1. This is a reference by the Munsiff Jodhpur City under Section 113 of the Code of Civil Procedure, and raises the question of the validity of Section 220 of the Jodhpur Municipal Act, 1943. Section 220 runs as follows :
'No suit shall be instituted against the Board or against any member, officer or servant thereof in respect of any act purporting to be done in its or his official capacity, without the sanction of the Government.'
2. The facts leading up to this reference may be stated very shortly. The petitioner Prahlad carries on trade in Ghee and grains in Udaimandir in the city of Jodhpur. It is alleged that he obtained on rent certain land, measuring 10 feet by 10 feet lying in front of the shop at which he carries on his business, originally from the development department a few years ago, and has been paying a rent of Rs. 3/- per mensem to the Jodhpur Municipality for the same and that the municipality had started interfering with his possession on the 29th June, 1955, in an improper manner.
Consequently, the plaintiff instituted the suit on 4th July, 1955, in which he prayed for an injunction restraining the defendant municipality from interfering with his possession over the disputed land during the pendency of his lease. It may also be added that the municipality appears to have commenced interference with the plaintiff's possession over the suit land, at the instance of one Tarachand who also carried on business in the neighbourhood of the plaintiff, and, therefore, Tarachand was also impleaded as a defendant in the suit.
An objection was raised before the trial Court that this suit was not maintainable without the sanction of the State having regard to the provisions of Section 220 of the Jodhpur Municipal Act. This objection was that on the side of the plaintiff by saying that Section 220 of the said Act was ultra vires and inoperative as it infringed Article 14 of the Constitution.
3. The question for determination before me, therefore, is whether Section 220 of the Jodhpur Municipal Act which prohibits the bringing of any suit whatsoever against the Jodhpur Municipality, or any member, officer or servant thereof in respect of any act purporting to be done in its or his official capacity, without the sanction of the State Government, does or does not violate Article 14 of the Constitution.
4. I have heard learned counsel for the petitioner who supports the reference, as well as the learned Deputy Government Advocate and the municipal counsel. Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or the equal protection of the law within the territory of India.
Now, it is well established that the principle of equality before the law enshrined in our Constitution does not enjoin an absolute equality of treatment to all men, which is indeed an impossibility; but at the same time it forbids the denial of any special privilege by reason of birth, creed, caste or sex in favour of any individual or group of persons, and it further ensures the equal subjection of all individuals and groups to the ordinary law of the land.
I may state at once that the right to sue or be sued is an important legal right or liability which inheres in an ordinary, citizen of our State, and, to my mind, the Constitution does not favour the barring of or any serious inroad on such a right or liability. I may here draw attention to the following observation of their Lordships of the Privy Council in Maharaja of Jeypore v. Gunupuram Deena Bandhu Patnaick, ILR 23 Mad 42 (A) :
'The legal right to bring a suit and to have it determined by the proper Court, cannot be barred upon considerations of policy or political expediency.'
5. Against this background, the question which falls for consideration before me is whether Section 220 of the Jodhpur Municipal Act can be upheld on the principle of reasonable classification. It must be remembered, however, that such classification to be constitutional must not be arbitrary and should be based on an intelligible principle having relation to the object which the Legislature seeks to establish. If, on the other hand, such a principle cannot be discovered in the classification attempted, it would clearly amount to a denial of the equal protection clause enshrined in our Constitution.
6. In this connection it is important to bear in mind that in the integrated State of Rajasthan, as it now is, we have the Rajasthan Town Municipalities Act, 1951 (No. 23 of 1951). This Act applies to the whole of Rajasthan save to the municipalities in the cities of Jaipur, Jodhpur, Bikaner, Udaipur and Alwar. It is thus clear that the Jodhpur Municipal Act which was enacted by the former Government of Jodhpur in 1943 has been allowed to remain in force without being repealed.
It might also be pertinent to mention here that as things stood in the former Jodhpur State, no citizen of that State could bring a suit against the State without the sanction of the Government. The bar contained in Section 220 of the Jodhpur Municipal Act perhaps owes its origin to the shape of things existing in that State when the said law was enacted.
It may further be pointed out that although the restriction placed in the way of suits against the State was relaxed later in 1949, a similar relaxation was not brought about by any amendment of the provisions of the Jodhpur Municipal Act and was allowed to remain as it was. Be that as it may, the question is whether this provision can be sustained in the new context of things, and having regard to the principle of equality of law embodied in our Constitution.
7. I now revert to the Rajasthan Town Municipalities Act, 1951. The relevant section to which attention may be invited in this connection is Section 179. All that this section provides is that no suit shall be instituted against any municipal board, president, member, officer, servant or any person acting under the direction of such municipal board, chairman, member, officer or servant, for anything done or purporting to be done under this Act, until the expiration of two months next after notice in writing....has been, in the case of a municipal board, delivered or left at its office, and, in case of a chairman, member, officer, or servant, or person as aforesaid, delivered to him or left at his office or usual place of abode; and the plaint shall contain a statement that such notice has been so delivered or left.
This section further provides that every such suit shall, unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be dismissed if it is not instituted within six months after the accrual of the alleged cause of action. There is still a further provision which allows a suit for injunction to be brought without any notice where the object of the suit would be defeated if notice were to be given.
It is perfectly clear that the policy of the Legislature in this State is to allow suits to be brought against a municipality without any sanction of the State provided that, broadly speaking the condition of notice as to the bringing of such suits is fulfilled,
8. I have in this connection also perused the Jaipur City Municipal Act (No. 53) of 1943, which lays down the law more or less to identical effect in its Section 224.
9. The Bikaner State Municipal Act (No. 6) of 1923 makes a somewhat similar provision, and all that Section 42 of the Act provides is that a month's notice should be given before such a suit could be brought, no notice being necessary in suits for perpetual injunction.
10. The Udaipur City Municipal Act, 1945, also does not contain any bar in the way of suits being brought against the municipality there or against its officers. (See Section 339 of the Act).
11. I am informed that the Alwar Municipal Act which has also been left unrepealed by the Rajasthan Town Municipalities Act permits suits to be brought against the municipality there or its officers provided the usual notice is first given.
12. From a review of the state of law that obtains in the municipalities in the various cities of Rajasthan, as also, as it appears from the provisions contained in the Rajasthan Town Municipalities Act, we find that there is no parallel provision to that contained in Section 220 of the Jodhpur Municipal Act to be found in the municipal laws applicable to the rest of Rajasthan.
To my mind, it is impossible to uphold such a provision which clearly denies equality of treatment to the citizens living in Jodhpur City as compared with their fellow citizens living in other parts of Rajasthan. One cannot discover any rational principle for upholding such a differential treatment in the case of those living under the jurisdiction of the Jodhpur Municipality as distinguished from others living in other municipal areas in Rajasthan.
13. I may as well mention in passing that the provision to bar the bringing of suits against municipalities is not to be found in the municipal laws in force in other parts of India. (See for example Section 326 of the U. P. Municipalities Act (No. 2) 1916, Section 49 of the Punjab Municipal Act, 1911 (No. 3 of 1911) ).
The general position which has been accepted by the Legislatures of the various States is that a prior notice of sufficient duration should be given before such suits can be brought but nowhere obtains the restriction that before such suits can be brought, sanction of the State Government would have to be taken.
14. I have, therefore, no hesitation In coming to the conclusion that the restriction contained in Section 220 of the Jodhpur Municipal Act, which bars the bringing of a suit against the Jodhpur Municipality and any of its officers or members without the sanction of the State is completely otiose after the commencement of the Constitution of India and must be struck down as unconstitutional being violative of Articles 13 and 14 of the Constitution.
15. I answer the reference accordingly, Let a copy of this judgment be sent to the Munsiff, Jodhpur City. In the circumstances of the case, I would leave both parties to bear their own costs in this Court.