JUDGMENT
Mahinder Narain, J.
(1) By this writ petition the petitioner sought enforcement of the rights conferred upon it by Article 19(l)(f) of the Constitution of India, i.e. freedom to hold and dispose of property. The petitioner filed this writ petition on 24/3/1972. On that date Article 19(l)(f) of the Constitution was in existence. The right to hold and dispose of property was one of the rights conferred on the citizens of India by the Constitution. The case of the petitioner as filed, is that inasmuch as he has been deprived of the usufruct of the property bearing municipal No. 52, Golf Link, New Delhi, in the shape of its rent, the right of conferred on him by Article 19(l)(f) of the Constitution has been violated. It is the case of the petitioner that this right to the usufruct of the property No. 52, Golf Links has been violated by the duly accredited Ambassador of Afghanistan, for whose residence the said premises was given under a lease executed on 15/8/1961 between Kanwar Manjit Inder Singh, and Ambassador of the Royal Afghan Government.
(2) The petitioner contends that Kanwar Manjit Inder Singh was its predecessor in interest and it has succeeded to all the rights which Kanwar Manjit Inder Singh had under the said lease deed dated 15/8/1961 which was annexed as annexure ‘B’ to the writ petition.
(3) The further case of the petitioner is that the petitioner has been seeking assistance of the Ministry of External Affairs for the purposes of recovering the rent and getting the said premises vacated by the Ambassador of Royal Afghan Government and also trying to obtain permission to sue the Ambassador of the Afghan Government or his successor, for the purpose for recovering arrears of rent.
(4) Lot of changes have taken place since the filing of the instant writ petition. One of the important changes which has occurred is that Article 19(1)(f) of the Constitution which had conferred the right on the citizens to acquire, hold and dispose of property, has been deleted from part Iii of the Constitution by a Constitutional Amendment. This constitutional Amendment has been a subject-matter of controversy in Courts, and the Supreme Court pronounced upon it. (See His Holi-ness Kesayananda Bharti Sripada galavaru v. State of Kerala, (1973) Supplement S.C.R. .1.
(5) The questions which arise in this case relate to the meaning and effect which is to be given to the provisions of Section 86 of the Code of Civil Procedure. Section 86 of Civil Procedure Code . reads as under :-
“86.(1) No foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government : Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid (a foreign State $) from whom he holds or claims to bold the property.
(2)Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the court in which (the foreign State) may be sued, but it shall not be given, unless it appears to the Central Government that (the foreign State)-
(A)has instituted a suit in the Court against the person desiring to sue (it), or
(B)by (itself) or another, trades within the local limits of the jurisdiction of the Court, or
(C)is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon, or
(D)has expressly or impliedly waived the privilege accorded to (it) by this section.
(3)Except with the consent of the Central Government, certified in writing by a Secretary to that Government, no decree shall be executed against the property of any foreign State.
(4)The preceding provisions of this section shall apply in relation it-
(A)any Ruler of a foreign State ;
(AA)any Ambassador or Envoy of a foreign State ;
(B)any High Commissioner of a Commonwealth country ; and
(C)any such member of the staff (of the foreign State or the staff or retinue of the Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf, (as they apply in relation to a foreign State).
(5)The following persons shall not be arrested under this Code, namely:
(A)any Ruler of a foreign State;
(B)any Ambassador or Envoy of a foreign State ;
(C)any High Commissioner of a Commonwealth country ;
(D)any such member of the staff of the foreign State or the staff or retinue of the Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country, as the Central Government may, by general or special order, specify in this behalf.
(6)Where a request is made to the Central Government for the grant of any consent referred to in Sub-section (1), the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard.”
(6) The counsel who appeared before me, have not brought out to my notice any judgment of any Court in India which has been delivered on the meaning and effect of Section 86 of the Code.
(7) The counsel for the petitioner has, however, pointed out to me two judgments of the Supreme Court in cases Narottam Kishore Deb Varman and others v. Union of India and another, , and Maharaj Kumar Tokendra Bir Singh v. Secretary to the Government of India. Ministry of Home Affairs and another, . Both these judgments relate to Section 87B of the Code of Civil Procedure. Section 87B of the Code of Civil Procedure, Section 87B read as under :-
“87B(1) In the case of any suit by or against the Ruler of any former Indian State which is based wholly or in part upon a cause of action which arose before the commencement of the constitution or any proceeding arising out of such suit, the provisions of Section 85 and Sub-sections (1) and (3) of Section 86 shall apply in relation to such Ruler as they apply in relation to the Ruler of a foreign State.
(2)In this section-
(A)”former Indian State” means any such Indian State as the Central Government may, by notification in the Official Gazette, specify for the purposes of this.
(B)”commencement of the Constitution” means the 26/1/1950; and
(C)”Ruler” in relation to a former Indian State, has the same meaning as in Article 363 of the Constitution.”
In view of Section 87B it is clear that the principles which govern institution of suits against the erstwhile Rulers of former Indian States would also govern in terms and conditions on which the permission is obtainable for suing aliens, foreign Rulers, Ambassadors and Envoys.
(8) Rulers of Indian States have also ceased to be legal and constitutional entities as a result of Twenty Sixth constitutional amendment by which Article 363A was inserted in the Constitution.
(9) However, the observations made by the Supreme Court in the two cases aforementioned, in particular in the case Maharaj Kumar Tokendra Bir Singh (supra), are significant. In that case at page 1665, it was observed that “c immunity granted to the Rulers of foreign States by Section 86(1) is based on considerations of diplomatic immunity in favor of foreign Ruling Monarchs which is recognised by International Law and convention. In dealing with cases falling under Section 86(1), considerations of International Law and tradition and other diplomatic aspects of the question would be relevant, and so, in according consent to a suit proposed to be filed against a Ruler of a foreign State, it would be open to the Central Government to take all the said considerations into account before deciding whether consent should be accorded or not.” The Supreme Court went on to say that they were not concerned in that case with the considerations of International Law and tradition. What they were concerned in that case, was whether or not it is open to the Central Government to accord a partial or conditional consent to the institution of suit which the petitioner before the Supreme Court intended to file against the minor Maharaja of Manipur.
(10) It is noteworthy that the matter before the Supreme Court arose as a result of a petition under Article 32 of the Constitution of India, in which the validity and propriety of an order under Section 87B of the Code of Civil Procedure was in question. As stated earlier, what the petitioner wanted to do was to file a suit for partition of properties which were held by the Maharaja of Manipur, which properties were alleged to be a joint family property. The Supreme Court also observed in that case: “in dealing with this question (grant or refusal of permission to sue by ‘ the Central Government) it is necessary to emphasise that “the power conferred on the Central Government to accord or refuse to accord, consent to the proposed suit, must be very carefully exercised.” The Supreme Court noted, “in the affidavit filed on behalf of the respondent, it has been averred that the Central Government’s consent has been given in every case where a prima facie and justiciable claim is made out against a Ruler, and that consent has been refused only in such cases in which the Government felt convinced that the object of the suit was exploitation, black mailing or vexatious harassment of Rulers, or the suit related to anything done or omitted to be done by Rulers or under their authority during the period of their administration of the States.”
(11) The Supreme Court went on to observe that, “if this is the approach which is invariably adopted by the Central Government in dealing with applications for consent under Section 87B, no serious grievance can be legitimately made. It is plain that Section 87B is intended substantially to save the Rulers of former Indian States from Harassment which would be caused by the institution of frivolous suits ; excepting cases where the claims appear to be frivolous prima facie, the Central Government should normally accord permission to the litigants who want to file suits against Rulers of former Indian States whenever it appears that the claims disclosed justifiable and friable issues between them and the Rulers sought to be sued. Normally, it is not the function of the Central Government to attempt to adjudicate upon the merits of the Claim intended to be made by the litigants in their proposed suits ; that is the function of civil courts to competent jurisdiction, and so, the Central Government should not attempt to assume the jurisdiction of a civil court and decide whether a claim is well-founded or not before according consent to the institution of the suit.”
(12) What is said by the Supreme Court in the said judgment applies, equally to the persons covered by Section 86 of the Code of Civil Procedure, namely, suits against foreign Rulers, Ambassadors and Envoys. This is clear from Section 87B(1) of CPC.
(13) In the instant case the Central Government has not filed any counter-affidavit. There is no averment in the instant case that the suit against the Ambassador of the Royal Afghan Government would be, prima facie frivolous or is motivated with the view to exploit, black-mail or harass the Ambassador. In fact the admitted case of the respondent is that they have been making efforts, in the first instance, to get the premises vacated by the Ambassador of the Royal Afghan Government, and in the second instance, to assist the petitioner, “outside the Court” in recovery of all arrears of rent.
(14) In the reply to the show-cause notice filed in the Court by the respondent, the respondent say that “the difficulty and grievance of the petitioner as a result of alleged arrears of rent etc., are to be resolved outside the Court. In terms of the Vienna Convention on Diplomatic Relations, 1961, acceded to by the President of India on 28/8/1965, the Royal Afghan Embassy enjoy privileges and immunities in respect of civil and administrative Jurisdiction of the receiving State as prescribed therein.”
(15) The record of the case shows that there has been correspondence between petitioner and the then Ambassador or Afghanistan Sardar Ala Genl. Mohamad Omer the Ambassador of the Government of Afghanistan since 1964. There was a correspondence between the petitioner and the Ministry of External Affairs from 9/7/1964 onwards. The sum and substance of most of the letters, which are on record is that the petitioner company sought the assistance of the Ministry of External Affairs, in the first instance to get the premises owned by it, vacated by the Ambassador of Afghan Government, and also to get assistance of the Ministry to recover the arrears of rent due to the petitioner.
(16) On behalf of the respondent Mr. S.K.Misra has contended that none of these documents which had been filed by the petitioner, except annexure ‘U’ make a specific request for a permission being granted in terms of Section 86 of the Code. I do not think, it would be proper to expect any person to reproduce the terms of Section 86 of the Code in every letter of request which is sent to a government department. Mere reproduction of the Section without setting out other facts would not be desirable either. What in my view has to be seen is, whether the provisions of Section 86 have been substantially complied with for obtaining permission io sue a person covered by the provisions of Section 86. Specifically, in my view, the words “kindly permit me to hand over this matter to my legal adviser for taking legal recourse for ejectment. I would like to take this recourse only with your permission”, are substantial compliance of Section 86, inasmuch as it is stated in this letter, which is annexure ‘G’ to the writ petition, and dated 9/7/1964, that he would like to initiate proceedings for ejectment with the permission of the Central Government, are sufficient compliance of Section 86. In response to this letter of 9/7/1964, what was stated by the Under Secretary in the Ministry of External Affairs in his letter in reply dated 22/7/1964 was that the “matter is receiving attention”. I have been taken through all other documents which have been filed by both the counsel. Not a single document issued by the Ministry of External Affairs contains any refusal to accord permission except the final letter received by the petitioner dated 18th December, 1971, wherein the permission to sue was specifically refused. This letter was written by the Ministry of External Affairs after a legal notice had been served by the petitioner on the respondent. The petitioner aggrieved by this letter, filed the instant writ petition on 22/3/1972.
(17) In this view of the matter, I do not think that the submission of Mr. S.K. Misra that there has been laches and delay on the part of the petitioner, has any force. In my view his submission that no permission was sought by the petitioner to sue the Ambassador, has no force either. Mr. Misra’s contention that the petitioner has not been vigilant, is also, for the reason aforementioned without any force as the petitioner has persistently and continuously sought, by subsequent letters permission of the Ministry of External Affairs to sue the Ambassador of the Royal Afghan Government. The contention of Mr. Misra that by filing a suit as apparently was done in the year 1965, the petitioner became aware that a permission of the Central Government is a condition precedent to the filing of the suit and the fact that he did not file the instance proceedings till March, 1972 shows that the petition has been vigilant. I do not a free. The petitioner has continued to write to the Ministry of External Affairs (annexureP-l), the Chief of Protocol letter dated 26/6/1967 (annexure R-2) again to the Chief of Protocol, Ministry of External Affairs dated 11/9/1967 (annexure R-3), letter dated 13/1/1968 (annexure R-4), letter dated 11/12/1968 (annexure R-5), letter dated 31/1/1969 (annexure R-6), letter to the Deputy Chief of Protocol dated 4/9/1970 (annexure T-l), which contain request for settlement of the amount due to the petitioner, i.e. Rs. 1,87,685. 18 p. All these go to show that the petitioner has not been indolent. Finally it was a legal notice which was issued by Mr. Yogender Nath Bhardwaj, Advocate to the Secretary, Ministry of External Affairs on 5th October, 1971 (annexure ‘U’) and dated 13/9/1971 (annexure ‘V’) that has resulted in the refusal of the permission dated 18/12/1971. Besides, it is noteworthy that there is no plea of laches, delay, non-vigilance or indolance taken in the reply to show-cause notice.
(18) The substantial plea which has been taken in the reply to the show-cause notice is that inasmuch as the premises are no more in possession of the Royal Afghan Embazzy. permission to sue for recovery of arrears cannot be granted in view of Section 86(2)(c) of the Code of Civil Procedure.
(19) Section 86(2)(c) of the Code of Civil Procedure, no doubt lays down the condition that the foreign State has to be in possession of an immovable property. Section 86(2)(c), however, further stipulates that money, of which recovery is sought, must be “money charged thereon”. In other words, for purpose of Section 86(2)(c) of Civil Procedure Code. there has to be a charge on the immovable property for money. This part of Section 6(2)(c), therefore, relates to property belonging to a foreign sovereign government and that money is due on account of something done with respect to such property.
(20) The permission which is sought by the petitioner herein, is to recover money which is arrears of rent of property which belongs to the petitioner. The property No. 52, Golf Links, New Delhi is not owned by any person other than the petitioner. The Ambassador did no town the said property. In my view the “money charge” mentioned in Section 86(2)(c) would be money due as a charge on the property of the foreign government, for instance with respect to the repairs of the property belonging to a foreign Embassy. The instant case is not one for the recovery of money which is charged on the property belonging to another country. Money may be a charge on- property .belonging to another sovereign States in case where repairs are carried out or something is added to the property of the foreign country. That is not the case here. The immovable property is owned by the petitioner.
(21) It is interesting to note that there have been instances where repairs have been done to the property of sovereign States, ‘which have not been paid for by the sovereign States, which led to the filing of proceedings for recover such monies. One such instance is reported in (1981) 1 All England Law Reports 1110 (Planmount Ltd. v. Republic of Zaire) in which the plaintiff sought to recover money on account of repairs done to the properly belonging to the Republic of Zaire. Plea was there taken that being a soveriegn State, Republic of Zaire could not be sued. The single Judge dealing with the matter noted various judgments on similar issues which had arisen in various jurisdictions in different countries including England and Germany. The Judge noted that there has been a change in the International Law regarding such liabilities of foreign States, and that distinction has been made in the International Law regarding liability arising out of sovereign acts of sovereign States, and the liability arising out of commercial activity of sovereign States. The single Judge in that case held that contract for repairs of a building has to be regarded ”as an act or transaction of a private of commercial nature and not as a governmental act done by a sovereign government.” The single Judge had relied upon judgment of the Court of Appeal in the case Trndtex Trading Corporation Ltd. v. Central Bank of Nigeria, (1977) 1 All Er, (1977) Ob 529. In that case the applicable International Law was reviewed, and the change in the International Law which has come into being in America and England noted.
(22) From what is stated above, it is clear that Section 86(2)(c) would not. apply to the facts of this case. What is sought by the proposed suit is not to recover a charge on the immovable property belonging to a foreign sovereign State or its Envoy. The proposed suit is to recover arrears of rent. It is nowhere stated in the reply to show cause notice that the claim of the petitioner was vexatious or frivolous. In fact, on the contrary, as stated above, the stand of the respondent was the matter which should be decided “outside Court”. The matter has been pending since 1964. It has not been settled outside court.
(23) It is admitted case of the parties before me that premises No. 52, Golf Links, New Delhi, was vacated on 3/10/1967. Arrears of rent were due at the time the premises were vacated. Now almost 20 years have passed. The matter has not been settled outside the Court. No purpose would be served in waiting for the matters to besetled outside Court. It is obvious that this matter cannot be settled outside the Court.
(24) In my view, in view of the law laid down by the Supreme Court, and in view of the change in the International Law noticed in English cases referred above which make a distinction between the sovereign acts of sovereign States ; and commercial activities of the sovereign States ; the petitioner ought to have been given permission by the Central Government to institute the suit for recovery of arrears of rent. The sole reason for not giving the permission to sue being misconceived and the petitioner admittedly having a prima facie case for recovery of the money, the Central Government ought to have granted permission to sue, particularly as the claim of the petitioner did not appear to be prima facie frivolous or vexatious.
(25) Mr. Misra has stated that at this stage granting permission would mean that the claim which is hopelessly barred by time, would be permitted to be reagitated. This is not the question before me, and it will be a question to be decided by the court which eventually tries the suit. However, it is apparent to me that the provisions of Sections 15(2) of the Limitation Act would be attracted to a case like this. I have held that the permission has been sought by the petitioner from 1964 onwards by reference to various letters written by the petitioner to the Central Government. By Section 15(2) of Limitation Act the time taken for obtaining permission to sue is to be excluded. On 18/12/1971 the Central Government has refused to give permission for the first time. All requests for grant of permission, therefore, therefore, would be pending till this decision was given. The order dated 13/11/1971, has been challenged in these proceedings. In view of the facts and circumstances of the case, inasmuch as the order of the Central Government dated 18/12/1971, goes contrary to the principles which have been laid down by the Supreme Court in the case Maharaj Kumar Tokendra Bir Singh (supra) the same has to be struck down, and is hereby set aside.
(26) In view of the order dated 13/11/1971, having been set aside, in the facts and circumstances, I direct the Central Government to accord permission to the petitioner to sue the Ambassador of the Government of Afghanistan, which I hold the petitioner is entitled to have from the Central Government. The permission shall be accorded and communicated within two months from today. It will be in the fitness of things if the Central Government and its advisers persone the judgment of the Supreme Court in the case Maharaj Kumar Tokendra Bir Singh (supra) and the Trendtex Trading .Corporation Ltd. (supra), see that their future actions are also in accordance with the law laid down by the Supreme Court and with International Law.
(27) This writ petition is allowed. No order as to costs.
