Ram Kumar & ANR Vs.
State of Rajasthan & Ors [2008] INSC 1660 (29 September 2008)
Judgment
LE IN THE SUPREME
COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 115-116 OF 2001
Ram Kumar and Anr. ...
Appellants VERSUS
State of Rajasthan and Ors. ...
Respondents
TARUN CHATTERJEE, J.
1.
These
appeals by special leave are directed against the judgment and order dated 26th
of March, 1998 passed by a learned Judge of the High Court of Judicature for
Rajasthan at Jodhpur in S.B. Civil Revision Petition No.480 of 1994 and order
dated 23rd of March, 1999 passed in S.B. Civil Defect Case No.1788 of 1998
which arose out of an application for review of the order dated 26th of March,
1998. By the order dated 26th of March, 1998, the learned Judge had set aside
the order passed by the learned Munsif, Ist Class, Tibbi by which the learned
Munsif held that the defendant No.3/respondent No.3 (in short `respondent
No.3') was not needed to be served with a notice under Section 80 of the Code
of Civil Procedure (in short the `CPC'), as the respondent No.3, being a
District Education Officer, had not done any act in his official capacity.
2.
The
facts leading to the filing of these appeals may be summarized as follows:
The proceedings for
acquisition of the land belonging to one Shri Daulat Ram, father of the
appellants situated at Chak No.12 M.K.S. Tehsil Tibbi, Mu. No.180/242, Kila
No.5-8 (presently Chak NO.3 D.P.M. 14 to 16 and 24-25) ad-measuring 9 bighas
and Mu.No.180/242, Kila No.4-5 ad-measuring 2 bighas and Mu.No.181/242 Kila
No.1-2, ad-measuring 2 bighas, totaling all 13 bighas in ABADI Mauza
Daulatpura, were initiated by the Bhakhra Colonization Department and the
Deputy Colonization Commissioner, Bhakhra Hanumangarh, while acquiring this
land along with other lands by orders dated 3.1.1962, ordered his subordinates
to put up proposal expeditiously to transfer in lieu of the land to be acquired
for ABADI any other land, in favour of the Khatedar (Mauroosi-holder). The said
Bhakhra Colonization Department was wound up and all the powers thereof were
vested in the officers of the Revenue Department. Hence, the father of the
appellants filed an application dated 22.11.1969 before the Tehsildar (Revenue)
Tibbi for transfer in terms of the order passed by the Deputy Colonization
Commissioner in lieu of his acquired land, the vacant land situated in Chak
No.M.K.S. (presently Chak No.D.P.M.), bearing Mu.No.180/240, Kila No.9 (1
bigha), 11 to 13 (3 bighas), 18 to 23 (6 bighas) ad-measuring in all 10 bighas
and Mu.No.181/246, Kila No.3, 8 (2 bighas) ad-measuring in all 12 bighas,
whereupon after conducting an inquiry the Tehsildar (Revenue) Tibbi submitted
his proposal before Deputy Collector, Hanumangarh and Deputy Collector
submitted on 13th of November, 1968, Sriganganagar, the defendant No. 2
accorded transfer of the said land in lieu of the acquired land. The District
Collector, Sriganganagar, by his order dated 20th of November, 1968 accorded
his approval to this transfer and the file concerned was returned to the Deputy
Collector, Hanumangarh. In compliance with the order dated 20th of November,
1968 passed by the District Collector, Sriganganagar, the transfer entry of the
land to be carried out in lieu of the acquired land was made in the revenue
record and the same was approved by the Tehsildar (Revenue) Tibbi on 3rd of
October, 1970 and the names relating to the lands were mutated in the revenue
records and the possession of the land concerned too was exchanged.
Accordingly, the father of the appellants gave up possession of the acquired
land measuring 13 Bighas as detailed in para 1 of the plaint, in favour of the
State and in lieu thereof, possession of the land, detailed in para 2 of the
plaint, was delivered to the father of the appellants who came into possession
thereof in the capacity of Khatedar. The said land, which was transferred in
exchange along with other lands in their entirety whereby out of the land
acquired in exchange, the land bearing No. 180/240, Kila No. 9 (1 Bigha), 11 to
13 (3 Bighas), 18 to 23 (6 Bighas) ad-measuring 10 Bighas fell into the share
of appellant No. 1 Ram Kumar and Mu. No. 181/246, Kila No. 3 and 8 (2 Bighas)
ad-measuring 2 Bighas fell into the share of appellant No. 2 Rajendra Kumar and
the transfer entry of this portion was made against S. No. 33 in the Khata No.
11/27 dated 13th January, 1971 and was certified on 20th of February, 1971 and
this land was thus mutated on 13th of Janaury, 1971 in the names of the
appellants in revenue records Jamabandi.
3.
The
District Collector (Defendant No. 2) however invoked the earlier order dated
20th of November, 1968 by passing a fresh order on 20th of April, 1974. The
appellants approached various authorities praying for an order restraining the
defendant No. 2 (hereinafter referred to as "Respondent No.2) from
delivering possession of the said land to the respondent No. 3 to District
Education Officer, being Respondent No. 3. After being unsuccessful before
different authorities, the appellant served a notice under Section 80 of the
CPC read with Section 52 of the Rajasthan State Land Acquisition Act No.24 of
1953 on the respondent No.2 in his official capacity on 13th of December, 1985.
Having failed to receive any reply, the appellants thereafter filed the suit on
25th of March, 1987 seeking declaration that the order dated 20th of April,
1974 passed by the respondent No.2 was null and void and ineffective and the
appellants shall be delivered back possession of the said land, particulars of
which has been described in paragraph 12 of the plaint, (herein after referred
to as the `suit land') from respondent No.3.
4.
A
joint written statement was filed on behalf of the State Government, Rajasthan
and respondent No.2 who was arrayed as defendant No. 2 and a separate written
statement was filed on behalf of respondent No.3. It is by way of an additional
plea in the said written statement filed by respondent No.3, a question was
raised as to the maintainability of the suit for non-service of notice under
Section 80 of the CPC on respondent No.3.
5.
By
an order dated 7th of July, 1992 the trial court framed several issues for
trial in the suit and one of such issues, namely, issue No.4 was decided by the
trial court as a preliminary issue which reads as follows:
Issue No.4 -
"Whether the suit of the plaintiff deserves to be dismissed for not
serving of notice under Section 80 of the CPC on defendant No.3 by the
plaintiffs."
6.
By
an order dated 24th of March, 1994, Issue No.4 was decided by the learned
Munsif, Ist Class Tibbi in favour of the appellants and against the respondent
No.3, inter alia, holding that respondent No.3, although a public officer being
the District Education Officer, was not required to be served notice under
Section 80 of the CPC as he had not done any act in his official capacity.
Feeling aggrieved by this order, respondent No.3 filed a revision petition
before the High Court and the High Court by the impugned order held that since
respondent No.3 being a District Education Officer must be served with a notice
under section 80 of the CPC as he was acting in the official capacity.
Accordingly the High
Court had set aside the order of the trial court and dismissed the suit in its
entirety on the ground of non-service of notice upon the respondent No. 3. It
is this order, which is now under challenge before us in appeal.
7.
Before
we proceed with the merits of the appeals against the aforesaid order of the
High Court passed in revision, we may keep it on record that it was brought to
our notice that by a final judgment and decree dated 24th of March, 1994, the
suit itself was dismissed on merit by the trial court and a regular first
appeal was filed by the appellants in the Court of the District Judge,
Hanumangarh which was still pending at the time of decision of the revision
case before the High Court. It is not known now whether the said appeal has yet
been decided by the High Court or that in view of the order passed by the High
Court in the aforesaid revision case which is under challenge before us, the
appeal has also been dismissed not only on merit but also on the ground that
the suit was not maintainable in law in view of non service of notice upon the
respondent No.3. Be that as it may, it would now be appropriate for us to
decide the question as to whether the non-service of notice upon the respondent
No.3 under Section 80 of the CPC before filing the suit would be fatal and the
court would have no other alternative but to dismiss the suit for such non
service. In order to decide this question, it would be appropriate to refer to
Section 80 of the CPC which reads as under:
"Section 80 -
NOTICE - (1) Save as otherwise provided in sub-section (2), no suits shall be
instituted against the Government (including the Government of State of Jammu
&
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) in the
case of a suit against the Central Government except where it relates to a
Railway a secretary to that Government (b) in case of a suit against the
Central Government, where it relates to Railway, the General Manager of that
Railway;
(bb) in case of a
suit against the Government of State of Jammu & Kashmir the Chief Secretary
to that Government or any other officer authorized by that officer on this
behalf;
(c) in case of a suit
against any other State Government, a Secretary to that Government or the
Collector of the District; and in case of a public officer delivered to him or
left at his office, 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.
(2) No suit
instituted against the Government or against a public officer in respect of any
act purporting to be done by such public officer in his official capacity 8
shall be dismissed merely by reason of any error or defect in the notice referred
to in sub-section (1), if in such notice (a) the name, description and the
residence of the plaintiff had been so given as to enable the appropriate
authority or the public officer to identify the person serving the notice and
such notice had been delivered or left at the office of the appropriate
authority specified in sub-section (1) and (b) the cause of action and the
relief claimed by the plaintiff had been substantially indicated."
8.
Before
we go into the scope and effect of Section 80 of the CPC, we may look at the
allegations and reliefs claimed in the suit.
As noted herein
earlier, the trial court decided the issue, namely, issue No.4 on the ground
that the respondent No.3 had not acted in his official capacity in the present
case and, therefore, service of notice under Section 80 of the CPC on
respondent No.3 was not necessary, whereas the High Court reversed the order of
the trial Court and held that the respondent No.3 had acted in his official
capacity and, therefore, non service of the notice on Respondent No. 3 would
invite the court to dismiss the suit in its entirety. Let us now look into the
allegations made in the plaint as well as the reliefs claimed in the same. The
land of the appellants was acquired by respondent Nos. 1 and 2 and in lieu
thereof, possession, as described in para 2 of the plaint, was delivered to the
appellants by the order of respondent No.2 in his official capacity, but
respondent No.2 revoked the said order and out of the said lands, as described
in para 2 of the plaint, possession of 7 bighas of land was delivered by
respondent Nos.1 and 2 to respondent No.3 in respect whereof the appellants
prayed that possession of the said 7 bighas of land be delivered back to the
appellants by respondent No.3 by way of consequential relief.
9.
From
the aforesaid facts alleged in the plaint, it would be evident that it was the
respondent No.2 who had passed two orders dated 20th of November, 1968 and 20th
of April, 1974 in his official capacity and that the notice under Section 80 of
the CPC was duly served upon him before filing the suit. As noted herein
earlier, since the possession of the suit land was taken over from the
appellants by respondent Nos. 1 and 2 and delivered to respondent No.3, a
prayer was made in the plaint to pass a decree directing the respondent No.3 to
deliver the possession to the appellants, which was consequential in nature. It
is, therefore, clear that the respondent No.3 had not done any act in his
official capacity and, therefore, in our view, as rightly held by the trial
court that service of notice under Section 80 of the CPC, in the facts and
circumstances of the case, was not at all necessary, as only a decree for
possession was prayed for which was delivered by the respondent Nos. 1 & 2
to Respondent No. 3 on the basis of recall of the order dated 20th of November,
1968.
10.
Before
we proceed further, we may keep it on record that the respondent No. 3 is a
public officer within the meaning of Section 2 (17) and Section 80 of the CPC.
Therefore, let us consider whether the respondent No. 3 had acted, in the facts
and circumstances of this case, in his official capacity or not. In our view,
High Court had committed an error in holding that the respondent No. 3 in the
facts as alleged in the plaint could be said to have acted as a public officer
in his official capacity. It was respondent No. 2 who had passed the aforesaid
two orders dated 20th of November, 1968 and 20th of April, 1974 and in fact,
who had passed the order of exchange of lands and also the order recalling the
earlier order of 1968 in his official capacity. In that view of the matter, in
our view, notice served on the District Collector, Sriganganagar was sufficient
and complete notice to the Government Middle School, Daulatpura which was
represented through the Education Officer (Students Institutions), Hanumangarh.
Therefore, in our
view, the High Court had misdirected itself in deciding the issue regarding
requirement of separate service of notice under Section 80 of the CPC. Looking
into the allegations made in the plaint and the reliefs claimed, we do not find
any reason to disagree with the view expressed by the trial Court when it had
held that no act was performed by the respondent No. 3 in his official
capacity. If we look at the plaint in the present case, it would be clear that
in the plaint, no act of respondent No.3 is being challenged. The appellants do
not seek to set aside any order of the respondent No.3 or to declare illegal
any of the acts of respondent No.3, it merely seeks a decree for recovery of
possession in the suit to hand over possession of the suit land to the
appellants. The suit which is not in respect of any act done by the respondent
No.3, as a public officer, and in which no act of respondent No.3 is either
challenged or sought to be set aside is not a suit to which Section 80 of the CPC
can very well apply. Therefore, in the facts and circumstances of the present
case, the respondent No.3 had not acted in his official capacity for which
service of notice under Section 80 of the CPC was necessary.
That apart, it is not
in dispute that the respondent No. 2 was Administrator and overall in-charge
including the Government Middle Schools (Students Institutions) in the District
and the notice served on the State Government through District Collector of the
District was sufficient compliance with the requirements of Section 80 of the
CPC. In view of the aforesaid fact, it was not necessary to separately serve a
notice to respondent No.3 as we find that no order was passed by the District
Education Officer, which was under challenge in the suit itself.
11.
In
view of our discussions made hereinabove, we are therefore of the view that the
High Court had fallen in error in reversing the order of the trial Court
holding that service of notice on respondent NO. 3 under Section 80 of the CPC
was not necessary to be served to Chander Kant (AIR 1977 SC 148), this Court
laid down the principle as to when service of notice on the State/defendants
under Section 80 of the CPC was necessary. In the said decision, this Court
observed as follows :- "The language of Section 80 of the Code of Civil
Procedure is that a notice is to be given against not only the Government but
also against the Public Office in respect of any act purporting to be done in
his official capacity. The Registrar is a Public Officer. The order is an act
purporting to be done in his official capacity.
In the present case,
the suit is to be set aside the order made by a Public Officer in respect of an
act done in the discharge of his official duties. Therefore, notice 13 under
Section 80 of the Code of Civil Procedure was required."
12.
From
the aforesaid, it would be evident that this Court held that service under
Section 80 of the CPC was necessary as in that case, the suit was filed for
setting aside an order passed by a public officer in respect of an act done in
the discharge of his official duties. In that view of the matter, in that
decision, it was held that service of notice under Section 80 of the CPC was
necessary and in the absence of that service, the suit must be dismissed. This
is not the factual position in this case. We have already held that Respondent
No. 3 had not passed any order as a public officer nor the appellants had asked
for setting aside any order passed by the respondent No. 3 as a public officer
in respect of any act done in the discharge of his official duties. As noted
herein earlier, the appellants have made the respondent No. 3 as a party
although he was a public officer only on the ground that possession was
delivered to him by the respondent No. 2 in the exercise of his official
capacity. For the purpose of possession to be delivered back to the appellants,
the respondent No. 3 was made a party by which, in our view, he had not at all
acted in discharge of his official capacity. A look at the reliefs claimed in
the plaint would clearly show that only a consequential relief was claimed in
the suit to the extent that possession of the suit land should be restored in
favour of the appellants by the respondent No. 3.
Therefore, in view of
the aforesaid discussion made hereinabove, we hold that even in the absence of
service of notice on the respondent No.3 under Section 80 of the CPC, the suit
was maintainable in law.
13.
Before
concluding, we may also keep it on record, as noted herein earlier, that from
the record it appears to us that the suit itself was dismissed on merits after
the issue No. 4 as to the maintainability of the suit for non-service of notice
upon the respondent No. 3 was decided in favour of the appellants. It is/was
now pending in appeal before the appellate court. Therefore, by any stretch of
imagination, it cannot be said that at the time the revision was decided, it
was open to the High Court to deal with Issue No.4 passed by the trial court
when the suit itself was dismissed on merits. That is to say, the revision
became infructuous in view of the disposal of the suit on merits. For this
reason also, the impugned order of the High Court is liable to be set aside.
Accordingly, if the appeal is still pending for decision, we direct the
appellate court to decide all the issues in the suit excepting Issue No.4 which
is being decided by us in favour of the appellants by this judgment on merit
within a period of six months from the date of supply of a copy of this
judgment.
14.
For
the reasons aforesaid, the impugned order is set aside and the order of the
trial court holding that the suit was maintainable for non-service of notice
under Section 80 of the CPC on the respondent No.3 is hereby restored. The
appeals are allowed to the extent indicated above. There will be no order as to
costs.
.................................J.
[ TARUN CHATTERJEE ]
.................................J.
New
Delhi:
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