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Mohanta Raghabananda Das Vs. D.V.A. Naidu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 149 of 1957
Judge
Reported inAIR1961Ori31
ActsCode of Civil Procedure (CPC) , 1908 - Sections 80
AppellantMohanta Raghabananda Das
RespondentD.V.A. Naidu and anr.
Appellant AdvocateN.V. Ramdas, Adv.
Respondent AdvocateAdv. General for Respondent 1
DispositionAppeal dismissed
Cases ReferredMatajog Dobey v. H.C. Bhari
Excerpt:
.....mahabharat thakur, air 1950 pat 32 :if an act done by public officer is apparently an official act, its character as such will not be changed by allegations that it was done in bad faith or that it had not that character which it purports to have. ' all the aforesaid patna decisions were cases where the officer had jurisdiction to do the act complained of and he did it wrongly or with mala fides. 4. the review of the aforesaid cases clearly establishes that when an officer does certain act within his jurisdiction but he exceeds his jurisdiction or acts irregularly or maliciously, a notice under section 80, c......c. p. c., was necessary. section 80, c. p. c., provides that no suit shall be instituted against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until a notice has been served in the manner prescribed.in the present case, respondent no. 1 was a civil supply inspector at the locality and he expressed publicly that he was seizing the paddy under an authority from the s. d. m., which authority could not be a real, authority inasmuch as the authority has been signed by the s. d. m., in a blank form which was subsequently filled in by the civil supply inspector. it is admitted in the case that the seized paddy was produced before the s. d. m. the plaintiff believed that there was an authority from the s. d. m., and so he felt.....
Judgment:

J.K. Misra, J.

1. This is an appeal against the appellate judgment reversing the decree passed in favour of the plaintiff-appellant. Respondent No. 1 who is defendant No. 2 in the suit is a Civil Supply Sub-Inspector. The other defendant, a paddy procuring sub-agent, against whom the trial court decree was passed and not reversed in the first appeal, is respondent No. 2 in the present appeal. The appellant's case is that respondent No. 1, by fabricating a requisition order, which had been signed in a blank form by the S. D. M., of Russel-konda, illegally seized 196 mds. of paddy from the appellant's grain-pit which was opened at the cost of the appellant and the two defendants removed the said paddy in eleven carts, the cost of which was also paid by the appellant, and they also took away 24 gunny bags belonging to the appellant.

According to the appellant, the price of the paddy removed was Rs. 1237-4-0, the cost of opening the pit was Rs. 15/-, the price of the gunny bags was Rs. 15/-, and the cartage cost was Rs. 27-8-0, thus making a total of Rs. 1295-12-0. Out of this, the appellant admitted to have received Rs. 1135-8-0, from the defendants and the balance was Rs. 160-4-0. The appellant claimed interest on this amount at Rs. 39-12-0, and thus the total claim made by the appellant was RS. 200/-. The appellant had advanced an alternate claim of Rs. 200/- as damages in tort for mental pain and telling in the estimation of the public on account of illegal seizure, and he valued the total claim, for purposes of court-fee at Rs. 200/-.

2. The trial court allowed Rs. 43-8-0 as cost incurred by the plaintiff in respect of removal of the paddy, Rs. 15/- as the price of the gunny bags and Rs. 39-12-0 towards interest, thus making a total of Rs. 98-4-0. The trial court, however, granted a decree in favour of the plaintiff against both the defendants for Rs. 200/- as claimed, the residual amount over Rs. 98-4-0 being damages which had been alternatively claimed. The plea of the respondent No. 1 that he had seized and removed the paddy under the written authority of the S. D. M., was not accepted by the trial court who came to a finding that the said authority had been fabricated. The trial court rejected the plea of respondent No. I that the absence of a notice under Section 80, C. P. C., was fatal to the suit. The appellate court, while agreeing with the findingof the trial court that the authority on which respondent No. 1 claimed to have acted was a fabricated one, held that a notice under Section 80, C. P. C., was necessary and so allowed respondent No. 1's appeal.

3. In the present case both the courts have proceeded on the assumption that the Civil Supply Inspector himself had no power to seize the paddy and he could do so only on the authority of the S. D. M. The main question in the present appeal is whether a notice under Section 80, C. P. C., was necessary. Section 80, C. P. C., provides that no suit shall be instituted against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until a notice has been served in the manner prescribed.

In the present case, respondent No. 1 was a Civil Supply Inspector at the locality and he expressed publicly that he was seizing the paddy under an authority from the S. D. M., which authority could not be a real, authority inasmuch as the authority has been signed by the S. D. M., in a blank form which was subsequently filled in by the Civil Supply Inspector. It is admitted in the case that the seized paddy was produced before the S. D. M. The plaintiff believed that there was an authority from the S. D. M., and so he felt himself forced to part with the paddy and later on discovered that the said authority was not a real authority.

Under Section 80, C. P. C., the act of the public officer forming the cause of action in the suit shall be purporting to have been done by such public officer in his official capacity. 'Purport', according to the dictionary meaning, is 'be intended to seem. No doubt, respondent No. 1 intended to show that his act was one in his official capacity, but merely so showing could not be sufficient for the purpose of Section 80, C. P. C. If the act done cannot be one within one's official capacity, by merely making it to be so done, cannot give a public officer a protection under Section 80, C. P. C.

For instance, if a Professor of a Government College, who is a public officer, goes to a place and seizes certain articles making a show that he has got authority for such seizure, he cannot claim a protection under Section 80, C. P. C. To attract Section 80, C. P. C., the act done must be within the sphere of activities of the public officer concerned. Every public officer has limited sphere of activity as public officer and within that sphere it he purports to do an act, though be may not be justified to do so, he can seek the protection under Section 80, C. P. C.

For instance, if a public officer, with a view to harass a particular man, draws up a false first information against him and then arrests him, his case is covered by Section 80, C. P. C., inasmuch as his act purports to have been done by him in his official capacity. In other words, if a public officer has jurisdiction to do certain things and in exercise of that jurisdiction, he does a thing wrongly or even with mala fides, Section 80, C. P. C., will apply to his case, whereas, if he has at all no jurisdiction to do the thing, there is no room lor application of Section 80. C. P. C., even though he pretends to be doing certain act in his capacity as a public officer. Several authorities were cited atthe Bar on the point.

In the Full Bench decision of the Madras High Court reported in Kotti Reddy v. Subbaiah, ILR 41 Mad 792: (AIR 1918 Mad 62), the question before the Full Bench was that where a public officer in the discharge of his duty acted mala fide, whether he was not entitled to a notice, before action, under Section 80, C. P. C. This was a case in which the act done by the public officer was within his jurisdiction but he had acted mala fide in exercising that jurisdiction. The answer of the Full Bench was that a notice under Section 80, C. P. C., was necessary. One of the learned Judges (Sadashiva Ayyar, J.), however, made certain observation:

'The expression 'any act purporting to be done by such public officer in his official capacity' .....means 'any act of a public officer which is intended by him to carry forth or convey to the minds of all persons who become aware of that act the impression that he did the act in his official capacity and not as an ordinary private individual and which has the effect of conveying such an impression by its seeming or appearance.''

The learned Advocate-General sought to rely on this observation to urge that though the seizure of paddy might not be within the normal jurisdiction of the Civil Supply Inspector (without an authority from the S. D. M.), whatever he did, he did openly and expressly as a public officer. The said observation of one of the learned Judges ot the Full Bench did not expressly take into consideration the case of a person who had no jurisdiction to do the thing. On the other hand, one ot the referring learned Judges in the said Full Bench case (Napier, J.), observed:

'In examining the cases it seems to me necessary to eliminate those in which it was found that the officer was only pretending to act in an official capacity, he having no right to do the act in connection with which the complaint arose at all. There remain two clauses, (1) where he has purported to act in his official capacity but has been guilty of malice in the exercise of his powers, and (2) cases in which he has caused some wrong inadvertently in the discharge of his duty'.

He quoted, with approval, the decision of Woodroffe, J., reported in Gonoda Sundari Choudhurani v. Nalini Ranjan Saha, ILR 36 Cal 28, in which it was held:

'Where a public officer took possession of a property which he had no authority to seize and was sued for trespass, the suit is not against him in his official capacity, but as a private individual and therefore no notice is necessary.'

It has been held in Ram Kishun v. Ram Narain, AIR 1934 Pat 14:

'A public officer against whom a suit is filed In respect of an act done by him in his official capacity is entitled to notice under Section 80, even though he has acted mala fide.'

It has been held in Noor Mohammad v. Abdul Fateh, AIR 1941 Pat 461:

'In considering the question of notice under Section 80 the court has to see whether the public officer purported to act as such. The question of his good or bad faith is irrelevant.'

It was held in Jageshar Thakur v. Mahabharat Thakur, AIR 1950 Pat 32 :

'If an act done by public officer is apparently an official act, its character as such will not be changed by allegations that it was done in bad faith or that it had not that character which it purports to have.'

All the aforesaid Patna decisions were cases where the officer had jurisdiction to do the act complained of and he did it wrongly or with mala fides. Dakshina Ranjan v. Omar Chand, AIR 1924 Cal 145, refers to a case in which there was a wrongful arrest by a police officer who also extracted some amount from the plaintiff after so arresting and detaining him. It was held in that case:

'In a suit for damages for wrongful arrest against a public officer, he is entitled to notice of suit under Section 80, even if in the discharge of bis duty he has acted mala fide. But no notice is necessary for the recovery of money extorted from the plaintiff by the officer us a consideration for his release from wrongful arrest by the Police officer himself.'

The latter part of the decision is a clear authority for the view that when a public officer does certain thing which is not within the sphere of his public activity, he can claim no protection under Section 80, C. P. C. Section 197, Cr. P. C., deals with matters analogous to Section 80, C. P. C. Under Section 197, Cr. P. C., when a specific class of public servant is accused of any offence alleged to have been committed by them while acting or purporting to act in the discharge of their official duty, no court shall take cognizance of such offence without previous sanction. In interpreting this section, it has been observed in Matajog Dobey v. H.C. Bhari, (S) AIR 1956 SC 44:

'The offence alleged to have been committed must have something to do, or must be related to some manner, with the discharge of official duty ..... It must not matter even if the act exceedswhat is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What the court must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.'

In other words, their Lordships held that there must be an inter-relation between the act and the official duty of the public officer concerned to seek the protection under Section 197, Cr. P. C.

4. The review of the aforesaid cases clearly establishes that when an officer does certain act within his jurisdiction but he exceeds his jurisdiction or acts irregularly or maliciously, a notice under Section 80, C. P. C., is necessary. The object of the notice under Section 80, C. P. C., is to give the public officer an opportunity to reconsider his legal position and to make amends or settle the claim, if so advised, without litigation. The two Calcutta cases, above cited, are authorities for the proposition that when a public officer does an act which cannot be done in his official capacity, no notice is necessary.

No counter authority has been cited before me to establish the theory that whenever a public officer pretends to do an act as such public officer, though such an act is riot within the official jurisdiction of such public officer, he can claim a notice under Section 80, C. P. C. So, in the present case, I would have held, on the assumption on which the two Courts have proceeded that the Civil Supply Inspector had no jurisdiction to seize without any authority from the S. D. M., that no notice under Section 80, C. P. C., is necessary.

But the learned Advocate-General has brought to my notice the Orissa Foodgrains Control Order, 1946, and the Notification No. 671-S.T. dated the 7th December, 1946, in which under Clause (XIV) ot the Orissa Food Grains Control Order, 1946, all Inspectors of Civil Supplies have been authorised to seize foodgrains under certain circumstances without any authority from any higher officer for such seizure and the said powers of the Civil Supply Inspectors have been saved from time to time by subsequent legislations.

So, in the present case, even though the authority in favour of respondent No. 1 from the S. D. M., was no real authority, respondent No. 1 himself had the power to seize the paddy, and as such the seizure was within his jurisdiction, even though he acted with mala fides. This would bring his case under those categories of cases where a public officer, having jurisdiction to do a thing, does it wrongly or maliciously and in such a case, a notice under Section 80, C. P. C., is necessary.

5. The other point that had been raised by the learned Advocate-General was that since the original plaintiff was dead when the second appeal was pending and he had lost the suit against respondent No. 1, in the First Appellate Court, no cause of action survived to his legal representatives in respect of that part of the claim, which related to damages for mental pain and loss of prestige. It was also urged by him that the decree passed by the trial Court, partly on the original cause of action and partly on the alternate cause of action, was wrong and that when the original cause of action had partly succeeded, there should have been no decree for the alternate cause of action, for which there was no independent payment of court-fee.

These contentions of the learned Advocate-General are absolutely correct, and had the appellant succeeded in the appeal, he could have only got a decree for the part of original cause of action, that is, to the extent of Rs. 98-4-0, which had been decreed by the trial court and not the rest of the amount which was based on the alternative cause of action.

6. In the result, the appeal is dismissed, butwithout costs.


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