argued for the plaintiff that he was a person entitled to the property right of possession and enjoyment of his estates, and that the defendant was a person interested in denying his right to such possession; because it had already entered the estate in its revenue registers and by introducing the Bill in question was seeking further to take away his right to possess the estates. The introduction of the Bill itself and its passage through the Provincial Legislature constituted a valid threat to his rights and cast a cloud upon his title, which he sought to remove by seeking the declarations stated in his draft plaint, which formed a part of the notice under Section 80, Civil P. C. The learned counsel, in this context, has relied upon the memorable dictum of Mookerjee J. in--'Harendralal v. Salimullah', 12 Cal L J 336 (A). That was a case where a revenue sale had been brought about by deliberate default on the part of the proprietors; and the defendant made the purchase at the auction sale in concert with the proprietors with a view to annul the encumbrances of the tenure-holders, the plaintiff being one of them. It was held on the above facts that before the commencement of the action, there was such hostility on the part of the defendant to the title of the plaintiff as to justify the institution of a suit for declaration that the auction-purchaser had not acquired the rights and privileges of a purchaser at a sale for arrears of revenue. In that view, his Lordship observed as follows:

'It is perfectly true that to entitle a plaintiff to maintain a suit for declaration under Section 42, Specific Relief Act, 1877, he must prove that he has a present existing interest and no cause of action accrues to him until there is some infringement or threatened infringement of his right; in other words, the cloud must be cast before he can ask for its removal; he must allege and prove hostility on the part of the defendant, for, no Court will move on purely speculative grounds.'

The learned Judge repeated these observations in another decision of his in -- 'Mohesh Chandra v. Sm. Nistarini Dassya', AIR 1923 Cal 382 (B) where the facts were almost parallel to the facts in the earlier case. The plaintiff in that case had challenged an ex parte decree for rent and the sale held thereunder of the holding in possession of the plaintiff on the ground that the decree and the sale were fraudulent. It was held that the suit was maintainable under Section 42 Specific Relief Act and that a prayer for an injunction to protect the plaintiff's possession was unnecessary. The plaintiff was not bound to wait till he was dispossessed by the auction-purchaser, but that he could institute a suit as soon as his title was denied. In the said decision, the learned Judge quoted, with approval, the observations of Seshagiri Ayyar J. in 'Naganna v. Sivanappa', AIR 1915 Mad 348 (C), with regard to the scope and object of Section 42, Specific Relief Act. I may as well quote the passage here:

'The object of the section is really to perpetuate and strengthen the testimony regarding the title of the plaintiff, so that adverse attacks upon it may not weaken it. The policy of the Legislature is not only to secure to a wronged party possession of the property taken away from him, but also to see that he is allowed to enjoy that property peacefully. In other words, if a cloud is cast upon his title or legal character, he is entitled to seek the aid of the Court to dispel

that cloud. What we have to consider in this case is whether the decree obtained by defendant 1 against defendant 2 denies the plaintiff's title to the property. It has been said that it is not the function of the Court to enunciate abstract truisms of law. Following that reasoning, it may be argued that as the fraudulent decree can in no way affect plaintiff's rights, the Court should not lend itself to the task of declaring what is obviously indisputable. But although the decree may not affect plaintiff's rights in praesenti, it is evidence which, if allowed to stand may result at some future time in disturbing plaintiff's title. I think that is a sufficient grievance which the Court should remedy under Section 42, Specific Relief Act.'

It is impossible to contest the propositions above stated in regard to the scope and object of Section 42, Specific Relief Act. But it is to be seen whether in the present case there is any such cloud cast upon the plaintiff's title. It must be remembered that the declaration claimed under Section 42 lies entirely within the judicial discretion of the Court and is to be exercised with caution according to the exigencies of a particular case. A party cannot, as of right claim such a declaration, because such a relief is more in the nature of an equitable relief than a legal remedy. It has been repeatedly held that a Court should be circumspect as to the declarations it makes, and futile declarations should be always avoided. Let me then examine the reliefs which the plaintiff actually claimed in the draft plaint sent along with the notice under Section 80, Civil P. C. The reliefs are as follows:

(a) That the estates are held by the plaintiff by a special tenure under an agreement with the Government of India by virtue of his tributary status and are not included within estates to which the Bill as passed can apply on a proper construction of the Bill;

(b) that if the Bill is construed to be applicable to and cover the plaintiff's estates, the passing of the Bill is ultra vires of the Provincial Legislature so far as it affects the plaintiff's estates;

(c) that the Bill further offends against the provisions of Section 299, Government of India Act, 1935, in so far as it purports to acquire rights in the estates without any compensation.

11. The plaint at first recites the previous history of the Bijni Raj. It says that the Raj was the remnant of an independent territory which was held by the predecessors of the plaintiff in sovereign right; that during the Moghul rule, the territory was held by the Rajas as tributaries of the Moghul Emperors subject to the payment of a tribute in a specified number of elephants; that the status of the Raj continued to be the same even after the grant of the Dewani, and the British Government acquiesced in that position; that there was no decennial settlement of the Bijni Raj in accordance with Regulation 8 of 1793, nevertheless the revenue officers entered the Raj in the General Register of permanently Settled Estates and entered the tribute payable as land revenue. The plaintiff then asserts that his right to the possession of his estates by virtue of the implied agreement with the Paramount Power, in respect of her external relations, could not be affected by any Act of the Provincial Legislature of Assam; and then the cause of action stated is that

'In March 1949, the Provincial Legislature of Assam has passed two bills, viz., the Assam Management of Estates Bill and the Assam State Acquisition of Zamindaris Bill, by which the Government of Assam has been sought to be given powers seriously encroaching on the

rights of the plaintiff in respect of his estates and the plaintiff has reasonable grounds to apprehend that assent of the Governor will be given in due course and thereafter the Government of Assam will take action under either or both of these Acts which are likely to deprive the plaintiff of possession of the estates.'

It is, therefore, obvious that the cause of action alleged in the plaint was the passing of the two Bills by the Provincial Legislature in March 1949, which, the plaintiff apprehended, would receive the assent of the Governor in the ordinary course and then lead to certain actions on the part of the Assam Government depriving him of his possession over the estates; and the declarations which he sought were in regard to the interpretation of the provisions of the Assam Management of Estates Bill as passed by the Assam Legislature. Could these declarations be granted to the plaintiff? Whether there was any real cause of action or the suit was premature?

12. It is difficult to see how any Court could interfere with any authority concerned with the making of laws during the formative stages of an enactment. It is not possible for the Court to look into an intended piece of legislation which is likely to be changed and altered and grant declaratory reliefs to a party on the speculative assumption that no alteration in the draft legislation will be effected. Such declarations would be fruitless. Before an enactment is placed on the Statute Book, there is nothing before the Court on which it can proceed to pronounce its judgment and declare that a certain provision or the whole of the enactment is against the provisions of the Government of India Act, 1935, or the Constitution of India. Even in actions which are in the nature of a Bill 'quia timet' where the plaintiff's right of action arises as soon as the threat to his rights becomes imminent, the Court cannot pronounce upon a mere document which has not had the imprint of a legislation. The principle is well established on the authority of both English and Indian decisions. I may, for instance, refer to a decision of the Bombay High Court in--'Mulji Haridas v. Ibrahim Rahimtulla', AIR 1932 Bom 166 (D). There, a temporary injunction was sought against the President of the Legislative Assembly restraining him from proceeding with a certain Bill introduced in the Assembly on the ground that certain clauses thereof were ultra vires or void and inoperative. It was held that such relief could not be granted, for, the Bill had no legal effect and if the declaration referred to a future Act which might come to be passed, it was really dealing with a future and hypothetical question which might never arise. If the Bill is ultimately passed and becomes an Act of the Legislature, then it would be possible for the Court to deal with it, but, to make a declaration that the Bill in the form In which it was introduced was 'ultra vires' was perfectly futile. Similar observations were made in a decision of the Allahabad High Court reported in--'Chotey Lal v. State of Uttar Pradesh', AIR 1951 All 228 (E). In that case of course the question arose on an application presented to the High Court under Article 226 of the Constitution asking for a writ of mandamus or a writ of prohibition against the State of Uttar Pradesh prohibiting them from making a law in the name of 'Zamindary Abolition and Land Reforms Bill' with a further prayer to direct the opposite party not to make any substituted law which might take away or affect the rights of the appellant or applicant in relation to his zamindary property. These are undoubtedly cases which related to a stage when all that was before the Court was merely in the nature of a Bill. These

cases are, however, relevant to show that at the date of the notice under Section 80, Civil P. C., the cause of action merely related to a Bill which had not become law and, as such, according to the contention of the learned Advocate-General, there was no law in existence and consequently no cause of action available to the plaintiff.

13. On behalf of the petitioner, great reliance has been placed upon a decision of the Patna High Court in--'Province of Bihar v. Kamakshya Narain Singh', AIR 1950 Pat 366 (F). The case arose on appeal against an order of temporary injunction passed by the trial Court in a title suit pending before it. The trial Court had by its order, restrained the defendant, the Province of Bihar, from taking over the management of the estate of the plaintiff until the disposal of the suit. The plaintiff was the proprietor of considerable property in the district of Hazaribagh known as the Ramgarh Estate. He filed a suit for declaration that certain Statutes passed by the Provincial Legislature for the abolition of zamindaris were ultra vires. In particular, he complained against three pieces of legislation:--(1) The Bihar Private Forests Act, 1948 (Bihar Act 9 of 1948) under which Government had taken possession of the private forests of the plaintiff; (2) the Abolition of the Zamindaris Act, 1948 (Bihar Act 18 of 1948) which had not yet been enforced; and (3) the Bihar State Management of Estates and Tenures Act, 1949 (Bihar Act 21 of 1949) which came into force on 16-11-49. On behalf of the State, the Advocate-General there confined his arguments to one point only, namely, that the suit was bad for want of compliance with Section 80, Civil P. C., which was imperative, as repeatedly held by the Privy Council as well as by the Courts of India. The Advocate-General attacked the sufficiency of notice on three grounds:--Firstly, that the main relief sought in the suit and the only relief relevant to the temporary injunction related to the State Management Act which was not mentioned at all in the notice under Section 80, Civil P. C.; secondly, that no cause of action relevant to the State Management Act arose until after it became law in September 1949, and, therefore, the notice given on 19-6-1948 was premature so far as that Act was concerned and, thirdly, that the cause of action stated in the plaint was not supported by the notice in two particulars, namely, the giving of assent to the Zamindari Abolition Act and the issue of notification under Section 3, State Management Act. Reuben J. who delivered the leading judgment in the case, observed that the point raised by the learned Advocate-General was one that would properly form an issue for decision in the trial of the suit and that at that stage he was not concerned to decide what was the correct answer to be given to the question at the hearing of the suit, but merely whether there was a fair point for trial. He held that there was a fair case to be tried having regard to the recitals in the plaint which did disclose a cause of action, and a continuing cause of action, as, according to the allegations, the endeavour on the part of Government was to deprive the plaintiff of his rights 'step by step by different pieces of planned legislation'. In the first place, there was no final adjudication of the issue. Even If there was, it is to be noticed that one of the legislations complained of, i.e., the Bihar Private Forests Act, had already come into operation and notification thereunder had been issued, taking possession of plaintiff's forests long before the service of notice by the plaintiff under Section 80, Civil P. C. It is, therefore, obvious that on the facts of that case, there was a subsisting cause of action, as the allegations in the plaint showed; and the mere fact that there was

some addition to the cause of action in the future, did not render the notice under Section 80, C. P. C., illegal or inadequate. The learned Judges simply field that there were fair questions to be properly determined at the hearing of the suit and none

of the two Judges, therefore, interfered with the order of injunction passed by the learned Subordinate Judge. The case, therefore, is no authority for the contention that even though at the date of notice under Section 80, C. P. C., there is no subsisting cause of action, yet a declaration of the nature contemplated by Section 42, Specific Relief Act

would be available to the plaintiff provided subsequent events proved that a cause of action had

accrued to him. In fact, Reuben J. in distinguishing the ease of--'AIR 1932 Bom 166 (D)', observed thus: 'What was impugned there was not an Act of the Legislature, but merely a Bill proposed to be introduced in the Legislature, and an injunction was sought to prevent its introduction. Beaumont C. J., as he then was, pointed out that the Bill might not be passed in that form, and observed that it would be perfectly futile for the Court to declare that in the form in which it was proposed to be introduced, it was ultra vires.' Thus the learned Judge also agreed with the principle of the decision in the Bombay case that a declaration in regard to a mere Bill was not available to the plaintiff.

14. It is then submitted for the appellant that the notice under Section 80, C. P. C., ought not to be strictly construed. The learned counsel concedes that such a notice is essential, but he urges that the whole object of the notice is to give Government or the Public officer concerned information of the claim which was going to be made against him and to give him reasonable time to

consider his reactions. He points out that the terms of the draft plaint annexed to the notice and the plaint filed in the suit are entirely identical, except for the difference that in the one case, only the Bill has been referred to, and in the other, both the Bill and the Act have been mentioned. The point, however, is that at the stage when the notice was given, the Government of Assam could do nothing with the Bill. It was pending consideration with the Governor General functioning in his legislative capacity, and it was not possible for the Provincial Government to interfere with the exercise of that function. Section CO has no doubt to be construed with common sense and with due consideration of the object which it is intended to serve. But where the cause of action does not subsist at all when such a notice is given, a reference in the notice to a future cause of action is no compliance with the law. In the case of--'Chandulal Vadilal v. Government of the Province of Bombay', AIR 1943 Bom 138 (G), on which strong reliance has been placed by the counsel for the appellant, Beaumont C. J., emphasised the view that

'That cause of action which is to be stated in the notice, is the bundle of facts which go to make up the right in respect of which the plaintiff proposes to sue, and it is obvious that before the suit can be brought, it may be that that bundle of facts will be added to or subtracted from, and I do not myself think that the notice is invalidated, because it refers to a

possible additional claim, consequential upon the

cause of action specified therein, and states that if such additional claim arises, the plaintiff will sue also in respect of it.'

In the case in question, on an analysis of the facts, it is more than apparent that there was definitely a subsisting cause of action when the

notice under Section 80, C. P. C., had been given. What happened was that in 1933, the Collector fixed assessment on the plaintiff's land at the standard rate of Rs. 200/- per acre commencing from the year 1925-26 and in December 1933, the Collector issued notices to the plaintiffs demanding payment in accordance with the assessment. The plaintiffs alleged that the assessment was illegal and, consequently the notices to pay were also illegal, and they proposed to file a suit against the Secretary of State for a declaration to that effect. On 22-1-1934, the plaintiffs served a notice under Section 80, C. P. C., setting out in detail their case as aforesaid, in that plaint they further stated that the plaintiffs would be entitled to the refund of any amount that they might be compelled to pay in pursuance of the illegal assessment and the demand made thereunder. Before they actually filed the suit, it appears that a certain sum of money had been realised from them and in the plaint, therefore, they made a further prayer that this money should be refunded to them. The Subordinate Judge held the notice under Section 80, C. P. C., to be bad on the ground that in so far as the refund of the amount was claimed, it was a cause of action which had not arisen at the date of the notice. But the learned Judges, on appeal, rightly--if I may say so with respect--disagreed with this view and held that the notice complied strictly with the requirements of Section 80, C. P. C. The said notice stated that there had been illegal assessment and a demand made in respect of that assessment, and notice of both these facts had been given to the Collector. The payment made was merely consequential to the demand which the plaintiff voluntarily made under protest. In fact, the learned Chief Justice agreed in thinking that 'to state a future cause of action would not be a compliance with the section, but as at present advised, I am not prepared to say that where a cause of action exists, of which notice is given, the notice is rendered bad, because it refers to a possible further claim which may arise before a suit can be brought.' The principle above enunciated points to the conclusion that at the stage of the notice under Section 80, C. P. C., there must be a subsisting cause of action. If there is no such cause of action, the notice under Section 80, C. P. C., cannot be held to be legal and valid.

15. The learned counsel has rightly urged that before the suit came to be instituted, the Bill had become law and, therefore, his apprehensions were clearly justified. That may be so. It is true that the Act had received the assent of the Governor General and had come into operation. Speaking for myself, I am doubtful whether even that factor would give any cause of action to the plaintiff and entitle him to claim the declaration that the Act was ultra vires and repugnant either to the Constitution or the Government of India Act. The majority of the Judges of the Supreme Court pointed out in--'Charanjit Lal v. Union of India', AIR 1951 SC 41 (H) that 'No one except those' whose rights are directly affected by & law. can raise the question of the constitutionality of that law.' But even if the plaintiff could challenge the validity of the legislation. I do not see any ample justification for him to rush to Court even' at that stage and invoke the aid of the Court for the declarations which he seeks under Section 42, Specific Relief Act. The Act did not apply automatically. Even it' it had come into operation, it did not directly affect him until Government decided to pursue him under the law. Section 3(1) of the Act required that if the Government intended to assume the management of any estate or tenure of a proprietor, the Provincial Government would issue

notification in the official Gazette directing that the estate or tenure or any portion thereof specified in the notification be managed by the Court of Wards. Until such notification had been issued, there was no direct attack or even cloud cast upon the title of the plaintiff. It can be even reasonably assumed that the notification, by itself, would not have immediately deprived the plaintiff of his possession over the estates which he held. It would then have been open to him to sue for the declarations which he wanted after serving a proper notice under Section 80, C. P. C. upon Government; and, if necessary, during the pendency of the suit, to claim a temporary injunction against the defendant restraining them from taking possession of the properties. The plaintiff, therefore, cannot claim any indulgence from the Court, specially in the grant of declaratory reliefs, when he had not even a cause of action at the time when he served the notice under Section 80, C. P. C., on the Government, nor even an adequate cause of action at the time when he instituted the suit. I am informed that a notice under Section 3 of the Act was actually served upon the plaintiff long after the institution of the suit. No law or authority has been cited to support the contention that even though there was no cause of action at the date of the notice under Section 80, C. P. C., the fact that some cause of action arose before the institution of the suit could validate the action.

16. For the above reasons, it appears to me that the plaintiff's suit was misconceived and premature, and it is difficult to sustain it in view of the fact that notice under Section 80, C. P. C., was illegal and bad. It is unfortunate that the result may be to compel the plaintiff to institute a fresh suit after giving a valid notice to Government; but it is unavoidable.

17. The learned Advocate-General has further urged that the impugned Act had been duly certified by the President under Article 31(6) of the Constitution of India and that this Court has already held that the legislation is a valid legislation and was within the competence of the Provincial Legislature to enact. There is, however, an appeal pending against the decision of this Court before the Supreme Court of India. The learned Advocate-General further urges that the question whether the plaintiff's rights are governed by treaties or agreements with the Government of India is not a question of which the Courts could take any cognizance under Article 363 of the Constitution. There may be substance in these contentions but we are not at present concerned to decide them.

18. The suit fails on the preliminary grounds discussed above. In my opinion, the decision of the learned District Judge is correct and should be affirmed, and the appeal should be dismissed with costs.

Ram Labhaya, J.

19. I agree.


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