P L D 1960 (W (PLP)

KAIKAUS, J.‑

This Letters Patent Appeal arises out of a suit filed by Faiz Bakhsh and others appellants challenging notices under sections 195 and 220 of the Municipal Act issued by the Administrator of the Multan Municipal committee. The relief claimed was an injunction restraining the defendant from demo lishing the plaintiffs' house in accordance with the notices. The Municipal Committee, Multan, had been superseded by Noti fication No. 1977‑C. 47/12450, dated the 13th of May 1947 and an Administrator had been appointed. The defendant named in the suit was the Municipal Committee, Multan, but service had been effected on the Administrator. The Administrator objected, in the first place, that the suit was incompetent as having been filed against a non‑existing person and, in the second place, that he could not be sued without a notice under section 80, Civil Procedure Code. The following preliminary issues were framed:‑-- (1) Is the suit not competent against the Municipal Com mittee, Multan, by reason of its having been superseded ? If so, against whom the suit should be brought ? (2) Is notice under section 80, Civil Procedure Code, necessary ? The trial Court decided these issues in favour of the plaintiffs and then having framed issues on merits and recorded evidence decreed the suit. There was an appeal against this order to the Senior Civil Judge, Multan, who by his judgment dated the 27th of November 1952, dismissed the suit on both the preliminary issues. He found that the suit should have been filed against the Administrator and not against the Committee and also that notice under section 80, Civil Procedure Code, was necessary for a suit against the Administrator. An appeal against the judgment of the Senior Civil Judge was beard by Soofi, J. and was dismissed. The learned Senior Civil Judge and Soofi, J. relied upon Mst. Iqbal Begum v. Municipal Committee through the Adminis trator, Municipal Committee, Multan (P L D 1952 Lah. 380), wherein S. A. Rahman, J. had held that a notice to the Administrator under section 80, C. P. C. was essential. In this Letters Patent Appeal the only question involved is whether the suit should have been dismissed on the basis of the preliminary issues.

3. I will begin with a discussion of issue No. 2 and in the course of discussion will also deal with the point involved in issue No.

1. Under section 80, Civil Procedure Code, a suit against a public officer in respect of any act performed by him in his official capacity does not lie in the absence of a notice under that section. So, the question is whether the Administrator is a 'public officer'. Before proceeding to consider the definition of 'public officer' in the Civil Procedure Code, the position of an Administrator has to be explained. I reproduce below the relevant sections of the Municipal Act :‑ "4. (1) The Provincial .Government may by notification propose any local area to be a municipality under this Act: Provided that no military cantonment or part of a military cantonment shall be included in any such area." "

11. There shall be established for each municipality a committee having authority over the municipality and consisting of such number of members not less than five as the Provincial Government may fix in this behalf". "

18. Every committee shall be a body corporate by the name of the municipal committee of its municipality and shall have perpetual succession and a comp ion seal, with power to acquire and hold property, both movable and immovable, and subject to the provisions of this Act, or of any rules made thereunder to transfer any property held by, to contract and to do all other things necessary for the purposes of its constitution ; and may sue and be sued in its corporate name." "

49. No suit shall be instituted against a committee, or against any officer or servant of a committee, in respect of any act purporting to be done in its or his official capacity, until the expiration of one month next after notice in writing has been, in the case of a committee, delivered or left at its office, and in the case of an officer or servant, delivered to him or left at his office or place of abode, stating the cause of action and the name and place of abode of the intending plaintiff; and the plaint must contain a statement that such notice has been so delivered or left Provided that nothing in this section shall apply to any suit instituted under section 54 of the Specific Relief Act, 1877.", "238. (1) Should a committee be incompetent to perform or persistently make default in the performance of, the duties imposed on it by or under this or any other Act, or exceed or abuse its powers, the Provincial Government may, by notification, in which the reasons for so doing shall be stated, declared the committee to be superseded (2) When a committee is so superseded, the following conse quences shall ensue :‑ (a) all members of the committee shall, from the date of the notification, vacate their seats ; (b) all powers and duties of the committee may, until the committee is reconstituted, be exercised and performed by such person as the Provincial Government may appoint in that behalf ; (c) all property vested in the committee shall, until the committee is reconstituted, vest in His Majesty for the purposes of the Province. (3) The Provincial Government may, if it shall think fit, at any time constitute another committee in the place of any committee superseded under this section." Under section 4 the Provincial Government may declare any area to be a municipality. Section 11 provides that for every such area there shall be a committee. Section 18 provides that the committee shall be a body corporate with a perpetual succession and a common seal with powers to acquire property etc. and that it may sue or be sued in its corporate name. Section 238 empowers the Provincial Government to supersede the committee. According to a this section the Provincial Government may, by notification stating the reasons for such action supersede a committee and when the committee is superseded, all the members of the committee are to vacate the seats and all powers and duties of the committee are to vest henceforth in a person appointed by the Provincial Government. At the same time all property vested in C the committee is to vest henceforth in His Majesty for the purposes of the Province (now for His Majesty it is the `State' but we are dealing with 1950 and at that time it was still `His Majesty'). 4. 1 will now refer to the definition of `public officer' in the Civil Procedure Code. It is contained in section 2 (17), which runs :‑ " `public officer' means a person falling under any of the following descriptions, namely :‑ (a) every Judge ; (b) every member of the Pakistan Administrative Service ; (c) every commissioned or gazetted officer in the military, naval or air forces of His Majesty while serving under the Crown ; (d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorised by a Court of Justice to perform any of such duties ; (e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement ; (f) every officer of the Crown whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience ; (g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Crown, or to make any survey, assessment or contract on behalf of the Crown, or to execute any revenue process, or to investi gate, or to report on, any matter affecting the pecuniary interests of the Crown, or to make, authenticate or keep any document relating to the pecuniary interests of the Crown, or to prevent the infraction of any law for the protection of the pecuniary interests of the Crown ; and (h) every officer in the service or pay of the Crown, or remunerated by fees or commission for the performance of any public duty." According to section 2 (l7) (f) every officer of the Crown whose duty it is, as such officer, to protect the public health, safety or convenience is a public officer. Similarly, every officer whose duty it is to keep or expend any property on behalf of the Crown, is also a public officer under section 2 (17) (g). The powers of the Administrator being under section 238 the same as those of the committee, it is apparent that it is his duty to protect public health. At the same time as after its supersession all property that vested in the Committee vests in His Majesty for the purposes of the Province the Administrator is, a person whose duty it is to keep or expend any property on behalf of the Crown. He would, therefore, fall under clauses (f) and (g) of section 2 (17), Civil Procedure Code, clause (f )speaks of an `officer of the Crown', while clause (g) simply speaks of an `officer', I do not think there can be much difficulty in holding that he is an officer of the Crown. He is appointed by the Government and prima facie he can be dismissed by the Government for incompetence or miscon duct and another person can be appointed in his place. An officer is a person who holds an office and he does hold an office. It is true that a person who is appointed as an Administrator need not be a person belonging to any Central or Provincial Service, although Government generally appoints a person from such services. Any person can be appointed as an Administrator. However, that would not make any difference. The fact that he is appointed by the Government E and can be removed by the Government, that he is a holder of a public office and discharges duties of public nature is, in my opinion, sufficient to make him a `public officer'. Suppose the Municipal Act simply provided that an area shall be constituted a Municipality and that there would be an Administrator with the powers and functions which the committee is to perform under the Municipal Act, would such a person not be a public officer ? If the answer be in the affirmative, and I do not see why it should not be so, then it would not make any difference that he comes in only on the supersession of the committee.

5. During the course of arguments learned counsel for the appellant was put a question as to whether the Municipal Committee itself was a public officer. He replied at first in the negative and the reason he gave for the reply was not that the functions exercised by the Committee were not those of a public officer, but because the words `Officer of the Crown', which occurred in the relevant clause of section 2 (17) could not possibly apply to the Committee. Later, learned counsel retracted his reply and henceforward he consistently stuck to the position that the Committee was public Officer. He explained the absence of necessity of notice under section 80 to the Committee by saying that section 49 of the Punjab Municipal Act being a special provision applied to the exclusion of section 80, C. P. C., which was a general provision. Now, in accordance with the second reply of learned counsel the Administrator would obviously be public officer and m fact learned counsel for the appellant had to concede that this yeas so. Even in accordance with his first reply the Administrator should be a public officer for the first reply was based only on the inapplicability of the words `Officer of the Government' to the Committee.

6. It will be proper. to state here that I would not agree with the second reply of learned counsel for the appellant. I would with all respect, agree with the learned Judges who said in (Sangali) Vasudeva Rao v. Municipal Committee, Anantapur (1930 M 844 (852)), that a Municipal Committee could not be an officer of the Government because it is a representative of the people and the discretion which is vested in it is not subject to control by the Government. I would even not disagree with Village Sanitation Panchayat Committee v. S. R. Deshmukh (1929 N 70) where it is said that officer refers to a natural person.

7. To revert to the point under discussion, let me refer again to the fact that public property which vested in the committee, movable as well as immovable, vests on supersession in His Majesty and the Administrator is the person who keeps and expends it. I do not see how the applicability of section 2 (17) (g)l can be excluded. Prima facie, therefore, the Administrator is a public officer and notice under section 80, C. P. C. would be needed.

8. I proceed now to consider the arguments advanced by learned counsel for the appellant, as to why, in spite of the apparent position of the Administrator, notice under section 80, Civil Procedure Code, was unnecessary in the present case. The first argument advanced by leaned counsel is that although the Municipal Committee is superseded, it does not altogether die but continues to be in existence although its functions are suspended. It is urged that truly the suit remains a suit only against the Municipal Committee. Reliance is placed on section 18, which I have reproduced above. According to that section the Municipal Committee has a perpetual succession and it may sue or he sued in its corporate name. The effect of the provision regarding `perpetual succession' according to learned counsel is that the committee must be deemed to exist even though it is suspended. I do not find any force in this argument. The fact that perpetual succession is provided for a corporate body does not mean that the corporate body cannot cease to exist either permanently or for some time. There could very well be a provision for dissolution of the committee in spite of section

18. If such a provision was inserted in the Municipal Act, it could not be said that it was inconsistent with section 18 of the Municipal Act. In fact, such a provision does exist in some Municipal Acts, for instance, the Madras District Municipalities Act. If then section 18 Municipal Act is no bar to a Municipal Committee coming to an end altogether, it cannot be a bar to the Municipal Committee ceasing to exist for some time. Section 18 has to be read subject to any provisions that relate to dissolution or supersession of the committee and is no guarantee for its continued existence till the end of time. A committee as defined in section 3 (4), reproduced above; means a committee established by or under this Act. When the committee is superseded and the members vacate the seats, there is no committee in existence, section 3 (4) does not say that the Administrator appointed under section 238 shall also be regarded as a committee. It will also be observed that the moment a committee is superseded, all its property vests in His Majesty. .If the committee continues to exist, there will be no need of a provision that its property vests in His Majesty. I may refer in this connection to the observations of their Lordships of the Federal Court in Administrator, Lahore Municipality v. Daulat Ram Kapur (A I R 1942 F G 14, 16), where their Lordships said :‑ "The provisions of section 1&, Punjab Municipal Act, relating to the corporate character of the Committee and the manner of suing must be read subject to the provisions of section 238 (2) which lays down the consequences of a super session. It may be (as held in 29 Mad. 539) that a supersession has not the effects of a dissolution and that when another Committee is constituted in the place of the superseded Committee, it is a revival of the old corporation and not the creation of a new one. But during the period when the order of supersession is in force, the statute makes it clear that all the members of the Committee vacate their seats and that all the powers and duties of the Committee are to be exercised and performed by the Administrator. It seems to us that we should be carrying the legal fiction to a needless length if we insisted that even in this state of facts, proceedings must be taken only in the name of the dormant corporation." It is true that their Lordships even adopted an alternative argument that assuming the proceeding were to be taken in the name of the committee, the defect was one purely of a formal character, but this fact does not take away the importance of these observations.

9. Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam (I L, R 29 Mad. 539), to which reference has been made in the judgment of the Federal Court, has been cited before us too. In that case a cause of action for damages against a Council had arisen and a suit for damages had been filed. After the supersession had come to an end and a new Council was constituted, the question arose as to whether the new Council succeeded to the rights and liabilities of the superseded Council and whether the suit could be continued as against it. It was held that it was not the new Council but by `reconstitution' the old Council had been revived and, therefore, the suit could be continued. On facts, the case is clearly distinguishable. Learned counsel for the appellant relies however on certain observations in the judgment, which I reproduce below :‑ "Now turning to our enactment, that it has not departed from, but has, so far as it goes, followed this doctrine of dormancy is, by its provisions, made abundantly clear. Section 4‑B (1) (a) empowers the Government to cancel the notification constituting a Municipality and to dissolve the Municipal Council when it sees fit to do so. The consequence in such a case, of course, is a total annihilation of the corporation, and under subsection (2) of the same section the funds till then available for the purposes of the abolished Municipality are at the absolute disposal of the Government. The provisions as to supersession, which term, by the very contrast involved in its use here as distinguished from dissolution, implies a radically different thing, are framed naturally on quite other lines. No doubt the Municipal Councilors holding Office at the time of supersession cease to do so altogether. But the Municipality itself is left intact, the management of its affairs has to be provided for by the appointment of a person or persons to be chosen by the Governor‑in‑Council and, though the property held by the Councillors is, during the supersession, vested in the Governor- in‑Council, that is so only in trust for the purposes of the Municipality concerned, as section 4‑B (3) (a) (iii) must be read along with section

27. To put it otherwise, supersession is nothing more than the dismissal of incompetent Councillors, followed only by the appointment of, to borrow the language of the English law, a custos for the discharge of the functions of the Council pending the nomination of election of other persons who would resume work in the normal way. In a word, supersession is but a suspension of the Council." It is true that the learned Judges have referred to the "Municipality" as remaining intact, but I cannot regard this as necessarily involving that the Council is intact. True, the municipal area remains and it is open to the Provincial Government to revive the committee, but till such time as it is revived, there is no committee. I have already referred to the definition of the committee and it is otherwise clear from the provisions of the Municipal Act that the word "committee" can K refer only to a committee of members which is in existence. It is to be noted that the Provincial Government is not even under any obligation to reconstitute the committee, although as a matter of policy it will do so unless it thinks fit to denotify the area as a municipality.

10. Learned counsel for the appellant has also referred in this connection to Halsbury Volume 9, III Edition, Paras. 194, 198 and

199. It is not necessary to discuss the contents of those paragraphs because a perusal of them would show that they have no applicability to the facts of this case. The question before us is to be decided with reference to the provisions of the Municipal Act.

11. The second point taken was that the Administrator stands, in the shoes of the Municipal Committee and, therefore, the right of a party to file a suit should not be affected if an Administrator is appointed. It was urged that under section 49 of the Punjab Municipal Act, a suit for injunction can be filed without notice against the Municipal Committee and the present suit being one for injunction should not be thrown out on the ground of want of notice. I am unable to agree. Section 80, C. P. C. makes no exception in a case where a public officer is granted authority by law in respect of matters which were previously being, dealt with by some authority that was not a public officer. There maybe a number of cases where such a situation occurs. The Government may for instance take over i the property of a private person for his own protection or other‑) wise. In such a case the officer of the Government, who is managing the property, will be entitled to a notice although the' private person whose property he manages was not so entitled. Or the Government may, in the public interest, take over private concerns. There are two cases relating to the taking over of railways by Government, namely Hazi Jamal Noor Muhammad a firm, Calcutta v. Governor‑General‑in‑Council (A I R 1947 Cal. 26) and Governor General of India in Council, represented by Secretary, in charge of Railways, New Delhi v. U. Raghunundan Shenoy (A R I 1947 Mad. 64), where in respect of a cause of action that had arisen against a private company the Government was held entitled to notice because the suit was against the Government. The mere fact that a public officer succeeds to the powers and functions which were being exercised M by one who was not a public officer is no ground for holding that a notice under section 80 is not needed. Section 80 is not so worded.

12. One point discussed at the hearing was whether a notice under section 49 would be necessary in the case of an Administrator. If a notice under section 49 were also needed, it would have been possible to argue that it could not be the intention that two notices should be served. I am of the opinion that section 49 has no application once an Administrator is appointed. Section 49 refers only to suit against the Municipal Committee and a suit V against Administrator is not a suit against the Municipal Committee.

13. I would decide both the preliminary issues against the plaintiff. The substantial basis for my conclusion is that once a supersession takes place the committee ceases to exist though only till the Provincial Government chooses to reconstitute a committee and in the meantime there is an officer of the Government who performs the functions which were being performed by the committee. One important matter to keep in mind is that the property henceforth vests in His Majesty and that this Officer of the Government is the keeper of that property.

14. I would, therefore, hold that the present suit was not competent in the absence of a notice and I would dismiss this appeal but would make no order as to costs. K. M. A. Appeal dismissed.