1. This is an appeal by the plaintiff who succeeded in the trial Court but failed in the first appellate Court. The Plaintiff has filed a suit claiming Rs. 250/- as damages because the defendant-Corporation of the City of Nagpur had cut his water connection on 26-2-1959. The plaintiffs complaint is that he had paid all the municipal taxes including the water rate of all his four houses till the end of the financial year 1957-58. There were no arrears at the end of that year. It appears that he had also paid a sum of Rs. 150/- on 15-1-1959 towards the municipal taxes which were, however, appropriated to the knowledge of the plaintiff towards the conservancy and water and property taxes of houses Nos. 519 and 519/2. A balance of Rs. 19.02 was appropriated towards the conservancy tax of house No. 518/1. His grievance is that in spite of all this payment, he received a notice on 16-2-1959 purported to be issued under Rule 7 Section 114/115 (14) of the City of Nagpur Corporation Act (hereinafter referred to as the Corporation Act). It called upon him to pay a sum of Rs. 463.97 as arrears for the year 1958 59. This included also a water tax.
2. The first ground of attack by the plaintiff against this notice is that the water rate arrears at that time amounted only to Rs. 202.50, yet the municipal-Corporation demanded by that notice an aggregate sum of Rs. 463.97, which included also the other municipal taxes. According to him, such a notice for the recovery of water taxes and thereafter cutting his water supply for non-payment would be illegal. The second ground of attack against the notice and the action of the corporation of cutting off the water supply is that such an action is not warranted by any provision of law of the Corporation Act. The plaintiff, therefore, pleads that because of the cutting of water connection of his houses, he suffered an extreme inconvenience, mental and physical trouble. Therefore, he claims damages to an extent of Rs. 250/-.
3. The defendant-Corporation resisted the claim of the plaintiff and stated that the plaintiff refused to pay the arrears of .his taxes; that their action is justified by the provisions of the Corporation Act; that the action of the Corporation officials was bona fide and not illegal.
4. The learned Civil Judge framed quite a number of issues and after recording the evidence, held that the plaintiff was in arrears of water tax for the year 1958-59 and that Rule 7, under which the notice was given demanding the arrears of water tax, was applicable to the City of Nagpur, under the Corporation Act. According to him, the action of the Corporation in cutting off the water supply, however, was illegal He held that the notice dated 16-2-1959, demanding the arrears of water tax, was illegal but, according to him, the action was neither mischievous nor arbitrary and mala fide, but because he held the action of the defendant corporation illegal, therefore, he passed a decree for damages. That decree, was therefore, challenged and the learned Extra Assistant Judge, after considering the evidence, found that the notice given by the defendant-Corporation was quite legal and, according to him, the action of the Corporation in cutting the water supply was also not illegal. Accordingly. therefore, he found that the plaintiff was not entitled to claim damages. Therefore, he set aside the decree of the trial Court and dismissed the plaintiff's suit. This decree of the Extra Assistant Judge is, therefore, challenged here in this second appeal.
5. It would be better to recapitulate certain facts for the purpose of deciding this appeal. It is common ground that there were no arrears till the end of 1957-58. But there were certain arrears during the period of 1958-59. Under the Collection Rules of the Corporation Act, the taxes shall be paid half-yearly in advance by the 15th of April and the 15th of October in each year by the owner of the building as shown in the Assessment Register. Therefore, the taxes have to be paid in advance and it appears the plaintiff had not paid these taxes in advance for the year 1958-59 under the rules. Therefore, a notice dated 16-2-1959 was served by the defendant on the plaintiff. The notice purported to be under Rule 7 and Section 114/115 of the Corporation Act, The notice form shows that an old form of notice under Section 77-A of the C. P. & Berar Municipalities Act was used The plaintiff by this notice was informed that he had not yet paid Rs. 463.97 on account of the municipal tax due from him- That he should take notice that in case he fails to pay the said sum within 24 hours, the water supply attached to his house No. 518/1 will be discontinued. Thereafter the plaintiff paid a sum of Rs. 163.97 on 118-2-1959 out of which Rs- 10.62 were appropriated for water tax, Rs. 118.85 were appropriated towards the conservancy tax and the balance Rs. 41.05 for the house tax. The plff. knew about this appropriation. Therefore, because the arrears of water tax, which amounted to Rs. 202.50 were not paid, his water supply was cut off by the Municipal Corporation on 26-2-1959. The plaintiff also paid another sum of Rs. 30/- against the taxes of houses Nos. 518 and 518/1 on 6-3-1959, Because of further payment, his water supply was restored on 13-3-1959. The point, therefore, that arises here for consideration is whether the notice given by the Corporation was legal or was not legal. Another point which arises here is whether the action taken by the Corporation by cutting his water supply is legal or not legal.
6. Now, as we have seen the notice given by the Corporation is under Rule 7 of the water rate. It is also mentioned there that this rule is under Section 114/115 (14) of the Corporation Act. Under Rule 7, if whole or any portion of the arrears of the current balance of water rate remains unpaid for more than one week, after a notice was served or demand made from the person of persons liable to pay, the Secretary of any other person authorised in this behalf may cut off the water supply for such time as the money remaining unpaid after 24 hours intimation of his intention thereof to the defaulter. Actually, this rule, as many other assessment and collection rules, was framed under the old C. P. and Berar Municipalities Act. But when the City of Nagpur Corporation Act came into force. Part III of the book of bye-laws which contained the old rules, were continued to be the rules under the City of Nagpur Corporation Act. It was, however, mentioned that those old bye-laws un-less they were repugnant to the Corporation Act, will continue in force till the new bye-laws were framed under the Corporation Act, 1948.
7. But the learned advocate for the appellant contends here that this Rule 7 is repugnant not only to the provisions of the Corporation Act, but also inconsistent with the notice which was actually given to the plaintiff. Let us see whether Rule 7 is repugnant to any provisions in the Corporation Act. The notice is purported to be given under Section 114/115 of the Corporation Act. Section 114 is regarding the taxes to be imposed under the Corporation Act. Section 115 is regarding the procedure for imposing the taxes. Relevant sections corresponding to Sections 114 and 115 Of the Corporation Act in the C. P. & Berar Municipalities Act are Sections 66 and 67, respectively. The notice under the old C. P. & Berar Municipalities Act purported to be under Section 77-A-Therefore, neither Section 114 nor Section 115 of the Corporation Act corresponds to Section 77-A of the C. P. & Berar Municipalities Act. Section 77-A of the C. P. & Berar Municipalities Act is regarding the power to cut off the water supply for non-payment of tax payable under Section 66 (1) (h) or (k) of the said Act. Section 66 (i) (k) is regarding the water rate. Therefore, when Sections 114 and 115 of the Corporation Act do not correspond to Section 77-A of the C. P. & Berar Municipalities Act, the learned advocate for the respondent contends here that it may be that Sections 114 and 115 of the Corporation Act quoted in the notice were not correct, but Rule 7, according to him, is not repugnant to the provisions of the Corporation Act. It is argued by him that this rule is consistent with Section 205 of the Corporation Act. Section 205 is this:
'If any person whose premises are supplied with water neglects to pay any sum payable, under Section 201 when due, or to give notice as provided in Section 203 or wilfully or negligently misuses or causes waste of water, the Chief Executive Officer may cut off the supply of water to the said premises.'
This section, therefore, is as regards the cutting off water supply to the premises. But the learned advocate for the appellant says that this Section 205 deals with the special agreement with the owners of the premises. It is not for the general water supply. But Section 201, which is referred to in Section 205 is in Chapter 16 'Water Supply' in the Corporation Act. Chapter 16 consists of Sections 200 to 210, which deal with the water supply. There is no other chapter which deals with the water supply in the Corporation Act. Section 200 is as regards the general powers for supplying the city with water and Sec, 201 is as regards the supply of water. Section 201 provides that the commissioner may supply water for any purpose on receiving a written application specifying the purpose for which such supply is required and the quantity likely to be consumed. The supply of water shall be made upon such terms and conditions as to payment and quantity and for such period, as the corporation may prescribe in this behalf. Now, admittedly, the plaintiff-appellant has the supply of water from the municipal corporation to his house. He cannot have water supply from the defendant-corporation except under Sections 200 and 201. Therefore, when Section 205 refers to Section 201, and when the appellant-plaintiff gets a water supply from the defendant-Corpo-ration, the Commissioner is empowered under Section 205 to cut off his water supply if there were arrears of water tax. In this view of the matter, therefore, it would be difficult for me to agree with the contention of the learned advocate for the appellant that Rule 7 is repugnant to any provision of the Corporation Act. It would have been better if the corporation had not used the old form under Section 77-A of the C. P. & Berar Municipalities Act. But the contents of the notice clearly show that it is under Section 205 of the Corporation Act. If that is so, then the notice cannot be said to be improper or illegal.
8. But the learned advocate for the appellant contends here that under Rule 7. two notices should be given; whereas only one notice was given to the appellant. According to him, therefore, this notice is not proper. Under Rule 7. a notice has to be given if the arrears remain unpaid for more than one week and the Corporation may cut off water supply after 24 hours intimation of their intention to cut it off. It is, therefore argued that there is no second intimation to the appellant before cutting the water supply, but admittedly, the notice was given to him on 16-2-1959. It appears that the officers did not give him time to pay. This conduct on the part of the officers may be not desirable but this notice gave him 24 hours time to pay and it is mentioned that if he did not pay the arrears, his water supply would be cut. Admittedly, his water supply was not cut immediately after 24 hours but on 26-2-1959. There is also no plea that first notice giving him 7 days time was not given. The principal contention of the appellant is that this notice is invalid. It appears to me, therefore, that this notice, which gave him 24 hours to pay, was quite sufficient in the circumstances of the case. Therefore, the notice is not repugnant to rule 7.
9. It is further contended on behalf of the appellant that the impugned notice for a sum of Rs. 463.97 not only includes a sum of Rs. 202.50 as arrears of water tax but also the other municipal taxes. According to him, such a notice for arrears of not only the water tax but also 'the other taxes is illegal. But admittedly he had not even paid Rs. 202.50 till his water supply was cut on 26-2-1959. If he had not paid all the arrears, viz. Rs. 202.50 by 26-2-1959, it cannot be said that he had complied with the notice. This contention also, in my view, is of no substance.
10. It is further argued by the learned advocate for the appellant that there is a special chapter, viz.. Chapter XII in the Corporation Act regarding the recovery of the Corporation claims and; according to him, the Corporation can claim the arrears only under this Chapter and none else. It is true that if the Corporation wanted to recover the arrears, they should have a recourse to Chapter XII but in this case the Corporation had cut the water supply. They have this power only under Chapter XVI regarding the water supply. It appears to me, therefore, that they did not have recourse for their action to Chapter XII as is argued. Therefore, finding of the learned Assistant Judge that the cutting of water supply by the defendant was legal and proper is quite correct.
11. It is argued by the learned advocate for the respondent that even if the officers had exceeded their limitation, the officers who cut the water supply purported to act under the provisions of the Corporation Act and under Section 386 an indemnity for acts done in good faith is provided. But the learned advocate for the appellant says that the Act of the officers or even the Corporation could not be said to be done in good faith, and also under the Act or under any rule or bye-law made thereunder. But I have already held, as discussed above, that their act is done under the prevailing Rule 7, which could very well come under Chapter XVI of the water supply. If, therefore, the Corporation had cut the water supply after giving 24 hours notice and had cut the water supply actually after a period of 10 days, then they could not be said to be acting in bad faith. The learned advocate for the appellant invites my attention to Alexander Miller & Co. v. E. B. & C. I. Rly. (1903) 5 Bom LR 454 as well as to Provincial Govt. C. P. and Berar v. Nonelal Gokul Prasad AIR 1946 Nag 261 and also to Chander Prasad v. Emperor AIR 1937 Pat 501. These cases deal with different facts from the facts before this Court. But, as mentioned above I have held that the action of the officers is not inconsistent with any provision of the Act. They have also given a legal notice. Therefore. the question of their doing the act of cutting the water supply in bad faith does not arise at all.
12. The learned advocate for the respondent also contends here that there is another reason why the suit of the appellant should fail. According to him no legal notice was given by the appellant under Section 384 of the Corporation Act and it is urged that such a notice is mandatory. On the other hand it is contended by the learned advocate for the appellant that a valid notice was given and the defendant had not even taken any objection to the validity of the notice. According to him, such an objection was taken for the first time before the learned Assistant Judge. It is. there-fore, argued that such a plea at this stage also cannot be taken. It is, how-ever, difficult for me to agree with him because if the validity of the notice goes to the very root of the case, then such a question of law can be taken even at the stage of the first appeal and, therefore, also here. The learned Assistant Judge, relying on an Appeal No. 35 of 1955 (Bom) from the original decree decided on 7-9-1960 by Mr. Justice Tambe and Mr. Justice Kotwal, as he then was, found that the notice given under Section 384 by the appellant was bad. The notice given by the appellant in this case was given to the Executive Officer City of Nagpur Corporation (Municipal Commissioner), Nagpur. The suit filed by the appellant was against the Chief Executive Officer called the Municipal Commissioner representing the Corporation of Nagpur. Therefore, the suit was against the Corporation of Nagpur. The notice given was to the Executive Officer, City of Nagpur Corporation. The point that arises here for consideration is to see whether this notice is legal or illegal. This Court in Appeal No. 35 of 1955 (Bom), mentioned above, ruled that the notice given by the plaintiff to the Chief Executive Officer, when the suit itself was instituted against the Corporation, was illegal because it cannot be termed to be a notice to the Corporation. This Court, therefore, took a view that such a notice was not in accordance with the provisions of Section 384 of the Corporation Act. A similar view is also taken in Nathubhai v. The Municipal Corporation, Bombay : AIR1959Bom332 . That was a case under the Bombay Municipal Corporation Act. A notice had to be given under Section 527 of that Act. Section 527 is more or less like Section 384 of the Corporation Act This Court in that case took a view that the provision contained in Section 527 was mandatory and it was not a sufficient compliance with Section 527 to give notice to the Municipal Commissioner. The notice here was given to the Chief Executive Officer, Therefore, on this ground also the suit of the appellant will have to fail. It appears to me thai the learned Assistant Judge has taken a right view of this point also.
13. For the aforesaid reasons. therefore, this appeal should fail. I, therefore, confirm the decree of the appellate Court and dismiss the appeal with costs. The learned Advocate for the appellant says that since this is a litigation of the right of a citizen against the right of a Corporation, it is a fit case for a Letters Patent Appeal. He, therefore, requests leave for appeal in the L. P. A. Request rejected.
14. Appeal dismissed.