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1927 Supreme(SC) 45
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT SUMNER, LORD ATKINSON, LORD CARSON, LORD DARLING, AND SIR LANCELOT SANDERSON.
BHAGCHAND DAGADUSA - Appellant
Versus
SECRETARY OF STATE FOR INDIA IN COUNCIL (DEFENDANTS) - Respondents
On appeal from the High Court at Bombay.
Decided On : May. 27. 1927.
Solicitors for appellants:T. L. Wilson & Co. Solicitor for respondents: Solicitor, India Office.
Section 80 of the Code of Civil Procedure, 1908, is mandatory and applies to all suits against government officials, including those seeking injunctive relief. The statutory two-month notice period must be strictly observed, regardless of the urgency or the nature of the relief claimed.
Headnote:(A) Code of Civil Procedure, 1908 - Section 80 - Suit against government officials - Notice period - Mandatory nature - Application to suits for injunction - Whether a suit for injunction to prevent irreparable harm can be filed without completing the statutory two-month notice period - Section 80 is express, explicit and mandatory, admitting no implications or exceptions - A suit in which an injunction is prayed is still a "suit" within the meaning of the section - The statutory interval of two months must be strictly complied with regardless of the relief sought or the urgency of the remedy. (Paras 110-125)
(B) District Police Act, 1890 - Sections 25, 25a, 26 and 79 - Recovery of costs for additional police and compensation for damages - Validity of notification - Executive nature of taxing function - Section 79 protects orders from defects of form or irregularity of procedure provided there is substantial conformity - Recovery of police costs in a municipal district must first be attempted by the municipality before the Collector can intervene - Disregarding this statutory prescription is not a mere irregularity but a breach of constitutional importance. (Paras 55-95)
Facts of the case:
Following riots and damage to property, the government imposed a tax for compensation and additional police costs. After initial attempts to recover funds from the primary culprits failed, a notification was issued shifting the tax burden to a class of merchants dealing with the culprits. The plaintiffs, being among the affected merchants, filed a suit for a declaration of invalidity of the notification and a permanent injunction. The suit was filed before the expiration of the statutory two-month notice period required for suits against public officials.
Findings of Court:
The court found that while the notification shifting the tax burden was substantially valid under the protective provisions of the Police Act, the direct recovery of police costs by the Collector was premature as it bypassed the mandatory role of the municipality. However, the suit was fundamentally unsustainable because it violated the mandatory notice period under the Code of Civil Procedure.
Issues: Whether the notification shifting the tax burden was valid; whether the Collector's recovery of police costs was premature; and whether the mandatory notice period under Section 80 of the Code of Civil Procedure applies to suits seeking injunctive relief.
Ratio Decidendi: Section 80 of the Code of Civil Procedure is a mandatory provision that applies to all suits against government officials, including those for injunctions. No exception exists for cases of alleged irreparable harm, as the section imposes a statutory and unqualified obligation upon the Court. Furthermore, statutory requirements regarding the sequence of recovery in the Police Act are mandatory and cannot be waived as mere irregularities.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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administrative law
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statutory interpretation
- bombay district police act
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executive action
- ultra vires
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statutory interpretation
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practice and procedure
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civil procedure
- notice to government
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civil procedure
Judgement
Appeal (No. 68 of 1925) from a decree of the High Court (August 16, 1923) affirming a decree of the District Judge of Nasik (February 12, 1923).
The suit was brought on June 26, 1922, by the appellants and other plaintiffs against the Secretary of State for India in Council, and the Collector and District Magistrate of Nasik. The plaintiffs claimed a declaration that a notification published by the Bombay Government on June 6. 1922, under the Bombay District Police Act, 1890, was invalid, and an injunction restraining the defendants from recovering from the plaintiffs tinder the notification.
The facts are stated in the judgment of the Judicial Committee, and the material sections of the above Act are fully set out in the report of the proceedings in the High Court at I. L. R. 48 B. 87.
The District Judge dismissed the suit for non-compliance with the provisions of s. 80 of the Code of Civil Procedure; he was also of opinion that the notification in question was not invalid.
An appeal to the High Court was dismissed.
Shah A.C.J. was of opinion that s. 80 of the Code of Civil Procedure, 1908, did not apply, as the suit was for an injunction; also that neither s. 81 of the District Police Act, 1890, nor
s. 4 (f) of the Bombay Revenue Jurisdiction Act, 1876, prevented the suit from being maintained. He was however of opinion upon the facts that the notification was valid. Kemp J. was of opinion that s. 80 of the Code of Civil Procedure, 1908 was fatal to the suit he agreed that the District Police Act, 1890, ss. 80, 81, and the Bombay Revenue Jurisdiction Act, 1876, s. 4 (/), did not apply. He agreed with Shah A.C.J. and the District Judge in holding on the facts that the notification was not illegal.
1927. March 24, 25, 28. De Gruyther K.C. and Parikh for the appellants.
Sir George Lowndes K.C. and Kenworthy Brown for the respondents.
The arguments, both as to s. 80 of the Code of Civil Procedure, 1908, and as to the validity of the notification under the District Police Act, 1890, appear from the judgment of the Judicial Committee.
May 27. The judgment of their Lordships was delivered by
VISCOUNT SUMNER. In this action forty-eight plaintiffs joined in suing the Secretary of State for India and the Collector and District Magistrate of Nasik for two kinds of relief, (a) a declaration that certain official notices and orders were ultra vires and invalid, and (b) an injunction permanently restraining all executive action thereunder. Unless the right to the first relief was made out, the prayer for the second necessarily failed. The suit was begun less than two months after notice of the intention to bring it had been given to the respondents. It was dismissed by the District Judge on all grounds, and by the High Court of Bombay as well, but, as to one of the learned judges, not altogether on the same grounds. The plaintiffs now appeal.
In April, 1921, serious disorder occurred at Malegaon, in the District of Nasik, Bombay, connected with the Khilafat agitation, and in the consequent unlawful assemblies and riots there was loss of life and much damage to property. The Mahomedan weavers, who formed the large majority of the male inhabitants of the place, were the chief culprits, though it is not likely that they acted without instigation from other parties. Some persons were punished criminally, I but the question remained how the injured parties were to be compensated and how order was to be maintained in the future. An inquiry was accordingly held, and amounts were fixed by way of compensation to persons who had suffered in the riots. The Government decided to put in force the provisions of the Bombay District Police Act No. IV. of 1890 and orders were duly made for the employment of additional police at the expense of the inhabitants and for payment of compensation for the injuries sustained. Under these orders the income tax payers, a small class, and the great body of the weavers were designated as the parties to pay t
