PETITIONER:
STATE OF MAHARASHTRA AND ANR.
Vs.
RESPONDENT:
SHRI CHANDER KANT
DATE OF JUDGMENT29/10/1976
BENCH:
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
KRISHNAIYER, V.R.
CITATION:
1977 AIR 148 1977 SCR (1) 993
1977 SCC (1) 257
ACT
Code of Civil Procedure, s. 80--Whether applicable to suits
filed undersection 9(1) of the (M.P.) Public Trusts Act,
1951.
HEADNOTE
The respondent filed this suit against the order of the
Registrar of Public Trust, Amraoti, declaring the Ganjanan
Maharaj Sansthan of Mangrul---Dastagir to be a public trust.
The Additional District Judge’s order dismissing the suit,
was Upheld in appeal by the Single judge of the High Court
on account of the respondent’s failure to serve a notice
under-section 80 C.P.C. Allowing a Letters Patent Appeal, a
Full Bench of the High Court held that s. 80 C.P.C. was not
applicable to suits filed under-section 8 of the (M.P.)
Public Trusts Act, 1951.
Allowing the appeal, the Court
HELD: Section 8 of the Act indicates that the suit contem-
plated there is against the public officer in his official
capacity within the meaning of Section 80 of the Code of
Civil Procedure. The words "Act purporting to be done in
official capacity" apply to non-feasance as well as to
misfeasance. No distinction can be made between acts done
illegally and in bad faith and acts done bonafide in offi-
cia1 capacity. [994 C, 995 D]
Sawai Singhai Nirmal Chand v. Union of India [1966] 1
S.C.R. 986 referred to.
Bhagchand Dagadusa v. Secretary of State for India in Coun-
cil and others (54 LA. 338), Prasaddas v. Bennerjee I.L.R.
[1930] (57) Cal. 1127, applied.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1798 of
1968.
(From the Judgment and Decree dated 16.6.1966 of the
Bombay High Court in Appeal No. 13/62)
V.S. Desai & M.N. Shroff for the appellants.
A.G. Ratnaparkhi, for the respondent.
The Judgment of the Court was delivered by
RAY, C.J.---This appeal by certificate is from the
judgment dated 16 June, 1966 of the High Court at Bombay
(Nagpur Bench).
The respondent filed this suit against the State claim-
ing that the order dated 1 March, 1955 in Revenue case
declaring Gajanan Maharaj Sansthan of Mangrul-Dastagir to
be a public trust be set aside. The plaint was filed under
section 8 (1) of the Public Trust Act (M.P. Public Trusts
Act 1951) against the State of Madhya Pradesh and the Regis-
trar of Public Trust, Amraoti.
It is admitted by the parties that no notice under
section 80 of the Code of Civil Procedure was given. The
defendants took the plea that the suit was liable to be
dismissed by reason of no notice under section 80 of the
Code of Civil Procedure having been given.
994
The Additional District Judge by his order dated 26
March, 1957 held a notice under section 80 of the Code of
Civil Procedure was necessary and the suit was not maintain-
able and ordered the dismissal of the Suit.
The respondent filed an appeal. The learned Single
Judge agreed with the view of the Additional District Judge.
A Letters Patent Appeal was filed. The matter was
placed before a Full Bench. The Full Bench held that the
provisions of section 80 of the Code of Civil Procedure had
no. application to a suit filed under section 8 of the
Madhya Pradesh Public Trusts Act, 1951 (hereinafter referred
to as the Act).
This Court in Sawai Singhai Nirmal Chand v. Union of
India(1) held that notice under section 80 is necessary for
setting aside orders of attachment and sale of property.
The provisions contained in section 8 of the Act indi-
cate that the suit contemplated there is against the Public
Officer in his official capacity within the meaning of
section 80 of the Code of Civil Procedure.
The provisions of section 80 of the Code of Civil Proce-
dure are express, explicit and mandatory. See Bhagchand
Dagadusa v. Secretary of State for India in Council and
others(2).
The Registrar in the present case held it to be a public
trust. The declaration sought for in this suit is that this
is not a public trust. The High Court was wrong in holding
-that the suit under section 8 of the Act cannot be regarded
as a suit against the Government.
The Full Bench held that neither the Government nor the
Registrar was competent to give any relief to any person who
felt aggrieved by the order of the Registrar.
The following provisions of the Act are important to be
noticed. The Collector shall be the Registrar of Public
Trusts in respect of every public trust the principal office
or the principal place of businessof which is situate in
his district. Within three months from the date on which
section 4 comes into force in any area or from the date on
which a public trust is created, the working trustee of
every public trust shall apply to the Registrar having
jurisdiction for the registration of the public trust. On
receipt of an application the Registrar shall make an
inquiry as contemplated in section 5 of the Act. The Regis-
trar then shall record his finding with reasons. The Regis-
trar shall cause entries to be made in the register. Any
person aggrieved by any finding of the Registrar may within
six months from the date of the publication of the notice
institute a suit in a civil court to have such finding set
aside or modified. In every such suit, the civil court
shall give notice to the State Government through the Regis-
trar, and the State Government, if it so desires, shall be
made a party to the suit. All monies belonging to a public
(1) [1966] 1 S.C.R. 986. (2) 54.I.A. 338.
995
trust shall be kept in a Scheduled Bank. No sale, mortgage,
exchange or gift of any immoveable property and no lease for
a period exceeding seven years in the case of agricultural
land or for a period exceeding three years in the case of
non-agricultural land or a building belonging to a public
trust, shall be valid without the previous sanction of the
Registrar. The Budget of every public trust where the gross
annual income of which exceeds one thousand rupees shall be
submitted to the Registrar. The Registrar shall have powers
to enter on and inspect or cause to be entered on and in-
spected any property belonging to a public trust, or to
call for any return, statement, account or report as contem-
plated in section 22 of the Act. If the Registrar finds any
defects in the administration of the public trust the
Registrar may require the working trust as to submit an
explanation. The Registrar has power as contemplated in
section 26 of the Act to direct the trustee to apply to
court for directions in certain cases. If the trustee fails
to do so the Registrar shall himself make an application.
The State Government may make rules for the purposes men-
tioned in the Act.
These provisions indicate that the Registrar is a
Public Officer. The word? "act purporting to be done in
official capacity" have been construed to apply to non-
feasance as well as to misfeasance. The word "act" extends
to illegal omissions. See Prasaddas v. Bennerjee(1). No
distinction can be made between acts done illegally and in
bad faith and acts done bona fide in official capacity. See
Bhagchand Dagadusa’s case (supra). Section 80 of the Code
of Civil Procedure therefore is attracted when any suit is
filed against a Public Officer in respect of any act pur-
porting to be done by such Public Officer in his official
capacity.
The language of section 80 of the Code of Civil Proce-
dure is that a notice is to be given against not only the
Government but also against the Public Officer in respect of
any act purpoting to be done in his official capacity. The
Registrar is a Public Officer. The order is an act purport-
ing to be done in his official capacity.
In the present case, the suit is to set aside the order
made by a Public Officer in respect of an act done in the
discharge of his official duties. Therefore, notice under
section 80 of the Code of Civil Procedure was required.
For the foregoing reasons the judgment of the High Court
is set aside. Parties will pay and bear their own costs.
M.R. Appeal al-
lowed.
(1) I.L.R. (1930) 57 Cal. 1127.
996