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S.V. Mandlik Vs. the Borough Municipality - Court Judgment

LegalCrystal Citation
SubjectElectricity;Civil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 47 of 1942
Judge
Reported inAIR1944Bom97; (1943)45BOMLR1059
AppellantS.V. Mandlik
RespondentThe Borough Municipality
Excerpt:
bombay municipal boroughs act (bom. xviii of 1925), section 206-notice of suit-suit against borough municipality-suit on contract.;the provisions of section 206 of the bombay municipal boroughs act, 1925, requiring notice of suit in suits filed against a borough municipality, do not apply to suits based on contracts.;manohar ganesh tambekar v. dakar municipality (1896) i.l.r. 22 bom. 289, f.b., ranchordas moorarji v. the municipal commissioner for the city of bombay (1901) i.l.r. 25 bom. 387 : s.c. 3 bom. l.r. 158 and vishwanath sadashiv v. bombay municipality (1938) 40 bom. l.r. 685, followed.;bhagchand dagadusa v. secretary of state for india (1927) l.r. 54 i.a. 338 : s.c. 29 bom. l.r. 1227 and revati mohan das v. jatindra mohan ghosh (1934) l.r. 61 i.a. 171 : s.c. 36 bom. l.r. 544,..........taken has been that they do not apply to suits based on contracts, and that in the case of such suits notice is not necessary.4. in manohar ganesh tambekar v. dakar municipality i.l.r. (1896) 22 bom. 289 the plaintiff, who was an inamdar of the village of dakor, filed an ejectment suit against the municipality of dakor, alleging that the municipality had illegally and wrongfully encroached upon a portion of the gomti lake at dakor by laying the foundations of a building which they intended to erect on it. the municipality pleaded inter alia, that the suit was bad for want of notice under section 48 of the bombay district municipal act, ii of 1884. it was held by a majority of the full bench that the provisions of section 48 of the act did not apply to actions for the possession of.....
Judgment:

N.J. Wadia, J.

1. This is an application in revision against a decree of the First Class Subordinate; Judge, Jalgaon, dismissing a suit brought by the petitioner, the principal officer of the Jalgaon Electric Supply Company, Ltd., against the Borough Municipality of Jalgaon, The suit was to recover a sum of Rs. 32-10-0 due to the Jalgaon Electric Supply Company for the balances remaining due on two bills for electricity supplied in December, 1940, and January, 1941. The greater portion of the amount of each bill was paid by the Municipality but a sum of Rs. 18-10-6 remained unpaid for the bill of December, 1940, and a sum of Rs. 13-12-6 remained unpaid for the bill of January, 1941, making in all Rs. 32-7-0. The Electric Company gave notice to the Municipality on January 8, 1941, calling upon it to pay the amount. When this notice was not complied with another notice was given on March 5, 1941, and that also not being complied with, a suit was filed on March 29, 1941, for the recovery of Rs. 32-7-0, the amount of the bills, and Re. 0-3-0 by way of interest. On March 31, 1941, two days after the suit was filed, the Municipality paid up the amount of arrears, Rs. 32-7-0, but did not pay the three annas for interest. Thereafter on July 18, 1941, the Municipality filed its written statement in which inter alia it contended that the suit was bad for want of notice under Section 206 of the Bombay Municipal Boroughs Act. The only question in dispute was, therefore, as to the liability of the Municipality to pay three annas for interest and costs' of the suit.

2. The learned trial Judge dismissed the suit on the ground that notice under Section 206 was necessary and such notice had not been given. The plaintiff has come in revision. Although the amount involved is extremely Small, the application has been admitted because a question of principle is involved which is likely to recur constantly.

3. Section 206 of the Bombay Municipal Boroughs Act, 1925, provides that :

No person shall commence any suit against any municipality or against any officer or servant of a municipality or any person acting under the orders of a municipality for anything done or purporting to have been done in pursuance of this Act, without giving 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.

This section is in exactly the same words as the corresponding Section 167 of the Bombay District Municipal Act of 1901. The provisions of Section 48 of the Bombay District Municipal Act II of 1884, which was in force prior to the introduction of the Bombay District Municipal Act of 1901, were in similar terms. Similar provisions exist also in Section 527 of the City of Bombay Municipal Act III of 1888. These sections of the different Municipal Acts have been interpreted in a long series of decisions of our Court and in all of them the view taken has been that they do not apply to suits based on contracts, and that in the case of such suits notice is not necessary.

4. In Manohar Ganesh Tambekar v. Dakar Municipality I.L.R. (1896) 22 Bom. 289 the plaintiff, who was an inamdar of the village of Dakor, filed an ejectment suit against the Municipality of Dakor, alleging that the Municipality had illegally and wrongfully encroached upon a portion of the Gomti lake at Dakor by laying the foundations of a building which they intended to erect on it. The Municipality pleaded inter alia, that the suit was bad for want of notice under Section 48 of the Bombay District Municipal Act, II of 1884. It was held by a majority of the full bench that the provisions of Section 48 of the Act did not apply to actions for the possession of land brought against a Municipality. In the course of his judgment Ranade J., after referring to a large number of decisions of this Court on the corresponding sections of the Municipal Acts which had preceded the Act of 1884, and to rulings in English cases on the interpretation of Section 264 of the Public Health Act of 1875, said (p. 301) :

Claims based on contract can never be included under this section [Section 48] for the simple reason that they are not claims 'for anything done or purporting to have been done in pursuance of the Act.' Claims for the specific performance of a contract to sell or lease land will not, therefore, fall within the section. Where the claim of the Municipality is based on a private right, the plaintiff who may be injured by the exercise of that right can sue without giving previous notice just as he might sue any other individual.

In Ranchordas Moorarji v. The Municipal Commissioner for the City of Bombay I.L.R. (1901) 25 Bom. 387 the plaintiff had sued for the refund of certain town duties which he had paid for importing grain and sugar and of which he claimed that he was entitled to a refund under Section 195 of the City of Bombay Municipal Act III of 1888. He had applied for a refund in October, 1899, but his claim had been rejected on February 21, 1900. The suit was filed on August 21, 1900, i.e. more than six months after the act complained of. The question before the Court was whether Section 527 of the City of Bombay Municipal Act III of 1888 applied, That section provided that no suit shall be instituted against the Corporation or against the Commissioner, or a Deputy Commissioner, or against any municipal officer or servant, in respect of any act done in pursuance or execution or intended execution of the act or in respect of any alleged neglect or default in the execution of the Act until the expiration of one month next after notice in writing had been given in the manner prescribed, nor unless it was commenced within six months next after the accrual of the cause of action. Jenkins C.J., after referring to the decisions in certain English cases, said (p. 393) :-

The result appears to me to be that the person seeking the protection of the Act cannot claim that his conduct has any relation to the 'execution of the Act', if he knowingly and intentionally acts in contravention of its provisions. So here, if (as we have to assume) the amount payable by way of refund was ascertained and the plaintiff's right to receive it admitted, the refusal to refund would have been a deliberate and conscious contravention of the provisions of the Act. In such a case it would be impossible to hold that the money was bond fide withheld 'in execution of the Act', and such conduct would fall precisely within the description given by Lord Blackburn as disentitling a person to notice.... There is another mode of approaching this case. It is established that notice is not required where the action is brought on a contract : for the conduct leading to the action is a wrongful act or omission under the contract, as distinct from one in the execution of the Act; and it is the breach of a specific contract that is the occasion of the right to sue.

5. In Vishwanath Sadashiv v. Bombay Municipality : AIR1938Bom410 , the question again arose as to the interpretation of Section 527 of the Bombay Municipal Act III of 1888, and Beaumont C.J. in dealing with the question said (p. 691) :-

The next question is, does the cause of action fall within the terms of Section 527, that is to say, was the wrongful act complained of done in execution or intended execution of the Act Now the House of Lords in Bradford Corporation v. Myers [1916] 1 A.C. 242 had to consider the true construction of Section 1 of the Public Authorities Protection Act, 1893, which seems to me to be worded in substantially the same language as Section 527 of the Bombay Act, and what the House of Lords decided was that the protection of the statute extended to acts done in direct execution of the powers conferred by the particular Act of the local authority, but that it did not cover acts which were done in pursuance of a contract which the local authority was empowered to enter into, but was not required to enter into, by its Act. I think that that principle applies to the construction of Section 527 of the City of Bombay Municipal Act, and one has to see whether the act complained of was done pursuant to the direct requirements of the Act, or was done under some contract which the Corporation entered into under the powers conferred by the Act but which it was not compelled to enter into.

After examining the provisions of Sections 106 and 110 of the Act which deal with the powers of the Corporation to borrow on the security of debentures the learned Chief Justice said (p. 692) :-

I am clearly of opinion that the wrongful action charged against the Corporation is not an action which is directly required by the statute, and therefore Section 527 has no application to the case.

6. It has been conceded before us by Mr. Dixit, who appears on behalf of the Municipality, that if these decisions are correct, no notice was required in the present case. He contends, however, that the law on this subject has been altered by reason of the decision of the Privy Council in Bhagchand Dagadusa v. Secretary of State (1927) L.R. 54 IndAp 338 . That was a suit filed against the Secretary of State for a declaration that certain official notices and orders were ultra vires and invalid, and for an injunction permanently restraining all executive action thereunder. The suit was filed within less than two months after notice of the intention of bringing the suit had been given to the Secretary of State. In dealing with the question of notice under Section 80 of the Civil Procedure Code their Lordships referred to the marked difference of opinion which had till then prevailed between the view taken by the High Court of Bombay on the one hand and that taken by all the other High Courts on the other as to the true application of Section 80 of the Code of Civil Procedure. The view taken by the other High Courts was that that section had to be strictly complied with and was applicable to all forms of action and all kinds of reliefs. The Bombay High Court, on the other hand, took the view that in suits to restrain by injunction the commission of some official act prejudicial to the plaintiff, if the immediate effect of the act would be to inflict irremediable harm, Section 80 did not compel the plaintiff to wait for two months before bringing his suit, though if nothing was to be apprehended beyond what payment of damages would compensate, the rule was otherwise, and the section applied. Their Lordships held, differing from the Bombay view, that Section 80 was express, explicit and mandatory, and admitted of no implications or exceptions, that a suit in which inter alia an injunction was prayed for was still 'a suit' within the words of the section, and that to read any qualification into it was an encroachment on the function of legislation. In the course of their judgment their Lordships referred to certain English cases turning on the construction of the Public Authorities' Protection Clauses contained in the Metropolis Management Act, Amendment Act, 1862, and the Public Health Act, 1875, and then said (p. 356) :-

It is to be noted that the Public Health Act, 1875, the previous Act of 1848, and the Metropolis Management Act were cases where a subordinate statutory authority had been entrusted with specific and limited powers, and it would seem from Davis v. The Mayor, Aldermen, and Burgesses of Swansea (1853) 22 L.J. 297 that the profession had long taken Section 139 of the Act of 1848 to be applicable only to actions of tort.... A view, therefore, about a bill for an injunction 'against serious and irreparable damage requiring the intervention of the Court, almost undisputed in the Court of Appeal, would not be any guide to the meaning of the Civil Procedure Code, where the clause applies to all officers of Government and to all their official acts, and where the words 'in respect of, a form going beyond 'for anything done or intended to be done show it to be wider than the statutes on which the English authorities were decided.

7. Mr. Dixit has drawn our attention to another decision of the Privy Council with regard to the interpretation of Section 80 of the Code of Civil Procedure in Revati Mohan Das v. jatindra Mohan Ghosh . In that case the common manager of an estate appointed under the Bengal Tenancy Act, 1885, executed, with the sanction of the Court, a mortgage which provided for repayment of the debt on a specified date. Before that date he died and another manager was appointed. The debt not having been paid, the mortgagee, without giving notice, sued the new manager to enforce the mortgage. It was held by their Lordships that notice was not necessary under Section 80, because, assuming that a common manager was a public officer, the suit was not for an act purporting to be done in his official capacity. Failure to pay the debt when due was not an 'illegal omission' so as to be an 'act' under Section 3 of the General Clauses Act. In dealing with the view which had been taken by the Subordinate Judge in that case that Section 80 had no application to suits in contract their Lordships said that this dictum was rightly repelled by the High Court, and that having regard to the decision in Bhagchand v. Secretary of State for India (supra) their Lordships thought that no such distinction was possible. Mr. Dixit's contention is that the view previously taken by this Court in Manohar Ganesh Tambekar v. The Dakor Municipality and Ranchordas Morarji v. The. Municipal Commissioner for the City of Bombay must be treated as no longer good law in view of the two Privy Council decisions above referred to. The decision of this Court in Vishwanath Sadashiv v. Bombay Municipality was subsequent to the two Privy Council decisions, and the view formerly taken by this Court that the protection afforded by Section 527 of the City of Bombay Municipal Act and the corresponding provisions in the other Municipal Acts did not cover acts done in pursuance of a contract was adhered to. We do not think that there is anything in the two Privy Council decisions referred to which would compel us to hold that the view taken in the earlier Bombay decisions, and affirmed in Vishwanath Sadashiv v. Bombay Municipality, is no longer good law. The decision of the Privy Council dealt with the interpretation of an entirely different statute, the Code of Civil Procedure, The language of Section 80 of that Code is, as was pointed out by their Lordships of the Privy Council, much wider than the words 'anything done or purported to be done' in Section 206 of the Municipal Boroughs Act and in the corresponding provisions of the other Municipal Acts. It would be difficult to hold that a Municipality or an officer of a Municipality committing a breach of a contract entered into by the Municipality does the act, or purports to do it, in pursuance of the provisions of the Act. Under the provisions of Section 68 of the Municipal Boroughs Act it is the duty of a Municipality to make reasonable and adequate provision for lighting public streets, places and buildings, but this does not make it obligatory on the Municipality to enter into a contract with a private Electricity Company for the lighting of the municipal area. It is at the option of the Municipality, whether it will carry out the lighting of the streets itself or enter into a contract for the purpose with a private company. The entering into a contract with the Jalgaon Electric Supply Company was, therefore, an act which the Municipality was empowered by the Act to do, but which it was not required to do. It was a contract voluntarily entered into by the Municipality, and a deliberate breach of the contract cannot be treated as something done or purporting to have been done in pursuance of the Act.

8. In our opinion, therefore, no notice of the suit was necessary under Section 206 of the Act, and the plaintiff's suit was wrongly dismissed.

9. The rule will, therefore, be made absolute, the decree made by the lower Court set aside, and the suit sent down to the trial Court for disposal according to law. The opponent will pay the costs of the petitioner in this Court.


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