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The Municipal Council, Masulipatam Represented by Executive Authority Vs. G. Krishna Rao - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 727 of 1959
Judge
Reported inAIR1964AP360
ActsMadras District Municipalities Act, 1920 - Sections 134(1), 350 and 350(1); Limitation Act, 1908 - Schedule - Articles 2 and 36
AppellantThe Municipal Council, Masulipatam Represented by Executive Authority
RespondentG. Krishna Rao
Appellant AdvocateA. Raghuvir, Adv. for ;A.S. Chowdary, Adv.
Respondent AdvocateC. Sitharamayya, Adv. for ;G. Venkatarama Sastri, Adv.
Excerpt:
.....off by appellant due to non-payment of arrears of water charges - municipality empowered to cutoff water supply for non-payment of sum due for water and of cost of making a connection under section 134 (1) (b) - suit for damages by respondent incurred due to disconnection of water supply covered under section 350 - whether disconnection malicious due to fact that it was not done in pursuance of execution or intended execution of act - 'intended execution' in section 350 having similar meaning with word 'purported execution' - term cover cases where person's act though wrongful but still purports to be in exercise of his power under provisions of act - act of municipality malicious and not covered by section 350 - non-performance of duty by public body not executing any particular act -..........of certain taxes, that with regard to the levy of license fee and taxes the appellant cut off the water supply on 26-12-1952 on the ground that there was leakage in the water connection to the meter and that in spite of notices he did not pay the amount and consequently it was cut off. in respect of this alleged unauthorised disconnection the respondent filed o. s. 68/53 on 9-2-1953 claiming damages till the date of the suit and for a mandatory injunction directing the appellant to restore the water supply.however during the pendency of that suit the water supply was restored on 31-10-1953. the suit was ultimately decreed on 17-7-1954 and damages of rs. 60/- were awarded in favour of the respondent against the appellant. thereafter on 10-1-1956 the appellant served a notice on the.....
Judgment:

Jaganmohan Reddy, J.

1. This second appeal involves the question of interpretation of Section 350 of the District Municipalities Act and having regard to the provisions of the said Act also the question whether the suit is barred by limitation. The appellant is the Municipal Council, Masulipatam, represented by its Executive authority. The respondent (Plaintiff) is-the Secretary of the Coffee Meals and Hotel Association and the Proprietor of Amba Bhavan Meals and Coffee Club. It is the case of the plaintiff that from the year 1952 there were some disputes-between the Municipality on the one hand and the Association and himself on the other regarding collection of certain taxes, that with regard to the levy of license fee and taxes the appellant cut off the water supply on 26-12-1952 on the ground that there was leakage in the water connection to the meter and that in spite of notices he did not pay the amount and consequently it was cut off. In respect of this alleged unauthorised disconnection the respondent filed O. S. 68/53 on 9-2-1953 claiming damages till the date of the suit and for a mandatory injunction directing the appellant to restore the water supply.

However during the pendency of that suit the water supply was restored on 31-10-1953. The suit was ultimately decreed on 17-7-1954 and damages of Rs. 60/- were awarded in favour of the respondent against the appellant. Thereafter on 10-1-1956 the appellant served a notice on the respondent for paying certain arrears of water charges. The respondent by his reply dated 14th Feb. 1956 disputed the claim and took up the position that there were no arrears due from him and that he is entitled to damages for maliciously cutting off the water connection and not restoring the same from the date of the filing of O. S. 68/53 viz. 9-2-1953 to 31-10-1953 when the water supply was restored. On receipt of that notice the appellant served a notice on the respondent saying that the water connection was cut off because of non-payment of arrears of water charges. This was followed by the cutting off the water supply on the same date. The respondent therefore filed a suit on 2-4-1956 in the Munsif Magistrate's Court, Masulipatam being O.S. 109 of 1956 claiming damages incurred by him for the period 9-2-1953 to 31-10-1953 and from 15-2-1956 to 26-3-1956.

In this suit it was inter alia contended by the Municipality that inasmuch as the provisions of Section 350 apply, the suit which has to be filed within 6 months from the date of the cause of action is barred by limitation so far as the first part of the claim is concerned and in so far as the second part of the claim is concerned the notice given by the respondent did not satisfy the requirements of that Section and as such is bad for want of notice. The respondent contended that Section 134 does not empower the Municipality to cut off the water supply for non-payment of charges and consequently no notice is necessary as specified in that Section, nor is the suit to be filed within six months from the date of the cause of action and as such the provisions of that section i.e., Section 350 do not apply. If they do cot apply, the period prescribed under the law of limitation would be applicable to the facts of this case and the respondent could file a suit within 3 years.

2. The District Munsif held that the cutting off of water supply was unauthorised and decreed the suit for Rs. 290/.- as damages. On appeal the District Judge awarded Rs. 40/- as damages for the period 15-2-1956 to 26-3-1956 and in respect of the period 9-2-1953 to 31-10-1953 he awarded Rs. 250/-. On both the occasions it was held by both the Courts that the cutting off of water supply was unauthorised. On the question of limitation, it was held that Section 350 of the District Municipalities Act does not apply, that the suit for damages for the period 9-2-1953 to 31-10-1953 is not barred by limitation. Admittedly the period 15-2-1956 to 26-3-1956 is within time as the suit was filed immediately thereafter.

3. The first question that falls for consideration is whether Section. 350 of the District Municipalities Act, which deals with the institution of suits against municipal authorities, is applicable to the facts and circumstances of this case. But in considering that section, it will also be appropriate to consider Section 134 of the same Act which empowers the municipal authorities to cut off water supply. These two sections may now be read together.

134 (i). The executive authority may cut off the supply of municipal water from any premises:

(a) if the premises are unoccupied;

(b) if any water tax or any sum due for water for the cost of making a connexion or for the cost or hire of a meter or for the cost of carrying out any work or test connected with the water supply which is chargeable to any person by or under this Act, is not paid within fifteen days after a bill for such tax or sum has been presented;

(c) to (h) x x x x

(2) The expenses of cutting off the supply shall be paid by the owner or occupier of the premises.

(3) In cases under clause (b) as soon as any money for non-payment of which water has been cut off together with the expense of cutting off the supply, has been paid by the owner or occupier, the (executive authority) shall cause water to be supplied as before on payment of the cost (if any) of reconnecting the premises with the municipal water works.

(4) No action taken under this section shall relieve any person from any penalties or liabilities which he may otherwise have incurred.

350(1): No suit for damages or compensation shall be instituted against the municipal council, any municipal authority, officer or servant, or any person acting under the direction of the same, in respect of any act done in pursuance of execution or intended execution of this Act or any rule, bye-law, regulation or order made under it or in respect of any alleged neglect or default in the execution of this Act, or any rule, bye-law, regulation, or order made under it until the expiration of one month after a notice has been delivered or left at the municipal office or at the place of abode of such officer, servant or person, stating the cause of action the relief sought, and the name and the place of abode of the intending plaintiff; and the plaint shall contain a statement that such notice has been so delivered or left.

(2) Every such suit shall be commenced within six months after the date on which the cause of action arose or in case of continuing injury or damage during such continuance or within six months after the ceasing thereof.

(3) x x x x

(4) x x xx

4. It is contended that before even Section 350 can be made applicable, it must be determined that the municipality is empowered to cut off water supply for non-payment of dues or water charges. It is only then that it can be said that the act of cutting off of water supply is made under the Act. If the action taken by the municipality does not fall within the purview of the Act, as indeed it is contended by the learned advocate for the respondent, then the period prescribed under Sub-section (2) of Section 350 would not govern the suit relating to damages claimed for the first period, viz., 9-2-1953 to 31-10-53 and in these circumstances the general law of limitation would apply.

5. A close reading of Section 134(b) would, in our opinion, warrant the conclusion that there has been an inadvertent omission of the disjunctive 'or' after the words 'any sum due for water' for, if this is not so, that clause is ungrammatical and would be meaningless. With the word 'or' the power to cut off water supply would also be conferred upon the municipality for non-payment of any sum due for water as well as for non-payment of cost of making a connection. We receive support in this regard by an examination of analogous provisions of the Municipal Acts of other States viz., Section 275 of the City of Bombay Municipal Act, Section 360 of the Hyderabad Municipal Corporation Act, and Section 172 of the Madras City Municipal Act, all of which contain the word 'or' between the words 'any sum due for water' and 'cost of making a connection.'

6. While we have held that the power to cut off water supply for non-payment of cost of making connection or for any sum due for water charges is vested in the municipality and that a suit in respect of the aforesaid matters would come within the purview of Section 350, nonetheless it is contended that the municipal officers in cutting off water supply were doing a malicious and wrongful act as they did not do it in pursuance of execution or intended execution of the Act and that act is, therefore, not within the purview of Section 350 and as such the limitation prescribed in Clause (2) will not apply.

In construing the words of Section 350 it may be borne in mind that the act complained of, if malicious or wrongful, could not have been done in the execution of the Act. The question is whether it was done in the intended execution of the Act and it is sought to be contended that the words 'intended execution' have got a similar meaning as the words 'purported execution'. It would cover the case of a person who though his act may be wrongful, nonetheless is purporting to exercise his power under the provisions of the Act. The word 'purporting' means intending to seem which almost implies that though it is a case of not being directly according to law, one may still intend to appear that it is according to law. (See Koti Reddi v. Subbiah, ILR 41 Mad 792: (AIR 1918 Mad 62) (FB), Abdul Rahim v. Abdul Rahman, ILR 46 All 884 : (AIR 1924 All 851) and Dakshina Rajan Ghosh v. Omar Chand Oswal, ILR 50 Cal 992 : (AIR 1924 Cal 145)

In the first case, the Village Munsif's act was apparently according to practice and is one which he would ordinarily do; but it was wrong for him do have paid the balance of the sale price to the owner. He did it mala fide. The learned Judge held that mala fides had nothing to do in that case and he was entitled to the notice under Section 80, C. P. C. Wallis, C. J. observed that the words 'purporting to be done' are wider than 'done or intended to be done'.

In T. D. Karuppanna Pillai v. F. W. Haughton, 70 Mad LJ 695: (AIR 1936 Mad 547), King and Menon, JJ. were considering a defence set up by the Chairman of the municipality which launched a prosecution before the Bench Court under Section 344 of the District Municipalities Act for plaintiff's alleged failure to pay cart-stand dues. The complaint was thrown out as the municipality had fanned out the right to levy cart-stand dues to a contractor and no amount was due to the Municipality in that respect from the plaintiff. The plaintiff who was acquitted, thereupon filed a suit for damages for malicious prosecution against the chairman in his individual capacity. The defence was (i) a denial of want of reasonable and probable cause and no malice and (2) want of notice under Section 350 of the District Municipalities Act. The defendant chairman admitted in his deposition before the Court that at the time when he launched the prosecution he knew that there was no offence committed by the plaintiff and the prosecution was not authorised by the letter of the law but added that he thought it right to prosecute the plaintiff as the money was indirectly due to the municipality.

In these circumstances, the Bench held that no notice was necessary under Section 350 of the District Municipalities Act as the act was not onedone In pursuance of execution or intended execution of the Act or any rule or bye-law, within the meaning of the Section. King, J., after citing the judgment in ILR 41 Mad 792: (AIR 1918 Mad 62) (FB), refers to what Wallis, C. J. said about the words 'done or intended to be done' in the provisions of the Act as practically the same as 'done in pursuance of execution or intended execution of this Act,' and which are narrower than the words 'purporting to be done'. He also referred to the statement of Sadasiva Ayyar, J., that it confuses the mind to attempt to interpret the meaning of the words 'purporting to be done' by reference to the English decisions which deal with such phrases as 'done in execution or intended execution of his office'. The Bench adopted the dictum of Blackburn, J. in Selmes v. Judge, (1871) 6 QB 724 that it is impossible for any one to intend that which he knows he is not doing. In Betts y. Receiver for the Metropolitan Police District and Carter Paterson and Co. Ltd., (1932) 2 KB 595 at p. 602 Du Parcq, J., said:

'In my view, it is at least doubtful whether the Act protects a public officer who, while rightly apprehending the facts, takes a mistaken view as to his legal obligations, and executes or intends to execute some function which he has no duty to execute. On the other hand, if a public officer makes an honest mistake of fact and does that which it would be his duty to do if his view of the facts were correct, he is, in my judgment, acting in intended execution of a duty within the meaning of the section.'

Applying these tests to the facts of this case, it is clearly established that the municipality acted maliciously as in the previous case where the initial commencement of the wrong complained of which the present suit for the rest of the period is only a continuation of that wrong which has been held to have been done maliciously. As such, it cannot be said to have been performed in the intended execution within the meaning of Section 350.

7. The question that remains is what is the article of limitation which, would be applicable to this case. It is contended by Mr. Sitharamaiah that either Article 131 or 120 applies and the period of limitation is 3 years. On the other hand, Mr. Raghuvir contends that Article 36 of the Limitation Act applies as this is a suit for compensation for tortious act. At the outset it may be observed that the suit is not based on the breach of any contractual obligation, nor can there be any basis for such a suit. When the act complained of has not been pursuant to an obligation vested under a statute and as we have held it is not in the intended execution of the powers vested in the municipality, it cannot be said to be a breach of a statutory obligation.

8. The period of limitation under Article 2 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, is 90 days when the act or omission takes place. This article is for protection of those officers who act in an honest belief that they enjoy these powers though in fact they did not do so and it is to protect these persons and safeguard them that a shorter period of limitation has been prescribed. The Full Bench judgment of the Lahore High Court in Mohd. Sadat Ali v. Lahore Corparation, AIR 1945 Lah 334, held that when a plaintiff claims compensation for damage said to have been caused by the failure of a local body to maintain its water system in proper order, the suit is governed not by Article 2 but by Article 36. Mahajan, J., at page 331 observed:

'In my judgment, this article has a limited scope and application and comes into play only where specific acts under cover of the statute are being done or executed. It does not apply to cases of performance or non-performance of statutory duties in general and in their wider sense'.

But where there is a failure or non-performance of duty by an official public body when it is not executing any particular act, Article 2 has no application and it is only Article 36 that would apply. We respectfully agree with the view of the Full Bench of the Lahore High Court and as we have said it is an action grounded on tort; as such Article 36 applies. Hence the claim for the period 9-2-1953 to 31-10-1953 is barred by limitation.

9. In respect of the other claim for the period 15-2-56 to 26-3-1956 the lower Court had stated that even if the alleged arrears are true, they are only for water charges and not for water tax to empower the municipality to disconnect water supply. What the learned Judge meant is that that the municipality had no power to disconnect water supply for arrears of water charges though it had the power to disconnect for non-payment of tax. It was further held that no notice of disconnection for water supply was given to the plaintiff. In the circumstances, the Court came to the conclusion that the appellant had no power to disconnect the water supply for non-payment of water charges. It is contended that there is no finding as to whether the arrears said to have been due from the plaintiff were in fact due as to justify the municipality in disconnecting the water supply under Section 134(1)(b). The trial Court had gone into the question and held it against the municipality but the Subordinate Judge did not go into this question, probably because of the view he took of Section 134(1)(b) under which he thought that the municipality could not cut off water supply for the recovery of arrears of water charges.

In the view we have taken that the municipality has also power to disconnect water supplyfor arrears on account of water charges, the Subordinate Judge is directed to send his finding onthe evidence already on record as to whether therewere any arrears either of tax or of water chargesdue on the date of disconnection viz., 14-2-56 tojustify the cutting off of water supply by themunicipality. Time for submission of the findingtwo months from the date of receipt of the records in the lower Court. For objections ten daysthereafter.


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