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PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: GUNDUGOLA VENKATA SURYANARAYANA GARU

DATE OF JUDGMENT: 12/09/1963

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SARKAR, A.K. DAYAL, RAGHUBAR

CITATION:  1965 AIR   11            1964 SCR  (4) 945  CITATOR INFO :  F          1969 SC1256  (7)

ACT: Civil  Procedure Code, S. 80, O. 1. r. 8.-Notice  under  80, Civil  Procedure Code by two persons but suit filed by  one- Validity of suit-Representative suit-Requirements of-Meaning of  ’Estate’  -Madras Estates Land Act,  1908,  S.  3(2)(d)- Madras Estates Rent Reduction Act, 1947.

HEADNOTE: The  Government  of  Madras applied the  provisions  of  the Madras Estates Rent Reduction Act, 1947 to the lands in  the village Mallinadhapuram on the ground that the grant was  of the whole village and hence an estate within the meaning  of S.  3(2)(d)  of  the Madras Estates  Land  Act,  1908.   The respondent and another person served a notice under S. 80 of the Code of Civil Procedure upon the Government of the State of  Madras  in  which they challenged  the  above  mentioned notification  and asked the Government not to act  upon  it. Out  of the two persons who gave the notice, the  respondent alone  filed  the  suit.   The trial  court  held  that  the original grant was not of the entire village and was not  so confirmed or recognised by the Government of the Province of Madras  and therefore as it was not on "estate"  within  the meaning  of  S. 3(2)(d) of the Madras Estates Land  Act  the Madras  Rent Reduction Act., 1947 did not apply to it.   But the  suit  was  dismissed on the ground  that  although  two persons  had  given the notice under S. 80 of  the  Code  of Civil  Procedure, only one person had filed the  suit.   The High  Court agreed with the trial court that the  grant  was not  of an entire village but it also held that  the  notice was not defective and the suit was maintainable as it was  a representative suit and the permission of the 946 court underOrder 1, r. 8 had been obtained in this case. The High Courtgranted the respondent the relief prayed  for by him. Against theorder  of the High Court, the  appellant appealed to this Court. HELD,(i) The suit was not liable to be dismissed. There was in thecircumstances of the case no illegality  even though  notice  was given by two persons and  the  suit  was

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filed by only on-,.  The right to institute a representative suit  can  be  exercised by one or more  persons  having  an interest which is common with others and thatcan     be exercised  with  the permission of the court. If  the  court grants   permission   to   one   person   to   institute   a representative suitand if the person had served the  notice under S.  80,  the  circumstances that an other  person  had joined him in serving the notice but did not join him in the suit,  is not a sufficient ground for regarding the suit  as defective. (ii)The permission of the court has to be obtained for  in- stituting  a  representative suit and not  for  serving  the notice.   The Code of Civil Procedure contains no  machinery for granting permission to a party seeking to serve a notice upon the Government or a public servant. (iii)  The  lands in dispute did not  constitute  an  estate within the meaning of S. 3(2)(d) of the Madras Estates  Land Act, 1908, and therefore the Madras Rent Reduction Act, 1947 did not apply to them.  Vellavan Chettiar and others v.  The Government  of the Province of Madras and another, L. R.  74 I.  A.  223  and Government of the  Province  of  Bombay  v. Pestonji Ardeshir Wadia and others, L. R. 76 1. A. 85.

JUDGMENT: CIVIL  APPELLATE-  JURISDICTION : Civil Appeal  No.  483  of 1961. Appeal  from the judgment and decree dated April 1, 1959  of the  Andhra  Pradesh High Court in Appeal Suit  No.  583  of 1954. K.Bhimashankaram, B.R.G.K. Achar and R. N. Sachthey,  for the appellant. September 12, 1963.  The judgment of the court was delivered by SHAH J.-Two questions fall to be determined in this appeal: (1)whether  the  suit instituted by  the  respondent  G.V. Suryanarayana Garu against the State of Madras was liable to be  dismissed  because of absence of  identity  between  the persons  who  served the notice under s. 80  Code  of  Civil Procedure, 1908 and the person who sued; and 947 (2)whether the lands in dispute covered by title deed  No. 279  Mallinadhapuram  constitute  an  "estate"  within   the meaning of s. 3(2) (d) of the Madras Estates Land Act, 1908. By  order  dated January 11, 1950 the Government  of  Madras applied the provisions of the Madras Estates Rent  Reduction Act  30 of 1947 to the lands in the village  Mallinadhapuram on the footing that the grant was of the whole village,  and hence  an estate within the meaning of s. 3 (2) (d)  of  the Madras Estates Land Act, 1908, and thereby sought to prevent the  Inamdars from collecting contractual or customary  rent from the tenants who held the lands under the Inamdars. G.V. Suryanarayana Guru and Prabha Yegneswara Sastri  who collectively  hold 2 3/3 out of the 8  vrittis  constituting the inam thereupon served a notice under s. 80 Code of Civil Procedure  upon the Government of the State of Madras.   The notice  recited  that the cause of action for  the  proposed suit  arose on the issue of the notification  dated  January 11, 1950 published in the Fort St. George Gazette on May 16, 1950  and on subsequent dates when the Government of  Madras through  its  officers  attempted  to  interfere  with   the collection  of  rent due from tenants, and called  upon  the Government  of  Madras to withdraw the notification  and  to refrain  from  collecting  at reduced rates  rent  from  the

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tenants  and  cultivators in Mallinadhapuram  or  other-wise interfering with the rights of ownership of the inamdars  in Mallinadhapuram, and informed the Government that in default of  compliance  with the notice, a suit  to  establish  the- rights  claimed would be filed against the State of  Madras. The  notice  set  out the names, description  and  place  of residence  of  the plaintiff and Prabha  Yegneswara  Sastri. The   Government   of   Madras  failed   to   withdraw   the notification, and G. V. Suryanarayana Garu alone instituted, for   himself   and   on   behalf   of   all   Inamdars   of Mallinadhapuram,  Suit  No. 45 of 1953 in the Court  of  the Sub-ordinate  Judge, Srikakulam against the State of  Madras for  a  declaration that "the  agraharam  of  Thungathampara alias  Mallinadhapuram  covered by T. D. No. 279 is  not  an estate  within  the  meaning of Section  3(2)(d)  of  Madras Estates  Land  Act,  and the Notification No.  2970  of  the Government defendant published at page 1399 of 948 Fort St. George Gazette under Madras Estates Rent  Reduction Act  XXX of 1947 and subsequent proceedings  thereunder  are therefore void, illegal and ultra vires." The  State of Madras contended that the grant in  favour  of the  predecessors of the Inamdars was of the entire  village and  of a named village which had been enfranchised as  such under  title  deed No. 279 and on that account  the  village constituted an estate as defined in s. 3(2)(d) of the Madras Estates  Land Act and also as defined in Madras Act  XXX  of 1947,  and the plaintiff’s claim was not  maintainable.   It was  also contended that the notice served by the  plaintiff under  s.  80 Code of Civil Procedure was  "riot  valid  and proper in law". The Trial Court held that the original grant in inam was not of  the  entire  village,  and  was  not  so  confirmed   or recognized  by the Government of the Province of Madras  and therefore  within  the meaning of s. 3(2)(d) of  the  Madras Estates Land Act it was not an "estate", and the Madras Rent Reduction Act, 1947 had no application thereto, but the suit was  still liable to be dismissed because the notice  served by  the plaintiff and Prabha Yegneswara Sastri was  "invalid and  defective  inasmuch  as  the suit"  was  filed  by  the plaintiff alone. Inappeal the High Court of Andhra Pradesh at Guntur (which since the constitution of the State of Andhra     was    the proper  Court to entertain the appeal) reversed  the  decree passed  by the Trial Court.  The learned judges agreed  with the Trial Court that the grant was not of an entire  village or  of  a named village, and that  the  representative  suit filed  by  the  plaintiff  for and  on  behalf  of  ill  the Inamdars,  with the permission of the Court under 0. 1 r.  8 of  Code  of Civil Procedure was not  defective.   The  High Court  accordingly  granted  to  the  plaintiff  the  relief claimed in the plaint. The  dispute  in  this appeal relates to  an  area  of  land covered by T.D. No. 279.  It is common ground that in  Hizri year  1143  the  then  Raja  of  Parlakimidi  Veera  Pratapa Rudranarayana  Deo granted for maintenance as  a  hereditary inam  certain  lands  to one  Nagulakonda  Shivaramdas.   In course of time the lands were as a result of partitions  and alienations divided into eight vrittis.  The original  grant is not forthcoming.  In 1860 when the 949 Zamindari  was under the management of the Court  of  Wards, survey  proceedings were instituted according to the  "block survey  system" and the agraharam and the jeroyiti  villages in  the  Zamindari were demarcated and measured  in  blocks.

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The  District  Collector recommended to the Court  of  Wards "that no claim to land as yet uncleared and untitled  should be  allowed until the grant clearly favoured the claim,  and that   the  actual  encrochments  made  upto  the  date   of demarcation  would  fall within the cognizance of  the  Inam Commissioner".   This  recommendation of the  Collector  was approved  by the Court of Wards on September 25,  1861.   At the   time  of  enfranchisement  of  the  main,   the   Inam Commissioner dealt with the cultivated area only and  issued title  deeds  to the Inamdars excluding the jungle  or.  the cultivable waste lying within demarcated limits according to the Block Survey of 1860.  The Court of Wards had on  behalf of  the  Zamindar claimed before the Inam  Commissioner  the waste  and banjar lands not under cultivation as  being  the exclusive  and  reserved  areas of the  Zamindari.   In  the investigations made by the Inam Commissioner the entire area in  the block survey of the inam land was not  enfranchised, and   certain   banjar  lands  which  were   excluded   from enfranchisement  were  treated as Samasthanam  jeroyiti  and ever since the Block Survey of 1860 the Samasthanam  derived agricultural  income from the excluded lands.  The  Zamindar had   got  the  banjar  lands  separately  demarcated.    An application  by one Nagulakota Jaggiah to obtain a grant  on patta  of  15 acres of banjar land submitted to  the  Estate Manager, and the jeroyoti patta dated February 13, 1864  for a  portion  covered  by block No. 23  lend  support  to  the recognition of the right of the Zamindar to the banjar lands in the village. In  Ext.   A-1 the Inam Fair Register it is recited  in  the remarks column that : "It appears that there was formerly a mokhasa in this estate which was known by the name of Tungatampara in the  vicinity of  the Agrahar.  Under settlement and is that of  Chorlangi and Gatta, that as the mokhasa fell into decay half  century ago  and  as  the  above  agraharamdars  complained  to  the Zamindar Dugaraju that they are destitute of the 950 sources of irrigation he formed a tank, including the  lands of  the  mokhasa  with head of it and ruled that 2/5 of  the               water   should  run  to  the  fields  of   the               Agraharamdars  of Chorlangi, 2/5 to Gatta  and               1/5   to the agraharam in question.         As               the tank was    formed only half a century ago               or subsequent to the permanent settlement, the               right to it vests with the Zamindar and if any               of the lands formed to have been brought under               plough it will be liable to full assessment." This  indicates that the Zamindar had constructed  the  tank and  his title thereto was recognised.  The  Assistant  Inam Commissioner  as  recited  in the  Inam  Fair  Register  had recommended   by  his  letter  dated  November   30,   1865, confirmation  of acres 149-59 cents only and not the  entire area of the village, and this was approved by the Inam  Com- missioner by his final order.  There is nothing in Ext.  A-1 to support the contention that the original grant was of  an entire  village, and the inference that it was a grant of  a part of the village is supported by the actings and dealings of the Zamindar with the waste and banjar lands, and by  the recognition  of his title to the tank, and the  confirmation of  a  part  only of the entire  area.   This  inference  is further supported by other documentary evidence.  Exhibit A- 3 which is the correspondence between 1864 and 1866 relating to  the  banjar  lands shows  that  in  the  enfranchisement proceedings  those lands were separated and that a  jeroyiti patta  was  granted for the banjar lands  by  the  Zamindari

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Manager.   Similarly Exts.  A-4 to A-8 -show that  the  Inam Commissioner did not deal with the ’jungle land and hillocks in his final order dated November 30, 1865 and that the same were  claimed by the Zamindar as belonging to him.   Exhibit A-9  which  is a note submitted by the Diwan of  the  Estate recited  that in Block No. 23 of  Mallinadhapuram  agraharam the excluded banjar was not surveyed in the survey of  1860, and that it was separately surveyed, and the banjar was then included in the village Gulumuru.  Exhibit A-/ which is  the block survey list shows that the total extent of the village was  acres  325-92 cents and out of that area  acres  110-00 were recorded as belonging to the Zamindar as his banjar and poramboke  lands  for which he had issued  jeroyiti  pattas. Exhibits A-13 951 to  A-20  also show that the banjar lands  were  granted  on jeroyiti   pattas  by the Parlakimidi estate  and  were  not regarded-as  part  of  the  inam.   The  evidence  therefore clearly  establishes  that the grant was not of  the  entire village and the Trial Court and the High Court were, in  our judgment,  right  in  declining to accept the  case  of  the State. In  the  notice  served  on the  Government  of  Madras  the plaintiff  and Prabha Yegneswara Sastri claimed title to  23 vrittis out of 8 vrittis constituting the inam lands in 4 Mallinadhapuram,  and set out in detail the  proceedings  of the  Inam  Commissioner.  They then proceeded to  submit  on diverse  grounds that what was confirmed by the  Inam  Title Deed  No. 279 was not an estate within the meaning of  s.  3 (2)  (d)  of  the  Madras, Estates Land  Act,  and  that  in applying the provisions of the Madras Estates Rent Reduction Act  the State Government acted illegally.  The notice  then proceed to state that "this notice is therefore given to the Government  to request them to refrain from taking any  step or  proceedings under the Rent Reduction Act, falling  which my  clients will be obliged to take legal proceedings  in  a Civil  Court, on behalf of the Inamdari to  establish  their rights and to restrain the Government from taking any action under the Rent Reduction Act and interfere with my  clients’ rights  to  collect the usual and customary  rents  lawfully payable to Inamdars, under customary contract, or  otherwise interfere  with their right of ownership and  possession  of the  lands  covered  by  the Inam  Title  Deed  No.  279  of Mallinadhapuram", and called upon the Government to withdraw the notification published in the Gazette dated May 16, 1950 and  to refrain from attempting to collect at reduced  rates the rent from the tenants and cultivators in Mallinadhapuram and  otherwise interfering with the rights of  ownership  of the  agraharam in Mallinadliapuram, and threatened  that  in default of compliance a suit would be filed by the  inamdars in  the  Civil Court to establish "their rights  and  obtain necessary reliefs against the State of Madras". Section 80 of the Code of Civil Procedure, (in so far as  it is material for this appeal) provides, that no suit  against the  Government shall be instituted until the expiration  of two  months next after notice in writing has been  delivered to or left at the office of the appropriate autho- 952 rity stating the cause of action, the name, description  and place of residence of the plaintiff and the relief which  he claims.   In  the present case the notice addressed  to  the Government  of  the  State of Madras by  two  named  persons sought  to raise a grievance on behalf of all  the  Inamdars who  were aggrieved by the issue of the  notification  under the Madars Act XXX of 1947.  That is clear from the recitals

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which  we have set out verbatim earlier and from the  relief clause.   The  cause of action, the  name,  description  and place  of residence of both the persons who gave the  notice and  the  relief claimed, were also set out.  The  suit  was instituted more than two months after the date on which  the notice  was served.  But it was filed by one out of the  two persons  who had served the notice, with the  permission  of the  Court  under 0. 1 r. 8 Code of Civil  Procedure,  as  a representative  suit for and on behalf of all  the  Inamdars who were aggrieved by the order. The  object  of  the notice under s. 80 is to  give  to  the Government or the public servant concerned an opportunity to reconsider  its or his legal position and if that course  is justified  to make amends or settle the claim out of  Court. The  section is imperative and must undoubtedly be  strictly construed:  failure  to serve a notice  complying  with  the requirements  of  the statute will entail dismissal  of  the suit.   But the notice must be reasonably construed.   Every venial error or defect cannot be permitted to be treated  as a peg to him a defence to defeat a just claim.  In each case in  considering  whether the imperative  provisions  of  the statute are complied with, the Court must face the following questions : (1)  whether the  name,  description and residence  of   the               plaintiff are given so as to enable the autho-               rities  to  identify the  person  serving  the               notice; (2)  whether  the cause of action and the relief  which  the plaintiff claims are set out with sufficient particularity; (3)  whether the notice in writing has been delivered to  or left at the office of the appropriate authority mentioned in the section; and (4)  whether the suit is instituted after the expiration  of two months next after notice has been served, 953 and  the plaint contains a statement that such a notice  has been so delivered or left. In construing the notice the Court cannot ignore the  object of  the Legislature-to give to the Government or the  public servant  concerned an opportunity to reconsider its  or  his legal position.  If on a reasonable reading-but not so as to make undue assumptions-the plaintiff is shown to have  given the information which the statute requires him to give,  any incidental defects or errors may be ignored. The  notice in the present suit was served by the  plaintiff and  Yegneswara Sastri.  They raised a grievance  about  the notification  issued by the Government of Madras on May  16, 1950: it was not an individual grievance of the two  persons who   served  the  notice  but  of  all  the   Inamdars   or agrahamdars.  The relief for which the suit was intended  to be  filed was also not restricted to their  personal  claim. The  notice stated the cause of action arising in favour  of all the Inamdars, and it is not disputed that the notice set out the relief which would be claimable by all the  Inamdars or  on  their  behalf  in default  of  compliance  with  the requisition.  The plaintiff it is true alone filed the  suit but  he  was permitted to sue for and on behalf of  all  the Inamdars  by an order of the Court under O.1  r. 8  Code  of Civil  Procedure.   The  requirements as  to  the  cause  of action, the name, description and place of residence of  the plaintiff  was therefore complied with and the relief  which the  plaintiff claimed was duly set out in the notice.   The only departure from the notice was that two persons served a notice under s. 80 informing the Government that proceedings would  be  started,  in  default  of  compliance  with   the

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requisition,  for violation of the rights of  the  Inamdars, and  one  person only out of the two  instituted  the  suit. That  in our judgment is not a defect which brings the  case within  the  terms  of  s. 80.  The  right  to  institute  a representative  action  may  be exercised  by  one  or  more persons  having an interest which is common with the  others but  it  can only be exercised with the  permission  of  the Court.   If  the Court grants permission to  one  person  to institute  such a representative action and if  that  person had  served the .notice under s. 80, the  circumstance  that another person had joined him in serving the notice but  did not effectuate that notice by joining in the quit, would not in our judg- 61-2 S. C. India/64 954 ment  be  a  sufficient ground for  regarding  the  suit  as defective. Counsel  for the State of Andhra Pradesh said that a  person who  seeks to institute a suit in a representative  capacity must establish that he had obtained sanction of the  persons interested  on  whose  behalf the suit  is  proposed  to  be instituted,  and  when it is to be  instituted  against  the Government  or against a public officer, before serving  the notice he must, beside obtaining the authority from all  the persons so interested, set out in the notice the names, des- criptions, and places of residence of all the persons sought to be represented by him.  But there is nothing in s. 80  of the Code or O.1  r. 8 Code of Civil Procedure which supports this submission, and there is inherent indication in 0. 1 r. 8  to the contrary.  To enable a person to file a suit in  a representative  capacity  for  and  on  behalf  of  numerous persons  where  they have the same interest, the  only  con- dition is the permission of the Court.  The provision  which requires  that the Court shall in such a case give,  at  the plaintiff’s  expense, notice of the institution of the  suit to  all  persons  having the same interest,  and  the  power reserved  to the Court to entertain an application from  any person  on  whose behalf or for whose benefit  the  suit  is instituted, indicate that no previous sanction or  authority of persons interested in the suit is required to be obtained before institution of the suit.  Nor is there anything in s. 80  that  notice  of a proposed  suit  in  a  representative capacity  may be served only after expressly  obtaining  the authority of persons whom he seeks to represent.  Section 80 requires  that the name, description and place of  residence of  the plaintiff must be set out in the notice and  not  of persons  whom  he  seeks to represent.  A  suit  filed  with permission  to  sue for and on behalf  of  numerous  persons having  the  same interest under 0. 1 r. 8 is still  a  suit filed  by the person who is permitted to sue as  the  plain- tiff: the persons represented by him do not in virtue of the permission  become  plaintiffs  in  the  suit.   Such  other persons  would be bound by the decree in the suit, but  that is  because  they  are represented  by  the  plaintiff,  not because they are parties to the suit unless by express order of the Court they are permitted to be impleaded. In the present case G. V. Suryanarayana Garu has 955 served the notice under s. 80 Code of Civil Procedure and he has  also instituted the suit: the plaint complies with  the requirements  of s. 80, and the fact that Yegneswara  Sastri had  joined  in  serving  the notice,  but  not  in  seeking permission of the Court, does not render the plaint and  the proceedings  in  suit defective.  The principle of  the  two decisions of the Privy Council: Vellayan Chettiar and others

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v. The Government of the Province of Madras and another  (1) and  Government  of  the  Province  of  Bombay  v.  Pestonji Ardeshir Wadia and others(2) on which reliance was placed by counsel for the State has no bearing on the case before  us. Vellayan  Chettiar’s  case (1) was one in which  notice  was given  by  one plaintiff stating the cause  of  action,  his name, description and place of his residence and the  relief which  he claimed, and that the suit was instituted  by  him and another.  The Privy Council observed that : "The  section according to its plain meaning, requires  that there should be identity of the person who issues the notice with  the person who brings the suit: see  (Venkata  Rangiah Appa  Rao  v. Secretary of State I.L.R. 54 Mad. 416) and  on               appeal,   A.I.R.  1935  Mad.  389.   To   hold               otherwise would be to admit an implication  or               exception    for    which    there    is    no               justification." Two  persons  had it is clear sued for  a  declaration  that certain  lands  belonged to them, and for an  order  setting aside the decision of the Appellate Survey Officer in regard to those lands.  It was found that one alone out of the  two had  served  the  notice.  The relief  claimed  by  the  two persons was personal to them and the right thereto arose out of  their  title to the land claimed by them.  It  was  held that  without  a  proper  notice  the  suit  could  not   be instituted  under s. 80, for to hold otherwise would  be  to admit  an  implication or exception for which there  was  no justification.   In Prestonji Ardeshir Wadia’s case (2)  two trustees of a Trust served a notice in October 1933 upon the Government  of  Bombay  under  s.  80  intimating  that  the trustees intended to institute a suit against the Government on  the cause of action and for the relief set out  therein. One of the trustees died before the plaint was (1) L.R. 74 I.A. 223 (2)  L.R. 76 I.A. 85. 956 lodged in Court, and two more trustees were appointed in the place  of  the  deceased trustee.  Thereafter  the  two  new trustees  and  the surviving trustee filed the suit  out  of which  the  appeal  arose which was  decided  by  the  Privy Council.   No notice was served on the Government on  behalf of  the  two new trustees.  The Privy Council  accepted  the view  of  the  High  Court  that  where  there  were   three plaintiffs,  the names and addresses of all of them must  be given in the notice.  Their Lordships observed that : "the  provisions  of s. 80 of the Code  are  imperative  and should be strictly complied with before it can be said  that a notice valid in law has been served on the Government.  In the  present  case it is not contended that  any  notice  on behalf  of plaintiffs 2 and 3 was served on  the  Government before the filing of the suit." In  both these cases the suit was instituted by two or  more persons but not all had served the statutory notice.  In the present case the person who instituted the suit had in  fact served  the notice.  He had intimated the Government by  the notice  that a cause of action had arisen in favour  of  the Inamdars,  and that proceedings would be ,started on  behalf of the Inamdars for relief set out in the notice.  The cause of action as set out in the notice remained unchanged in the suit,  and it is not claimed that the relief set out in  the plaint  is different from the relief set out in the  notice. The  only discrepancy between the notice and the  plaint  is that the notice was given by two persons intimating that  an action  would be started against the Government for  and  on behalf of the Inamdars on the cause of action and relief set

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out  therein,  the action was instituted by one  person  but with  the permission of the Court for and on behalf  of  the Inamdars  on  the  same cause of action  and  for  the  same relief. The  other  contention raised by counsel for  the  State  of Andhra  Pradesh  that in a suit which is  to  be  instituted against  the  State after notice under s. 80 Code  of  Civil Procedure, the plaintiff must first obtain the permission of the  Court  before  serving a notice,  is  in  our  judgment futile.  The permission of the Court has to be obtained  for instituting  a representative suit and not for  serving  the notice.   The  Code  contains  no  machinery  for   granting permission 957 to a party seeking to serve a notice upon the Government  or a public servant. The  appeal fails and is dismissed.  The respondent has  not appeared before this Court and hence there will be no  order as to costs. Appeal dismissed