C.M. Lodha, J.
1. The respondent Prabhu Dayal filed the suit out of which this appeal arises for recovery of Rupees 2,000/- on account of his salary for the period commencing from October 1959 to March 1963. The suit was filed on 27-4-1963.
2. The only point on which the suit was resisted was that since the suit had been filed after more than six months of the accrual of the cause of action, it was barred by limitation. In other words, a special period of limitation was pleaded as provided in Section 271 of the Rajasthan Municipalities Act, 1959, though the section as such was not mentioned in the written statement. The trial court came to the conclusion that the suit for arrears of salary for the period of three years prior to the date of filing of the suit was within limitation and passed a decree for the same.
3. Aggrieved by the Judgment and decree by the trial court the defendant Municipal Board, Rajgarh filed appeal but the same was dismissed. Hence this second appeal by the defendant
4. Learned counsel for the appellant has urged that withholding the salary of the plaintiff-respondent was an official act or at any rate an act purporting to have been done by the Board in its official capacity and therefore Section 271 of the Rajasthan Municipalities Act, 1959 (which will be hereinafter referred to as 'the Act') was clearly attracted. In support of his contention learned counsel placed strong reliance on Dargahi Lal v. Municipal Board, Cawnpore, AIR 1952 All 382 (FB). On the other hand. Mr. Datta, learned counsel for the respondent argued that the suit in the present case did not fall within the mischief of Section 271 of the Act. He submitted that in the first place the facts of the Allahabad case relied upon by the learned counsel for the appellant are distinguishable and at any rate the view taken therein has been impliedly overruled by their Lordships of the Supreme Court in Indore Municipality V. Niyamatullah, AIR 1971 SC 97.
5. For a proper appraisal of the point canvassed before me it would be necessary to reproduce 'Section 271 of the Act:--
'Section 271. Suits against Board or Its officers--
(1) No suit shall be instituted against a Board, or against the Chairman, Vice-Chairman, member, officer or servant of a Board or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or his official capacity until the expiration of two months next after notice thereof in writing has been in the case of a Board, left at its office and, in the case of the Chairman, Vice-Chairman, member, officer, servant or person, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.
(2) No action such as is described in Sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title, be commenced otherwise than within six months next after the accrual of the cause of action.
(3) Nothing in Sub-section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding.'
6. At this stage some more facts giving rise to the present suit may be narrated. The plaintiff was employed by the defendant some time in 1934 A.D. He was suspended by the then Chairman of the Municipal Board, Rajgarh on 4-10-1959. The plaintiff filed appeal to the Director, Local Bodies, but during the pendency of the appeal the defendant dismissed the plaintiff on 18th November, 1959 by its order Ex. 2. On appeal by the plaintiff against the order of his dismissal, the Director, Local Bodies ordered on 6-1-1960 that since proper procedure had not been followed in dismissing the plaintiff, he may be taken back to work and thereafter necessary enquiry according to the Rules may be conducted against him. Accordingly, the plaintiff was taken back on 11-1-1960. However, on 13-1-60 he fell ill and the defendant did not allow him to resume duty after recovery but dismissed him on 15-7-1960. Again the plaintiff filed appeal before the Director of Local Bodies from the order dated 15-7-1960. By his order dated 10-10-1960 (Ex. 8) the Director of Local Bodies set aside the order of the Board dated 15-7-1960 and directed that the plaintiff shall be reinstated. On a further representation by the plaintiff, the Director of Local Bodies passed the order Ex. 9, dated 22-9-1961 directing that the plaintiff may be paid the arrears of his salary. Unfortunately the Municipal Council did not comply with this order with the result that the plaintiff was again compelled to move the Director, Local Bodies, who ordered on 10-2-1962 that the plaintiff must be takenback in service. The Board, however, managed to flout this order by stating (vide Ex. 10, dated 12-2-1962) that there was no vacant post in which the plaintiff could be absorbed. The plaintiff again ran to the Director of Local Bodies, who ordered on 13-11-1962 (vide Ex. 11) that the Municipal Council must carry out all his previous orders However, all these orders of the Director of Local Bodies fell on deaf ears, and the plaintiff was not reinstated. It is indeed a sorrowful state of 'affairs. Be that as it may, the plaintiff was left with no alternative but to file the present suit for declaration that he continued in the service of the defendant and also for arrears of salary as mentioned above.
7. The question, then, is whether in the facts and circumstances narrated above Section 271 of the Act is attracted? In other words, can it be said that withholding of the plaintiff's salary was an act done or purporting to have been done in the official capacity?
8. In Bharat Kala Bhandar Ltd. v. Dhamangaon Municipality. AIR 1966 SC 249 their Lordships examined the provisions of Section 48 of the Central Provinces and Berar Municipalities Act which was in the same terms as Section 271 (1) of the Rajasthan Municipalities* Act, 1959. That, was a case of recovery of illegal tax and it was contended that a claim for its refund fell outside the provisions of Section 48 of that Act. The respondent, on the other hand, contended that the collection of tax was not without jurisdiction, but only irregular and therefore the suit would be in respect of a matter purporting to be done under the Act. The Supreme Court held that where the power exists to assess and recover a tax upto a particular limit and the assessment or recovery of any thing above that amount is prohibited, the assessment or recovery of an amount in excess is wholly without jurisdiction and nothing else To such a case the enactment under which the action was purported to be taken, cannot afford any protection.
9. The reasoning given in AIR 1966 SC 249 was applied by their Lordships to a subsequent case: AIR 1971 SC 97 which was a suit for recovery of arrears of salary by the employee against the Municipal Corporation, Indore. The plaintiffs suit against the Indore Municipal Corporation was for a declaration that dismissal of the plaintiff was illegal and that the plaintiff was still on the post and a decree for arrears of salary was claimed for ,six years from 15-4-1953 to the date of the suit i.e. 15-4-1959, besides other reliefs. The defence of limitation was pleaded by the Indore Municipal Corporation. The District Judge held that no special period of limitation was prescribed. The High Court, however held that since the officer who passed the order of dismissal was not the Commissioner at the relevant time, the order was without jurisdiction and the provisions of Section 135 of the Indore Act (which are similar to Section 271 of the Rajasthan Act) were inapplicable and the suit was governed by Article 120 of the Limitation Act. Their Lordships of the Supreme Court confirmed the view of the High Court. They held in the first instance that the Corporation did not plead Section 135 of the Municipal Act as a defence and therefore the plea should not have been entertained. They also came to the conclusion that since the order of dismissal passed by Shri Ghatpande was beyond his jurisdiction, it was not an act done under the Act. It was further held that the suit was not in respect of any act done or purporting to be done under the Act. Lastly, their Lordships observed after making reference to Bharat Kala Bhandar's case. AIR 1966 SC 249 that 'on logical principle the same reasoning applies to the provisions contained in Section 135 of the Indore Municipal Act. 1909, with the result that the suit in the present case is not within the mischief of Section 135 of the Indore Municipal Act.'
10. In my opinion the principle laid down by their Lordships in the case, of Municipal Corporation of Indore applies with full force to the facts and cir-cumstance.'' of the present case. The act of the appellant-defendant in not taking back the plaintiff in service and not paying the arrears of salary as directed by the superior authority namely the Director of Local Bodies cannot be said to be an act done or purporting to have been done under the Act. My conclusion therefore is that the present suit is not hit by the special period of limitation prescribed in Section 271 of the Act.
11. In view of the conclusion to which I have come on the basis of the Supreme Court cases referred to above. I do not consider it necessary to discuss the Allahabad case. AIR 1952 All 382 relied upon by the learned counsel for the appellant, as in my opinion, even if it is accepted that Allahabad case, AIR 1952 All 382 helps the appellant it can be of no assistance to him in view of the Supreme Court decisions referred to above. However, J may point out that in the Allahabad case, AIR 1952 AH 382 the main argument centred found the question whether the words 'act done or purporting to have been done in official capacity' have been used with respect to contractual obligation as contradistinguished from tortuous acts only.
12. Before parting with the case, I cannot help observing that though the learned Civil Judge correctly dismissed the appeal but the reasons given by him are not correct. He clearly fell into an error in holding that the cause of action accrued to the plaintiff on 17-12-1972 when he gave notice under sub-section (2) of Section 271. He has also erred in coming to the conclusion that the pre sent suit is governed by the special period of limitation prescribed by Section 271 of the Act and I have already given my detailed reasons above for taking a different view,
13. The result of the foregoing discussion is that the decree for arrears of salary passed by the trial court and affirmed by the first appellate Court does not call for any interference. This appeal is, therefore, dismissed without any order as to costs.
14. Learned counsel for the appellant prays for leave to appeal under Section 18 of the Rajasthan High Court Ordinance, Leave is declined.