1. This application in revision from a decree of a Small Cause Court raises interesting questions of Municipal law and of the liability of a corporation for the acts of its servants. Unfortunately the lower Court has written a confused judgment and we have been unable to discover what its findings are of fact or of law.
2. The suit was brought for the recovery of damages for loss caused to the respondent, the owner of a brick kiln, by the defendant Municipal Board of Benares closing a certain road which led to the brick-kiln for a longer period than was necessary for the purposes of repair. Malice of the Municipal Engineer, Mr. Mitra, was pleaded and it was alleged that the road was closed by him without reason: (1) for a longer period; and (2) at both ends at the same time, in order to injure the business of the plaintiff out of spite. There is no evidence of malice on the part of Mr. Mitra and no finding by the lower Court. In 1923 the plaintiff, a Municipal servant, was dismissed by the Municipality on the report of Mr. Mitra that he had committed theft of documents from a file. All that the lower Court finds is: 'the Municipal Engineer was displeased with the plaintiff.' What did it expect under the circumstances? The observation or finding, whatever it may be termed, is futile. There is no reason whatsoever why Mr. Mitra should bear the plaintiff any malice.
3. There is no attempt made in the lower Court's judgment to distinguish between the acts of the Municipality and those of its servant, Mr. Mitra. It argues in a circle: there was malice because the road was closed for so long and the road was closed for so long because there was malice. As to the negligence or malice of the defendant Municipality there is neither any evidence nor any finding. In one portion of the judgment, the learned Judge himself says that the Municipality dismissed a slack sub-overseer and a dilatory contractor for want of promptness in pushing the repairs. Surely this was not negligence. In another place in the judgment it is stated that no malice was attributed to the Chairman or Executive Officer but only to Mr. Mitra, the Engineer. Presumably the members did not pass the resolution for repairs out of malice to the plaintiff.
4. On the basis of evidence placed before it, the learned Judge formed the opinion that the repairs ought to have taken two months and the road ought to have been closed at one end at a time and as the repairs took four months and the road was closed at both ends, he presumed malice and negligence of the Municipality and held the respondent to be entitled to damages. It is after all a matter of opinion how long repairs should take and in the nature of things there would be longer time necessary in doing the repairs if the convenience of the residents was consulted and repairs were done by degrees by closing one end of the road at a time than it would take by working at both ends. If a Municipality is to be mulcted in damages for the slackness of an overseer or a contractor, whom it dismisses for such default, no Municipal work will be possible. Nowhere in the judgment is it asserted that it was the Corporation by a resolution or Mr. Mitra who closed the road at both ends or ordered the contractor to delay the repairs. It is vaguely said by the lower Court that according to the respondent consolidation work was over on 31st January, yet the road was not opened till the 27th February. There is no finding by reference to any reliable evidence that the road was really ready for use on 31st January 1925.
5. In this unsatisfactory state of the lower Court's record we did not feel ourselves bound by any finding of fact of that Court and inquired of the respondent's learned Counsel what the respondent's case really was. He stated it to be that Mr. Mitra, out of malice which he bore to the respondent, kept the road closed for a month longer than was necessary and carried on work at both ends and that the Corporation was liable in damages for the tort of its servant, who was acting tortiously within the scope of his authority. We are of opinion that Mr. Mitra bore the respondent no malice and that he had no part in the delay, if any in the repairs. Nobody has stated on oath that he gave orders for the closing of the road at both ends. As ho ever this is a revision, we shall examine the liability of the Municipality assuming the learned Counsel's statement of his client's case to be correct.
6. First we must express agreement with the lower Court's findings on the question of limitation and jurisdiction of a Small Cause Court; our reasons for disallowing the plea of limitation are slightly different. Article 2 of the Limitation Act applies to the present suit. In Municipal Board of Mussoorie v. Good-all (1904) 26 All 482 a Bench of this Court pointed out that the terms of this article were very wide and general. The alleged omission to complete repairs quickly and the closing of the road at both ends would fall within those terms. No other article provides specifically for the alleged acts of negligence and malice of the Municipality. Article 36 applies where provision is not made in the schedule and cannot apply here, when Article 2 covers the case
7. We are however of opinion that the provisions of Section 326(3) U.P. Municipalities Act No. II of 1916 extends this period of limitation of 3 months under Article 2 of the Limitation Act to one of 6 months. Under Clause (1) of that section a notice of 2 months is prescribed, so it could not have been the intention of the Legislature to make a suit impossible where the period of limitation prescribed under the Limitation Act is 2 months or less. We think that a uniform limitation of 6 months is prescribed under the special and local Act, whether the limitation for the suit under the Limitation Act be larger or smaller than that period.
8. The learned Counsel for the applicant argued that the suit was one for compensation for obstruction of an easement and hence removed from the cognizance of a Small Cause Court by Article 35(i) of the 2nd Schedule of the Act. With commendable research he quoted an English authority of 1795, which defined a highway as the property of the State subject to an easement for the benefit of the public. We do not think that we need go so far afield to discover the meaning of the term easement, which should be looked for in the statute law of India. The right of passage that the public have over a road does not come within the definition of an easement given in Easements Act No. V of 1882, Section 4, because it does not depend on the ownership of any landed property. There was no want of jurisdiction in the lower Court.
9. After a reference to statute law and authorities cited at the Bar, our conclusions on the points of law are:
That the Municipality was authorized to close the road and that the reason for its action cannot be inquired into by a Court of law.
That the malicious action of Mr. Mitra, such as is alleged, would not render the Municipality liable in damages.
10. The Municipal Act referred to in this judgment will be Act No. II, local, of 1916. Under Section 7(h) it is the duty of the Board to construct, alter and maintain a public street; under Section 116(g) all public streets are vested in and belong to the Municipality; under Section 219(c) it can turn, divert, discontinue or close any public street vested in it. Presumably this public street of Benares is vested in the Board; there was no allegation to the contrary. The Board has been given power by the Legislature to close it permanently without any member of the public having the right to object to it in a civil Court. A right of permanent closing of a street includes the right of closing it temporarily because separate power is not granted by the Act for a temporary closing for repairs. Under the 1st Municipalities Act XV of 1873 the only power given to a Municipality wag to clean and repair a road vested in it and none of closing it. It is interesting to notice the difference between the provisions of this present Act and its predecessor No. 1 of 1900. Under Section 81 of the previous Act, power was given to a Municipality to close a street temporarily for purposes of repair. It was possibly apprehended that such limited powers may enable an irate member of the public to raise questions as to the necessity for repair and its duration in a civil Court; so in the present Act plenary power is given to close a street without assigning any reason At the same time the public are not left without a remedy, which is effective though not spectacular like a suit in a civil Court. Under Section 34 the Collector of the District or the Commissioner of the Division may be moved by any class of the public living along a particular street to get the road opened. If the official is satisfied as to the reasonableness of the request, he may order the Municipality to take action accordingly, and on its failure, may report to the local Government, which may ultimately under Section 35 grant redress through the Collector independently of the Municipality. A very instructive judgment of the King's Bench Division, Davies v. Mayor of the Borough of Bromley 1908 KB 170, may be quoted to show that power given to a local authority to do a certain act cannot be questioned in a civil Court on the ground of its having been exercised through malice. It was held that an action will lie against a local authority for maliciously refusing to approve of building or drainage plans deposited with them. If the local authority has been actuated by improper motives, the remedy of the person aggrieved is by mandamus to the local authority to hear and determine the application. Vaughan Williams, L.J., in delivering the judgment of the Court, said:
In my opinion, where a statute vests in a local authority such a duty and such a power, no action will lie against that authority in respect of its decision even if there is some evidence to show that the individual members of the authority were actuated by bitterness and some other indirect motive. The intention of the Legislature was that there should not be an opportunity of setting aside or getting rid of the decision of a local authority by bringing an action against the authority, and it is obvious that a jury would not be a convenient tribunal for the trial of such an action.
11. In our opinion, the intention of the local Legislature appears to be the same that a Board's decision to close a street should be taken out of the jurisdiction of a civil Court and the reasonableness thereof should be tested by the Executive Officers of Government, who can afford prompt relief with the force at their disposal.
12. Finally we think that if Mr. Mitra acted maliciously and spitefully, he did not act within the scope of his authority and the Municipality is not liable. Pollock in his Law of Torts (10th edition, p. 99) lays down the principle that a master may be liable even for wilful and deliberate wrongs committed by the servant, provided they be done on the master's account and for his purposes and are such acts as might in some circumstances be within the lawful course of employment; and this, although the servant's conduct is of a kind actually forbidden by the master. This principle is based on the judgment of Blackburn, J., in Ward v. The General Omnibus Co. (1873) 42 LJPart I 265, where the learned Judge observed:
A master is responsible for his servant's acts in his business though the servant be excited by drink or passion; but if the servant act for private spite (and it does not matter whether the action be in contract or tort), and if the act be done so as to divest him of his character as servant, the master is not responsible.
13. In the case before us Mr. Mitra is said to have acted through private spite and even disobeyed the direct orders of his master, the Municipality, to open the street and thereby divested himself of his character as servant.
14. In Dyer v. Monday (1895) IQB 742 where the Court of appeal held that there was sufficient evidence on which the Judge might leave the case to the jury on a proper direction, the law laid down was that for all acts done by a servant in the conduct of his employment, and in furtherance of such employment, and the benefit of his master, the master is liable, although the authority he gave is exceeded, provided such acts are done by the servant in the conduct of his employment and in the interest of his master. An Engineer acting through spite against an enemy and keeping a road closed to cause injury to that enemy cannot be said to be acting in the conduct of his employment and in the interest of his master. In Joseph Band Ltd. v. Craig (1919) Ch D 1, the plaintiffs brought an action against the contractor for damage caused by his carters, who tipped rubbish on to plaintiff's unfenced land instead of taking it to the contractor's dump. They did so for their own convenience and for a purpose of their own, in contravention of the contractor's orders. Under these circumstances, the contractor was not held liable for damages. Duke, L.J., added in his judgment that additional evidence against the contractor, either of complicity by himself or any superior servant of his, or acquiescence after a course of warning of conduct such as was complained of by the plaintiffs would have entitled a judge of fact to find that the thing was by conduct of the defendant brought within the scope of the employment, in spite of anything he had said to the workmen to the contrary. No such evidence to connect the members of the Municipality or the Executive Officer with Mr. Mitra's act was forth-coming in this case. We accept the application and dismiss the respondent's suit with costs of both the Courts.