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Report No. 3

Chapter XII

Conclusion

182. With a view to give a clear picture of the proposals formulated by us, we have attached an annexure to the Report, embodying our proposals in the form of an Act. It is, therefore, unnecessary to summarise the proposals as is usually done at the end of a Report of this nature.

M.C. Setalvad, Chairman

M.C. Chagla, Member

K.N. Wanchoo, Member

G.N. Das, Member

P. Satyanarayana Rao, Member

N.C. Sen Gupta,* Member

V.K.T. Chari, Member

D. Narsa Raju, Member

G.S. Pathak, Member

G.N. Joshi, Member

*. Dr. Sen Gupta has signed the report, subject to the Note appended below.

K. Srinivasan,

Durga Das Basu,

Joint Secretaries

Bombay.

Dated: 21st July, 1956.

Note By Dr. N.C. Sen Gupta.

I regret that I cannot agree with the proposal to alter the provisions of the Articles 2, 3, 7 to 9. My colleagues have virtually extended the period in the case of these suits to 3 years on the basis that they are founded on contract and should come under the general rule regarding suits on contracts or torts. That may be so. But at the same time there are, in my opinion, reasons of policy why, in respect of some of these Articles, the shorter period of limitation should be fixed.

The reasons for the proposed amendments in respect of Article 2 are firstly that there should be no difference between the State and private parties in respect of suit on tort and that a suit for compensation in respect of a thing purported to be done by an officer under some enactment in force is nothing but a tort for which the Government is liable. To the general principle of parity between the Government and private persons in respect of limitation, I have no serious objection. But there are important differences between ordinary torts by private persons and suits under this Article.

There may be suits of this character which are purely suits for damages for a particular wrong against a particular person. But most of these cases would be cases in which an officer of the Government has been acting or purporting to act under authority of an enactment and in most of these cases, questions about the validity of the enactment or of the interpretation of it upon which the officer is acting would be in question. In such cases it is by all means necessary that such suits should be disposed of as quickly as possible, - so that if the decision goes against the action of a particular officer, the Government may take early steps that further action may not be taken on the erroneous view of law.

Further, it must be remembered that the Government is made vicariously responsible for the acts of its officers and having regard to the extremely large area of Government activities and its responsibility for acts of a multitude of officers, it is necessary that the Courts' decision about the correctness or otherwise of the act of such officers should be made known to the Government as soon as possible.

Public policy requires that acts of Government officials purported to have been done under the provisions of some enactments in force should be tested, if necessary, as soon as possible - in order that public administration may not be affected by an erroneous course of action based on wrong application of the law for a long time; and if there has been an error, it should be rectified as soon as possible.

I am afraid that the principle that this makes a discrimination between the Government and a private person does not provide a correct approach to the problem. The difference in the provisions lies not in the character of the person against whom the suit is brought but in the nature of the claim which justifies a short period.

The injury that can be done by delay is illustrated by the Inter-State Sales Taxation cases. Before the Special Bench of the Supreme Court finally decided on the invalidity of certain State laws, a large amount of money had been recovered by Government from traders and the situation, if all that money had to be returned in suits brought for compensation was apparently so serious as to call for a special legislation by ordinance validating the realisation already made.

With regard to Article 5, I should have thought that this matter should await our decision in connection with the Specific Relief Act whether suits under section 9 of that Act should be retained. The basis of the provision of section 9 of the Specific Relief Act is that possession should be protected. If anybody has a better right to possession, he must establish his title before recovering possession in the meantime, the possession should be protected. On similar grounds section 145 of the Criminal Procedure Code gives a protection to possession where there is likelihood of a breach of peace. In cases where a strong or wily man quietly dispossesses a person, section 9 provides a short remedy for protecting possession, pending any suit for title that might be brought by the disseisor. It is a summary decision for the protection of present possession and there are, in my opinion, strong reasons why this summary procedure should continue.

It is stated in the report that it means a duplication of litigation. I should think that this duplication is already there in many cases which have not been touched. For instance where possession is claimed in execution of a decree and the other side objects to the delivery of possession by claiming a right independent of the judgment-debtor and an order has been made under Order 21, rule 97, that is to be summarily decided on the finding whether the objector is in possession on behalf of the judgment-debtor or not, leaving open a suit to be instituted thereafter for declaration of title. For that suit a short period of one year is provided. I do not see why for similar reasons the same provisions should not be made in respect of any summary decision on the basis of possession.

Similarly, under the present Articles which have not been proposed to be repealed, Articles 11, 11(A) and 13 of the present Act provide for short limitation in cases where there has been a summary decision by a court, the principle seems to be that where a matter has been once before the court and the court has given a summary decision, it is in accordance with public policy that the matter should be finalised without delay.

The idea of the majority is that Article 142 of the present Act should be limited to suits on the ground of possession alone and the limitation for that would be 12 years. If that is so, then a special limitation for a suit on the ground of prior possession is unnecessary. But where a person who has lawfully acquired possession of property is disturbed by another on the ground of his previous possession, the latter would have 12 years within which he should bring his suit and in the meantime the right of the person who has possession will be kept in suspense for the long period of 12 years. I do not think that there is any principle of justice or fairness in doing so. If the Articles are to be as proposed in the draft, it would rather seem not that suit under section 9 of the Specific Relief Act should go but that Article 142 itself should be simply omitted.



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