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Cecil Gray Vs. the Cantonment Committee of Poona - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number First Appeal No. 9 of 1910
Judge
Reported in(1910)12BOMLR615
AppellantCecil Gray
RespondentThe Cantonment Committee of Poona
DispositionAppeal allowed
Excerpt:
civil procedure code (act v of 1908), sections 2 (17), so-public servant-cantonment committee is a public servant-notice of claim-notice compulsory-actions ex delicto.; the cantonment committee, constituted under the indian cantonments act, 1889, is, for the purposes of section 80 of the civil procedure code, 1908, a 'public officer' as defined in section 2 (17) of the code.; section 80 of the civil procedure code, 1908, applies to actions sounding substantially in tort, although those actions may, by operation of law, be treated, for certain purposes, as actions ex contractu, ;rajmal v. hanmant(i) explained. - .....decision, because the question before us is whether, for the purposes of section 80 of the code of civil procedure, a cantonment committee is a 'public officer' as defined in section 2, clause (17) of the code.2. under that section, the expression 'public officer means (inter alia) 'a person', who is an 'officer-whose duty it is, as such officer, to take, receive, keep or expend any property; on behalf of government.' a cantonment-committee is, according to the rules made under act xiii of 1889,' a cantonment authority,' which is charged with the management of a fund called 'the cantonment fund'. that fund is vested in his majesty by the provisions of section 13 of the act, and its management by the committee is made, by the same section, subject to the control of the local government.3......
Judgment:

N.G. Chandavarkar, Kt., J.

1. This Court has held in The Cantonment Committee, Poona v. Burjorji Bomanji ILR (1889) 14 Bom. 286, relied upon by Mr. Shortt in his able and careful argument in support of this appeal, that a Cantonment Committee, formed under rules framed under the Indian Cantonments Act (XIII of 1889) is a quasi body corporate. It is unnecessary to express any opinion on the correctness of that decision, because the question before us is whether, for the purposes of Section 80 of the Code of Civil Procedure, a Cantonment Committee is a 'public officer' as defined in Section 2, clause (17) of the Code.

2. Under that section, the expression 'public officer means (inter alia) 'a person', who is an 'officer-whose duty it is, as such officer, to take, receive, keep or expend any property; on behalf of Government.' A Cantonment-Committee is, according to the rules made under Act XIII of 1889,' a Cantonment authority,' which is charged with the management of a fund called 'the Cantonment Fund'. That fund is vested in His Majesty by the provisions of Section 13 of the Act, and its management by the Committee is made, by the same section, subject to the control of the Local Government.

3. The Committee is, therefore, an artificial person formed by the Statute for the purposes of Cantonment administration.

4. But it is contended that the definition of 'public officer' in the Code contemplates an individual, not a body composed of individuals, of the description mentioned in] each of the clauses of Section 2. A ' public officer' means, in the first place, 'a person', and the word 'person,' under the General Clauses Act (X of 1897), includes 'any body or association of individuals, whether incorporated or not.' Such a body, discharging according to law, any of the functions, mentioned in the clauses of Section 2 of the ' r Code of Civil Procedure, falls, in our opinion, within the definition of 'public officer.'

5. As pointed out in some of the cases decided on the. construction of Section 424 of the old Code of Civil Procedure (Act XIV of 1882), which is reproduced as Section 80 in the present Code, the object of the section is to give a public officer, acting or purporting to act in the execution of his public duty, an opportunity of making reparation for any damage which he may have caused in such execution without being sued in a Court. The right to notice as a condition precedent to a suit is given to the officer concerned in the interests of the public treasury, out of which the money must come for repairing the damage. This consideration applies to a Cantonment Committee, managing a Cantonment Fund vested in His Majesty, as much as to any public officer similarly situated.

6. We think, therefore, that a Cantonment Committee such as we have here is a ' public officer ' within the meaning of Section 2 of the Code of Civil Procedure.

7. It is argued, however, that no notice under Section 80 of the Code was necessary for the maintenance of this action against the Committee, because it arose not out of a tort but out of a contract; and Rajmal Manikchand v. Hanmant Anyaba ILR (1895) 20 Bom. 697 is relied upon.

8. The plaint and the pleadings clearly show that the cause of action complained of by the appellant is one sounding in tort. It is alleged that, under cover of authority given to it by the Cantonments Act and the rules framed under it, the respondent Committee has illegally imposed a rate upon the appellant. On the strength of that allegation, the appellant seeks the refund of a certain amount, which, he states, he deposited with the Committee ' under protest' to meet its illegal demand. It is contended that the moment the appellant paid the money under protest, the Committee held it as money had and received for the appellant's use, and became bound to restore it, if the levy of the rate was illegal.

9. Chapter V of the Indian Contract Action which this argument is sought to be supported, deals with 'certain obligations resembling those created by contract', not with those arising from a contract itself, which presupposes a legal relation brought about between parties by their free volition in the form of proposal and assent. The principle of Rajmal Manikchand v. Hanmant Anyaba does not apply and was not intended to apply to the former kind of obligations. It would be straining the language of Section 80 of the Code of Civil Procedure beyond legitimate limits and defeating its object, if we were to apply that principle to actions sounding substantially in tort, merely because by operation of law those actions, for certain purposes, are treated as actions ex contractu.

10. On these grounds the decree in appeal must be confirmed with costs.


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