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Dasa Rao Vs. Thungabhadra Board and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 729 of 1975
Judge
Reported inAIR1983Kant7; 1982(2)KarLJ146
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(17) and 80
AppellantDasa Rao
RespondentThungabhadra Board and ors.
Appellant AdvocateS.K. Venkaranga Iyengar, Adv.
Respondent AdvocateJaya Vitatal Kodar, Adv.
Excerpt:
.....is achieved and the state reorganisation based on language would have a meaning. in spite of this enactment, if still the departmental heads continue to have official business in english language, action has to be taken against such persons. - 6. whether they also prove that the suit is bad for want of notice under section 80, c. it was at best a corporation. 6. it is a well settled principle of law that a corporation under a statue is a body corporate; ' considered in this perspective, the courts below were perfectly justified in holding that s......in relation to any other administrative matters concerning the project exercise the powers of a state government under the various codes. manuals, rules and regulations, specified in the schedule annexed hereto, as in force in the state of madras immediately before the 1st day of oct., 1953, and may adopt such of the amendments made thereto, or executive instructions, orders and directions issued thereunder, by the government of andhra pradesh from time to time, which the board considers necessary.'clause 8 reads :-'all contracts to be made in connection with tungabhadra project shall be expressed to be made jointly by and in the name of the governments of andhra pradesh and mysore and all such contracts shall be executed on behalf of the said governments by the secretary of the board.....
Judgment:

1. This appeal by the plaintiff is directed against the judgment and decree dated 3-6-1975 passed by the Civil Judge, Bellary, in R.A.64/72 on his file dismissing the appeal and confirming the judgment and decree dated 10-4-972, passed by the Principal Munsiff, Hospet, in Original Suit No.208 of 1970 on his file dismissing the suit of the plaintiff.

2. Plaintiff instituted a suit to restrain defendants from interfering with his possession over the suit lands namely S.Nos. 382 and 383 of Venkatapur village. He averred that the said lands were leased to him by the 1st defendant in the suit through its Executive Engineer by an order dated 21-1-1964 for a period of one year. After the expiry of the lease he remained in possession of the suits lands as a tenant holding over up to the year 1968. Inspite of it, defendants asked him to vacate by a letter dated 25-10-1969. According to him he was cultivating the lands lawfully. Hence the defendants had no right to evict him unless in due course of law. Hence he instituted a suit to restrain the defendants from interfering with his peaceful possession and enjoyment of the suits lands. The suit was resisted by defendants. They contended that the suit was not maintainable without notice under sec.80, C.P.C. They denied that that he was cultivating the lands. He was not entitled for injunction. The trail court raised the following issues from the pleadings for its considerations:

'1. Whether the suit land is correctly described?

2. Whether plaintiff proves that he lawfully remained in possession of the suit land?

3. Whether he further proves that he has a right to remain in possession of the suit land?

4. If so, is he entitled for injunction?

5. Whether defendants prove that plaintiff is trespasser over the suit lands?

6. Whether they also prove that the suit is bad for want of notice under Section 80, C.P.C.?

7. What decree or order?'

The learned Munsiff after appreciating the evidence on record answered Issue Nos. 1, 5 and 6 in the affirmative. He answered issued Nos.2, 3 and 4 in the negative. In that view the learned Munsiff dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree the plaintiff went up in appeal before Civil Judge, Bellary in R.A.No.64 of 1972 on his file. The learned Civil Judge raised the following points as arising for his consideration in the appeal :

'1. Whether the plaintiff is in lawful possession of suit property on the date of the suit?

2. Whether the notice under S. 80, C.P.C. is necessary?

3. To what relief?

The learned Civil Judge, reassessing the evidence on record answered point No.1 in the negative. He answered point No.2 in the affirmative and in that view he dismissed the appeal, confirming the decree of the trial Court. Aggrieved by the same the plaintiff has instituted the above second appeal before this Court.

3. The learned counsel for the appellant strenuously urged before me that the Courts below were not justified in coming to the conclusion that S.80, C.P.C. notice was necessary on the facts of the present case. According to him, a Board cannot be considered as Governement. It was at best a corporation. As such notice under Sec.80, C.P.C. was not necessary. Hence he submitted that the Courts below were not justified in holding to the contrary. He further submitted that the possession of the present plaintiff was lawful since he held over as a tenant. In that view he submitted that the appeal was entitled to succeed. As against that the learned counsel appearing for the defendants argued in support of the judgment and decree of the trial Court, confirmed by the First Appellate Court.

4. The points, therefore, that arise for my consideration are :

1. Whether the Courts below were justified in holding that S. 80, C.P.C. notice was necessary before instituting the suit?

2. Whether the Courts below were justified in holding that the possession of the plaintiff was not juridical?

5. The defendants in the suit are : (1) Tungabhadra Board by its Secretary, T.B.Dam, Mallapur Taluk. (2) The Executive Engineer, T.B.P. Civil Division, Tungabhadra Dam, Mallapur Taluk and (3) The Supervisor, Low Level Canal, Venkatapura, residing at T.B.H.E.S. Camp, Kamalapur, Hospet Taluk. Thus, it is obvious that the defendant No.1 is the Board and defendant No.1 is the Board and defendants 2 and 3 are Government servants employed under the Board. The Project was earlier in the old Madras State. As a result of the State Reorganisation, certain area in the Bellary District was incorporated in the year 1953 into the Karnataka State and the rest of the Bellary District was incorporated in Andhra Pradesh. In the Andhra State Act, 1953 into the Karnataka State and the rest of the Bellary District was incorporated in Andhra Pradesh. In the Andhra State Act, 1953 special provision is made in Section 66, sub-section (4), thus, in respect of the project.

'The President may from time to time give such direction as may appear to him to be necessary generally in regard to any of the matters specified in the foregoing provisions of this section and in particular, for the completion of the project and its operation and maintenance thereafter.

Provided that no such direction shall be issued or have effect after an agreement has been entered into by the State of Andhra and Mysore under sub-section (1) or after an order has been made by the President under sub-section (4) whichever is earlier.' Under sub-section (40 the President issued notification earlier on 29th Sept., '53 and thereafter on 10th March, '55. Clause (1) of the 1955 Notification reads :

'There shall be established with effect from the 15th March, 1955, a Board by the name of Tungabhadra Board consisting of CHAIRMAN : (1) Shri B.K. Gokhale, I.C.S. (Retired).

MEMBERS : (2) The Special Chief Engineer, Andhra Pradesh.

(3) The Secretary to the Government of Mysore, Public Works and Electricity Department.

(4) The Joint Secretary, Government of India in the Ministry of Finance or his representative.'

Then the other clauses relate to the working of the Board for the administration of the Tungabhadra Project. Clause (6) of the Notification reads :

'(I) The Government of Andhra Pradesh and Mysore shall provide at all times the necessary funds for the construction and maintenance of the Tungabhadra Project :

........ ........... ............... ........ ................. .......... .......... '

Clause (7) reads :

'The Board shall in relation to the technical sanction, administrative approval, and other sanctions required for the construction and maintenance of the Tungabhadra Project, and in relation to any other administrative matters concerning the project exercise the powers of a State Government under the various Codes. Manuals, Rules and Regulations, specified in the schedule annexed hereto, as in force in the State of Madras immediately before the 1st day of Oct., 1953, and may adopt such of the amendments made thereto, or executive instructions, orders and directions issued thereunder, by the Government of Andhra Pradesh from time to time, which the Board considers necessary.'

Clause 8 reads :-

'All contracts to be made in connection with Tungabhadra Project shall be expressed to be made jointly by and in the name of the Governments of Andhra Pradesh and Mysore and all such contracts shall be executed on behalf of the said Governments by the Secretary of the Board or such other Officer as may be authorised by the Board in this behalf, but neither the Secretary nor the authorised Officer shall be personally liable in respect of anything under such contracts.'

Thus, it is clear that the Board is not made a legal person or a body corporate. Officers of the Board, though they are under the administrative control of the Board are servants of Andhra Pradesh or Karnataka Government as the case may be. It is in these circumstances that the learned counsel for the Board strenuously pressed on me that S. 80, C.P.C. Notice is a necessary prerequisite before instituting a suit. As against that the learned advocate appearing for the appellant invited my attention to a decision of the Patna High Court in the case of Kamta Prasad Singh v. Regional Manager, F.C.I., : AIR1974Pat376 . Therein it is laid down thus (at p.377) :-

'The fact that the capital of the Corporation was provided by the Central Government or that its working was supervised or directions were issued by the Central Government, does not make it a Government within the meaning of S. 80. Although the expression 'Government' has not been defined in Code, it cannot include a 'Corporation' constituted under an Act of Parliament.'

Relying on the above observation the learned counsel submitted that the Board partakes the same character and as such it cannot be considered as part of the Government.

6. It is a well settled principle of law that a Corporation under a statue is a body corporate; it is a legal person. It has got its own legal entity. It can sue and be sued and it can enter into a contract in its own right. Not so a Board of the nature with which I am directly concerned in the present appeal. It is not a body corporate. It is not a legal person. It has no existence in the eye of law, on its own. It is a result of the statute authorising the creation of such a Board by the Central Government. That being so, it is so obvious that it is a part and parcel of the Government. Hence there is no substance in the submission made by the learned counsel for the appellant that the Tungabhadra Board cannot be considered as part and parcel of the Government.

7. Recently the Supreme Court of India in the case of State of Punjab v. Raja Ram, : [1981]2SCR712 , had an occasion to consider the distinguishing features of a Government Department from a Corporation. His Lordship Justice Islam, J., who delivered the judgment for the Bench has observed in para 9 of the judgment thus :-

'Learned counsel for the appellant then urged that the Corporation is a Government Department. We are unable to accept this submission also. A Government department has to be an organisation which is not only completely controlled and financed by the Government but has also no identity of its own. The money earned by such a department goes to the exchequer of the Government and losses incurred by the department are losses of the Government. The Corporation, on the other hand is an autonomous body capable of acquiring, holding and disposing of property and having the power to contract. It may also sue or be sued by its own name and the Government does not figure in any litigation to which it is a party. It is true that its original share capital is provided by the Central Government (Section 5 of the F.C Act) and that 11 out of 12 members of its Board of Directors are appointed by that Government (Sc. 7 of the F.C. Act) but then these factors may at the most lead to the conclusion (about which we express no final opinion) that the Corporation is an agency or instrumentality of the Central Government.'

Considered in this perspective, the courts below were perfectly justified in holding that S. 80, C.P.C. notice was prerequisite before instituting a suit against the Board.

8. Moreover, defendants 2 and 3 are Govt. servants. Section 2, sub-section (17). C.P.C defines a Public Officer. Clause(h) thereunder stated that every officer in the service or pay of the Government is a Public Officer and S. 80, C.P.C. applies not only in a suit against Government as such, but also when a suit is instituted against any Public Officer in respect of any act purporting to be done by the said public officer in his official capacity. That being so there cannot be any manner of doubt that notice under S. 80, C.P.C. had to be issued against defendants 2 and 3 before instituting the suit.

9. It is a settled principle of law that the Court does not get jurisdiction to entertain the suit unless notice under S. 80. C.P.C. is issued in the manner contemplated thereunder in suits contemplated in the section . In that view, it is not necessary for me to go into the other aspect of the matter.

10. In the result, for the forgoing reasons the appeal is dismissed.

11. No costs, in this appeal.

12. Appeal dismissed.


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