THE HON’BLE SRI JUSTICE G.CHANDRAIAH %16.11.2011 C.R.P.NO.4190 OF 2010 T.RAVINDER RAJU AND ANOTHER PETITIONERS AND THE SINGARENI COLLIERIES COMPANY LTD. RESPONDENT Counsel for the petitioner: SRI K.VASUDEVA REDDY Counsel for the respondent: J.PRABHAKAR < Gist Ø Head Note. Ø ?Cases Referred: 1. AIR 1970 Calcutta 539 2. AIR 1989 Kerala 86 3. AIR 1974 Patna 376 THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.R.P.NO.4190 OF 2010 O R D E R Heard both the counsel. 2. The petitioners herein are the plaintiﬀs. They ﬁled the suit in O.S.(SR).No.228/2010 on the ﬁle of Junior Civil Judge, Parkal, for declaration against the defendant, which is the Singareni Collieries Company Limited, Bhupalpally, Warangal District, represented by its General Manager, to declare them as legal heirs of late Thokachichu Rama Raju s/o Bucchi raju, Occ: Ex Coal Filler, E.C.No.1702930 KTK 2 Incline, Singareni Collieries Company Limited, Bhupalpally, Warangal District, who died on 23.7.2007. The said suit was returned by raising the following objection dated 3.3.2010: “Heard, returned as the plaintiﬀs have not served prior notice as required u/s 80 CPC against the defendant.” 3. Challenging the above order, the present revision is filed. 4. The contention of the counsel for the petitioner is that the defendant is not Government and only an instrumentally of State and hence no notice as contemplated under Section 80 of the C.P.C. is required to be issued before filing of the suit. 5. In order to examine the above issue, it is necessary to note Section 80 of C.P.C., which contemplates notice to Government and Section 2(17) of C.P.C., which deﬁnes ‘public oﬃcer’, occurring in Section 80 of C.P.C. The said provisions are extracted as under for better appreciation: 80. Notice: (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government including the Government of the State of Jammu and 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 the case of a suit against the Central Government, where it relates to a railway, the General Manager of that railway; (bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other oﬃcer authorized by that Government in this behalf. © in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district; and, in the case of a public oﬃcer, delivered to him or left at this 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) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public oﬃcer in respect of any act purporting to be done by such public oﬃcer in his oﬃcial capacity, may be instituted, with the leave of the court, without serving any notice as required by sub-section (1); but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the government or public oﬃcer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit: PROVIDED that the court shall, if it is satisﬁed, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirement of sub-section (1). (3) 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 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 has 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. 2. Definitions: In this Act, unless there is anything repugnant in the subject or context_ (17) “Public Oﬃcer” means a person falling under any of the following descriptions, namely:- (a) every judge; (b) Every member of an All India Service; (c ) every commissioned or gazetted oﬃcer in the military, naval or air forces of the Union while serving under the Government; (d) every oﬃcer of a Court or Justice whose duty it is, as such oﬃcer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person especially authorized by any Court of Justice to perform any of such duties; (e) every person who holds any oﬃce by virtue of which he is empowered to place or keep any person in confinement; (f) every oﬃce of the Government whose duty it is, as such oﬃcer, to prevent oﬀences, to give information of oﬀences, to bring oﬀenders to justice, or to protect the public health, safety or convenience; (g) every oﬃcer whose duty it is, as such oﬃcer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report on, any matter aﬀecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and (h) every oﬃcer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty; 6. From a reading of above provision, it is clear that under sub section 1 of section 80, no suit 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, shall be instituted, until the expiration of two months next after issuance of notice and under sub section 2 section, in case of urgency, issuance of notice as contemplated under sub section 1 prior to the institution of suit is dispensed with, but the court cannot grant the relief interim or otherwise, except after giving to the Government or public oﬃcer a notice, as the case may be. Clauses (a) to (g) of sub section 17 of Section 2 describes the persons who fall under the category of ‘public oﬃcers’ and under clause (h) the ‘public oﬃcer’ is a person who is in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty. 7. In the present case, the defendant is a public limited company incorporated under the Companies Act and it is being represented by its General Manger, who is not directly in the service or pay of the Government or remunerated by fees or commission for the performance of their duties. The defendant – company is an instrumentality of the State under Article 12 of the Constitution of India. Hence, it cannot be treated as Government, nor its oﬃcers as ‘public oﬃcers’, deﬁned under sub section 17 of Section 2 of C.P.C. 8. A Division Bench of the High Court of Calcutta in GOWARDHANDAS v. CALCUTTA MUNICIPALITY [1], while considering the issue whether the Commissioner of Corporation of Calcutta is a government servant and whether notice under Section 80 of C.P.C. is required to be issued before institution of suit; held that as the State Government do not exercise any control over the discharge of duties by the Commissioner of Corporation of Calcutta as such Commissioner, nor he is in the pay of the Government, the Commissioner cannot be said to be a government servant in spite of the control of the government over his appointment and his removal and his functions outside the oﬃce of the Commissioner, and hence, no notice to him under Section 80 is necessary. The relevant portion of the judgment is extracted as under for better appreciation: 17. So far as the question under Section 80 of the Code of Civil Procedure is concerned, it is clear that, for the application of that section and the requirement of notice under the same, it is necessary that the defendant must be a Public Oﬃcer. So far as the present case is concerned, this defence is limited to the case of defendant No.2, as, obviously, the Corporation of Calcutta would not fulﬁll the description or deﬁnition of a Public Oﬃcer. As regards the said defendant no.2, however, the matter, when judged under the relative statutory provision in Section 2(17) of the Code of Civil Procedure, which deﬁnes a “public oﬃcer’ for purposes of the Code, the same can be attracted, if at all under clause (h) of the said section: “(h) every oﬃcer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty.” The later part of this clause would not, obviously, apply in the instant case as the Commissioner of the Corporation of Calcutta is not remunerated by fees or commissions. The question then shortens itself to this: “Is he an oﬃcer in the service or pay of the Government?” For this purpose, it is necessary to consider the eﬀect and implication of some of the provisions of the Calcutta Municipal Act. . . . 18. The 18. The above statutory provisions indicate some kind of the State's control over the Commissioner but this is limited to his appointment, to the terms and conditions of the same, to his removal and to his functions outside the oﬃce of the Commissioner. They do not, in any manner, control or aﬀect the discharge of his duties under his appointment as Commissioner and leaves him free in the matter and free from any interference or control of the State Government. In this state of things, it is diﬃcult to maintain that the Commissioner of the Corporation is in the service of the State. 19. Indeed, this aspect would be clear, if we bear in mind the distinction between "serving under the Government" and "in the service of the Government", as explained by the Supreme Court in the case, reported in Raja Bahadur K. C. Deo Bhanj v. Raghunath @page-Cal542 Misra, (1959) 2 SCA 168 : (AIR 1951 SC 589), where, for being in the service of the Government, two essentials of the relationship of the master and servant were held to be necessary. The servant must be under the duty of rendering personal service to the master or to others in his behalf and the master must have a right to control the servant's work, either personally or by another servant or agent. Neither of these two elements would be present in the instant case - in any event, the element of control, envisaged therein, would not be present - the Commissioner qua Commissioner cannot be held to be in the service of the Government. The Commissioner also cannot be said to be in the pay of the Government, because as provided in Section 20 of the Calcutta Municipal Act, his salary is to be paid out of the Municipal Fund, which under Section 115 of the said Act, is made up of monies realised or realisable under the said Act (other than the ﬁnes levied by Magistrates) and all monies otherwise received by the Corporation. This fund is certainly not any part of the Government or State Exchequer and cannot be said to be belonging to the State. 20. In the premises, the Commissioner would not satisfy either of the requisite tests of a Public Oﬃcer under the relevant Cl. (h) or Section 2 (17) of the Code of Civil Procedure, namely, of being in the service of the Government or in its pay. 9. In another judgment, a learned single Judge of the High Court of Kerala in V.P. NAIR v. K.S.E. BOARD[2] held that whether it be Electricity Board or the Food Corporation or Urban Development Corporation or any of that category, may be an instrumentality of the State within the meaning of Article 12 of the Constitution and it nevertheless would not answer the description of Government as understood in law and as it is understood in the context of Section 80 of C.P.C. The relevant excerpts of the judgment is as under: 5. It is no doubt true that to the lay mind, the concepts of 'State' and 'Government' may not signify much of diﬀerence. Courts of law have, however, to be precise in the delineation of the contours of these concepts. 6. Electricity Boards constituted under the Electricity (Supply) Act, 1948, had figured in important judicial decisions by the highest court, which had to assess the true character and legal status. Rajasthan State Electricity Board's case is a legal classic in itself. (vide AIR 1967 SC 1857). The guidelines contained therein have been helpful in understanding the legal nature and character of other statutory bodies too. The issues settled by the decision, and others of later times which have sometimes ampliﬁed and sometimes explained the earlier ideas is simply this : An Electricity Board is a State within the meaning of Art.12 of the Constitution. It would then follow as a corollary that in relation to its acts and activities, the Board has necessarily to conform to the provisions of Arts.14 and 16 of the Constitution. The question whether the Electricity Board is Government, however, did not arise in that decision. 7. There is a vital and clear diﬀerence between 'Government' and 'State'. The jurisprudential position is explained by @page-Ker88 authoritative and helpful legal literature explaining and elucidating the concept of State and Government. Salmond and Paton, Dias and Allen and other jurists have commented upon the concepts. The theory of the State by J.K. Bluntschli contains much of thought on State and Government. It is, however, unnecessary to attempt an elaborate discussion on that topic as the connected ideas have been exhaustively discussed by the Supreme Court in Pashupati Nath v. Nem Chandra, AIR 1984 SC 399. It was pointed out therein : "A State implies the existence of a community or group of people occupying a geographical area or territory in which they permanently reside possessing internal sovereignty and independence of foreign control and a political organisation or agency through which the collective will of the people is expressed and enforced. The last of the elements of a State referred to above is generally called as a Government. . . . . . . . . . . . . . From the legal point of view, Government may be described as the exercise of certain powers and the performance of certain duties by public authorities or oﬃcers, together with certain private persons or corporations exercising public functions. The structure of the machinery of Government and the regulation of the powers and duties which belong to the diﬀerent parts of this structure are deﬁned by the law which also prescribes to some extent the mode in which these powers are to be exercised or these duties are to be performed. (See Halsury's Laws of England, Fourth Edition, Vol. 8. Para 804) Government generally connotes three estates, namely, the Legislature, the Executive and the Judiciary while it is true that in a narrow sense it is used to connote the Executive only." (Emphasis supplies) 8. Reference has been made to the earlier decisions of the Supreme Court such as the Gurugobind Basu v. Sankari Prasad Ghosal, AIR 1964 SC 254, Union of India v. Sankal Chand Himatlal Sheth, AIR 1977 SC 2328 and Hargovind Pant v. Dr. Raghukul Tilak, AIR 1979 SC 1109 where the status of the Comptroller and Auditor-General of India as also the Judges of the Supreme Court and of the High Courts had been discussed as to whether they were Government servants or not. 9. The principles laid down as gatherable from the discussions on the topic would deﬁnitely be helpful in understanding the distinctions between the State and the Government in the present context too. 10. A statutory body - whether it be Electricity Board or the Food Corporation or Urban Development Corporation or any of that category - may be an instrumentality of the State within the meaning of Art.12 of the Constitution. It nevertheless would not answer the description of Government as understood in law and as it is understood in the context of S.80 C.P.C. 11. The precise question had been considered by the Kamataka High Court in Shivamurty v. Chairman, K.E. Board, ILR (1980) 1 Kant 686. The scheme of the Electricity Supply Act and the legal principles applicable have been surveyed in that decision. The ultimate ﬁnding is that the Electricity Board is not a Government and its oﬃcers are not public oﬃcers, in the context of S.80, C.P.C. The neat analysis of the legal and constitutional provisions as attempted by the learned Judge has my unreserved approval. The conclusion is : "...... in spite of the control and supervision exercised by the State Government on the funds and the activities of the Board, it cannot be held to constitute a "Government' for the purpose of S.80 of the C.P. Code." 12. The C.P.C. does maintain the distinction between Government and State in its provisions. O.27 refers to suits by or against Government or public oﬃcers in their oﬃcial capacity. Rule 8B gives the deﬁnition of the Government and Government Pleader. That is not particularly helpful inasmuch as it only brings out the distinction between the Central Government and the State Government and the cause of action against the one or the other. Ss.84 to 87B contain references to State. S.79 speciﬁcally states that in a suit by or against the Government, the authority to be named as plaintiﬀ or defendant, as the case may be, shall be in the case of a suit by or against a State @page-Ker89 (Government, the State. To describe the Kerala State Electricity Board as the State in a suit ﬁled against it, would be totally inapposite. Equally jarring would be the position when a Government Pleader could take notice or act on behalf of the Electricity Board, pressing into service the provisions of O.27 dealing with suit by or against the State Government. 13. The question has been discussed in the context of other statutory bodies like the Urban Development Corporation and the like. The High Courts of Patna, Punjab and Haryana and Karnataka have taken the view that such authorities would not be 'Government' within the meaning of S.80 C.P.C. The reasoning in those decisions will apply with equal force to the present case. 14. Equally unsustainable is the view taken by the courts below about the scope and ambit of the term 'public oﬃcer', as occurring in S.80, C.P.C. and deﬁned in S.2(17). As noted earlier, the only clauses which could have any relevance in the present context are clauses (e) to (h). An Assistant Engineer of the Electricity Board is not one empowered to place or keep any person in conﬁnement as visualised in Cl. (e). He is not an oﬃcer of the Government entrusted with the duty such as the prevention of oﬀences as indicated in Cl.(f). Nor is he an oﬃcer to whom the duty has been assigned as referred to in Cl.(g), on behalf of the Government, or aﬀecting the pecuniary interests of the Government, or doing any act in relation to or for the protection of the pecuniary interests of the Government, as visualised in Cl.(g). An Assistant Engineer is not an oﬃcer in the service or pay of the Government nor one remunerated by fees or commission as indicated in Cl.(h). Shivamurthy's case (ILR 1980 (1) Kant 686) (supra) states : "Thus, the oﬃcers of the Board are appointed by the Board and not by the State Government and their salary is paid by the Board. They are not in the service or pay of the Government. They are in the service of the Board and are paid by the Board. Further, the Oﬃcers of the Board being in the services of the Board, cannot be said to perform Any of the duties on behalf of the Government as enumerated in Cl.(g) of S.2(17) of the C.P.C. Thus, the oﬃcers and the employees of the Board cannot be held to be 'public officers' as defined in S.2(17) of the C.P.C." An earlier decision of that court in State of Mysore v. C.I.T.B. Mysore, (1969) 1 Mys LJ 337, would also justify the above conclusion. 10. A learned single Judge of Patna High Court in KAMTA PRASAD SINGH v. THE REGIONAL MANAGER, FOOD CORPORATION OF INDIA [3] while considering the status of Food Corporation of India, whether it is Government and whether notice as requirement under Section 80 has to be issued and whether its oﬃcers are ‘public oﬃcers’, held that the fact that the capital of a Corporation was provided by the Central Government or that its working was supervised or directions were issued by the Central Government, does not make it a Government within meaning of Section 80. Although the expression ‘Government’ has not been deﬁned in code, it cannot include a “Corporation” constituted under an Act of Parliament and where the oﬃcers of the Corporation are in service and pay of the Corporation and are paid out of the funds of the Corporation, they are not “Public Officers” within the meaning of Section 80 of C.P.C. 11. In view of the above judgments it is clear that the defendant – company though is an instrumentality of the State under Article 12 of the Constitution of India, is not Government and its oﬃcers are not ‘public oﬃcers’, and hence notice as contemplated under Section 80 of C.P.C. is not required to be issued before filing of the suit. 12. Hence, for the foregoing reasons, the impugned objection by the court below cannot be sustained and the same is overruled. The court below shall number the suit, if the same is otherwise in order and dispose of the same in accordance with law, as expeditiously, as possible. 13. The revision is accordingly allowed. No costs. AVS ------------------------------------ 16—11—2011 [1] AIR 1970 Calcutta 539 [2] AIR 1989 Kerala 86 [3] AIR 1974 Patna 376