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H.V.R. Athre Vs. the Chief Secretary and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1246 of 1961
Judge
Reported inAIR1963Mys171
ActsCode of Civil Procedure (CPC) , 1908 - Sections 86 and 87B; Constitution of India - Articles 14 and 361(4)
AppellantH.V.R. Athre
RespondentThe Chief Secretary and anr.
Appellant AdvocateN.V. Ramachandra Rao, Adv.
Respondent AdvocateD.M. Chandra Shekar, Govt. Pleader ; and H.S. Narasiah, Adv. for Respondent 2
Excerpt:
.....can be evicted even within period of five years of inheritance. moreso when he has not rebutted presumption that requirement of landlord is genuine and there is no material with regard to availability of any other suitable accommodation, for doing business. - 11. in the view that i take, this revision petition has to fail and it is dismissed......to the government............'87b. 'application of sections 85 and 86 to rulers of former indian states. :-- (1) the provisions of section 85 and of sub-sections (1) and (3) of section 86 shall apply in relation to the rulers of any former indian state as they apply in relation to the ruler of a foreign state.(2) in this section --(a) 'former indian state' means any such indian state as the central government may, by notification in the official gazette, specify for the purposes of this section; and(b) 'ruler', in relation to a former indian state, means the person who, for the time being, is recognised by the president as the ruler of that state for purposes of the constitution.'5. reading these two sections together it becomes clear that no ruler of a former indian state who.....
Judgment:
ORDER

A.R. Somnath Iyer, J.

1. The question involved in this revision petition is whether a suit brought by the petitioner against His Highness Sri Jayachamaraja Wadeyar Bahadur who is defendant 2 in that suit without the consent of the Central Government certified by a Secretary to that Government is maintainable. This is how the question arises :-

2. The petitioner who is the plaintiff in the suit brought by him in the Court below, sought an injunction against the Government of the new State of Mysore and against His Highness Sri Jayachamaraja Wadeyar Bahadur for a permanent injunction restraining them from infringing the copyright of the plaintiff in a work entitled 'History of Mysore (1399-1799)' and also for damages. The plaintiff's case was that his father, Rajacharita Visharada Rao Bahadur C. Hayavadana Rao was the author of the work in which the plaintiff claimed a copyright and which recorded the authentic history of Mysore based on the materials collected by the author. This work, according to the plaintiff, had been dedicated by the author to the second defendant and the author had the right to be handed over the copies of the work after the books were printed by the Government of Mysore, which according to the plaintiff, published a Government Order on March 26, 1936, recording the arrangement on which the plaintiff relied. The plaintiff's complaint was that after the printing of the volumes by the Government at its own press, some books had been sold to the public, others taken by the Palace of defendant 2 and the others distributed to the various Government Offices, colleges and libraries. This action, according to the plaintiff, constituted an infringement of the copyright in the book which his father had and which, according to him now vests in him.

3. In the Court below the objection raised on behalf of defendant 2 was that the suit against him was not maintainable since, as required Section 87B of the Code of Civil Procedure, the consent of the Central Government had not been obtained. That argument was accepted by the Court below with the result that the suit against defendant 2 was dismissed. It is the correctness of this view which is challenged in this revision petition and Mr. Ramachandra Rao appearing on behalf of the petitioner has urged that the Court below overlooked in coming to the conclusion that the suit against defendant 2 was not maintainable, the provisions of Article 361(4) of the Constitution, compliance with which made obedience to Section 87B of the Code of Civil Procedure unnecessary.

4. It would now be necessary to refer to the two relevant sections of the Code of Civil Procedure which are Sections 86 and 87B. Those Sections read :

86. 'Suits against foreign Rulers, Ambassadors and Envoys. -- (1) No Ruler of a foreign State may be sued in any Court otherwise competent to try the suit, except with, the consent of the Central Government certified in writing by a Secretary to the Government............'

87B. 'Application of Sections 85 and 86 to Rulers of former Indian States. :-- (1) The provisions of Section 85 and of Sub-sections (1) and (3) of Section 86 shall apply in relation to the Rulers of any former Indian State as they apply in relation to the Ruler of a foreign State.

(2) In this section --

(a) 'former Indian State' means any such Indian State as the Central Government may, by notification in the official Gazette, specify for the purposes of this section; and

(b) 'Ruler', in relation to a former Indian State, means the person who, for the time being, is recognised by the President as the Ruler of that State for purposes of the Constitution.'

5. Reading these two sections together it becomes clear that no Ruler of a former Indian State who is recognised for the purpose of the Constitution, can be sued unless that suit is preceded by the consent of the Central Government certified in writing by the Secretary to that Government. Mr. Ramachandra Rao had to admit that it was not possible to dispute that defendant 2 is for the purposes of Section 87B the Ruler of a former Indian State who, for the time being, is recognised by the President as the Ruler of that State for purposes of the Constitution. In my opinion, he is right in making that concession.

6. Defendant 2, who was the Ruler of the former Indian State of Mysore and who was, before that State of Mysore became part of the Republic of India, a sovereign Ruler of that State who handed over after the constitution of the Republic, that State, in return for an annual privy purse and on the assurance that his personal rights, privileges and dignities would be respected in the manner provided by Article 362 of the Constitution. It is also not disputed that the former State of Mysore is one of those former Indian States notified in the Official Gazette for the purpose of Section 87B of the Code of Civil Procedure. That being the position, defendant 2 could not have been sued by the plaintiff unless he had, in the first instance, obtained the consent of the Central Government under Section 86 of the Code of Civil Procedure. If there was nothing else to be said about this matter it would be impossible for the plaintiff to contend that the Court below took an incorrect view in holding his suit to be incompetent.

7. But the argument presented by Mr. Ramachandra Rao, learned Counsel for the petitioner is that the provisions of Article 361(4) of the Constitution made it unnecessary for the plaintiff to ask for the consent of the Central Government to sue defendant 2. That Article on which Mr. Ramachandra Rao depends reads :

361(4) 'No civil proceedings in which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any Court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.'

It is not disputed that the notice to be delivered under the provisions of this Article to defendant 2, was delivered to him before the institution of the suit and the submission made is that since the act against which the plaintiff complains was done by defendant 2 in his personal capacity, although defendant 2 when the suit was brought was the Governor of the new State of Mysore, it was permissible for the plaintiff to institute his suit after the delivery of the notice provided by Article 361(4) without being obliged to obtain the consent of the Central Government to its institution.

Mr. Ramachandra Rao made a distinction between the Ruler of a former Indian State who has not been appointed a Governor of some State or other after he ceased to be such Ruler and a Ruler of a former Indian State who was not appointed to any such gubernatorial office. It was urged that Section 87B had application only to a Ruler of a former Indian State who was not appointed to a gubernatorial office after he ceased to be such Ruler and that if on the contrary he was appointed to such post after he ceased to be such Ruler, the only provision regulating a suit which may be brought against him in respect of an act done by him in his personal capacity was Article 361(4) of the Constitution, and that such a suit remained outside the orbit of the restriction placed by Section 87B of the Code of Civil Procedure. In other words, the argument was that where the defendant was a Ruler of a Former Indian State who had become a Governor, all that was necessary to do would be to deliver the notice under Article 361(4), it becoming unnecessary for the plaintiff to obtain the consent of the Central Government under Section 87B read with Section 86(1) of the Code of Civil Procedure. In my opinion, Mr. Ramachandra Rao is not right in asking me to take that view.

8. Article 361(4) of the Constitution which requires a notice to be delivered to a Governor before he is sued in respect of an act done by him in his personal capacity has application to all cases in which a Governor is sued in that way irrespective of the fact whether he was or was not the Ruler of a former Indian State. But if he was the Ruler of a former Indian State and is also a Governor when he is sued, it is plain that not only should the plaintiff deliver a notice to him under Article 361(4) but should also obtain the consent of the Central Government under Section 87B of the Code of Civil Procedure before he can sue. The protection given to the Ruler o a former Indian State under Article 361(4) of the Constitution is a protection in addition to that afforded by Section 87B of the Code of Civil Procedure and not in substitution thereof. That, in my opinion is, how we should understand Article 361(4) of the Constitution.

9. The resultant position therefore is that when the Ruler of a former Indian State is sued and the suit relates to an act done by him in his personal capacity what should be done before he is sued if he is the Governor of a State when he is so sued is that he should be delivered the notice referred to in Article 361(4) of the Constitution and in addition, the consent of the Central Government should be obtained to the institution, of the suit. It is only after these two steps are taken that a suit can be brought against him.

10. This view, according to Mr. Ramachandra Rao, would offend against Article 14 of the Constitution resulting in a discrimination between Governors who were not Rulers of former Indian States and those who were. The answer to this contention is what is to be found in Mohanlal v. Sawai Man Singhji, : [1962]1SCR702 in which it was pointed out by their Lordships of the Supreme Court that princes who were Sovereign Rulers of Indian States and who handed over, after the formation of the Republic their States to the nation in return for a Privy Purse and the assurance that their personal rights, privileges and dignities would be respected, fell within a classification which can properly form the basis of a distinction between them for the purpose of a special legislation such as what is contained in Section 87B of the Code of Civil Procedure.

11. In the view that I take, this revision petition has to fail and it is dismissed.

12. Mr. Ramachandra Rao says that the plaintiff may be permitted to withdraw from the suit in so far as it is directed against his Highness Sri Jayachamaraja Wadeyar Bahadur who is defendant 2, so that a suit may be brought against him after obtaining the consent of the Central Government. It does not appear to me that it is necessary to permit the plaintiff to withdraw from that suit in. that way since it is clear -- and the correctness of that position is not contested by Mr. Chandrasekhar, High Court Government Pleader appearing for defendant 1 and Mr. Narasiah, learned Advocate for Defendant 2 -- that the dismissal of the suit against His Highness Sri Jayachamaraja Wadeyar Bahadur which was done by the Court below for the reason that that suit was not preceded by the consent of the Central Government cannot constitute any impediment to the institution of another suit against him if the plaintiff desires to do so after compliance with the provisions of Section 87B of the Code of Civil Procedure.

13. In the circumstances, I make no order as to costs.


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