A provision that bars the bringing of suits against municipalities without the sanction of the State Government is unconstitutional and violative of Article 14 of the Constitution, which guarantees equality before the law and equal protection of the law.

MODI, J.

( 1 ) THIS is a reference by the Munsiff Jodhpur City under Section 113 of the Code of civil Procedure, and raises the question of the validity of Section 220 of the jodhpur Municipal Act, 1943. Section 220 runs as follows :

"no suit shall be instituted against the Board or against any member, officer or servant thereof in respect of any act purporting to be done in its or his official capacity, without the sanction of the Government. "

( 2 ) THE facts leading up to this reference may be stated very shortly. The petitioner prahlad carries on trade in Ghee and grains in Udaimandir in the city of Jodhpur. It is alleged that he obtained on rent certain land, measuring 10 feet by 10 feet lying in front of the shop at which he carries on his business, originally from the development department a few years ago, and has been paying a rent of Rs. 3/per mensem to the Jodhpur Municipality for the same and that the municipality had started interfering with his possession on the 29th June, 1955, in an improper manner. Consequently, the plaintiff instituted the suit on 4th July, 1955, in which he prayed for an injunction restraining the defendant municipality from interfering with his possession over the disputed land during the pendency of his lease. It may also be added that the municipality appears to have commenced interference with the plaintiffs possession over the suit land, at the instance of one Tarachand who also carried on business in the neighbourhood of the plaintiff, and, therefore, tarachand was also impleaded as a defendant in the suit. An objection was raised before the trial Court that this suit was not maintainable without the sanction of the State having regard to the provisions of Section 220 of the Jodhpur Municipal Act. This objection was that on the side of the plaintiff by saying that Section 220 of the said Act was ultra vires and inoperative as it infringed Article 14 of the Constitution.

( 3 ) THE question for determination before me, therefore, is whether Section 220 of the Jodhpur Municipal Act which prohibits the bringing of any suit whatsoever against the Jodhpur Municipality, or any member, officer or servant thereof in respect of any act purporting to be done in its or his official capacity, without the sanction of the State Government, does or does not violate Article 14 of the constitution.

( 4 ) I have heard learned counsel for the petitioner who supports the reference, as well as the learned Deputy Government Advocate and the municipal counsel. Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or the equal protection of the law within the territory of india. Now, it is well established that the principle of equality before the law enshrined in our Constitution does not enjoin an absolute equality of treatment to all men, which is indeed an impossibility; but at the same time it forbids the denial of any special privilege by reason of birth, creed, caste or sex in favour of any individual or group of persons, and it further ensures the equal subjection of all individuals and groups to the ordinary law of the land. I may state at once that the right to sue or be sued is an important legal right or liability which inheres in an ordinary, citizen of our State, and, to my mind, the constitution does not favour the barring of or any serious inroad on such a right or liability. I may here draw attention to the following observation of their Lordships of the Privy Council in Maharaja of Jeypore v. Gunupuram Deena Bandhu Patnaick, ilr 23 Mad 42 (A) :

"the legal right to bring a suit and to have it determined by the proper court, cannot be barred upon considerations of policy or political expediency. "

( 5 ) AGAINST this background, the question which falls for consideration before me is whether Section 220 of the Jodhpur Municipal Act can be upheld on the principle of reasonable classification. It must be remembered, however, that such