CHAPTER 3

STATUTARY BASIS OF DECLARATORY ACTION IN INDIA

3.1. R E L I E F UNDER SPECIFIC R E L I E F ACT

S e c r ~ o n 34 of the Specific Relief Act. 1963 is the present

law which governs declaratory reliefs in India. It reads: "4ny

person entitled to any legal character, or KO any r ~ g h t as to any

property, may institute a suit against any person denying, or

tnterested to deny, his title Lo such character or right,and the

Court may In its discretion make therein a declaration that he is

entitled, and the plaintiff need not in such suit ask for any

further relief. "

Provided that no Court shall make any such declaration

where the plaintiff being able to seek further relief than a mere

declaration of title omlts to do so.

Exp1aeation:- A trustee of property is a "person interested to

deny" a title ad\erse to the title of some one who 1s not in

existence and for whom, if In existence, he would be trustee.

In a Welfare state, there is a possibility of casting a cloud

upon the legal character or right of the cttizens by the aciions of

administration. In such cases the section enables a person to

have his right or legal character declared by a Court of law aud

thus get rid of the cloud from the legal character or right. It

has been held that it was merely to perpetuate and strengthen

testimony regarding the title of the plaintiff so that adverse

attacks mlghl not weaken it.] B u t this does not mean that the

section sanctions every form of declaration, but only a

declaration that the plaintiff is entitled to any legal character or

to any right as to any property .2

The provision is a verbatim reproduction of S.42 of the

Specific Relief Act, 1877. It ensures a remedy to the aggrieved

person not only against all persons who actually claim an

adberse interest to his own, but also against those who may do

so.3 The requirement that the declaration should be that the

plaintiff is entitled to any legal character or right does not mean

that the declaration should be in the exact lay out of the wordlng

of the section. It also does not mean that it should be in rhe

1. &@nna v Slvanaaoa 38 mad. 1162

Dmkaii V V (1912) I .L .R.39 Cal. 704. (a case of private law).

affirmative, declaring the palintiff 's title to a legal character or

1 i ~ h t . 4 There exists no bar to the issue of a negative

declaration. This is because S . 9 of Civil Procedure Code

empowers Civil Courts to try all suits of a civil nature excepting

suits, the cognisance of which is either expressly or impiiedly

barred. The action for a so called negative declaration IS simply

a broadening of the equitable action for the removal of a cloud

from trtle to cover the removal of clouds from legal relations

generally under circumstances where the courts believe an

useful purpose r o b e thereby served.

3.1.2 Requisites:

Sectron 34 of the specrfic Relief Act, 1963 contemplates

certain conditions which are to be fulfilled by a plaintiff. In

W e of M . P , v -.s the court observed that in order to obtain the relref of

declaration the plaintiff must establish that (1) the plaintiff was

at the time of the suit entitled to any legal character or any right

to any property (ii) the defendant had denied or was interested

in denying the character or the title of the plarntiff,

4. :an-o kJ.eRife(c:9tEi the plantiff was the fegitimate daughter of the defendant.

5 A . I . R . (1971) M.P.65 .

(iii) the declaration asked for was a declaration that the plaintiff

was entitled to a legal character or to a right to property (iv) the

plaintiff was not in a position to claim a further relief than a

bare dec lara t~on of his title It is to be subm~t ted that the fourth

requisite is not correct as the section only says that if any

further relief could be claimed it should have been prayed for.

Since declaration is an equitable remedy the court still has a

discretion to grant or refuse the relief depending o n the

circumstances of each case.

Thus a person claiming declaratory rellef must show rhar

he is entitled

1 . to a legal character, o r

2 . to a right as to property, and that

3 . the defendant has denied or is interested to deny his tltle

to such character or right and

4. he has sought all reliefs in the suit.

In one case rare payer of a municipal~t) clatrned a

declarat~on that the chief officer of a Municipality had ceased to

hold office from a certaln date.6 In such a case it may be said

that the plaintiff had no personal grievance. The issue was

whether a public office was held by an usurper. One vlew of the

matter can be that neither right nor his legal character was

affected. Adopting such a view the Court declined the

A . I . R .

declaration. The Court held that the declaration claimed a'ould

not come within the terms of the section. A division Bench of

the Madras High Court in V B a & A . . -7 rejected to declare rights or legal character of a

non-civil (religious) nature. The plaintiff as matadhipathi had

claimed certain honours but those were refused by the Board of

Commissioners for Hindu religious endowments. The claim for

honour of that sort being claims related to religious matters

were not matters of civil nature within the meaning of S.9 of the

Civil Procedure Code and hence beyond the jurisdiction of the

C n i l ~ o u r t s ~ . It was held that such rights could not be

enforced in a civil court even if a n infringement was

comrnitted.9 The decision clearly brought out the fact that the

section did not enlarge the jurisdiction of civil courts to

entertain matters other than of civil nature. In one case the

plaintiff sought a declaration after he had ceased to be a tenant,

that he was not bound to pay anything more than a particular

sum by way of rent for his past occupation of a government

buildrng. The court held that the declaration claimed could no1

be said to be a declaration as to any "legal character" or to any

7 . A.1 R. (1935) Mad. 621

8. ' V of S taE (1899) 1.L R.22 s d i s t i n g u l s h e d on the gro ind that it related to r ~ g h t to property.

9 . (;hulam V ~L&uI anorher,I.R. (1936) Pesh.15.

"right io any property". Consequently, the s u ~ t for such

declaration was held to be not maintainable.10 The Court held

that the defendant had not denled the legal character or righf of

the plaintiff. This decision cannot be said to be correct because

the defendant had demanded the amount. Even though no step

was taken for the recovery of the amount, the plaintiff would

have been compelled to pay the amount. In Ramadas v

the Calcutta High Court look a narrow n e w

of Section 34.12 The appellant claimed a declaration that h ~ s

dismissal from service was ultra vires and his name ought not to

have been notified. hlukherjee, I , turned down the claim on the

ground that such a declaration was not conremplated hy the

section. The refusal might have occurred as a result of taking

the disjunctive "or" as a conjuncrive.l3

The learned Judge stared. "...now rhere is ob~ious ly no

claim by the plaintiff as to an) right to any property. Then

- \ - ;c +'pyb3?. . , - . A I R 15-1 . 3 l P d u . 1 . m e I J the c~n::cs:?c on it: :rdc?c t l . ~ ~ ~ h r r t

ua, r.3 susb51st:ng ..,nlracr :r Itare

11 (1912) 18 C.W.N. 106.

12. Deokali V K&Lu& (1912) 39 I.L.R. Cal. 701

Court observed that the two categories viz. legal character and right as to any property, had been separately mentioned and would therefore prima facie appear to be distinct, separate and exclusive.

can we say that he has a claim for tltle to any legal character

which the defendant is interested to deny? The question must

obviously be answered in the negative". It took several years for

the courts to settle the position.14

3.1.2 Legal Character:

The legal character contemplated by law is drstinct from

right to property. The Patna High Court observed that 11 cannot

be said that unless the legal character was In regard lo certatn

property, no declaration could be given and that the disjunct~ve

" o r ' cannot be read as conjunctive15 It includes the

circumstances where the right of a citizen is affected adversely

by the ultra act of an admtnistrative authority. Legal

Character used in S.42 is equivalent to legal status. According

to Holland Legal Character includes of f ic~al position.

profession, sex, minority, coverture, nationality, legitimacy,

mental defect, rank, caste, foreign nationality etc.16 A legal

right can be classified to be a personal r ~ g h t and would amount

to one ' s status, and is distinct from a proprietary r ~ g h t , when it

involves a peculiarity of the personality arising from anything

unconnected with the nature of the act itself which the Person of

14. S w e t a r v of Sac V- A.I .R. (1933) mad.618

15. Y " A.I .R. (1957) Pat 131 Here t e c o u m a l character was connected with the plaintiff 's right to property.

16 Holland's Jurispurdence, (London, Stevens, 8th edn p.309).

inherence can enforce against the person of incidence The

personality recognised in the law of persons should be such as

modifies Indefinitely the legal relations into which the individual

clothed wlth the personality may enter. This has been approved

to be the test of what is legal status or "legal character'' 17 In

the above case the Court held that independent of the powers

entrusted to h ~ m , the managing director of a company had no

peculiarity or legal status which affected or modlfied hls power

or rlghts. So the managing director, it was held could not be

said to have any legal status. In Subedar v

0 . ~ a l l ~ l 8 the Lahore Hlgh Court refused to

issue a declaration on the ground that the claim to seek

immunlty from trial under the Indian Army Act was not one for

establishing status or legal character. The plaintiff here claimed

a declaration that he was not liable to be tried by a General

Court marrlal and also for a declaration that the Ordinance

promulgated by the Governor-General for the constitution of the

Court-martial was ultra vires. The Court turned down the claim

also on the ground that the plaintiff did not ask for a declaration

In regard to any property. Ir has to be sald that the decision

cannot be said to be correct. Legal character can mean only the

legal 'status' of a person. The status is said to be legal because.

17. Shanta V Sher, .4 . I .R. (1959) Bom. 201.

18. AIR (1946) Lah. 247.

an infringement of it can be enforced through a court of law.

Moreover, a legal right, according to Holland, is a personal

right which will amount to one ' s status. There is a

"peculiarity" between persons u h o can be tried by a court

martial and who cannot be so tried. Hence it means that there 1s

a difference in the status of persons who are subjected to

jurisdlct~on of such military tribunals and those who are not

subjected to such jurisd~ction. If such 'status' 1s not respected, a

party should have redress In a court of law. In the above case

the position was not different. The court ought to have declared

whether the special tribunal was committing an illegality by

affecting his status and legal character. Similarly, the

proposition that a declaration as ro the & of an Ordinance

was not contemplated by the section was also incorrect. The

question whether an ordinance ts valid or not, is a matter to be

decided by the judiciary. The only forum available to test the

vires of an ordinance is a court of law The reason given for

rejecting the claim was that it was not tn regard to any property

or legal character. This in effect is to argue in a circle. The

decision was really unfortunare as if the court was not prepared

to extend the remedy of declaration as a general remedy in

administrative law. It is difficult to discern any distinction

worth its name between the view, of the court regarding right to

vote and a rtght to be left alone-not to be harassed by the special

military court.

Right to franchise is a valuable right in a democracy and

the courts have taken a liberal vlew to protect the right. The

Patna High Court in a case19 held that the arbitrary decision of

a Returning officer rejecting the nominat~on paper summarily

could be challenged Thls is because such a dec is~on not only

took away the right of the candidate to stand for e lec t~on, but

also depribjed the electorate of the exerclse of their right in

favour of the candidate of t h e n cholce.

In another case it was held that the words legal character

1s wide enough to include the right of franchise and the right of

being elected as a Municlpal Commlssioner.2O In this case, the

Court granted a declaration that the appellant 's nomination

paper has been illegally rejected, holding that a right to vote or

a rl@ht to stand as a candidare for being elected as a Municlpal

Cornmissloner was a very valuable rlght and a sult for a

declaration that a persons' nomination paper had been illegally

rejected could very well be entertained by the Courts.

In Reshula v P a a & y a n ~ e w u 2 1 . The Plaintiff

wanted a declaration to the effect that she was a relatlon of a

parttcular minor and that the minor was not married. It has

19. K&g&dA@ vv- AIR (1933)

20. Sat v Ourwala A.1.R (1946) Lah 8 5 .

21 A 1.R 1928. All. 309.

been held that ~f the P la~nt i f f does not want a declaration as 10

any legal character or as to any right to any property, the suit

would not be maintainable being hit by S.42 of specific Relief

Act, 1877. The court found that the declaration sought by the

plaintiff was not to any legal character nor was 11 as to any right

to any property

Where the plaintiff does not seek for a declaration of his

own r ~ g h t to property or his right to legal character but

challenges the defendants pretensions to legal character and

right to property, such a suit would be hit by S 42 of specific

Relief Act, 1877.22

3.1.3 Person entit led to a r ight t o any property:

The second requirement is that the person who seeks the

remedy must have a right to any property. A r i g h t in

Holland's proposit~on, is a m a n ' s capacity of influenc~ng the

acts of another, by means, not of his own strength, but of the

opinion or the force of soclety. The Bombay H ~ g h court has

observed that every interest of right uhich I S recognised and

protected by the state, is a legal right. The courts have made a

distinct~on between "right to property" and "a right in property"

and it has been held that in order to claim a

- --

22. Samar v Mitra A 1.R. 1961 Cal 411.

declaration the Plaintiff need not show a right in property. The

Madras High Court held that an agreement to sell certain

property in favour of a person certainly gave him a r ~ g h t to

property but not a right In the property.23

Courts have taken divergent views on the point whether a

declaration is available w ~ t h regard to contingent rlghts. On an

analysis of the illustrations (c), (d) and (e) to S.42 of the

Specific Relief Act, 1877, it can be seen that a declaration is

available for contingent rights. For, the below mentioned

~llustration are cases of declaratory reliefs founded upon

contingent rights. The illustrations run as follows:

(c) A covenants that, if he should at any time be entitled to

property exceeding on lakhs of rupees, he will settle it upon

certain trusts. Before any such property accrues, or any persons

entltled under the trusts are ascertained, he institutes a suit to

obtain a declaration that the covenant is void for uncertainty.

The court ma) make the declaration.

(d) A alienates to B property in which A has merely a life

interest. The alienation is invalid as against C. who is entitled

as reversioner. The court may in a suit by C , against A and B,

declare that C 1s so entltled.

(e) The widow o f a sonless Hindu alienates part of the property

of which she is in possession as such. The person

presumptively ent~tled to possess the property of the survivor

may, in a suit against the alienee, obtain a declaration that the

alienation was made without legal necessity and was therefore

void beyond the widow's lifetime.

In Farvsd Fat- \ . . .

24 the question

of contingent right was considered w~thout going into the depth

of rhe problem. There the Plaintiff sued the defendant for a

declaration that a deed of transfer executed by the rnorrgagor

was vold. But the s u ~ t was in respect of certaln property, in

fact not mortgaged to the plaintiff The court refused to grant

the declaration. The Court observed: "Declaratory relief being

in the discretion of the Court, it should not be granted In

anticipation of a contingency which may not arlsem'.25 But In

this case no reference to the above referred illustrations were

made nor the law on this point was considered In . . v L b - & y ~ @ haratn S u g h 2 6 the court

considered the question whether the right to maintain and cut a

part of the existlng bunds according lo necessities of irrigation

24. A. I .R. (1934) All. 1064

26 A . 1 . R (1940) Pat. 502. Here the collector was not made a y r t y because the ,ac t~on was nor against the fine imposed.

he Plaintiff cla~rned a declarat!on, of his right on the assumption that he has v a l ~ d permtssion.

and to close and repatr them was contingent or not. The

Plaintiff in the above case had erected bunds witbout obtaining

permission from the collector and hence he was fined for it

under S .76 (b) of the Embankment Act The Plaintiff contended

that he had the absolute right to erect and maintain the bunds

according to his necessities. The Defendant contended that the

Plaintiff was not entitled to the declaration because he was

seeking a declaration of a contingent right for his right

depended upon the permission of the collector. The contention

was that tbe question need be decided only after he gets such

permission. The court rejected the contention of the Defendant

and held that the Plaintiff was claiming an existing right in

respect of the bunds. It was observed that the relief which the

Plaintiff claimed was an unqualified right to maintatn and cut a

part of the existing bunds. Here also the court avoided the issue

whether declaration was available for contingent rights.

In Mohammed v K h a n 2 7 a suit for a

mere declaration that one person IS related to another was held

as not a suit to establish a legal right or any right as to any

property and such suit would be incompetent. In a Calcutta

case,*8 it was observed that a declaration might be sought with

27. A.I.R. 1930 Lah. 793.

28. Tarak V Dar A.1.R. (1946) Cal. 118.

regard to a contingent rlght. It was held that the Court had

absolute discretion to refuse relief if 11 considered the claim to

be too remote or the declaration, if given, would be ineffective.

It was observed that the term 'right as to property' showed that

the Plaintiff should have an existing right in any particular

property. The only limitation is that nobody can approach the

Court for a declaration on a chance or a mere hope entertained.

In public Law also a tendency can be seen on the part of

the Courts to extend the limitation, based on the concept of right

to property to applications for declaration.29 In hgm&&&h

v U n i t e d 3 0 the Plaintiff brought a suit for a

declaration that the U.P. Tenancy Act, 1939 was ultra vires the

Provincial Legislature. The Privy Council held: "It 1s not for

this Court to pronounce upon the wisdom or the justice, in the

broader sense of legislative acts it can only say whether they are

validly enacted, and in the present case we are satisfied that

ne~ther the U.P. Tenancy Act, 1939,as a whole, nor any those

provisions of it which are set out In the schedule to the plaint,

are open to challenge on any of the grounds which have been

argued before us" . Thus here the constitutional validity of a

statue was in question. The statute in question was found

29. v w

30. A . I . R . (1946) P .C. 127.

intra vlres and the Court refused the declaration sought.

However, the Court did not pass any comment as to the question

whether the of statute could be challenged by a suit for

declaration. The Patna High Court examined the a of statute

in Kameswar v i n e h . 3 1 There the court

considered the question whether a person, who was entitled to

seek a declaration affected prejudicially by a stature beiore it

came ~ n t o operation. Shearer. 1. observed "I am not prepared to

say that when a law is enacted and before it 1s put into operatton

or any action is taken under it a person who may be

prejudicially affected by it, is entitled to ask the Courts ior a

declaration that it is an unconst~tutional law".32 The point was

conclusively decided in K.K v M&&s33 by the

Supreme Court where it granted a declaration under Art.32 of

the constitution that the legislation viz. The Madras

Marumakkathayam (Removal of Doubts) Act, 1955 was violative

of Art. 19 (1) (0. The Court observed that Art. 32 gave wide

powers to the Court for the grant of Writ or order or direction

and a declaration as well. In certaln cases the courts have

entertained suits for declaration filed by rate payers against

municipalities challenging certain actions done by them. In

such cases the rate payers come to the court not to

31. A. I .R. (1951) Pat 246.

32. lbjd P.250.

33. A.I.R. (1959) S .C. 725

vindtcate any of their personal rights, but as public spirited

citizens who want to ensure a better municipal administration.

In such cases it is difficult to grant a declaration if we go by the

literal meaning of the Section because the Plaintiff may not be

invoking the jurisdiction of the court to protect his legal

character or vindicate his rights In any property. The question

was discussed elaborately in M i a Kath D o w a r k a v

-34 by the Punjab High Court. The Plainttffs

challenged a transaction of sale made by the Municipal

committee of Sonapet in respect of certain land in favour of the

defendant. The court rejected the contention of the defendant

that though plaintiffs were rate-payers they could not be clothed

with a right to sue. The court held that as rate-payers they could

justly be said to have a right in the property of the Municipal

committee and as such were entitled to bring the suit. It was

observed "the touch stone for the right of a par t~cular plainttff

to bring a suit under S . 4 2 of the specific Relief Act is whether

his interests a re affected by the Act complained o f . " It was held

rhat as rate-payers the Plaintiffs had a special interest in the

properties of the Municipal Committee and were vitally

concerned with the illegal or ultra vires acts of the

municipality .35

- 34. A. I .R. (1961) Punj. 352.

35. Yaman v (1897) I . L . R . 22 Bom. 646.

The question whether the pecuniary or contractual liability

of a person relates to his right to property is widely discussed

by the courts. Before a suit is entertained the court must see that

it relates to the Plaintiffs' right to property. In Madan V

~ $ 3 6 the Plaintiff filed a suit for a declaration that

he was not llable lo pay a certain amount of money under the

contract with the state. The Court held that it was not a sult for

declaration that he was entitled to any right as to any property.

In a suit by a quondam tenant of a government building for a

declaratton that he was not liable to pay anything more than

Rs.392.62 per month by way of rent for his past occupation of

the building was refused by the Court 3' It was observed tbal a

court would not make a declaration to the effect that the

plaintiff was not liable to pay any thing more than a particular

amount, on the exerclse of the court 's judicial discret~on, in . .

v-

plaintiffs claimed a declarat~on that terminal tax on consignment

of raw coconut oil should be under serial No. 29 and not under

serial No.20-A, of the Appendlx to Rules framed by C ~ t y

Corporation of Karachi. The Court held that the rellef prayed

for was m~sconceived. The court observed that the sectton dealt

with a case where a plaintiff entitled to a legal character or any

36. A.1.R (1956) M.B. 111.

37 . . . m ( 1 -

v

right to property and that no legal character or any right to

property was involved in this case. The decision, it has to be

said s h o u s the early unwillingness of the court to grant relief by

way of declaration in matters of publlc law 38

Persons denying or Plaintiffs ' Title:

interested t o deny the

S.34 provldes for "a suit against any person denying or

Interest to deny the Plaintiffs' title to the legal character or rlght

to any property" So it is clear that the Plaintiff's task is not

over once he proves that he is en t~t led to the legal character or

right to property, It is for him to convince the court that rhe

defendant has denied or interested to deny that legal character

or right of the plaintiff. Then only he can succeed in obtaining

the declaration sought. Normally a mere apprehension of

invasion of the rights of the Platnr~ff may not entitle hlm to

approach the court. The denial of the Plalntlfrs r ~ g h t must be

real and In a sense 11 will be in such a manner that it should be

threatening the free enjoyment of the right of the individual.

In Governor General in C o d v -39 the

39. A.I.R. (1944) nag. 382.

43

Nagpur High Court interpreted the term "interested to deny" to

mean that a person interested to deny a legal character or a right

to any properr) u a s a person with a rival claim of some sort and

with some Interest resembling in its nature that of the person

whose legal character or right was denied The Plaintiffs sued

the crown on the ground that one of its servants- the ~ncome-tax

officer had refused to register the ftrm under the Income Tax

Act. The Court observed that the Income-Tax officer in deciding

the issue of registration was not acting as an agent of the Crown

and the Crown had no power to influence his decision. The

declsion cannot be correct because the general view was that

when the servants are acting in their official capacity the! are

considered to be the agents of the Crown Here the court

refused to acceut the view.

In public law litigation such denial ought to be

communicated to the plaintiffs; if not so informed, he would not

be entltled to approach the court. In a case where the

gobernment declded that certaln lands held by the talikhdar was

not rent free, but the decision was not communicated to the

plaintiff, the Bombay High Court held that the Plaintiff had no

cause of action since the decision was not communicated to

him 40

in v -41 the court held that a mere

demand of money by defendant dtd not amount to denial of the

legal character or right to property of the Plaintiff and as such

the Plainttff had no cause of action. In that case the Plaintiff

had withdrawn his offer before the bid was finally accepted by

the conservator of forest. Later on he u a s called upon to pay

the bid amount even though the alleged contract had not come

into exisrence. The court refused a declaration. The decision

cannot be said to be correct because the court could have

declared whether a legally binding contract had come into

existence In those circumstances Here it could be sren that the

demand of money was based on the assumption that a valid

agreement existed. The demand was a permanent threat on the

Plaint~ffs ' free enjoyment of his money. So the court ought to

have made the declaration clatmed. in Madanlal V W

&LLBd2 Government made a demand from the p la~nt i f f

personally for certain amount as due on account of the

undertak~ng of distribution of food grains by the congress

committee. The plaintiff claimed a declaration that the demand

was illegal and wrong. It was held that a mere demand didnot

gibe a cause of action and such a suit was not ma~nta tnable .

41. A. I .R. (1972) 0r i .154 .

42 . A.I.R. (1955) MP. 111

3.2. Further Relief:

The proviso to S .34 imposed a limitation on the discretion

of the court in entertaining a suit for declaration. The proviso

says that no court shall make any such declaration if the

plaintiff omits to seek further relief which he is able to seek.

The word "shall ' shows that the prohibition is mandatory The

restriction IS p rov~ded not with the object of depriving acts as a

check on the right of the citlzen to seek the remedy when his

right is inf r~nged, the main object behind the proviso is to avoid

multiplicity of sults. In Munnu ha mar \.43 the

Court observed" " ... the object of the proviso is to prevent

rnult~plic~ry of suits by preventing a person from getting a mere

declaration of right in one suit and then seeking the remedy,

without a h i c h the declaration would be useless and whrch could

h a t e been obtained in the same, suit, tn another" By Inserting

the proviso In S . 3 4 the Legislature uanted that all the possible

reliefs which a plaintiff was entitled to get must except as

otherwise provided, be included in one suit .44

The words "further relief" do not mean every kind of

relief that may be prayed for. What is contemplated by the

43. A.I.R. (1947) All. 352 at 354

44 . " A.1.R: (1933) m e c~ouk~teld~;bAai lfa;k the reheis were asked in one suit, the court was not revented from granting a declaration under S 42 Specific Eelief Act,

proviso is a reltef arising from the cause of action on which the

plaintiffs' suit is based.45 The Court ruled that the plaintiff did

not need to ask further relief "if he becomes entitled in some

remore way to other reliefs, they are not so related to his cause

of a c t ~ o n . . . " To borrow the words of Verma.1 "the further

relief must be reltef following directly and necessarily from the

declaration sought and a r e l ~ e f appropriate to, and necessarily

consequent on, the r ~ g h t or title asserted "46 The expression

'further relief' is a relief in relation to the legal character or

rlght as to any property urhich any person is entitled to Lord

Atktn observed that the other relief ment~oned in the proviso

must be "other relief'' azainst the defendant himself agatnst

whom the declaration is sought.47 It must be inherent In

original declaration claimed without which declaratory relief

would be meaningless and infructuous.48 In Samchanj

Karmchand v State of -.Ga the plaintiff filed the

- -- - -- --- 45. Chellammal \ A.I.R. (1937)

Mad.495 the cou-of the defendant that the plaintiff ought to have asked possession as further relief.

46. MunnuChamar v Hui&x& A.1.R (1947) A11 352, the further reltef, which the defendants contended to be asked. was an in'unction restraining the decree holder from executing a becree.

47. Xawab Huny.&m v -, A.I .R. (1943) PC 9 at 96.

48 U, G.S. D u u v Unm! of India, A . I . R . (1966) 1.K 124 (125).

48a. A. I .R. 1953 Saurashtra 21 .

s u ~ t for bare declaratipn of his entitlement to receive full

pension from the date of retirement without asking for any

further relief in the form of decree ior arrears of the pension

which he was entitled to ask. The court declined to give him the

declaration prayed for because of his omission to seek further

rellef which he ought to have done in vieu of the proviso

contained in S.42 of the Specific Relief Act, 1877.

The mere existence of further relief will not preclude the

plaintiff from seeking the declaration The section itself

provided that the plaintiff must be in a pos~r ion to seek the

available further relief. It mean that it must be possible for the

plaintiff to seek further relief than a mere declaration.49

'Possible' obviously means possible ha\'ing regard to the course

of events and also with reference to the statutory proiision

otherwise applicable to the case.

In h d b ra Universitv \' Korada Durea Lakshml

-50 the plaintiff claimed a declaration that the order.

dimissing him from service was unjust and illegal. The court

rejected the contention of the defendant that the suit was not

maintainable since the plaintiff failed to ask further relief of

reinstatement. The circumstances under which the requirement

49. v lbrahim AA.I.R. (1955) N 0 C

50. A . I . R . (1951) Mad. 870.

4 e

of a claim for further relief can be dispensed with was

considered in Surendra v . . ' .51

The plaintiff challenged the validity of an assessment made by

the Municipality as illegal and ultra vires. The suit was

defended on the ground that no further relief in the shape of an

injunction restraining the municipal author~tles from realising

the amount was not asked for. The court heid that there was no

need to pray any such consequential relief for the munic~pallty

had done nothing towards the reallsatlon of the amount. The

court correctly pointed out that if the second valuation of

property, which was challenged, was held to be v o ~ d , the

assessment together with the second valuation on whlch it was

based would fall to the ground. In Manlural v

-52 Certain land (touzi) was put up to

sale for arrears of revenue and purchased by the plaintiff Later

the sale was confirmed by the collector and a sale certificate

was Issued. The defendant appealed to the Board of Revenue

which in its turn set aside the sale. The plaintiff took up a suit

for declaration. The defendants contented that the s u ~ t was

maintainable as further relief of possession was not asked. The

plaintiff sued for a declaration that the order of the Board of

Revenue was ultra vires and void. The defendants contended

51. A . I . R . (1934) Cal. 673.

52 . A.I.R. (1945) Cal. 202.

that the suit was not maintainable on the score that recovery of

possession as a further relief was not sought. After discussing

the law on the point the Court observed that the plaintiff was

deprived of his title and immediate possession of property. A

declaration that the Board's order was null and void would give

him the deprived rights because it would bring back the first

order of the collecror. "The plaintiff was not able to seek

further relief for the simple reason that be needed no more The

annulling of the Board's order would glve him all that he

wanted". In Venl;ataChalam v Erovince of -53

the plaintiff claimed a declaration that the sale by the collecror

for arrears of water cess and quite rent was ultra vires. The

court rejected the contention as to the non-maintainability of the

suit based on the plaintiff's omission to seek further relief. It

was held that under S.38 of Madras Revenue Recovery Acr, the

collector was sitting as an appellate tribunal and therefore the

plaintiff was not bound by the prov~so.54 The court observed

that the mere grant of declaration would make the selling

unlawful which means that possession of the property would be

restored to the plaintiff. In Juerai v -55, the

Supreme Court declined to give any relief under S.42 of the

Specific Relief Act, 1877 in view of the fact that the

53. A.I.R. (1946) Mad. 261.

54. v mPathima (1906) 29 Mad. 151

55. A.I.R. 1971. S.C. 761.

plaintiff merely asked for declaration that the defendants who

were neither owners of the disputed land nor did they have right

to get the same as per the orders of the S .D.O. acting as

collector without further asking for cancellation of the order or

for any injunction.

The question whether a suit for a declaration that the

compulsory rerirement of a public servant from service was

ultra vires, the authority was maintainable even with a c l a ~ m for

arrears as a further relief was considered in Union of I& v

~ e d a r e s h w a r 5 6 . After discussing the case law, the court came

to the conclusion that it was marnlainable and also that it was

left to the plaintiff to choose a mere declarat~on or to claim

arrears.

3.3 Discretion of Cour ts :

Declaration is a discretionary remedy. Section 42 of the

Speciflc Relief Act. 1877 provided that the court may in lts

discretion make or refuse a declaration that the pla~ntiff is

entitled to any legal character or right to any property. It

necessarily follows that nobody can claim declaration as a

matter of right. The courts have reiterated the observation of

Privy Council In Sree v -s7

56 . A.I .R. (1959) H.P . 32.

57. (1872) I .A. 149, 162.

". . . . it is not a matter of absolute right to o b t a ~ n a declaratory

decree. It is discretionary with the court to grant it, o r not, and

in every case the court must exercise a sound judgement as to

whether it is reasonable or not under all the circumstances of

the case to grant the relief prayed for'58 Thus the court rejected

the claim for a declaration on the ground that it was in the

exercise of sound judicial discretion.59

But it is to be noted that no comprehens~ve rule as to the

exercise of the court's discretion in grantlug a declaration can

he laid down. In Bhairabendra v h a m 6 0 the Court spelt out a

world of caution that the discretion was to be exercised u i th

caution according to the exigencies of a particular case. It is an

equitable remedy than a legal remedy. So all the pr~ncip les

governing the grant of equitable remedy apply here. One of

them is the availability of alternate remedy The Allahabad

High Court also had warned against the abuse of such

discretion61. If the plaintiff has got some other remedy, the

58 . Anil V AandaISumanRA.I.R. (1980) De1.103

59 . V RamanuD AA.I.R. (1960) Pat. w 60. A.I.R. (1953) Assm.162, 165.

61 . Shiam V A 1 R . (1945) A11.293. (295-296)

court should not make a declaratloli. So also. 11 should not grant

a declararory decree uhen ir has no uu11ty62.

The exercise of the discretion is primarily the bus~ners of

the trlal courr. The Court in its discretion should not make n

declararion where the grant of rt would be ~ n e f f e c u i e and uc~uld

be useless.63 In one case the court refused to grant a dcclarauon

that amendment of the rules at a general meeting ruld, un the

ground that the executive committee would amend the rules at

11s sweer u ~ l l and pleasure and hence the declaration ~f gratited

would be 'brutum fulmen'64. In another care the plainuff

claimed a declaration that the ordcr of dlsm~ssal u a s iliegal

Meantime, the authorlt~es passed t a l ~ d orders dlsm~ssing h ~ m

The court dismissed the plaint holdlog that the declaratii~n if

granted would be fut11e.65

The circumstances in u'hlch a declaration shouid be

awarded IS a matter of drscret~on which depends upon facts

pecul~ar to each case. A complete stranger u'hase in~eresr I S In

no way affected by another's legal character or who has no

62. Fareh V Khan A.1 A. (1949)

63 v A I R. (1943) Pat 34.

64 Blshwanath V Slneh A I R (1941) Oudh.422.

65 . V WL of U U n i t e d A.1.R (1950). All . 212.

5 3

tnteresl In another's property I; not enutled to ma~nta tn a sutt

under section 34 of the Speci f~c Relicf Act. In

a.Wh V an adopted son cla~rned r ~ g h t s in

property of natural father and as such a sult for declarauon was

ftled by natural father clatming that hts ran u a s given in

adoption and the adoption of other clalmanr was not legal, the

same was decreed tn h ~ s labour. A plea of the oitter c la~mant

that since the natural father dtd not seek declarat~on of h ~ s legal

status or any rtght to property the sutt would be htl by the

provisions of S .34 of Ihe Act, cannot be sustatned as the rights

of natural father and h ~ s family get endangered In the absence of

such a declaration In vlew of c l a m of adopted ion

3.4. Consl ra in ts under S.34 of the Act:

S .34 of the Spect f~c Rellef Act formulates the

circumstances In whtch declarauon can be granted wilh regard

to any legal character or r ~ g h t tu any property In an rarlirr

case, the Prlvy Counsel held that the puwer to grant declaratory

r e l ~ e f under S.15 of the code. of C I V I ~ Procedure 1859 whlch

was transferred to S.42 of the Spec~fic Rrllef Act. 1877b7 An

interesting questlon which has arlsen In lhrs context 1s whether

the courts can grant a declaratury reitef outstde the satd secuon.

By going through the case Laws handed ovrr by vartous courts

from earlier period onuards, it is submttted that lot of confusion

still exists in this area.

The earlier view of the courts was that Ihr secuon was

exhaustive and no sutt outude the purvieu u i the arctlan will

lie. An tmportant decision in thts regard IS &Q)& V

U 6 8 pronounced by the Calcutta High Court, Justice

Lawrence lankins observed: "The section does not sanction

ever) form of declarat~un, but onl) a declaration that the

plainttif is enutled to any legal character nr to any rtght as to

any property ; it is the dtsregard of this that accuunta lur Lhe

multiform and at times eccentric declaration uhich ftnd a place

In Indian plaints"69 In Ylsheshwar V -70

the platnuff claimed a declaration that he was nut a dealer in

agricultural goods even if he sold large quatit~ties of padd, . sugarcane e tc , from hts fteld and thus not liable to pay sales-

tax. Afrer discusstng several Indian atid Engl~sh decisiuns the

court came to the concluston that the plalnuff did not ask ior

any declaration of any right, hut he asked for a drclarallon thal

he was not a dealer and hence the reqilirements of the

68 :1912) 1 . LR. 39 Cal. 704. 709

69. Ibtd a t 709.

70. A . 1 . R (1952) Pal 129.

section was sattsfied Even though [he court observed that !!.:

requirement of the section were not tulfilled, the courts granted

the prayer and held that the assessee was not a dealer and not

liable to pay sales-tax The appeal was allowed on the ground

that there was no etidence to sliow thal the appellant would

come under the definit~on of S .2(c) of the Sales Tax Act, 1944

In an earlier case the Allahabad High Cuurt retused to entertatn

a suil claiming declaratton that the Anaj Behohar Sabha was an

unlawful assoctation because 11 was no1 properly consrttu~ed and

registered under the Companies ~ c t . ~ 1

In Robert Fisher ~ ' 2 the platntiff f ~ l e d

a suit to have true construction of the statute declared and to

hare an act done in contravention of the statute pronounced void

and of no effect The P r ~ v y Council held that the p la~nuff was

enutled to the dec lara t~on sought While granung the relief their

Lordships observed "This IS not the sort of declaratory decree

which the framers of the Act had in their mtnd". Moreover,

the11 Lordshtps had set out the ortg~nal purpo\c of S 42 and the

h ~ s t o r y how declaratory decree came to be granted In Indta. In

Ramachandra V -73 the plaintiff war debarred

71. Bhola V V A 1 R arainA931) All 83

72. (1899) 1.L.R 22 Mad, 270. 282 (P.C )

73. A . I . R . (1916) hlad. 1061..

from appearing before v i l l a ~ e courts under S l?.!i:idia:. i ,itage

Court Act. The order of the collectar was challenged and the

court observed that the plaint~ff had a r ~ g h t of actlon to have his

right declared In common law if not under the sectlon

In Suhha V W a r \ o f ~ m 7 4 the p la ln t~f f

~nstituted a suit to declare that an order of the Board o f Revenue

disqual~f>ing htm to hold the otflce of Karna\'an was ~ n v a l ~ d .

Following the decision in Robert ~ t s h e r ' s 7 5 case, the Courr hrld

that the suit was maintainable and observed that the secuon was

not exhaustive and that if the sectlon was exhausuve the suit

would not lie. as the pla~ntiff was not sutng as a person enritlrd

to any legal character or to any right as to any property He

only alleged that the order of the Board of Revenue was w~thout

jurisdict~on In Andhra V , .

Ma-76 the Hlgh Courr of Madras observed that no court

ought to be unduly s o l ~ c ~ t o u s to throw out a declaratory suit

unless the nonmatntatnabtltty o f the t l~exped~rncy of 11s

enterrainment was made out In Strlctt jurls and beyond the

slightest shadow of doubt. The Tr~pura High Court rejecred the

contention of the defendant in Ganea V W

74. A.I.R. (1930) Mad. 349.

7 5 , (1899) 1 L.R. 22. Mad.270 (P.C.)

76. A.I .R. (1951) mad. 870

-Bank7' that S 42 IS e x h d u s u \ e and that n o

b a r e declarat lon can be made T h e court granred the dec la ra t ton

sough t , has c l a r t f~ed the matter

T h e Supreme Cour t in another case held that a sut t by a

plaint tff worshiper for a declarat ion that the compromise dec ree

w a s not binding on the det ty u a s maintatnable even though ir

was outstde the purvtew of the section '8 In

flwulu v SrnrT9 fhe plainrlff filed a sulr

fo r declarat lon that the consent dec ree passed by the court was

nullity and not binding upon the plaint iffs . They also prayed fo r

a declarat lon that the consent dec ree be ser aside and cancelled

o n the g round of f r aud . Granttng the declarat lan. the cour t held

tha t t he sect ton was not exhaust tve of the case In which a

dec la ra to ry decree mtght be made and the court had power r l l

g r an t such a decree ~ndependen t ly o f the requirements of the

sec t ton . In a number u f cases the Cour t have agatn and agaln

a s se r t ed that S.34 IS not exhaust ive

In o u r modern society where the danger of enc roachment

o f !he ci t tzens ' right and I lbert les by the admintstrat tve

77. A . I . R . (1957) Tr ip .37 , 4 1

7 8 V A.1 R (1967) S C 36 -"-

7 9 . A . I . R . (1972) C a l . 283.

authortties i s ~ m m i n e n t . the courl has lo t ake a l tberal vlew

when it is found that an apparent infringement is commi t t rd It

is only a soc to log~ca l necesstty In , . V

-80 the plalntlff prayed for a declarat lon that the o rde r of

the State to recover levles from the plalntlff u a s un laufu l and l o

restrain the government f rom uithholding the deposits lying

u t th 11 T h e court held that S 42 had no appltcattnn fo r , the

declarat lon is sought a s an introductory to some other relief.

The courl nbser\'ed that the srct lnn would be exhaustive sn far

as mere declarat ion a re concerned and no1 e x h a u s t ~ v e u h e r e the

plaintiff makes a claim for a declarauon and a l so fur some other

~ubs tan t ive and tndependent reltef It I S to be noted that the

vieu of the learned judge was not supported by any case l a b If

tn the present case the plaintiff had prayed for a dcclarat lon that

the order of the governmrnt was unlawful and ~f such a

declarat ton was granted. what would have been the result? The

arder of the government would not have aity effect at all That

means that 11 would be considered that there had heen no arder

at a l l , and the government would not have been able lo u'tthhald

the depostt o n the strength of the tmpugned o rders So on such a

vleu 11 is meantngless to hold that the sectton I S exhaustive ~f a

mere declarat ion is sought and not exhausttve if some other

relief is also sought since the net effect of both these cases 18

the same. Thus we have to come to the conclusion [hat the

section is not exhaustive whether mere declaration is sought or

further reliefs are appended

The Supreme Court held that S.42 of the Speciftc Relief

Act of 1877 merely gives statutorb recognition to a well

recognised type of declaratory re l~ef and subjects ~t to a

limitation 81 The said provision cannot be deemed to exhaust

every klnd of declaratory reilef or to circumscribe the

jur~sdic t~on of courts to give declarations of r ~ g h t in appropilair

cases falling outside the said provision. The circumstances In

which a declaratory decree should be awarded is a matter of

discret~on depending upon the facts of each case. A complete

stranger whose interest is not affected by another 's legal

character or u h o has no interest in another 's property cannot get

declarat~on under S.42 of the Act with reference to the legal

character of the property lnvolved

The position that emerges is that law governing suits for

declaration stands cod~f ied in S.34 of the Specific Reilef Act.

1963. The object of S.34 is to clear the cloud hoverlng the legal

character of the plaintiff or on his right to property.

81. A. I .R. (1975) S.C. 1810.

60

After considering a number of authorities, Dr A T .

Markose has observed that S . 4 2 of the specific Relief Act. 1877

is exhaustive of all judgements which are declaratory In form 82

In the light of a conglomerat~on of decisions, it is submitted that

it is difficult to accept this evaluation.

With the detailed analysis of S . 3 4 , it may be sald that one

can claim the declaratory relief only if one can show that one's

'legal character ' or 'right to any property' is affected. If the

plaintiff fails to fit his case wtthin the ambit of the sectlon, h ~ s

suit necessarily falls. The restrictive tnterpretation put by the

court on the term 'right to any property' amounts to shuttlng out

the remedy to a person whose right, other than proprietary

rtght, is infringed. In the modern complex industrial soclety, in

which the administrative authorities are assuming more and

more powers so as to take away the rlghts and freedom of the

citizens at any time and that even arbitrarily, the citlen's rlghl

to have the remedy should not be so crippled The law on

declaration should have been assimilated to that of the

prerogative writs. The courts will be able to keep its pace with

the growing powers of administration in extending 11s arm of

protection to the citizens, only ~f S.34 is amended so as to

enable the courts to make declaration if any other rights are

infringed. In Amerlca, because of the Federal Court Act, and

-- 82 . Markose. A T . a., p.6%.

the Uniform Judgements Act, the courts are free to declare the

rights of the citizens if they are infringed or threatened to be

infringed. In England also the modern trend is to give more

importance to the rights of citizens than any legal

'conservatism'.

In India the legality of a statute or order can be

ascertained through a declaratory proceeding The former

pronouncements of the courts show that the remedy of

declaration can be availed of only if the right to property of the

plaintiff is affected. On an analysis of the Fisher's case. the

above fact can be substantiated. In Dwaraka V

-83 the declaration as to the const~tutionality of an

ordinance was made on the ground that his right under Art.

19(1) (g) of the Constitution was infringed.

Law Commission in its report84 has expressed the view

that because of the development of this highly efficacious

remedy both in England and in U.S.A. the scope of Section 42

of the Specific Relief Act 1877 requires to be enlarged. In

England the declaratory judgement 1s an instrument of

considerable importance. It is constantly used in the courts and

especially in the Chancery Division. The Declaratory

83. A.I.R. (1954) S .C. 224

84. Report of the Law Commission, 9th Report 1958 on Spcc~f ic Relief Act at p.46.

judgement comprises an authoritat~ve judicial statement of the

jural relationship between parties to a controversy. it does not

itself however, have any direct coercive effect.85 In England

the jurisdiction of the court of Chancery was transferred to the

High Court Power was given to the Rules Committee to make

rules regulating practice and procedure of the court The main

point on uhich Indian Law differs from the present day English

and American law 1s that a declaration is not ava~lable where

further relief IS not asked for, the plaintiff being able to claim

it . In England 0 . 2 5 , R . 5 of the R.S C provides, "No acrlon or

proceeding shall be open to objection, on the ground thar a

merely declaratory judgement or order is sought thereby, and

the Court may make bindtng declarations of right whether any

consequential relief is or could be claimed, or not" The English

courts can make a declaratory judgement as an alternatne

remedy in any case where other relief might be clalmed. The

declaratory judgement is the symbol of the twentteth century

conceotion of law86.

The Federal Act and the Union Declaratory ludgements

Law in the U.S .A. empower Courts to declare rlghts, status and

other legal relations, whether or not further reltef is or

- -- 85. Robert F& V m a a r v of Svdte. (1899) ILR.22

Mad.270.

85. Harward Law Review P.787.

6 3

could be clalmed. In the U . S . A . , the provision relatlng to

further relief is an enabling probision It IS left to the option o f

the plaintiff whether he should ask for further relief in the

declaratory suit ltself or reserve it for a separate actlon 87

Under the exlstlng Law a declaratory decree can be obtained

apart f rom cases involving a legal character only in respect of a

proprtetary right 11 IS felt that there is no reason, except an

apprehension as to multiplicity of declaratory sulrs, why this

beneficial remedy should not extend to all legal rights. In the

United States, both In the Federal and un~form laws, the word

"rlght" alone IS used, so that a party may obtain a declaration as

to any legal rights, u h ~ c h of course, mean justtciable rtghts

The word rlght has been Interpreted to include ' l l ab i l~ ty ' also.

so that actions have been entertained against the Government

and other Public bodies to determine their liabilit)..88 Since the

word ' r ight ' is not confined to proprietary right, the courts have

had no difficulty in maklng a declararion as to contractual r ~ g h t

or a right to practlce a profession or the 11ke.89 The Law

commission90 was of the view that ~f the relief 1s extended to

legal rishts of all kinds, it mlght Instead of mult~plylng

litigation, lead to its reduction.

87 62. Harward Law Review, P . 826.

88 Ibid, P. 875-876.

89 Ibid P. 848-849.

90. Report of the Law Commission, 9th Report. Q&