1. This special appeal against the judgment and decree of a learned Single Judge of this court dated September 4, 1963 has come to us on a reference by a Division Bench in these circumstances.
2. The plaintiffs were the owners of a part of the Shahpura Haveli, in Udaipur City. Some debris was lying on a portion of that property. The plaintiffs asked the Municipal Corporation to remove it, and it is claimed that the Corporation promised to do so within 3 months. As the debris was not removed within that period, a representative of the association of the plaintiffs, styled as 'The Shahpura House Sarrafa Market Committee', met Ismail Ali Bohra defendant No. 2), President of the City Municipal Corporation, who asked the representative of the plaintiffs' Committee to remove the debris and promised that for doing so a sum up to Rs. 3,000/- would be got deducted from the sum, payable by the plaintiff to the State Government. A resolution was accordingly passed by the Council of the City Corporation, of which a copy was sent to the Secretary of the plaintiffs' Committee.
Relying on the aforesaid talk with defendant No. 2 and the resolution, the plaintiffs' Committee got the debris removed by giving out a contract for the purpose. The debris was removed by October 4, 1958, and the plaintiffs altogether spent Rs. 4,287/- for the work. They asked the Municipal Corporation to have the sum of Rs. 3,000/- adjusted in the account with the State Government in accordance with the aforesaid promise, but to no avail, and the plaintiffs had to deposit the money with the State Government- According to the plaintiffs the debris was utilised by the Municipality. Alleging that as the work 'of removing the debris was undertaken for the benefit of the Municipal Corporation in pursuance of the assurance given by Ismail AH Bohra (defendant No. 2) and the resolution of the Municipal Council (defendant No. 1), the plaintiffs instituted the present suit on August 10, 1961,, for the realisation of Rs. 2,648/50, after deducting Rs. 351/50 payable by them to the Municipality.
3. The defendants denied the claim and pleaded, inter alia, that the resolution was not enforceable and that the agreement was without consideration. They also pleaded that the plaintiff's hadno cause of action and that the suit was not maintainable without the two months' notice prescribed by Section 271 of the Rajasthan Municipalities Act, 1959, hereinafter referred to as 'the Act'.
4. The learned Civil Judge, in whose court the suit was instituted, framed 6 issues. Issue No. 1, with which we are concerned in this controversy, raised the question whether the suit was not maintainable without a notice under Section 271 of the Act? It was argued on behalf of the plaintiffs (in the trial court) that a notice under Section 271 was not necessary as the suit was based on a contract, and reliance was placed on Ram Narain v. Municipal Board, Muttra. AIR 1938 All 540. The argument was repelled by the learned trial Judge on the grounds that the suit was not based on a contract and was not maintainable without a notice under Section 339 of the Udaipur City Municipal Act. 1945, and that it was filed beyond the period of 6 months prescribed by that section. The learned Civil Judge accordingly dismissed the suit on February 23. 1962.
5. The plaintiffs preferred an appeal to the District Judge of Udaipur. The learned appellate Judge held that as the Udaipur City Municipal Act, 1945, was replaced by the Act with effect from October 17, 1959, the controversy in the suit had to be determined with reference to Section 271 of the Act. He referred to certain decisions of the Allahabad High Court and held that the suit did not fall within the purview of Section 271 of the Act. He therefore allowed the appeal, set aside the judgment and decree of the trial Court, and remanded the case.
6. The defendants preferred a second appeal to this court. After considering the decisions in Mathura Prasad v. Chairman, District Board, Sitapur. AIR 1928 Oudh 297 and District Board, Allahabad v. Lala Behari Lal, AIR 1936 All 18 (FB) on the wordings of Section 192 of the U. P. District Boards Act, 1922, as well as the decision in Faquir Muhammad V. Municipal Committee, Phillaur. AIR 11937 Lah 102 with reference to Section 49 of the Punjab Municipal Act. (No. 3 of 1911), the learned Single Judge held that a notice under Section 271 of the Act would have been necessary only if the suit had been instituted in respect of any 'act' done or purported to have been done by the Board or its Chairman, Vice-Chairman, member, officer or servant in an official capacity. The learned Judge held further that as Section 271 of the Act prescribed a shorter period of limitation, it had to be construed strictly; and proceeded to hold that as the plaintiffs did not complain against any act of the Municipal Board or its officer or servant, and as the suit was for recovery of money due under an agreement where there was amere omission to pay on the part of the defendants, it did not fall within the purview of Section 271 of the Act as 'mere omission to pay cannot be described as an act'.
The learned Single Judge appreciated the contention that an act includes an 'illegal omission' according to its definition in the Rajasthan General Clauses Act, but he took the view that an 'illegal omission' was one which was illegal, i.e. forbidden by some law. The non-payment of the money due to the plaintiffs could not therefore be said to be an illegal omission as it was not forbidden by any law. In reaching this conclusion the learned Judge placed reliance on the decision of their Lordships of the Privy Council in Revati Mohan Das v. Jatindra Mohan Ghosh, AIR 1934 PC 96 and held that the omission to make the payment could not be regarded as an official act within the meaning of Section 271 of the Act. He accordingly dismissed the appeal, but granted leave to file a special appeal.
7. The defendants preferred the present special appeal. It came up for consideration before a Division Bench of this Court. The learned Judges examined the argument regarding the applicability of Section 271 of the Act to suits based on contracts, and referred to the view expressed by another Division Bench of this Court in Municipal Board, Bhilwara v. Bhuralal. 1964 Raj LW 504 that suits against municipalities
'of whatever nature and description be they contractual or of a tortious nature, except in so far as they have been otherwise provided for in the section itself, are intended to be governed by the special period of limitation provided in this section and not by the general law of limitation in force in the country.'
The learned Judges took particular notice of the Full Bench decisions in Lucknow Nagar Mahapalika v. Sardar Karamjeet Singh, AIR 1962 All 174 (FB) and Antarim Zila Parishad v. Shanti Devi 1965 All LJ 221 = (AIR 1965 All. 590) (FB). They observed however that it was not necessary for them to go into all the controversial decisions because, according to them, the controversy had been set at rest by the pronouncement of their Lordships of the Supreme Court in Provincial Government, Madras v. J. S. Basappa. AIR 1964 SC 1873. They noticed the difference in the language of Section 18 of) the Madras General Sales-tax Act, 193S, which was considered by their Lordships of the Supreme Court in that case, and Section 271 of the Act, but held that it was not of much significance and had no effect on the true scope of Section 271, Accordingly, they held that the 'safeguard' of Section 271 was not available for 'the contractual liability' of theBoard or its officers and that sub-section (1) of Section 271 would govern 'only such cases which are filed for the recovery of damages or compensation.' They finally set out their view as follows,---
'The provision of Sub-section (1) of Section 271 of the Act, therefore, can be attracted only when a suit for damages or compensation is brought against the Board or officers for the discharge of their official duties under the Act and not for performing any act which the Board or its officers could do in the discharge of their official functions.'
The learned Judges however thought it proper to refer the entire case to a larger bench because they differred from the earlier decision of another Division Bench in 1964 Raj LW 504.
8. It is in these circumstances that this special appeal has come up for consideration before us.
9. As is obvious, the question which directly arises for consideration in this case is whether the present suit Ss barred by Section 271 of the Act? That section reads as follows,--
'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 Chair-man, 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 thereto, be commenced otherwise than within six months next after the accrual of 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.'
Thus 'the suit referred to in the section must arise out of an 'act' done or purported to have been done by a Municipal Board, or its Chairman, Vice-Chairman, member officer or servant in its or hisofficial capacity, and we must therefore examine the all important question whether the defendants did, or purported to do any 'act' in their official capacity within the meaning of the section.
10. We have referred already to the nature of the claim in the suit, and the basis thereof. The plaintiffs have no doubt relied on the promise made by defendant No. 2, and the resolution passed by the Councils of the City Corporation but they do not feel aggrieved against that promise or resolution. In fact they have themselves placed reliance on them. The fact therefore remains that, apart from the aforesaid promise or resolution, the plaintiffs have not alleged what other act was done, or was purported to have been done, by the defendants to attract the application of Section 271 of the Act. When asked to clarify the matter, Mr. Shrimal could do no more than refer to the averment in paragraph 7 of the plaint that the plaintiffs had to incur the expenditure of Rs. 3,000/- and could not secure its adjustment with the State Government because of the failure of the Municipality to fulfil its promise. The learned counsel has thus relied on the averment in the plaint regarding the omission on the part of the defendants to make the payment of Rs. 3,000/- either in cash or by adjustment, and it must therefore be held that the suit is not based on any direct 'act' done or purported to have been done by the defendants as such.
11. It is true that according to clause (2) of Sub-section (2) of Section 32 of the Rajasthan General Clauses Act, 1955, the expression 'act', 'used with reference to an offence or a civil wrong., shall include a series of acts; and words which refer to acts done extend also to illegal omissions,' but it is nobody's case that the Act, or for the matter of that any other law, enjoined the payment of money due under any such promise or resolution as is the subject-matter of the present suit, on pain of penalty, so that it cannot be said that the defendants were guilty of an 'illegal omission' in not making the payment to the plaintiffs. A similar point arose for consideration before: their Lordships of the Privy Council in Revati Mohan's case, AIR 1934 PC 96 on which reliance was placed by the learned single Judge and it was held as follows :
'Under the general definitions contained in Section 3, General Clauses Act,, 1897, an 'act' might include an illegal omission, but there clearly was no illegal omission in the present case. It is also difficult to see how mere omission to pay either interest or principal could be an act purporting to be done by the manager in his official capacity.'
This decision fortifies the view we are inclined to take in this case. The decisionin Revati Mohan's case, AIR 1934 PC 96 was noticed by a Full Bench of the Allahabad High Court in AIR 1936 All 18 while considering the provisions of Section 192 of the U. P. District Boards Act, 1922, which were similar to those of Section 271 of the Act, and it was observed as follows:
'There may therefore be considerable difficulty in holding that the word 'act' in Section 192, District Boards Act, includes all cases of mere omission to perform a private contract, even though not amounting to an illegal omission within the meaning of Section 4, General Clauses Act.'
A similar view has been taken in 1965 All LJ 221 = (AIR 1965 All 590 FB).
12. In fact the meaning of the expression 'act' recently came up for consideration before their Lordships of the Supreme Court in Amalgamated Electricity Co. (Belgaum) Ltd. v. Municipal Committee, Ajmer, AIR 1969 SC 227 with reference to a very similar provision in Section 233 of the Ajmer Merwara Municipalities Regulation (1925) and they have held as follows,--
'In the suit, the plaintiff does not complain of any act done by the defendant nor does it say that the defendant was guilty of any illegal omission............Every omission is not an illegal omission. Before an omission can be considered as an illegal omission it must be shown that the official concerned had omitted to discharge some official duty imposed on him in public interest. The omission in question must have a positive content in it: In other words the non-discharge of that duty must amount to an illegality...But the failure on the part of the Municipality to discharge its liabilities will not ordinarily become illegal omissions. The municipality or its members or office bearers cannot be punished for their failure to pay the amount due to the plaintiff. To Put it differently, the omission complained does not entail any penal consequence for the public official responsible for it.'
In taking this view, their Lordships have approved the decision in Revati Mohan Das's case, AIR 1934 PC 96 and held that 'a mere omission to discharge the debt without anything more is not an illegal omission'. In this state of the law, we have no hesitation in holding that the learned Single Judge was quite right in taking the view that Section 271 of the Act has no application to the facts and circumstances of this case.
13. It appears, however, that this aspect of the matter was not canvassed for the consideration of the learnedJudges who have made the present reference although it was the basis of the judgment of the learned Single Judge and was sufficient for the disposal of the second appeal.
14. The learned Judges making the reference have paid much attention to the argument that Section 271 of the Act does not apply to a contract, and we may as well deal with it. In doing so, we shall of course proceed on the assumption that the suit has been based on a contract and that it has been instituted in respect of an 'act' done or purporting to have been done by the Municipal Council.
15. A reading of Sub-section (1) of Section 271 of the Act shows that, apart from the expression 'act' to which reference has been made above, the other emphasis in the section is on the requirement that the 'act' should have been done, or should be purported to have been done, in 'official capacity'. The two propositions which therefore stand out are these: (i) the 'act' may be of any nature as long as it falls within the definition contained in clause (2) of Sub-section (2) of Section 32 of the Rajasthan General Clauses Act, and (ii) it should be 'official' as contradistinguished from a 'non-official' act. So where these requirements are fulfilled. Section 271 would, speaking broadly, apply to the suit.'
16. The execution of a contract is In our opinion, as much an 'act' as a breach thereof or an act giving rise to an action in tort. To all such 'acts', the test whether they are official or un-official will therefore apply in order to decide whether they fall within the purview of Section 271; for it is the clear intention of the section that private acts should be kept outside its purview. It would follow that it would not be permissible for us to hold that all contracts must be excluded from the ambit of the section,, irrespective of their nature. In restricting its scope to acts 'done or purporting to have been done in........................official capacity', it is the clear intention of the legislature to exclude non-official or private acts. Private contracts are not therefore within the purview of the section, whereas there is no justification for excluding official contracts from it.
17. Now while dealing with an official body like a Municipal Board it is not always possible or proper to lay down any general rule for distinguishing an official from a non-official contract, for the dividing line may sometimes be so thin as to be incapable of easy perception. Nonetheless, it cannot be doubted that there is always a distinction between an official and an unofficial contract; and it appears to us that the best way to take a decision is to base it on the facts and circumstances of each case.
18. We may in this connection, make a reference to the well-known decision in Sharpington v. Fulham Guardians, 1904-2 Ch 449. There the guardians for the parish of Fulham entered into a contract with the plaintiff for the execution of certain works consisting of altering and adding to an, old mansion-house, for the purpose of carrying out their public duties. The works were completed and were paid for. The plaintiff then claimed an additional sum by way of damages for loss alleged to have been caused bv negligence and frequent changes of plans by the defendants. The matter was referred to arbitration, and there the defendants, inter alia, took the plea that the claim was for neglect or default in the execution of the defendants' public duty and that the proceedings had not been commenced within 6 months as required by Section 1 of the Public Authorities Protection Act, 1893. That Act, inter alia, gave the protection for 'any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any public duty or authority'.
Farewell J., held as follows,---
'The public duty which is here cast upon the guardians is to supply a receiving house for poor children a breach or negligent performance of that duty would be an injury to the children, or possibly to the public, who might be injured by finding the children on the highway. In order to carry out this duty they have power to build a house or alter a house., and they accordingly entered into a private contract. It is a breach of this private contract that is complained of in this action. It is not a complaint by a number of children or by a member of the public in respect of the public duty. It is a complaint by a private individual in respect of a private injury done to him. The only way in which the public duty comes in at all is, as I have pointed out, that if it were not for the public duty any such contract would be ultra vires. But that would apply to every contract. I cannot find any ground for saying that this particular contract conies within the Act. I think it is clear that what is complained of is a breach of a private duty of the guardians to a private individual.'
If we my say so with respect, this is the correct view to take in such matters.
19. The decision in Sharpington's case, 1904-2 Ch. 449 came up for consideration in Bradford Corporation v. Myers (1916) 1 AC 242. There the defendants a municipal corporation, were authorised by Act of Parliament to carry on the undertaking of a gas company and were bound to supply gas to the inhabitants of the district. They were empowered to sell coke as a bye-product. The defendants contracted to sell and deliver some coke to the plaintiff. By negligence of their agent the coke was shot through the plaintiffs shop window. He commenced an action for negligence after more than six months and the defendants pleaded the bar of Sec. 1 of the Public Authorities Protection Act, 1893. Lord Buckmaster held that the act complained of was negligence in breaking the plaintiff's window, and that it arose in the execution of a private obligation which the defendants owed by contract to the plaintiff for breach of which no one but the plaintiff could complain, so that the case clearly fell outside the area of the statutory protection. The following extract from the speech of Lord Buckmaster brings out his view point clearly:--
'In other words, it is not because the act out of which an action arises is within their power that a public authority enjoy the benefit of the statute. It is because the act is one which is either an act in the direct execution of a statute, or in the discharge of a public duty, or the exercise of a public authority. I regard these latter words as meaning a duty owed to all the public alike or an authority exercised impartially with regard to all the public. It assumes that there are duties and authorities which are not public, and that in the exercise or discharge of such duties or authorities this protection does not apply.'
On his part. Viscount Haldane expressed the view that more could not be read in the words used than they expressed or was of necessity implied, and he did not think that they could be properly extended so as to embrace an act which was not done in direct pursuance of the provisions of the statute, or in the direct execution of the duty or authority. He then made the following graphic observation,--
'What causes of action fall within these categories it may be very difficult to say abstractly or exhaustively. It is hardly easier to define a priori the meaning of being done directly than it is to define the number of grains that will make a heap. But just as it is not difficult to tell a heap when it is seen, so it may be easy at least to say of certain acts that they are not the immediate and necessary outcome of duty or authority in a particular case.'
While holding against the appellants, he expressly upheld the view taken by Farewell J., in 1904-2 Ch 449. We are in respectful agreement with the view taken in 1916-1 AC 242.
20. It would follow therefore that as the contract in the present case was not made in direct pursuance of any provision of the statute or in direct execution of any public duty or authority, and as although the duty at the defend-ants made it legal for them to enter in to a contract there was no duty to enter into that particular contract, the mere fact that the contract was within the competence of the Municipal Council could not render a breach of the contract anything more than the breach of a private contract.
21. In the view we have taken it is not possible for us to subscribe to the opinion of the learned Judges making the reference that the 'safeguard' of Section 271 of the Act is not available for the 'contractual liability' of the Board and its officers or that the provision of Sub-section (1) of Section 271 can be attracted only when
'a suit for damages or compensation is brought against the Board or officers for the discharge of their official duties under the Act and not for performing any act which the Board or its officers could do in the discharge of their official functions'.
For the same reason, it is equally not possible for us to agree with the view taken in 1964 Raj LW 504 that-
'The language of this section, in our respectful opinion, is perfectly clear and if we may say so, hardly calls for any interpretative effort. Sub-section (1) speaks of no suit being institutable until the expiration of two months next after a notice in writing stating the various matters specified in the section is delivered or left at the place mentioned therein. Then follow Sub-sections (2) and (3) which taken together on the question of limitation mean no more and no less than this that save for suits for the recovery of immovable property or for a declaration of title thereto or for grant of perpetual injunction, every suit against the municipal board must be dismissed if it is not instituted within six months after the accrual of the alleged cause of action. The legislative intent behind the scheme of the section, as we have analysed it, seems to us to be clear beyond any reasonable doubt that suits against municipalities of whatever nature or description be they contractual or of a tortious nature, except in so far as they have been otherwise provided for in the section itself, are intended to be governed by the special period of limitation provided in this section and not by the general law of limitation in force in the country.'
22. In our opinion the answer to the question regarding the applicability of Section 271 of the Act must be found in the facts and circumstances of each case. At any rate, there is no justification for drawing a line by dividing suits into those on contract and those which are not on contract. So also, it will begoing too far to say that all suits against municipalities (except in so far as they have been otherwise provided for in the section) are within the protection of Section. 271 for that would defeat the very purpose of confining the protection to acts done or purported to be done in official capacity. Apart from the decisions in 1904-2 Ch. 449 and 1916-1 AC 242 we are fortified in this view by the decisions in Municipal Borough of Ahmedabad v. Jayantilal Chhotalal Patel, AIR 1948 Bom 98 (FB) and 1965 All LJ 221 = (AIR 1965 All 590 FB).
23. We have carefully gone through the decision in AIR 1964 SC 1873 on which considerable reliance has been placed in the order of reference, but we are unable to think that it is any authority for the view taken by the learned referring Judges that a provision like that of Section 271 of the Act does not safeguard contractual liability and applies only to suits for damages and compensation in respect of acts under the Act. It appears to us that there is nothing in the judgment to show that their Lordships of the Supreme Court have excluded all contracts from the purview of the section. We may point out in this connection that when it was argued before their Lordships in Amalgamated Electricity- Co's case, AIR 1969 SC 227 which was decided several years later, that a suit brought in respect of a breach of contract by a public official was an 'act' within the meaning of Section 30, Civil Procedure Code, and that the second part of the section applied only to actions in torts committed by public officials in the discharge of their public functions, they refused to express any opinion on the argument. If it had been a fact that they had taken any such view in Basappa's case. AIR 1964 SC 1873, as has been stated in the reference, their Lordships of the Supreme Court would not have stated that it was not necessary for them to resolve the conflict on the point.
24. As in our opinion the contract; which has been assumed to form the basis of the present suit must be held to be in the nature of a private contract, it is outside the protection of Section 271 of the Act for this reason as well.
25. The appeal thus fails and is dismissed with costs. It may however be clarified that we should not be understood to have expressed any opinion on the existence or the validity of any contract which may be said to have been made by the plaintiffs.