V.B. Raja, J.
1. This petition is directed against the order of the District Judge Rajkot appointing Panchas under Section 198 of the Bombay Municipal Boroughs Act on an application made by the opponent who alleged that as a result of the digging of a drain by the Municipality his house had collapsed. Section 128 of the Bombay Municipal Boroughs Act 1925 which will hereinafter be referred to as the Act gives powers to a Municipality to make and repair drains. Sub-section (3) of Section 128 of the Act provides as under:
In the exercise of any power under this section no unnecessary damage shall be done, and compensation which shall in case of dispute be ascertained and determined in the manner provided in Section 198 shall be paid by the municipality to any person who sustains damage by the exercise of such power.
2. Section 198 of the Act provides that save as expressly provided in Section 198 if an agreement is not arrived at with respect to any compensation or damages which by the Act is directed to be paid the amount and if necessary the apportionment of the same shall be ascertained and determined by a panchayat of five persons of whom two shall be appointed by the municipality two by the party to or from whom such compensation or damages may be payable or recoverable and one who shall be sarpanch shall be selected by the members already appointed as above. An application was made to the District Judge by the opponent for the appointment of Panchas and the District Judge passed an order in accordance with the provisions of Section 198 of the Act. This order is now challenged in revision.
It is clear from Sub-section (3) of Section 128 of the Act that with reference to a dispute regarding compensation payable compensation shall be ascertained in case of dispute. It is therefore clear that Sub-section (3) of Section 128 of the Act refers to cases where compensation is in dispute and not where the liability to pay compensation is in dispute. This is also clear from Section 198 of the Act which starts by saying that if an agreement is not arrived at with respect to any compensation or damages which are by the Act directed to be paid. The sub-section assumes that compensation is to be paid and that there is no agreement as to the quantum of the compensation to be paid under the Act. Reading Section 128(3) and Section 198(1) of the Act either separately or together it is clear that these sections apply only where there is a dispute regarding the amount of compensation but do not apply where there is a dispute regarding the liability to pay compensation or damages. In the instant case the Municipality denied the liability in its written statement. The District Judge was therefore wrong in applying the provisions of Section 198 of the Act and appointing the Panchas under that section. It is however contended by the learned Counsel for the opponent that the denial in the written statement was not supported by any evidence. Under Section 198 of the Act the District Judge has no authority to take evidence on the question. The fact that in the written-statement the liability was disputed takes the case out of Section 198 of the Act.
3. It is next contended that in answer to notice given by the opponent no reply way given by the Municipality and that the denial of liability if any must be made by the Municipality either in answer to the notice or on the date of the application. This argument cannot be accepted because before a case can come under Section 198 it must be proved that there was no dispute as to the liability but that there was merely a dispute regarding the quantum of compensation or damages. This contention is therefore rejected.
4. It is next contended that the Municipality gave compensation to the engineer who was injured at the time of the collapse of the house and that therefore the liability in question was admitted. The liability in question is the liability to pay damages to the original applicant and not to the engineer. The fact that compensation was given to the engineer is therefore irrelevant on the question of the liability to pay damages to the owner of the house. The learned District Judge was therefore wrong in applying Section 198 of the Act. He has therefore exercised jurisdiction which did not vest in him.
5. The revision application is therefore allowed with costs and the order of the learned District Judge is set aside.