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Parvateppa Mallappa Hubli Vs. the Hubli Municipality - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberFirst Appeal No. 193 of 1932
Judge
Reported inAIR1937Bom491; (1937)39BOMLR881
AppellantParvateppa Mallappa Hubli
RespondentThe Hubli Municipality
DispositionAppeal dismissed
Excerpt:
.....by section 206 of act-indian limitation act (ix of 1908), articles 2, 23.;section 206 of the bombay municipal boroughs act, 1925, applies both to acts done bona fide by the municipality or its officers as well as to acts done mala fide.;if a prosecution is launched by the municipality for an alleged infringement of some provisions of the act, then the prosecution purports to be in pursuance of the act, whether the action is a bona fide one or not.;therefore, a suit against the municipality for malicious prosecution, either in respect of acts done bona fide or in respect of acts not done bona fide under any of the powers contained in the bombay municipal boroughs act, is governed by section 206 of that act, and not by either article 2 or by article 23 of the indian limitation act,..........time-barred.2. the learned judge held that the section governing the case is section 206 of the bombay municipal boroughs act, and it seems to me clear that if that section on its wording covers a case of malicious prosecution, then that is a specific section which covers this case on the point of limitation, to the exclusion of either article 2 or article 23 of the schedule to the indian limitation act. that seems to me to be clear from the provisions of section 23 of the indian limitation act. the real question is whether a suit for malicious prosecution, that is a suit instituted against the municipality for acts not done bona fide under the powers contained in the act falls within the provisions of section 206. section 206 is in these terms :-no person shall commence any suit.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from a decision of the First Class Subordinate Judge of Dharwar. The plaintiff had been prosecuted for an offence under Section 152 of the Bombay Municipal Boroughs Act, 1925, and was acquitted. He brought a suit for malicious prosecution against the Municipality of Hubli. The learned Judge held on a preliminary issue that the suit was time-barred.

2. The learned Judge held that the section governing the case is Section 206 of the Bombay Municipal Boroughs Act, and it seems to me clear that if that section on its wording covers a case of malicious prosecution, then that is a specific section which covers this case on the point of limitation, to the exclusion of either Article 2 or Article 23 of the schedule to the Indian Limitation Act. That seems to me to be clear from the provisions of Section 23 of the Indian Limitation Act. The real question is whether a suit for malicious prosecution, that is a suit instituted against the Municipality for acts not done bona fide under the powers contained in the Act falls within the provisions of Section 206. Section 206 is in these terms :-

No person shall commence any suit against any municipality or against any officer or servant of a municipality or a person acting under the orders of a municipality for anything done or purporting to have been done in pursuance of this Act, without giving to such municipality, officer, servant or person two months' previous notice in writing of the intended suit and of the cause thereof, nor after six months from the date of the act complained of;....

There is no doubt that the learned Judge was right in holding that this suit was instituted after six months from the date of the act complained of, i.e. after the acquittal of the accused. Mr. S.A. Desai for the appellant contends that Section 206 does not apply to actions of the Municipality or its officers which are done mala fide. He argues that the Municipality commenced the prosecution for all infringement of the Act well knowing that there had been no infringement, and that in so doing the Municipality cannot be said to be acting or purporting to act in pursuance of the Act; and for that proposition he relies on certain authorities. He relies, first, on a decision of this Court in Ranchordas Moorarji v. The Municipal Commissioner for the City of Bombay I.L.R. (1901) Bom. 387 : 3 Bom. L.R. 158. But in that case the relevant words of the statute which the Court had to construe were in respect of an act done in pursuance or execution or intended execution of the Act, and the Court held that an action which was not bona fide was not done in execution or intended execution of the Act. That may well be so, but the relevant words in the Bombay Municipal Boroughs Act are 'purporting to have been done in pursuance of the Act.' The relevant words of the statute under consideration in the English case, Foot v. Mayor of Margate (1883) 11 Q.B.D. 299, also deal with acts done in execution or intended execution of the Act and therefore the English case is subject to the same comment as Ranchordas v. The Municipal Commissioner for the City of Bombay. The same comment also applies to the English case, Selmes v. Judge (1871) L.R. 6 Q.B. 724, which was referred to in Ranchordas v. The Municipal Commissioner for the City of Bombay. There the relevant words were 'for anything done in pursuance of or under the authority of this Act.' The other case on which Mr. S.A. Desai relies is Maung Kyaw Nyum v. Ma-ubin Municipality I.L.R. (1925) Ran. 268. There the Court was discussing the meaning of Article 2 of the schedule to the Indian Limitation Act, which is in these terms :-

For compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in British India.

I agree that the words 'alleged to be in pursuance of any enactment' are very much the same as 'purporting to be done in pursuance of the enactment,' and no doubt the Rangoon Court held that Article 2 did not apply to an action for malicious prosecution. But the Court there purported to follow the decision of this Court in Ranchordas v. The Municipal Commissioner for the City of Bombay, and did not notice that the Act with which the Court was dealing is differently worded from Article 2 of the schedule to the Indian Limitation Act. It may, I think, be said that the general tendency of the Courts has been to construe provisions protecting persons from the consequences of acts done under a particular Act so as to limit those provisions to acts of a bona fide character, and not to extend them to acts done mala fide. But no authority has laid it down, or could have laid it down, that if the legislature expresses itself in sufficiently clear language, it cannot afford protection to acts done mala fide. Now here the protective words cover ' anything dome or purporting to have been done in pursuance of the Act.' The effect of the section is, therefore, to protect the Municipality or its officers in respect of anything done or purporting to have been done in pursuance of the Act. It seems to me that the words 'purporting to have been done' must bear their natural meaning. If a prosecution is launched for an alleged infringement of some provisions in the Act, then the prosecution purports to be in pursuance of the Act, whether the action is a bona fide one or not. I see no reason here why we should not give to the language, which the legislature has used, its natural meaning. It may well be that the terms of Section 206 of the Bombay Municipal Boroughs Act of 1925 are deliberately expressed in wider language than was used in the statute with which the Court had deal in Ranchordas v. The Municipal Commissioner for the City of Bombay, It is to be noticed that the protection afforded by Section 206 is not an absolute protection. It does not bar suits, but only requires that they must be brought within six months. Even if the section does not apply to an action for malicious prosecution, such an action would fall under the general provisions of Article 23 of the Indian Limitation Act and would have to be brought within one year. There seems to me nothing extraordinary in the legislature providing that in a normal case an action for malicious prosecution must be brought within a year from the cause of action but that an action against a Municipality must be brought within six months.

3. In my opinion, therefore, the learned Judge was right in holding that, whatever the plaintiff might prove on the merits of his case, the suit was barred by limitation. The appeal must be dismissed with costs.

N.J. Wadia, J.

4. I agree.


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