Skip to content


Chandrakant Govind Deshmukh Vs. the State of Maharashtra Through Collector, Amravati and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 13 of 1962
Judge
Reported inAIR1970Bom301
ActsCode of Civil Procedure (CPC), 1908 - Sections 80; Madhya Pradesh Public Trusts Act, 1951 - Sections 3(2), 4, 4(1), 4(3), 5, 7, 7(1), 7(2), 8, 8(2), 9, 10, 11, 12, 13, 14, 15, 21, 22, 27 and 28 to 38; Bhagidari and Narvadari Act - Sections 3; Code of Civil Procedure (CPC), 1882 - Sections 424; Bengal Tenancy Act - Sections 95
AppellantChandrakant Govind Deshmukh
RespondentThe State of Maharashtra Through Collector, Amravati and anr.
Appellant AdvocateC.S. Pultamkar, Adv.
Respondent AdvocateS.M. Hajarnavis, Addl. Govt. Pleader
Excerpt:
the case questioned whether the notice should be issued when a suit was filed against the government or the public officer under section 8 of the m. p. public trusts act, to set aside the finding of the registrar - section 80 of the civil procedure code, 1908, applied only when the relief would be asked against the government of the public officer - it was adjudged that though the relief was not asked there for the issuance of the notice would not be necessary - - 1. the question that falls for consideration is whether absence of notice under section 80 of the civil procedure code to the state government as well as to the registrar of public trusts is fatal to the suit instituted under section 8 of the madhya pradesh public trusts act, 1951(act xxx of 1951) (hereinafter called the.....tambe, c.j.1. the question that falls for consideration is whether absence of notice under section 80 of the civil procedure code to the state government as well as to the registrar of public trusts is fatal to the suit instituted under section 8 of the madhya pradesh public trusts act, 1951(act xxx of 1951) (hereinafter called the act)? the question arises thus. 2. there is one deosthan at mangrul-dastagir in amravati district, which is known as gajanan maharaj sansthan. the appellant chandrakant filed an application before the registrar of public trusts, purporting to be one under section 4 of the act, wherein he claimed that the aforesaid sansthan was not a public trust, but was a private trust belonging to his family and o which he was the trustee. he therefore prayed that the trust.....
Judgment:

Tambe, C.J.

1. The question that falls for consideration is whether absence of notice under Section 80 of the Civil Procedure Code to the State Government as well as to the Registrar of Public Trusts is fatal to the suit instituted under Section 8 of the Madhya Pradesh Public Trusts Act, 1951(Act XXX of 1951) (hereinafter called the Act)? The question arises thus.

2. There is one Deosthan at Mangrul-Dastagir in Amravati district, which is known as Gajanan Maharaj Sansthan. The appellant Chandrakant filed an application before the Registrar of Public Trusts, purporting to be one under Section 4 of the Act, wherein he claimed that the aforesaid Sansthan was not a public trust, but was a private trust belonging to his family and o which he was the trustee. He therefore prayed that the trust be not registered as a public trust under the provisions of the Act.

3. The Registrar by his order dated 1-3-1955 held that the trust was a public trust and it appears that an entry to that effect, in consequence of the aforesaid finding of the Registrar, was made in the register under Section 7 of the Act and was publish ed on the notice board on 8th October, 1955. On 3rd December, 1955 appellant Chandrakant instituted a civil suit (C. Si No. 4-A of 1955) in the Court of the Additional District Judge, Amravati, under Section 8 of the Act to have the aforesaid finding of the Registrar set aside. To this suit, appellant Chandrakant had joined the State of Madhya Pradesh and the Registrar of Public Trusts as defendants 1 and 2 respectively. On behalf of the defendants i. e. the State Government and Registrar, it was, inter alia, contended that the suit was not maintainable inasmuch as notice, as required by Section 80 of the Civil Procedure Code, was not given. In the alternative it had also been pleaded that the suit was barred by time. The learned trial judge framed two preliminary issues on the aforesaid two contentions raised by the defendants. He held that the suit was not maintainable as no notice under Section 80 had been given. He also held that the suit was barred by time, Against this decision of the trial Court an appeal was preferred to this Court (First Appeal No. 79 of 1957) and the learned Single Judge held that the suit was not barred by time. He however held that the suit was bad as no notice was given under Section 80 of the Civil Procedure Code. Against this decision of the Single Judge, appellant Chandrakant preferred an appeal under the Letters Patent and the Division Bench having regard to the two decisions of a Single Judge of this Court and certain observations in the decision of a Division Bench, which support the respondents, bag referred this case to a larger Bench. It appears from the Order of the Division Bench that it is of the view that in the circumstances of the case notice under Section 80 is not necessary. In the referring order, however, the question arising for our consideration has not been framed. We have, therefore, framed the aforesaid question which falls for our consideration. It may be stated that counsel of the parties agree that this is the question which we have to consider.

4. Mr. Pultamkar, learned counsel for the appellant, Contends that the suit was Instituted under a special Act, viz, the Madhya Pradesh Public Trusts Act and therefore the Civil Procedure Code had no application at all to this suit. In support of his contention he has placed reliance on Section 4 of the Civil Procedure Code. In the alternative Mr. Pultamkar contends that even assuming that the Civil Procedure Code has application, Section 80 is not attracted to the facts of the case. It is his argument that no notice under Section 80 of the Civil Procedure Code is required to be given as no relief is claimed either against the State Government or the public Officer. The suit instituted is one under Section 8 of the Act and no relief personally has been claimed either against the State Government of Madhya Pradesh or the Registrar. Section 80 of the Civil Procedure Code, therefore, has no application to the facts of this case.

5. Mr. Hazarnavis, learned counsel appearing for the respondents, on the other hand, contends that the provisions of Section 80 are mandatory. A notice is required to be given under Section 80 when a suit is instituted against the Government or against a public officer in respect of any act purported to have been done by him in his official capacity. Both these conditions have been fulfilled. The suit is against the Government of Madhya Pradesh and against the Registrar who is a public Officer. The suit is in respect of the order made by him under the Act. The suit therefore ig in respect of an act done by him in his official capacity. The provisions of Section 80 thus have been fully attracted to the facts of the present case. Mr. Hazarnavis has placed reliance on a decision of this Court reported in Chhaganlal Kishoredas v. The Collector of Kaira ILR (1911) 35 Bom 42.

6. Admittedly, the plaintiff had not given notice either to the State Government or to the Registrar. Bar to the institution of the suit enacted in Section 80 of the Civil Procedure Code therefore must come into operation and the plaintiff's suit has been rightly dismissed.

7. The question thus that arises for our consideration turns on the construction of Section 80 of the Civil Procedure Code and the scope and ambit of the Madhya Pradesh Public Trusts Act.

8. We would first refer to Section 80 of the Civil Procedure Code and then consider the scheme of the Act. Material part of Section 80 reads:

'No suit shall be instituted against the Government (including 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).....

(b).....

(c) ..... .. 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.'

It will be noticed that to attract the provisions of Section 80 a suit must be either against (a) the Government or (b) against a public officer in respect of any act purported to be done by such public officer in his official capacity.

9. The question that arises is what is the true import of the clause 'suit against the Government or against a public officer in respect of any act', in one sense, when a State Government or a Public Officer is Joined as a defendant or defendants to the suit, it is possible to say that the suit is against the Government or against the Public Officer. The ordinary meaning of the word 'act' is very wide one. It means a thing done, a deed, and it may include operation of mind as well as of body. in the aforesaid sense, the order made by the Registrar, holding that the 'Gajanan Maharaj Sansthan' is a public trust, is an act. it is not in dispute that the Registrar is a public officer. it is also not in dispute that the order made by him was in his official capacity. The State Government and the Registrar had been joined as defendants to the suit. The question, however, is whether the clause 'suit against the Government or against a public officer in respect of an act' has been used in its widest amplitude in Section 80 of the Code of Civil Procedure. In our opinion, the aforesaid clause has not been used in Section 80 in the aforesaid sense of widest amplitude, and that to us appears to be the position when we proceed to the latter part of the section which enumerates the various things which the plaintiff must state in his notice. it has to be borne in mind that the notice requires the plaintiff to state in the notice of his intended suit against the Government or against a public Officer, the cause of action, and the relief which he claims. The aforesaid requirements of the notice indicate that it is within the competence of the Government or the public officer to grant the relief in respect of the cause of action stated in the notice by the plaintiff. in our opinion, therefore, the meaning of the expression 'suit against the Government or against a public officer in respect of an act' is a suit of such a nature in which a relief is claimable against Government or a public officer and it is within the competence of the Government or the public officer, as the case may be, to grant the relief claimed. it is a well-settled principle of construction, and it has been pointed out' by their Lordships of the Supreme Court in R. M. D. Chamarbaugwalla v. Union v. India, : [1957]1SCR930 ;

'Now, when a question arises as to me interpretation to be put on an enactment, what the Court has to do is to ascertain 'the intent of them that make it', and that must of course be gathered from the words actually used in the statute. That, however, does not mean that the decision should rest on a literal interpretation of the words used in disregard of all other materials. 'The literal construction then', says Maxwell on Interpretation of Statutes, 'has, in general, but prima facie preference. To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act.'

The object in enacting Section 80 is to give an opportunity to the Government or a public Officer to consider for itself or himself whether it or he would grant the relief claimed to the plaintiff or contest the suit.

10. Their Lordships of the Supreme Court instate of Madras v. C. P. Agencies, : AIR1960SC1309 have reiterated the object of enacting Section 80 of the Civil Procedure Code. The learned Chief Justice observed:

'The object of the section 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 order to enable the Government or the public officer to arrive at a decision it is necessary that it or he should he informed of the nature of the suit proposed to be filed against it or him and the facts on which the claim is founded and the precise reliefs asked for.'

That being the object of Section 80 of the Civil Procedure Code it necessarily follows that the provisions of Section 80 would be attracted only when a relief is claimed personally against Government or a public officer, and it is only in this limited sense that the clause 'suit against the Government or against a public officer in respect of an act' is to be understood.

11. The decision on which Mr. Hazamavis has placed reliance is of little assistance to the respondents. The facts of that case in brief were: The plaintiff had held two mortgages on certain lands belonging to one Lakshmidas. These mortgages were subsequently declared null and void by the Collector of Kaira under Section 3 of the Bhagidari and Narvadari Act. The heirs of Lakshmidas entered into possession of the lands on the strength of that order. The plaintiff filed a suit against the Collector for a declaration that the order passed by him under Section 3 of the said Act was null and void. Notice as required by Section 424 of the Civil Procedure Code of 1882 was not given to the defendant. It was contended on behalf of the Collector that as no notice was given the suit was not maintainable.

This contention was upheld by the trial Court and the matter came up in appeal before this Court, Mr. Hazamavis placed reliance on the following passage in the judgment:

'The true test of an action for the purpose of Section 424 is whether the wrong complained of as having been done by the public officer sued amounts, first, to a distinct act on his part, and secondly, whether that act purported to have been done by him in his official capacity. Both these elements must combine to render necessary the giving of notice under Section 424 as a condition precedent to suit,'

Relying on these observations, Mr. Hazamavis argued that the provisions of Section 424 of the Civil Procedure Code of 1882 and those of Section 80 of the Civil Procedure Code of 1908 are similar. The Division Bench of this Court has laid down the aforesaid two tests and if these two tests are satisfied, notice is required. Personal liability of the public officer is not a necessary condition to attract the provisions of Section 424 and indeed in that case no relief was claimed against the Collector; yet, it has been held that the suit was bad for want of notice under Section 424. The said two tests have been satisfied in this case. The order of the Registrar is an act, and that act has been done by the Registrar in his official capacity. The ratio of the aforesaid Division Bench decision should therefore apply to the facts of the present case.

12. The argument overlooks the difference in the language of Section 424 of the Civil Procedure Code, 1882 and Section 80 of the Civil Procedure Code, 1908, and the difference is a material one. Section 424 did not require the plaintiff to state the relief which he was claiming against the Government or the public officer. Section 80 requires the plaintiff to state the relief. Thus the position under Section 424 was that when any suit was instituted against the Government or against a public officer in respect of an act purporting to be done by him in his official capacity, notice had to be given to him, whether any relief was claimed against the Government or against the public officer or not. Such however is not now the position. It is necessary under present Section 80 to state the relief. It will be reasonable to assume that the Legislature in its wisdom has curtailed the wide sweep of Section 424 by enacting new Section 80. This decision, therefore, is of no assistance to the respondents.

13. The next question that arises is what is the nature of the suit under Section 8 of the Act and that brings us to the consideration of the scheme underlying the Act. In the year 1951, the State Legislature of the then State of Madhya Pradesh enacted the Madhya Pradesh Public Trusts Act with a view to regulate and to make better provision for the administration of public religious and charitable trusts in the State of Madhya Pradesh, Public trust has been defined as meaning an express or constructive trust for a public, religious or charitable purpose and includes a temple, a 'math' a mosque, a church, a wakf or any other religious or charitable endowment and a society formed for a religious or charitable purpose. Section 3 provides that the Deputy Commissioner shall be the Registrar or Public trusts in respect of every public trust the principal office or the principal place of business of which as declared in the application made under Sub-section (3) of Section 4 is situate in his district. Sub-section (2) of Section 8 enjoins a duty on the Deputy Commissioner to maintain a register of public trusts and such other books and registers and in such form as may be prescribed. Sub-section (1) of Section 4 requires the working trustee to every public trust to apply to the Registrar for registration of the public trust within three months from the date on which Section 4 has been brought into force. Subsection (2) of Section 4 relates to the fees that are to be paid at the time of filing of the application and Sub-section (3) enumerates various details that have to be stated in the application, such as the property held by the trust, its approximate value, its approximate income, and so on and so forth. Section 5 provides that on receipt of an application under Section 4 or upon an application made by any person having interest in a public trust or on his own motion, the Registrar shall make an inquiry in the prescribed manner for the purpose of ascertaining: (i) whether the trust is a public trust; (ii) whether any property is the property of such trust; (iii) whether the whole or any substantial portion of the subject-matter of the trust is situate within his jurisdiction; (iv) the names and the addresses of the trustees and the manager of such trust; (v) the mode of succession to the office of the trustee of such trust; (vi) the origin, nature and object of such trust; (vii) the amount of gross average annual income and the expenditure or such trust; and (viii) the correctness or otherwise of any other particulars furnished under Sub-section (3) of Section 4. Under Sub-section (2) of Section 5, the Registrar has to give in the prescribed manner public notice of the inquiry proposed to be made by him under Sub-section (1) and invite all persons interested in the public trust under inquiry to prefer objections, if any, in respect or such trust. Section 6 requires the Registrar to record his findings on completion of the inquiry stating his reasons therefor, as to the eight matters mentioned in Section 5. After findings have been recorded by the Registrar, the Registrar has under Section. 7 to make entries in the Register in accordance with the findings recorded by him and further Section 7 requires the Registrar to publish these entries on the notice board of his office. Sub-section (2) of Section 7 provides that the entriesso made shall subject to any change recorded under any provision of this Act or a rule made thereunder, be final and conclusive.

14. Then we coma to Section 8 which reads:

'(1) Any working trustee or person having interest in a public trust or any property found to be Trust property, aggrieved by any finding of the Registrar under Section 6 may, within six months from the date of the publication of the notice under Sub-section (1) of Section 7, institute a suit in a Civil Court to have such finding set aside or modified.

(2) in every such suit, the Civil Court shall give notice to the State Government through the Registrar, and the State Government, if it so desires, shall be made a party to the suit,

(3) On the final decision of the suit, the Registrar, shall, if necessary, correct the entries made in the register in accordance with such decision.'

Section 9 enjoins a duty on the trustee to intimate to the Registrar any change in the entries if any occurs subsequently. Section 10 requires the Registrar to give intimation to the Deputy Commissioner about the trust property situated in his district. Section 11 requires the executor of the will to make an application under Section 4 for registration of the will of which he has been appointed a executor creates a public trust. Section 12 provides that if in any proceeding before a Civil Court or a Revenue Officer, any document purporting to create a public trust is produced or any question before such Court or officer is likely to affect any entry in the register, such Court or officer shall, give notice to the Registrar of such proceedings and shall, if the Registrar applies in that behalf, make him a party to such proceedings. Chapter III consisting of Sections 13 and 14 relates to the management of trust property and the investment of public trust money and to the obtaining of sanction of the Registrar before the property is sold. Chapter IV consisting of Sections 15 to 21 relates to the audit of the trust account. Chapter V consisting of Sections 22 to 27 enumerates various powers conferred on the Registrar enabling him to exercise control over the management of Public trust by respective trustees. it is not necessary for us to go in detail in this respect. Chapter VI, which is a Miscellaneous Chapter, consists of Sections 28 to 38. it would be sufficient to notice only 3 or 4 Sections. Section 28 provides that the officer holding an inquiry under this Act will have the same powers as are vested in Civil Courts. Section 29 provides that all inquiries under this Act are judicial proceedings. Section 30 provides that save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court in this Act. Section 33 imposes penalty on those who contravene anyprovision of Section 4, 9, 11, 13 or 15 of the Act.

15. The aforesaid provisions of the Act Indicate that the Act has been enacted with a view to make better provision for the administration of public religious and charitable trusts in the State of Madhya Pradesh. The object is sought to be achieved by appointing the Deputy Commissioner of respective districts as Registrar of public trusts situated within his jurisdiction. It requires the trustee of the public trust to make an application for registration of the public trust to the Registrar stating various details including as to now the trust has been created, what the trust properties are, what its income is and who are the trustees. Even if a trustee of a public trust has not applied for getting the trust registered, any person interested in the trust is entitled to move the Registrar to hold an inquiry as to whether the trust is a public' trust. Not only that, but the Act has authorised the Registrar himself to initiate inquiry and the Registrar has then to decide whether the trust is a public trust or not. If he decides that it is a public trust, he has to record his findings as to its origin, as to what its properties are, who are the trustees and what is the mode of succession to the office of the trustee. He has further to make a permanent record of his findings in the register which he is required to maintain. In other words, the scheme is that the Registrar is enjoined with a duty to maintain a complete record about public trusts within his district and its properties. The administration of the trust remains with its trustees and the properties of the trust vest in the trustees only. The Registrar only exercises control over them by exercising his supervisory powers conferred on him in Chapter V of the Act.

16. Now; as regards the inquiry which the Registrar holds under Section 5 he is only performing the statutory duty cast on him. He neither represents the State Government nor the trust. The nature of the inquiry, as Section 29 will indicate, is judicial inquiry and the powers which he has in holding the inquiry are the same which a Civil Court has in holding an inquiry. After holding an inquiry, the Registrar has to record his finding stating reasons for those findings and he has further to make entries in the register in accordance with his findings. After he has done these things, as Sub-section (2) of Section 7 Would indicate, he becomes functus officio as regards those findings or the entries made. It is not within his power to change his decision or to alter the entries.

Sub-section (2) of Section 7 in clear terms says that the entries so made shall, subject to the provisions of this Act and subject to any change recorded under any provision of this Act or a rule made thereunder, be final and conclusive. The manner provided in the Act to get the entries changed is on filing of a suit in a Civil Court under Section 8, : by the person aggrieved, or by an intimation under Section 8 of the change which has occurred in the situation subsequent to the inquiry and making of entries. Neither the State Government nor the Registrar is competent to give any relief to any person who feels aggrieved by the entries made by the Registrar, Thus the position is that there is no personal interest of the Registrar of the State Government in the trust property or the trust. It is also not within the competence of either the State Government or the Registrar to grant relief to a person aggrieved by making any change in the entries even if any error therein is Drought to its or his notice, They are not competent to grant any relief. Thus, a relief which the plaintiff claims under Section 8 is not a relief personally asked against the State Government or against the Registrar. This being the position, in our opinion, Section 80 or the Civil Procedure Code has no application to the suit filed under Section 8 of the Act. As Sub-section (2) of Section 8 itself indicates, the State Government is not even required to be joined as a party to the suit. It provides that after a' suit has been filed the Civil Court shall give notice to the State Government through the Registrar and it is only if the State Government desires that it should be joined as a party to the suit, it should be joined. The provisions clearly indicate that the suit under Section 8 cannot be regarded as a suit against the Government.

17. The view taken by us finds support in the decision of the Calcutta High Court reported in Mrs. Manilaxmi v. Hindusthan Co-operative Insurance Society Ltd., : AIR1962Cal625 . In that case the learned Judge held that Section 80 specifically provides that the person giving notice must state, inter alia, his cause of action and the relief which he claims. As no cause of action against the Government or against the public officer is stated and as no relief is claimed against them personally, notice under Section 80 of the Civil Procedure Code was not necessary. It may also be stated that certain observations of their Lordships of the Privy Council in Revati Mohan v. jatindra Mohan lend support to the view taken by us. In that case the matter arose out of a suit filed by a mortgage to enforce his mortgage which had been executed by the manager of the estate appointed under the Bengal Tenancy Act. As monies were not paid a suit was instituted against the manager who was a public officer. No notice under Section 80 had been given to him. The view taken by the High Court was that notice under Section 80 was necessary. When the matter came before their Lordships they held that no notice was necessary and allowed the appeal. The rule laid down by their Lordships has been well summarized in the placitum in the following Words:

'In a suit against a public officer it is only where the plaintiff complains of some actpurporting to have been done by him in his official capacity that notice is enjoined. But where a mortgage sues upon a mortgage executed by the former manager under Section 95, Bengal Tenancy Act, and the mortgage imposes no personal liability upon the manager, but merely provides that if payment be not made the mortgage would be entitled to realise his dues by sale through the Court and the mortgage makes no claim against the manager personally such a suit is not within the ambit of Section 80 and. no notice of suit is required.'

Thus the test laid down by their Lordships is whether any relief is asked personally against the Government or a public officer and this is the test for determining whether notice under Section 80 is required to be given or not, . If relief is asked personally against the Government or a public officer notice under Section 80 is necessary. IE no relief personally against them was asked no notice is necessary. As already pointed out no relief is claimed personally either against the State Government or the Registrar in thesuit under Section 8 of the Act and therefore no notice under Section 80 of the Civil Procedure Code was required to be given.

18. It is not necessary to deal in detail with the decision of the Division Bench of this Court and other two decisions which have taken the same view. In the case, before the Division Bench, there was no dispute between the parties and the Division Bench proceeded on an assumption that notice under Section 80 was necessary in a suit filed against the respondent. The point has not been discussed nor any finding has been recorded that notice is required. ' in the decision of the Single Judge, the fact that the plaintiff is required to state the relief which he claims against the Government or a public officer and the object of Section 80 have not been considered. For reasons, stated above we held that no notice under Section 80 of the Civil Procedure Code is required to be given to the State Government, or the Registrar, prior to the institution of a suit under Section 8 of the Act.

19. In the result, we answer the question framed in the negative. We allow theappeal with costs and set aside the judgment appealed against and send the caseback to the Trial Court for disposal in accordance with law.

20. Appeal allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //