Anantanarayanan, C.J.-

The issue involved in this reference by Veeraswami, J. can be simply formulated as the question whether a notice under section 80 of the Code of Civil Procedure is required for a suit against the State Government or an authority of that Government, for a mandatory injunction. The learned Judge (Veeraswami, J.) has briefly referred to the apparent conflict of the case-law on this point, and expressed his own view that he was unable to agree with the interpretation which Curgenven, J., placed on the words of section 80, Civil Procedure Code in Krishnaswami Sastri v. Syed Ahmed1. In our view, the issue is practically concluded by a decision of the Judicial Committee, to which we shall later refer approbated and explained in a recent decision of the Supreme Court in Sawai Singhai v. Union of India2, apparently this decision was not before Veeraswami, J., at the time that he made this reference.

A very brief reference to the facts of the case may be useful, as we are now disposing of the case on the preliminary ground, in addition to dealing with the reference on the point of law by the learned Judge. The facts here are that a suit was filed against the State of Madras represented by the District Collector of Tiruchirappalli, by two plaintiffs, N. C. Ramalinga Reddiar and Bangaru Ammal, -wife of the first plaintiff. The suit attempted to obtain a permanent injunction restraining the State of Madras, from interfering with the possession and enjoyment of the suit property by the plaintiffs, or with the wall erected thereon, on the ground that this was ancestral private property. According to the State, the property was situate in natham poramboke S.F. No. 419/5, the plaintiffs have no title to this, nor possession of it, apart from an encroachment by the first plaintiff, and the encroachment was liable to be removed by the issue of a B memorandum under the Revenue Rules. It is in this form that the injunction was prayed for and even in the plaint, the ground is taken as this is a suit simpliciter for an injunction, no notice to the Government is necessary under section 80, Civil Procedure Code.

As is well known, section 80, Civil Procedure Code, lays it down that

“No suit shall be 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,......”.

without the expiration of two months next after notice in writing. At the outset itself, we may devote attention to a brief verbal analysis of the section. The section falls into two parts, viz., (i) suit against the Government or (ii) suit against a public officer in respect of any act purporting to be done by such officer in his official capacity. Obviously, as far as suits against Government simpliciter are concerned, notice is an essential prerequisite, and the argument is not available that notice is not required in respect of suits for such acts as require restraint by an injunction, which will be acts in futuro and not past acts to which the section appears to refer. This distinction has been clearly brought out in a passage in the judgment of their Lordships of the Supreme Court in Sawai Singhai v. Union of India2, which is the latest authority on the subject. Their Lordships observed as follows at page 1070:

“While dealing With the applicability of section 80, the question to ask is, is it a suit against the Government or not ? If it is, then section 80 by the very force of its Words must apply.”

But, even apart from the present suit, which purports to be a suit against the Government simpliciter, and, therefore, which essentially requires notice under section 80, Civil Procedure Code, the question might arise whether a suit against a public officer, in respect of an act purporting to be done by him in his official capacity, which is a suit for an injunction alone, does or does not require notice. It is here that there would appear to be some conflict, as between the earl

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