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G.C. Sharma Vs. Municipal Corporation of Delhi - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtDelhi High Court
Decided On
Case NumberRegular First Appeal No. 115D of 1966
Judge
Reported inILR1979Delhi771b
ActsDelhi Municipal Corporation Act, 1957 - Sections 430; Limitation Act, 1908 - Schedule - Article 2
AppellantG.C. Sharma
RespondentMunicipal Corporation of Delhi
Advocates: D.D. Chawla,; C.L. Chaudhary and; T.C.B.M. Lal, Advs
Cases ReferredIn State of Punjab v. Modern Cultivators
Excerpt:
.....be done' include acts which are improper or even malafide.; according to the rules and bye-laws of municipal corporation of delhi, 1957 a statutory body constituted under the delhi municipal corporation act, 1957, a building plan accompanying an application for sanction to build has to be prepared by a draftsman licensed by the corporation. in accordance with the said rules and bye-laws the appellant, a qualified chartered architect, was granted a license by the corporation which was in force from march, 1962 up to the end of september, 1962. in 1962 the appellant submitted plans for construction of a church on behalf of delhi diocesan trust association, delhi. these plans were rejected. consequently on july 31, 1962, appellant was asked to show-cause why disciplinary action should not..........of delhi (corporation), respondent no. 1, is a statutory body constituted under the delhi municipal corporation act, 1957 (the act). according to the rules and bye-laws of the corporation a building plan accompanying an application for sanction to build has to be prepared by a draftsman licensed by the corporation. the appellant, thereforee obtained a license from the corporation. the license which had been granted to the appellant in the month of march 1962, was in force up to the end of september 1962. in1962 the appellant submitted plans for the construction of a church on behalf of delhi diocesan trust association, delhi. these plans were rejected. on july 31, 1962, he was asked to explain why disciplinary action should not be taken against, him for submitting a plan......
Judgment:

Avadh Behari Rohatgi, J.

(1) The appellant, Shr G.C Sharma, is a qualified chartered architect. Municipal Corporation of Delhi (Corporation), respondent No. 1, is a statutory body constituted under the Delhi Municipal Corporation Act, 1957 (the Act). According to the rules and bye-laws of the Corporation a building plan accompanying an application for sanction to build has to be prepared by a draftsman licensed by the Corporation. The appellant, thereforee obtained a license from the Corporation. The license which had been granted to the appellant in the month of March 1962, was in force up to the end of September 1962.

IN1962 the appellant submitted plans for the construction of a church on behalf of Delhi Diocesan Trust Association, Delhi. These plans were rejected. On July 31, 1962, he was asked to explain why disciplinary action should not be taken against, him for submitting a plan. contrary to bye-laws and causing 'unnecessary harrasment' to the Delhi Diocesan Trust by his carelessness. To the proposed action he protested. The upshot of these proceedings was that the Corporation cancelled the appellant's license on August 30, 1962. Then the appellant applied for renewal of his license. The Corporation refused to renew the license on October 19, 1962.

(2) Having failed to obtain redress a.t the hands of the Corporation the appellant filed a, writ petition in the circuit bench of the Punjab High Court at Delhi under Article 226 of the Constitution (CW 800-D of 1962). On March 24, 1963, the High Court allowed the writ petition and quashed the order of cancellation of the license. The Corporation thereafter renewed the appellant's license.

(3) On January 23, 1964, the appellant brought a suit against the Corporation, the Commissioner and the Deputy Commissioner, respondents 1 to 3, to recover the sum of Rs 3,04,020 which he said was the damage he had suffered. He claimed damages under three heads :

(1) Loss of reputation and mental agency .... Rs. 1,00,000 (2) Loss of business and deprivation of the right to carry on profession from 30-8-1962 to 23-7-63 . . . Rs. 2,00,000 (3) Expenses in filing aid conducting the writ Petition . Rs. 4,020 Total . Rs. 3,04,020

(4) The respondents contested the suit. They denied their liability. They further pleaded that the suit was time-barred. On this a preliminary issue was raised: 'Whether the suit as framed is within time'

(5) The subordinate judge by order dated February 16, 1966 held that by reason of s. 478(2) of the Act the appellant's suit was barred by limitation. He came to the conclusion that the suit ought to have been filed within six months of the cancellation of the license and the suit having been filed beyond that period it was time-barred. The learned judge dismissed the suit. From his decision the appellant appeals to this court.

(6) The respondents raised the defense that the suit could not be maintained because they, the respondents, were, by virtue of s. 478 of the Act, protected against any such suit after the expiration of six months from the date of the cancellation of license which gave rise to the action. The validity of this defense is the sole subject for consideration in this appeal.

(7) Now s. 478(2) requires that a: suit 'in respect of any act done, or purporting to have been done, in pursuance of this Act or , rule regulation or bye-law made there under' must be instituted within six months' 'from the date on which the cause of action arises.'

(8) S-478, in so far as it is material, is in these terms :

'478. (1) No suit shall be instituted against the Corporation or against any Municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or a,ny municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation or bye-law made there under, until the expiration of two months after notice in writing has been left at the municipal office, in the case of such officer, employee or person, unless notice in writing has also been delivered to him or left at his office or place of residence, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so left or delivered. (2) No suit, such as is described in sub-section (1), shall, unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.'

(9) The power to grant, suspend and revoke a license is contained in s. 430 of the Act. It provides that license may be granted by the Commissioner or by an officer empowered to grant the same on payment of fees. The Commissioner or the officer by whom the license is granted is also given power to suspend or revoke the license.

(10) Was the Corporation in cancelling the license acting or purporting to act in pursuance of the Act That is the question. The trial judge answered the question in the affirmative, and I think that he was right in so doing.

(11) The words 'in respect of any act done, or purporting lo have been done, in pursuance of this Act' are of capital significance. These words are wider than words such as 'done or intended to be done' used in other enactments. The words 'act done or purporting to have been done' are the most comprehensive words. The word 'purporting' covers a profession by acts or by word or by appearance of what is true as well as what is not true. (Koti Reddi v. Subbian, Air 1918 Mad. (FB) 62.

(12) Now, for example, the Public Authorities Protection Act of England, 1893, does not contain the words 'purporting or professing' to act in pursuance of the statute as are to be found in S. 142 of the Calcutta, Port Act (Be. Act Iii of 1890). The Calcutta Act of 1890 came for interpretation before the Judicial Committee in Commissioners for the Port of Calcutta v. Corporation of Calcutta, . Privy Council said at page 309 :

'Their Lordships regard these words ('purporting or professing' to act in pursuance of this Act) as of pivotal importance. Their presence in the statute appears to postulate that work which was not done in pursuance of the statute may nevertheless be accorded its protection if the work professes or purports to be done in pursuance of the statute.'

(13) Counsel for the appellant submitted that inasmuch as the authorities of the Corporation acted 'in complete disregard' of the provisions of s. 430 of the Act, as was found by the High Court in 778 the writ petition, it could not be said that the Corporation or its officers were acting or purporting to act in pursuance of the statute. In my opinion this is a fallacious argument. The High Court found that before cancelling the license the Corporation did not afford a reasonable opportunity to the appellant to explain and show that the plan he had submitted was correct and that no action should be taken against him. Harbans Singh J. who decided the writ said :

'I am of the view that the order of the Deputy Commissioner cancelling the license is of a quasi-judicial nature and the impugned order is had in not giving reasonable opportunity to the petitioner to be heard.'

All that was held was that the proper procedure was not followed. The procedure provided in s. 430 of the Act requires that an opportunity to the grantee of a license must be given before his license is suspended or revoked and he must be told the reasons if his license is finally cancelled. This was not done.

(14) NON-OBSERVANCE of the proper procedure laid down in an enactment does not mean that the order complained of was not an act done or purported to be done in pursuance of the statute. It is impossible to divorce the act of cancell,ation of license or refusal to renew it from the statutory capacity in which the respondents were acting. The respondents did not divest themselves of their capacity as a municipal corporate body, , did not assume some other capacity in cancelling the appellant's license. The power to grant and revoke a license is vested in the Corporation by the Act and it is by virtue of s. 430 of the Act that it exercises that power. The best that can be said is that they exceeded their power. Not that they had no power to cancel the license. The correspondence that passed between the parties and is referred to in the plaint discloses that the appellant asked the respondents as a statutory body to renew his license. To that appeal they did not assent. Not only did they cancel the license they also refused to renew it inspire of appellant's memorial and remonstrance. All this was done by the Commissioner and the Deputy Commissioner as officers of a statutory body in virtue of the powers vested in them, though, it is true that their action was held to be illegal and wrongful. In Selmes v. Judge (1871) 6 Q.B. 723 Blackburn J. said :

'It has long been decided that such a provision as that contained in the Public Authorities Protection Act, is intended to protect persons from the consequences of committing illegal acts, which are intended to be done under the authority of an Act of Parliament but which by some mistake are not justified by the terms and cannot be defended by its provisions.' (P. 727).

It means that the respondents were acting as a, public authority in the performance of the duties of their office, although they mistook the legal procedure required by law to be adopted for the cancellation of license. They were mistaken in the law. They took a mistaken view as to their legal obligation under the statute. They are a public body, armed with the statutory power to grant, and revoke licenses. The statute casts a public duty, an obligation upon the respondents to grant license.

(15) Counsel for the appellant said that the respondents were actuated by malice and improper motive in cancelling the appellant's license. He relied on the following observation of Harbans Singh J. in the writ case :

'....the facts do give rise to a strong suspicion that the action by the authorities was due to some extraneous reason.'

Counsel said that if the action is taken out of spite or bitterness or to satisfy some private grudge the public authority will not be entitled to the protection of s. 478. Now numerous authorities take the view that even if the motives are malacious the act would be one purportimg to be done in pursuance of the satute. [Kotti Reddi v. Subbiah, Air 1918 Mad. 62. (supra)] In Parvatoppa v. Hubli Municipality, Air 1937 Bom. 491 (4) Beaumont Cj speaking for the bench said :

'It may, I think, be said that the general tendency of the Courts has been to construe provisions protecting persons from the consequences of acts done under a particular Act so as to limit those provisions to acts of a bona fide character, and not to extend them to acts done mala fide. But no 'authority has laid it down, or could' have laid it down, that if the Legislature expresses itself in sufficiently clear language, it cannot afford protection to acts done mala fide. Now here the protective words cover 'anything done or purporting to have been done in pursuance of the Act.'

(16) The expression 'purporting or professed to be done' in S. 142 of Calcutta Port Act of 1890 has been held to include acts which are improper or even mala fide. [Basanta Lal v. Commissioner for Port of Calcutta, : AIR1951Cal460 , approved by the division bench in Port Commissioner Calcutta' v. Abdul Rahim, 68 C.W.N. 814. There is yet another reason. S. 477 of the Act reads :

'No suit or prosecution shall be entertained in any court against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against a'ny person acting under the order or direction of any municipal authority or any municipal officer or municipal employee for anything which is in good faith done or intended to be done, under this Act or any rule, regulation or bye-law made there under.'

(17) If the act is done or is intended to be done in good faith no suit or prosecution shall be entertained. This is the protection of s. 477. S. 478 is much wider than s. 477. S. 477 protects acts done in good faith. S. 478 protects even improper acts. In truth no dintinction can be made between acts done illegally and in bad faith and acts done bona fide in the performance of a public duty imposed upon a public body, as in this case. (State of Maharashtra v. Chander Kanta, : [1977]1SCR993 . The motives with which the act is done do not enter into the question at all. [Abdul Rahim v. Rabdul Rahim, Air 1924 All. 851 . The words 'purporting to have been done' will even swallow up acts which are done mala fide. So wide is the cover of the statute. So broad are its protective words.

(18) Counsel then said that the suit should be remitted for trial and the issue of limitation should be determined after the facts have been investigated. The opening words of s. 478 are clear enough to bar a suit. It says that no suit shall be instituted after the lapse of six months as specified in the section. It is quite clear that if the statute applies the suit is unsustainable owing to the lapse of time. It is not correct to hold that the section can be applied only after a hearing on merits for purpose of dismissing the suit. No question of merit arises where the section applies. The Privy Council in the case of Commissioners for the Port of Calcutta declined to determine the issue of negligence on which the claim was founded as they were satisfied that the suit wa.s barred under s. 142 of the Port of Calcutta Act. To investigate the merits of the claim is to open the floodgates of those harassing proceedings to prevent which the legislature has thought it necessary to afford a large measure of protection to those who are charged with the duty of executing its commands and giving effect to its will.

(19) In any event there is no evidence of malice. The 'strong suspicion' entertained by Harbans Singh J. is not a positive finding of a judicial tribunal based on evidence.

(20) In my opinion, merely saying that the act done with an improper motive will deprive the respondents of the protection afforded by the Act is not correct. To assent to such a proposition is to drain s. 478 of its contents and to rob it of its significance.

(21) The critical words in s. 478(1) ate any act 'purporting to have been done in pursuance of this Act.' The words 'purporting to have been done' have not been used in the English Act of 1893. thereforee, English decisions ought to be handled with care, as the Privy Council warned us in the Commissioners for the Port of Calcutta. Similarly the Madras District Municipalities Act of 1920 does not contain these word's The Madras Act was interpreted in Muslipatam Municipality v. Krishna Rao, : AIR1964AP360 . The words used there ate 'intended execution of this Act.' The division bench held that where the municipal authorities have acted malaciously in cutting off the water supply, the act of the municipal authorities cannot be said to have been performed in the intended execution of the Act within the meaning of s. 350 and as such the special period of limitation prescribed in the section will not apply to a suit for damages filed against the municipality for the malacious act. This case, in my opinion, has no application to the Act we are dealing with.

(22) Our Act is differently worded. The words 'purporting to have been done' ate much wider in scope and application. The word 'purport' has many shades of meaning. (Azimunissa, v. The Deputy Custodian, : [1961]2SCR91 . The Privy Council in Commissioners for the Port of Calcutta held these words to be of 'pivotal importance'. They said :

'Their presence in the statute appears to postulate that work which is not done in pursuance of the statute may nevertheless be accorded its protection if the work professes or purports to be done in 'pursuance of the statute.'

(23) These are words of great weight and authority. They directly apply to this case. The test, thereforee, is : Was the act done in statutory capacity or private capacity Or to put it in other words : Has the act been performed under colour of a statutory duty (Secy. of State v. Lodna Colliery, Air 1936 Pat. 513. If it is done or is professed to be done in pursuance of the enactment the statute will afford the protection. As Mahajan J. tersely put it, 'It is not necessary that the act should be directly justifiable under the enactment, ate this would reduce the protection to a mere nullity.' (Mohd. Sadaat Ali v. Administrator, Corporation of City of Lahore, Air 1945 Lah 324 . A person acting under statutory powers may erroneously exceed the powers given by a statute yet he is acting or purporting to act in pursuance of the statute. (Halsbury 3rd (Simond's) ed. Vol. 24 Para 340 p. 188). In strictness, anything not authorised by a statute cannot be in 'pursuance' of it, whilst if authorised it would need no other protection. But the statute affords protection even when an actionable wrong has been committed. Such is the significance of the word 'purporting' used in the section. The ordinary right of the subject to his remedy is cut down by stringent provisions as to time and notice of action.

(24) The object of such a provision as s. 438 is to afford protection to persons acting in pursuance of the enactment against belated claims. A short period of limitation is, thereforee, provided. The protection afforded by s. 478 is not an absolute protection. It does not bar suits, but only requires that they must be brought within six months. Its effect is to limit, as against the general public and in favor of certain persons, the period for bringing actions already fixed by the law of limitation. It is a restriction of the ordinary right of the subject.

(25) S. 478 applies only to a definite class of persons and to a definite class of action. The persons entitled to the protection of the Act are (1) municipal authorities, (2) municipal officers and (3) municipal employees or (4) persons acting under the orders or direction of the foregoing. The protection aforesaid by the section is limited 'to any act done or purporting to have been done, in pursuance of this Act, rule, regulation or bye-law made there under'. A public official can only be said to act or purport to act in pursuance of an enactment, if his act is such as to lie within the scope of statutory powers and duties. 'Thus a judge neither acts nor purports to act as a judge in receiving the bribe, though the judgment which he delivers may be such an act : nor does a Govt. medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act.' (H.H.B. Gill v. The King . These are excellent illustrations. They well illustrate the meaning of the section. In Selmes v. Judge (supra) Blackburn J. said : 783

'I agree, that if a person knows that he has not under a statute authority to do a certain thing, and yet intentionally does that thing, he cannot shelter himself by pretending that the thing was done with intent to carry out that statute.'

In the examples given by the Privy Council it cannot be suggested that the officer was acting under the colour of the law or colore official because the acts are outside the statute. The official acts protected , are acts founded truly on their statutory powers. In the present case there is a positive public duty on the Corporation to grant license. To this end the public authority is clothed with statutory powers contained in s. 430 of the Act. If there is a duty arising from the statute those who act or purport to act in the performance of that p ublic duty enjoy the protection of the statute. This case, the instant one, is just such a case. The act complained of falls within the words of the statute and not outside them. This is my conclusion.

(26) Counsel for the appellant took a further point. He said that cancellation of license resulted in deprivation of livelihood and, thereforee, it was in the nature of a continuing wrong which gave rise to a fresh cause of action to the appellant from time to time. This, he said. saved his suit from the bar of limitation. This argument has to be stated to be rejected. The wrong was done once when the license wa,s cancelled on August 30, 1962. The loss of professional work was its effect. The effect which continued till the license was restored in July 1963 cannot furnish a cause of action. license was cancelled on August 30, 1962, that is, 'the date on which the cause of action arose,' to use the words of the Act. The suit ought to have been brought within, six months from that date after serving a notice of two months as provided in s. 478(1). There is a clear distinction between the injury caused by 'the wrongful act and what may be described as the effect of the said injury. As the Supreme Court has said :

'It is the very essence of a continuing wrong that it is an act' which creates a continuing source of injury and renders the doer of the a'ct responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing 'Wrong even though the damages resulting from the act may continue.'

(Balkrishna v. Shree D. M. Sansthan, : AIR1959SC798 (807 per Gajendragadkar J.).

(27) Instances of 'continuing wrongs' are continued pollution of a stream, obstruction caused to immemorial egress of rain water from plaintiff's house through a drain on the defendant's land, obstruction of discharge of surface water, obstruction of light an,d air through ancient windows. In all such cases the injury is continuous and thereforee limitation runs every moment of the time during which the injury continues (See Khair Mohd. Khan v. Mt. Janata Air 1940 Lah. 359 .

(28) In the present case the injury was complete on August 30, 1962 when the license was cancelled. Though the damage continued it cannot be said that the respondents were committing wrongful acts from moment to moment so as to give the appellant a cause of action de die in diem.

(29) So my conclusion is that there was no continuing wrong. There are two reasons. Firstly the nature of the act is such that it was not a continuing wrong. Secondly s. 23 of the Limitation Act, 1908, which speaks of 'continuing wrongs' has no application to Delhi Municipal Corporation Act, a special Act by virtue of s. 29(2) of the Limitation Act.

(30) Lastly, it was said that s. 478 of the Act does not apply to the present case and Art. 36 of the Limitation Act, 1908 applies. This is a spurious argument. I have already held that the respondents can successfully invoke the protection of s. 478 of the Act. On that view the suit is time-barred. For argument sake even if it be held that the Limitation Act 1908 applies (both parties agree that the new Limitation Act, 1963 has no application) it will be Art. 2 and not Art. 36 which will apply. The reason is that it was the doing of a particular and specific act in pursuance of an enactment which is the subject of complaint and for which compensation is claimed. Art. 36 applies to cases of statutory duties in general. These articles may be set down here :

Description of Suit Period of Time from which limitation, period begins to run 2. For compensition for doing Ninety days. When the act or omission or for omitting to do an ret takes places. alleged to be in pursuance of any enactment in force for the time being in British India. . 36. For compenation for any Two years. When the malfeasance malfeasance, misfeasance misfeasance or non-feasances or non-feasance indepen takes place. dent of contract and not herein specially provided for'.

(31) The distinction between these two articles was well brought cut by Mahajan J. in Mohd. Sadaat Ali v. Administrator, Corporation of City of Lahore, supra. At page 331 he said:

'In my judgment this article (Art. 2) has a limited scope and application, and comes into play only when specific acts under cover of the statute are being done or executed. It does not apply to cases of performance or nonperformance of statutory duties in general and in their wider sense'.

The same opinion was expressed by Courtney Terrell Cj in Secy. of State v. Lodna Colliery Co., Air 1936 Pat 513 (supra) in these words :

'The object of the article is the protection of public officials, who, while bona fide purporting to act in the exercise of a statutory power, have exceeded that power and have committed a tortious act; it resembles in this respect the English Public Authorities Protection Act. If the act complained of is within the terms of the statute, no protection is needed, for the plaintiff has suffered no legal wrong. The protection is needed when an actionable wrong has been committed and to secure the protection there must be in the first place a bona fide belief by the official that the act complained of was justified by the statute, secondly the act must have been performed under colour of a statutory duty, and thridly, the act must he in itself a tort in order to give rise to the cause of action, It is against such actions for tort that the statute gives protection.'

In State of Punjab v. Modern Cultivators, : [1964]8SCR273 Hidayatullah J. said :

'But Art. 2 cannot apply to omissions in following the statutory duties because it cannot be suggested that they are 'in pursuance of any enactment.' Cases of malfeasance. misfeasance or non-feasance may or may not have statutory protection. Act or omission which can claim statutory protection or is alleged' to be in pursuance of a statutory command may attract Art. 2 but the act or omission must be one which ca'n be said to be in pursuance of an enactment.'

Lahore and Patna decisions above referred to were approved b- the Supreme Court. If Article 2 applies the suit is again time-barred.

(32) It is unnecessary to pursue this matter further as on the question at issue I have come to the conclusion that the claim was barred by time in virtue of the provision contained in s. 478(2) of the Act.

For these reasons the appeal is dismissed. In the circumstances, however, I make no order as to costs.


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