# 'l'hr: /'}tale c!f Jlacl!1y" Pmd<•h v. 8hri 1l!ou.la Bux and others

- **Citation:** [1962] 2 S.C.R. 794
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** CIVIL ANPELLATE JURISDICTION : Civil Appeal No. 127 of 1959
- **Bench:** J.L. Kapur, K. SunnA RAo, M. HrnAYATULLAH, T .. C. SHAH ancl RAGHUBAH DAYAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/l-hr-tale-c-f-jlacl-1y-pmd-h-v-8hri-1l-ou-la-bux-and-others-2295
- **Pages:** 9

## Headnote

Cii:il J1roced-ure-}Jartics-1.'luif aga.inst Governrnent
of !'art C Staie-Aitl/wrily to be named as defendaniCode of. Civil Procedure, 1908 (V of 1908), s. 79-rJenaal
Ula11ses Act, 78!!7 (X of 1897). ss. 3(3), 3(8), ii(58) and
3(60)-Government of Part U Stafos Act, 1951 (49 of 1951)
8. 38 (2).
The respondents obtained a lease for plucking tendu
leaves from the Government of Vindhya Pradesh. Later, the
Government cancelled the lease and sought to recover the
balance of the lease money.
The respondents filed a suit for
damages and for injunction restraining the Government from
recovering the balance of the lease money and impleaded the
State of Vindhya Pradesh as the defendant. They contended
that the suit was incompetent as the proper defendant was the
Union of India and not the State of Vindhya Pradesh.
Held, that the State ofVindhya Pradesh was the proper
defendant to be sued and that the suit was properly filed.
Under s. 3 (58) of the General Clauses Act "State" meant
inte.r alia a Part C State and under Art. 239 (1) the Part C
State was administered hy a Lieutenant Governor if the Pre•ident so ordered. Thus Part C States hacL a separate existence
and were not merged with the Central Government.
Though
•State Government' was definei bys. 3(60) i!rid in relation to a
Part C State as
th~ Central Government the definition of
'Central Government' in relation to the administration of a
Part C State meant the Lieutenant Governor within the scope
of the authority under Art. 239 and thus the State Government.
Thus cl. (b) of s. 79 applied and not cl. (a).
Satya Deo v. Padam Deo, (1955\ l S. C.R. 549,
referred to.
CIVIL ANPELLATE JURISDICTION : Civil Appeal
No. 127 of 1959.
Appeal from the Judgment and decree dated
Febr11ary 2, 1956, of the Court of the Judicial Commissioner, Vindhya Pradesh, in R.eview Application
No. 15 of 1955.
c.. •
2 S.C.R.
SUPREME COURT REPORTS
795
B. Sen, B. K. B. Naidu and /. N. Shroff, for
1962
the appellant.
The State of
Madhya Pradesh
G. C. Mathur, for the respondents.
1961. May 5. The Judgment of the Court was
delivered by
HrnAYATULLAH, J. This is 'ln appeal by the
State of Madhya Pradesh, which st'J.nds substituted
for the State of Vindhya Pradesh under the States
Reorganisation, Act, 1956, and is directed against
an order of the Judicial Commissioner, Rewa, by
which hll modified, on review, his judgement and
decree in a civil suit filed by the
respondents
against the State of Vindhya Pradesh. The appeal
has been filed on a certificate granted by tho
Judicial Commissioner, Rewa.
The only question urged in this appeal is that
the suit brought against the State of Vindhya
Pradesh was defective, because the proper defendant was the Union of India. Since the question
is one of law, it relieves us of the duty of narrati11g
all the facts. .Brief' i stated, the suit was for
damages valued at lea. 1,00,000/- and for a permanent injunction against the State
of Vindhya
Pradesh. The suit was filed in the following
circumstances: The respo11<lants are bidi merchants,
and for that purpose, had obtained on October 18,
1951 from the Divisional Forest Officer, Rewa, a
lease for plucking and appropriating ten<lu leaves
from the Makund1mr Range for three years, commencing from October 18, 1951 on payment of
Rs. 1,63,000/- per year (Ex. P. 85). For some
reasons into which it is not necessary to go, this
contract w1s cancelled, and the right was put up
for auction, but no bidders came. The Government
therefore, demanded t.hc yearly instalments, claiming them under tho contract as the difference
between the original contract amount less the
v.
Shri Mou/a
Bux and others
M. Hidayatullah
J.
1961
'l'hr: /'}tale c!f
Jlacl!1y" Pmd<•h
v.
8hri 1l!ou.la Bux
and others
JI. llidayatullah
J.
7!)6
:-ilJPHEJ\lE COFHT REPORTS
[I 962]
amount fetched by way of freHh auction, whieh was
nil.
The snit wan filed for a perpetual injunction
against thi,; daim :md for <lamages on t,Jrn :iverment
that the State of Viudhya Pradesh was guilty of
brea

## Text

1961
JJf ay, 5.
794
SUPREME COURT REPORTS
(1962]
THE STATE OF MADHYA PRADESH
'V.
SHRI MOULA BUX AND OTHERS
(.J.L. KAPUR, K. SunnA RAo, M. HrnAYATULLAH,
.T .. C. SHAH ancl RAGHUBAH DAYAL, JJ.)
Cii:il J1roced-ure-}Jartics-1.'luif aga.inst Governrnent
of !'art C Staie-Aitl/wrily to be named as defendaniCode of. Civil Procedure, 1908 (V of 1908), s. 79-rJenaal
Ula11ses Act, 78!!7 (X of 1897). ss. 3(3), 3(8), ii(58) and
3(60)-Government of Part U Stafos Act, 1951 (49 of 1951)
8. 38 (2).
The respondents obtained a lease for plucking tendu
leaves from the Government of Vindhya Pradesh. Later, the
Government cancelled the lease and sought to recover the
balance of the lease money.
The respondents filed a suit for
damages and for injunction restraining the Government from
recovering the balance of the lease money and impleaded the
State of Vindhya Pradesh as the defendant. They contended
that the suit was incompetent as the proper defendant was the
Union of India and not the State of Vindhya Pradesh.
Held, that the State ofVindhya Pradesh was the proper
defendant to be sued and that the suit was properly filed.
Under s. 3 (58) of the General Clauses Act "State" meant
inte.r alia a Part C State and under Art. 239 (1) the Part C
State was administered hy a Lieutenant Governor if the Pre•ident so ordered. Thus Part C States hacL a separate existence
and were not merged with the Central Government.
Though
•State Government' was definei bys. 3(60) i!rid in relation to a
Part C State as
th~ Central Government the definition of
'Central Government' in relation to the administration of a
Part C State meant the Lieutenant Governor within the scope
of the authority under Art. 239 and thus the State Government.
Thus cl. (b) of s. 79 applied and not cl. (a).
Satya Deo v. Padam Deo, (1955\ l S. C.R. 549,
referred to.
CIVIL ANPELLATE JURISDICTION : Civil Appeal
No. 127 of 1959.
Appeal from the Judgment and decree dated
Febr11ary 2, 1956, of the Court of the Judicial Commissioner, Vindhya Pradesh, in R.eview Application
No. 15 of 1955.
c.. •
2 S.C.R.
SUPREME COURT REPORTS
795
B. Sen, B. K. B. Naidu and /. N. Shroff, for
1962
the appellant.
The State of
Madhya Pradesh
G. C. Mathur, for the respondents.
1961. May 5. The Judgment of the Court was
delivered by
HrnAYATULLAH, J. This is 'ln appeal by the
State of Madhya Pradesh, which st'J.nds substituted
for the State of Vindhya Pradesh under the States
Reorganisation, Act, 1956, and is directed against
an order of the Judicial Commissioner, Rewa, by
which hll modified, on review, his judgement and
decree in a civil suit filed by the
respondents
against the State of Vindhya Pradesh. The appeal
has been filed on a certificate granted by tho
Judicial Commissioner, Rewa.
The only question urged in this appeal is that
the suit brought against the State of Vindhya
Pradesh was defective, because the proper defendant was the Union of India. Since the question
is one of law, it relieves us of the duty of narrati11g
all the facts. .Brief' i stated, the suit was for
damages valued at lea. 1,00,000/- and for a permanent injunction against the State
of Vindhya
Pradesh. The suit was filed in the following
circumstances: The respo11<lants are bidi merchants,
and for that purpose, had obtained on October 18,
1951 from the Divisional Forest Officer, Rewa, a
lease for plucking and appropriating ten<lu leaves
from the Makund1mr Range for three years, commencing from October 18, 1951 on payment of
Rs. 1,63,000/- per year (Ex. P. 85). For some
reasons into which it is not necessary to go, this
contract w1s cancelled, and the right was put up
for auction, but no bidders came. The Government
therefore, demanded t.hc yearly instalments, claiming them under tho contract as the difference
between the original contract amount less the
v.
Shri Mou/a
Bux and others
M. Hidayatullah
J.
1961
'l'hr: /'}tale c!f
Jlacl!1y" Pmd<•h
v.
8hri 1l!ou.la Bux
and others
JI. llidayatullah
J.
7!)6
:-ilJPHEJ\lE COFHT REPORTS
[I 962]
amount fetched by way of freHh auction, whieh was
nil.
The snit wan filed for a perpetual injunction
against thi,; daim :md for <lamages on t,Jrn :iverment
that the State of Viudhya Pradesh was guilty of
breach of tho contract.
The trial Judge doereed both the parts of the
<·.Jaim, placing the d:miages at Rs. 36,570/-. Appeals
were filed by both sidus 'liefore the Judicial Commissioner, the appeal of the State Government was
allowed and that of the plantiffs dismissed, resulting in the dismissal of tho entire suit. The Judicial
Commissioner held that the State of Viudhya
Pradesh was not a juristic entity and the suit ought
to have been filed against the Union of India. On
an application for review the Judicial Commissioner
held that there was an·error apparent on the face
of his earlier judgment, and that the State of
Vindhya
Pradesh
could be legally sued. He
accordingly
granted
review, and modified his
judgment and decree by upholding the claim for
perpetual injunction, but he dismissed the claim for
demages on merits. It is against this order that
the present appeal has been filed with certificate.
Prior to the formation of the State of Vindhya
Pradesh, a Union of. 35 States in Baghelkhand and
Bundelkhand had been formed by the Rulers in
March, 1948. On December 26, 1949, this Union
merged with India, and on Janua~y 22, Hl50, the
United State of Vindhya Pradesh became a Chief
Commissioner's Province under the Government of
India Act, 1935. On the commencement of the
Constitution, the Chief Commissioner's Province of
Vin<lhya Pradesh became a Part C State administered by the President. In September, 1951, an Act
known as tho Government of Part C States Act,
1951, was passed liy Parliament, and under it, a
Lieutenant-Governor was appointed for Vindhya
Pradesh. In 1956, under the States Reorganisation
Act, 1956, this Part C State became a part of the
State of Madhya Pradesh.
2 S.C.R.
SUPREME COURT REPORTS
797
The suit was filed on Mav 11, 1953, after
notices under ~. 80 of"the Code (;f Civil Procedure
\1·cn' sern·d, inter a.li<i,
011 the Secrct<ir,y, Forests
and Industries 01c1p:1rtment, Vinclhya Pradesh and
the Collector of Rewa.
The defendants raised the
plea for the first time iu appeal before the Judicial
Commissioner that the suit was filetl against a
wrong tlefcntlaut. According to them, the proper
defendant was tho Union of India. The Judicial
Commissioner, relying upon Art. :ioo of the Constitution and the definition of "State" in Art. 264-,
which did not include Part C States, held that the
State of Vindhya Pradesh was not a juristic entity,
and that the suit could not be filed against iL
Later, on an application for review, he held that
Art. 300 was not applicable to suits by or against
Part C States, and he, therefore, considered the
matter in the light of s.79 of the Code of Civil
Procedure. Before him, a notification issued by
the President appointing the Lieutenant-Governor
as a person authorised under Order 27 of the Code
of Civil Procedure was produced, to which earlier
his attention had not been called. He, therefore,
held that, in view of the provisions of s. 79 and
the definition of "State Government" in s. 3(60) of
the General Clauses Act, the proper defendant was,
in fact, the Stlite of Vindhya Pradesh. He accordlligly observed 1U1 follows :
"The previous judgement of this Court was
basea on the assumption that the State of
Yindhya. Pradesh was not a legal entity, that
1s,
ent1ty
capable
of holding property
and of entering into contracts. As has been
shown above this IU!Sumption was erroneous."
In the view of the matter, he reviewed his
order, with the result stated above.
The provisions which are material to the
discussion may now be set down. Section 79 of the
1961
The State of
Madhya Pradeah
v.
Shri Mou /,a Bux
and othera
M, Hiclayatullah
J.
1961
The State of
Madhya Pradesh
v.
Shri Moula Bux
and others
M. Hidava!ullah
J.
798
SCPREME COFRT REPOHTS
[1962]
Code of Civil Procedure lays down:
"79. In a suit by or against the Government,
the authority to be named as plaintiff or
defendant, as the case may be, shall be-
( a) In the case of a suit by or against the
Central Government, the Union of India,
and
(b) In the· case of a suit by or against a
State Government, the State."
The following definitions in the General Clauses Act, 1897, as thev stood at the time, are also
relevant:
·
"3 (8) 'Central Government' shall.-
*
*
*
(b) in relation to anything done or to be
done after the commencement of the Con·
stitution, mean the President;
and shall include-
*
*
*
(ii)
in relation to the administratian of
a Part C State, the Chief Commissioner
or Lieutenant-Governor acting within
the scope of the authority given to him
or it under article 239 or article 243 of
the Constitution, as the case may be : "
3 (58) 'State' shall mean a Part A State, a
Part B State or a Part C State :
3 (60) 'State Government',--
*
*
*
(b) as respects anything done or to be
done after the commencement of the
Constitution, shall mean in a Part A
State, the Governor, in a Part B State,
Rajpramukh, and in a Part C State the
Central Government: "
It is contended before us that s. 79, which
lays down the procedure for suits by or against
•)
~
- 8.C.R.
SUPREME COURT l'tEPORTS
799
Government and the authority to be named as
plaintiff or defendant provides that (a) in the
ease of 11 suit by or against the Central Govern·
ment, the Union of India and (b) in the case of
a suit by or against the State Government, the
~late, slrnll be named as.plaintiff or defendant, as
the case 1rn1y be. It is contended thart under the
General Clauses Act, s. 3 (8) , "Central Government" means in relation to anything done or to
be done after the commencement of the Constitution, the President, vnd under s. 3(60), "State
Government" means as respects anything done
or to tie done after the commencement of Constitution, in the case of a Part C State, the Central
Government. The contention, therefore, is that
if the State Government me'.lns the Central Government in tbe case of Part C States, then under
cl. (a) of s. 79 of the Code of Civil Procedure, the
proper party to sue would be the Union of India.
This arqument was not accepted by the Judicial
Commissioner, and, in our opinion, rightly.
The matter has to be looked at in this way.
"State" is defined by s. 3(58) as a Part A State
or a Part B State or a Part C State. This shows
that wherever the word "State" is used, it
includes a Part C State. In Satya Deo v. Padarn
Deo (') it has been held by this Court that Pa;t
C States 11ad a separate existence and were not
merged with the Central Government. "State
Government" is then defined in s. 3(60) in relation to a Part C State, as the Central Govemment and "Central Government" is defined in
s. 3(8)(ii) as including the Lieutenant-Governor acting within the scope of authority given to him
under Art. 239.
Article 239 reads as follows :
"239(1) Subject to the other provisions
of this Part, a State specified in Part C rif
the First Schedule shall be administered by
the President acting, to such extent, as he
(I) (1955) 1 S.C.R. 549.
I 961
1'hc Slate of
M ad!tya F radcsh
v.
S/iri Muula Btt;;
and others
M, llidayatu llah
J.
1961
The Slate of
Madhya Pradesh
v.
Sh>"i Moala
Bux and others
M.Ilida_vatullah.
J.
800
SUPREME COURT REPORTS
[1962)
thinks fit, through a Chief Commissioner or
a Lieutenant-Governor to be appointed by.
him ....... "
The
administration of a Part C State was
thus being carried on under the provisions of
Art. 239, and, as has been rightly pointed out by
the Judicial Commissioner, was not affected by
Art. 300. On April 8, 1953, the President issued the
following notification :
"S. R. 0. 699"-In pursuance of clause (ll
of Article 239 and clause (l) of Article 243
of the Constitution, and in supersession
of the notification of the Govemment of
India in the• late Home Department No.
204/37-Judicial, dated the 5th May, 1938
and in partial modification of the notification of the Government uf India in the
Ministry of States No. S. H .. 0. 460 dated
the 24th August, 1950, in so far as it rehtes
to the Civil Procedure Cud.,,
l!l08 (Act V
of 1908), the President hereby directs that
the functions assigned to the Central Government by Order XXVII of the First Schee
dule be discharged by the Lieutenant-Governor or the Chief Commissioner as the case
may be, of every Part C State except the
State of Manipur, in respect of such Part
C Shte,and by the Cheif Commissioner of the
Andaman and Nicobar Islands in respect
of those Islands."
In view of this notification, the Lieutenant
Governor became the proper authority under
0.27 of the Code Civil Procedure. By virtue of the
definitions of "Statp" and "Central Government"
read with the rlefinition of "State Government",
the Lieutenallt-Governor of the State was the
proper party to be sued. The Government of
Vindhya Pradesh meant the Lieutenant-Governor
only by an amendment made in 1954 in the
•
2 8.C.R.
SUPREME COURT REPORTS
801
Vindhya Prndeiill General Clauses Act.
Since
the contract in que8tion was entered into by the
Government of Vindhya Pradesh aml could uut
be consttued as a contract with the Central Government, sec 8atye Deo V.
Pa<lam Deo (') the suit
lmd tu be brought against the State of Vindhyit
Pradesh, and the State wa.s
~he proper authority
to be named under s. 79(b) of the Code. In addition to this there was the Act called the Government of Part C States Act, and under s. 38(2) of
that Act, all executive action of a Part C State
was to be expressed to be taken in the name
of the Lil•utenant-Govcrnor and the executive
power of tho Government was tu be exercised
by him, including the grant, sale, disposition or
mortgage etc., of any property held for the purposes of the State. The combined effect of all
these provisions was to constitute the Part C
State of Viqdhya Pradesh into a separate State,
and under Art.
239, the administration of it
was to be dune by tho Prei;ident through such
person, as he notified.
Under the notification,
the Lieutenant-Governor was appointed as the
person to discharge the functions under 0. 27
and under s. 38 (2) of the Government of Part C
States Act he exercised the executive power of
Government.
The Government of the State of
Vindhya Pradesh entered into the contract with
the plaintiffs in respect of the property of the
State. The definitions to which we have referred, made the State the proper authority to be
sued, even though the State Government was
defined in the General Clauses Act as the Central
Government, because the definition of " Central
Government" takes us to the Lieutenant-Governor, and from the Lieutenant-Governor we go
to the State.
In this veiw of the matter,
s. 7ii(a) of the Code, which says that in a suit by or
against the Central Government, the proper plaintiff or defendant, as the case may be, is the Union
(I) (1955) I S.C.R. 549 •
I 9GI
1'/ie State of
Macl!tya l'iwlcolc
v.
!:)Itri Jfuultt lJ1u·
and other.
.M. 11-iclayatullul•
J.
1961
The State of
Madhya Prade•li
v
Shri Moula. Bux
and others
M. H idayatuUali
J.
1961
M•y, 5.
802
SUPREME COURT REPORTS
[1962)
of India, does not apply to a Part C State, and
only the definition in cl. (b) of the section :ipplies
to this State, even though a Part C State. In
our opinion, therefore, the decision of the Judicial
Commissioner was correct.
Since no other point was urged in this
appeal, it must fail, and it is accordingly dismissed with costs. There is no need to pass any
order on C. M. P. No. 40 of 1960 by which the
respondents asked for amendment of the plaint
and addition of the Union Govermnent as a party.
The application shall be filed.
Appeal dismissed
THE RIVER STEAM NAVIGATION CO., LT.D
v.
SHYAM SUNDAR TEA CO., LTD.
(P. B. GAJENDRAGADKAR, K. N. WANCHOO AND
K. c. DAS GUPTA, JJ.)
Common . Carr~er-Steam11hip Companv carrying, goods
/,y
steamer in main stream-Feeder
aervice by boata in
tributary-Goods
lo•t in transit in ,uch service-Liability--
Company, if, a common carrier in the feeder aervice-Te•I
Carriers Act, 1865 (3 of 1865), s. 2.
The question whether a carrier is a common carrier or not
has to be decided on its public profession and such profession
may be either by public notice or by conduct. It is immaterial
if the carrying is limited to partic;iiar goops or particular
routes or between specified points.
Lane v. Ootton12 Mod. 474; lngate v.Chriatia, (1950) 3
Car. and K. 61 andJhomon v. Midland Rly., Co. (1849) 4 Ex
367, referred to.