Amar Nath Dogra v. Union of India

Suit again•t Government-Notice-Plaint not conforming to Civil Procedure-Maintainability-Punjab Excise Acl (Punjab Ace I of 1914), S. 40-Code of Oivil p,.ocedure (Act v. of 1908), 8. 80.

The appellant who obtained a monoply vend-licence for the retail sale of country-liquor, served during the subsistance of the license a notice under S. 80 of the Civil Procedure Code on the Government claiming damages for the alleged breach of certain stipulations. Thereafter the Excise Authorities 196:! suspen.ded the license and themselves took over the manage·

ment of the vend shops and instituted proceedings for the Amar .Nath D,.gra recovery of the monthly instalments due from the appellant .

Union of Indio The appellant filed a suit for a permanent injunction ~gainst

the State to restrain it from realising the balance of the license fees. That suit was withdrawn and the present suit was inst.ituted claiming damages on various counts including damages consequent upon the suspension of the license. The Lower Court dismissed the suit for want of a proper notice under s. 30 of the Civil Procedure Code and also as barred by s. 40 of the Punjab Excise Act. It also however, recorded its findings on the merits. The High Court confirmed the dbmissal of the suit but reversed the finding on one of the items of the claim. It was contended in this Court that the notice under s. 80 was proper and that the suit was mainta• inable.

Held, that if the first suit following the issue of a notice under s. UO against the Government was withdrawn and a second suit bled, if the notice satisfied the r~quircmcn ts of law in respect of the second suit there was no necessity for a fur• ther notice before filing the subsequent suit.

The notice shou:d be construed not pedantically Lut in the light of common sense without bein~ hypercritical about the language but as the purpose of the notice is to convey substantial information-relative to the claim on the basis of which the recipient of the notice can consider the claim of the would-be plaintiff with a view to avert the suit, if possible, the: notice in the present case did not serve that purpose.

State of Madras v. 0. P. Agencies, A. I. R. (1960) S.C. 1309 and Dhian Sing k Sobha Singh v. Union of India, ( 1958) S.C.R. 781, referred to.

Held, further, that the plaint was at variance with the notice and claimed reliefs based on a cause of action arising subsequent to the notice and so even on a literal reading of s. 80 of the Civil Procedure Code, it could not be said that there had been compliance with it, B~ld, also, that as regards the claim for the refund of the advance deposit, the su.it did not lie as it was barred by r;. 40 of the Punjab Excise Act, of 1914.

CIVIL APPELLATE JuRISDICTION: Civil Appeal No. 417 of 1961.

Appeal by special leave from the judgment and order dated December 31, 1958, of the Judicial 1Y62 Commissioner, Himachal Pradesh at Simla in RP.gu-Ama1 Nath /Jugro lar Civil First Appeal No. 4 of J 958. v. Union oj India A. V. Viswanatha SaBtri and Gopal S.inyh, for the appellant.

V. D. J!Iahajan and P. D. Menon, for the respondent.

I ~62. April 10. The judgment of the Court was delivered by

AYYANGAR, J.-This appeal, l'Y special leave, is Ayyangar J. directed against the judgment of the Judicial Com-missioner, Himachal Pradesh affirming a decree of the Senior Sub-Judge, l\iandi dismissing the appellant's suit.

The facts giving rise to this appeal are briefJy as follows. There was a public auction on :F'ebru-a.ry 25, I ~52 at Mandi in Himachal Pradesh for tho grant of a monopoly vend-licence to sell by retail country-liquor for the year April!, 1952 to March 31, · 1953. The appellant was the highest bidder for Rs. 1, 28, 600/-and his bid was accepted. In accor-dance with the terms and conditions of the auction, 1/6 of the amount of the bid had to be deposited by him within a month. This sum amounting to Rs. 21,460/· was so deposited. The appellant who had started working his licence made payments of the monthly instalments of Rs. 10,714/- each for the months of April and May. Subsequently thereto there were disputes raised by the appellant that the Excise authorities had defaulted in per-forming certain of the obligations undertaken by them, in the matter of the supply of liquor etc. and there was correspondence relating to it. There appear to have been attempts by the anthorities to remedy the situatlon but apparently the appellant waa not satisfied with the steps taken, with the 1962 result that he stopped his sales of liquor and there- .dma N Dogra after servf>d a nDtice under s. 80 of the Civil

Dth v. Procedure Code dated September 2, 1952 on Govern· Union of Tndi:~ ment making a claim for damages for alleged Ayya>zgor J. breach of certain of the stipulations. Aft~r receipt

of this notice the Collector of Excise directed the BUSpPDBion o{ the appellant's licence under 8. 36 of the Punjab Excise Act, 1914 and thereafter pro-ceeded under s. 39 of tha,t Act to take over the management of the venq-shops which theretofore were under the management of tho appellant. As the appellant did not pay the monthly instalmE>nt~ due from a.nd after June, 1952 the Collector also to0k steps for the recovery of these instalments. The appPI1ant then filed a suit No. 345 of 1952 on t.he file of the Sub-Judge of Mandi on November 26, 1952 (alongwith rertain others in whose names one other liquor licence had been taken and who were ' evidently simi1ar1y situated) for a. permanent in·

junction r<:'stra.ining the State of Himachal Prade~h from re11.lising the balance of the licence-fees due from him. Several technical objections wE>re raised to the maintainabibty of that suit and thereafter the suit was withdrawn on !fay 12, 1953, with liberty granted under 0. 23 r. I. Civil Procedure Code to file a fresh suit. In pursuance of this liberty the suit out of which the appeal before us arises, was instituted in the Court of the District Judge, Mandi on May 5, 1953, which was substantially one for damages for breach of contract.

The Union of India against whom the suit was brought, raised several defences both on the merits as well a.s of a technical Jlature., the latter being mainly two: (l) that the suit was bade for ·want of a proper notice under s. 80 of the Civil Procedure Code, and (2) that the suit was barred under the Punjab Land Revenue Act as applied to Himachal Pradesh as weH as under the Punjab Excise Act, 1914 and the Rules made thereunder. The .learned District Judge upheld the technical objections raised but also recorded his findings on 1962 the merits and the findings on most of the items of Nnar Nath Dogr« claim were against the appellant. The appellant's "· suit was dismissed. An appeal was thereupon taken Union of lncli'J by the appellant to the Judicial Commissioner, Ayyangar J. Himachal P.radesh who substantially agreed with every one of the findings of th9 learned District Judge both on the technical objections to the suit as well as on the merits in so far as they were against the appellant. He fut·ther rever:sed the finding on one of the items of the claim which the trial-Judge had found in appellant's fa.vout'. The appeal was accordingly dismissed. The appellant thereafter applied tor a certificate of fitiness under AL"t. 133 ( l}(b) for preferring an appeal to this C->urt but the same having been rejected, he applied for and obtained special leave from thi'i Cl)urt and that is how the appeal is now befort: us.

It would be seen from the above narration that what may be termed the merits of the appel-lant's claim for damages could arise for considera.

tion only if the suit was maintainable. As we were clearly of the opinion that the appeal must fail principally on the point that the suit. was not main-tainable because of the non-compliance of the terms of s. 80 of the Civil Frocedure Code, we did not hear learned Coun~el about the merits of the appellant's complaint regarding breach of contract on the part of the State and the relief to which the appellant would be entitled on that basis.

We shall therefore confine ourselves to the statement of the facts necessary for deciding the point regarding the suit not being maintainable because of non-compliance with the requisites of s. 80 of the Civil Procedure Code. The section runs:

•'80. No suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by

662 SUPREME COURT REPOR'fS (1963]

such public offic~r in his official capac.:ity, mar .NatiJ Dot,f'tJ until the expiration of two months ne.xt after

v. notice in writing has been delivered to, or U nior. --- of India Jeft at the office of- ( a) in the case of a bUit al!ainst the Central Government except where it relates to a railway, a Secretary to that Government;

(b) .................................................... . (o) ...................................................... . attdJ in the case of a public officerJ delivered to bim or left at his office, stating the cause of action, the name, description and p1ace of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delive-red or left."

That to the suits to which s. 80 applies compliance with it is mandatory and that a suit which does not satisfy its terms is liable to be dismissed is not in dispute. The submission which learned Counsel pressed for our acceptance was that there had been a substantial compliance with its terms and it is to this point that we shall address ourselves.

As required by the Jast portion of s. 80 reading "the plaint shall contain a statement that such notice has been so delivered or left", the appellant stated in paragraph 20 of his plaint: '(The plaintiff delivered a notice under s. 80, Civil Proced· ure Code containing the requisite particulars to the defendant through the Collector. Mandi on Septem-ber 4, 1952 and through the Chief Secretary on September 3. 1952. A previous suit for injunction was withdrawn on May 12, 1953 with permission to bring a fresh suit on payment of costs which was deposited on ~lay 13, 1953 per Challan No. 17 of 1953. Copy of the order is attached herewith". The Union of India in the written statement filed by it plc~dcd that this notice did not comply with J.mn }(4/h .. D~grd the requirements of s. 80 and the·.·. objection was . formula. red thna: . · ~ · · Uni.olt of ltu!itJ ''A fresh notice w~ . necessary for the institution of this suit • . The plaintiff has fail-erl to serve such & notice under s. 80, Civil · Procedure Code. The notice montioneci in

paragraph 20 of the plaint was not valid; it · was defective a.ncl not ae<.·ording to Jaw. The · prosent suit, · more-over is a.t variance with

the notice. The suit shall therefore be dcemeu to b.e without notice and n.ot ma.intaina.blc." '

This plea. raised for consideration three matt.

era: (1) that "·here after a. notice under s. 80 Civil Procedure Code a suit is instituted but that suit is withdrawn with liberty to file a freJ;h ~nit, it~ the requirement of s. 80, Ch•il ProcedurE> Co<.le that ther(\ shoulJ be a fresh notice before the st•cond suit is in~t.ituted . . (2) that the allegat.ions in the plaint and the reJit'fs clnimed in it were at varian· ce with the cause of n.ction and · 1 elit-fo stated in the notice issued under s. SO, a.nd. ( 3) that the notice it.qe}f was defective a~ not complying with the requirements of a. 80. ·

\Yt· do n ut .conAiller that there ·is much su')- stnnce .in tho firot ohje(•tiou we havt' RE>t out abov~.

If tho }'W.ii.t wLi<·h i~ being considerf.d by the Conrt ha~J bevn prc>C·edNl hv a notice whi~h a:1tisfics the requireml-~nttJ •~f zt. SO, Civil Procedur~ Codo. then th~· fact tJu.t bcf·)re the pl~.int then un(ler rnnsid<'r· ati·.Jtl, th~;re h~Hl bc~n another t•!aint wLil"·h I1:Lti been filed and withdrawn oanuot, 011 a.ny prinoiJJl~.

be held to have exhausted or ~xt.ingnishod the vitality o( the notice iRatwd. . ·

We considt•r it n c.:cut:Jsa.ry to concentrate mainly upon tll., ~t,conrl of tho objections r1t.ised, \'iZ. th11t th3ro wu.s tJuhsta.nt.ial diaconformity bctwe~n the

plaint filed by the appellant and the notice under .dmar }lath. Dogra s. 80 which was relied on in paragraph 20 of the

of plaint. It is necessary for this purpose to analyse Unl"on India somewhat closely the allegations and reliefs in the

plaint, as well as in the notice to see how far the disconformity and variance pleaded by the respon .. dent. has been made out. We shall begin with the plaint. After reciting the auction dated February 25. Ifl52 under which the vend-licence was leased to the appellant for the year 1952-53 and the mater-ial terms and conditions of the auction, the plaint alleged in paragraph 2 that the defendant had broken the contract which entitled the plaintiff to file a. suit for damages. The several heads of claim which went to make up the total of the dama-ges for which a decree was prayed werP-set out in paragraphs 3 to 20. The first head of claim was in relation to loss of profits stated to have arisen on account of inadequate ~upply of liquor. This was stated in paragraph 3 where tho allegation wa8 made that there ha.d been a deficient supply of 632 gallons during the months of May and June, 1952 on account of which the plaintiff lost Rs. 5,112/8/· in the profits that he would ha.l"e derived if the supp1y had been properly made. While paragraph 4 dealt with the non supply of certain special varieties of liquor during the months of April, May and June, paragraph 5 complain('d that there had been a supply of kerosenio and unwholesome liquor whirh had been declared unfit for human consumption by th~ order of the authorities. The damages claimed on this account W('r.., computed in paragraph 18 of the plaint at Rs. 4;22:2/-, being the sum paid into the Treasury by way of excise-duty in respect of liquor which bad been declar-ed unfit for human consumption. A claim was made in tho later paragraph for the refund of this sum. In paragraph 6 an allegation waR made that, the plaintiff had bid at the figure of over one lakh and twenty thousands rupees because of the condition inserted in the terms of the auction that liquor - 196! would be snpplied in pilfer-proof bottles with metal .lmar N al Dozr• covers and because of the non-fulfilment of this v. condition he had lost Rs.-/8/- per bottle which Un on of lndi1 totalled up toRs. 26, 400/- on the total number of <I4Jyangar J. bottles that would have been supplied to him if the oontra.ot had gone on for the full year. In addition, under the sa.me head there was a further c]a.im in paragraph 8 for Rs. 1,047 flO/-, stated to be the loss caused by the · government charging a price based on the supply in pilfer-proof bottles though the supplies were made in ordinary containers.

Paragraph 7 made a claim for a sum ofR8. 5,008/11/ stated to be the price of deficient quantity of liquor supplied because of the supply in. under· sized bottles. P~ra.graph 9 contained a complaint that it was a terms of the contract that empty bottles would be bought baok but that this h,ad not beAn done, as a result of which the plA-in· tiff ha.d lost Rs. 931/8/-. Paragraph 10 complainPd that the Government had not t~ken steps to suppr· ese iJJicit distillation which had caused loss, though the loss was neither quantified nor any claim made under that head, wbile paragraphs II to 13 challe-nged the legality of the artion taken by the Excise a.nthorities in ~uspending the licence and in taking over the vend-shops under their management. In paragraph 16 the pJaint.iff c]aimed a refund of Rs. 21,460/ .. which had bt-·en deposited into the Treasury at the time t.he licenr.e was granted to the appellant. nnd rinalJy in paragraph 19 the p]aint made a claim that by reason of government having broken the contract the plaintiff had lost a. profit every month of Its. 5. 052/ for the unworked r.eriod of the year of thP licence, i. e. from July 1, 1952 to March 31, 1953 which totalled R~. 45,471/6/-.

These several heads added up to Rs. 1,09,653/llf-and the plaint went on to state:

''The plaintiff is thus entitlt:d to a total refund and compensation of Rs. l,09,653fll/- 196! t.he details of which are given in Schedule •B' 0r Nath Dotra (which set out the details of the computation

v. by which the figures which we have stated Union of India above were arrived at). The plaintiff confines