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The Municipal Council of Kumbakonam Vs. Abbahsaib - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtChennai
Decided On
Reported in(1911)21MLJ790
AppellantThe Municipal Council of Kumbakonam
RespondentAbbahsaib
Cases ReferredCompare Maruda Muthu Pillai v. Rangaswami Mooppan I.L.R.
Excerpt:
- - 3. a case of a precisely similar character, though arising in the city of madras, turning on the legality of a municipal council leasing out the right of collecting slaughtering fees has been decided by wallis j. a contract, which, like the suit contract, is void ab initio cannot be enforced......out of the right to collect slaughtering fees is unauthorised by law and is ultra vires.4. is the suit contract therefore void and unenforceable? we are forced to the conclusion that it is so, both as infringing the provisions of section n and section 23 of the indian contract act ix of 1872. the power of a corporation must be strictly construed and it is hardly too much to say that what is not permitted to such a bodv is forbidden. to quote from halsbury's laws of england, part 8, article 805:where a corporation is created by statute, its powers are i limited and circumscribed by the statute creating it, and extend no further than is expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of its is-corporation. what the statute does not.....
Judgment:

1. The petitioners, the Kumbakonam Municipal Council, sued the respondent of the Small Cause side to recover the balance due by him under a lease which he had taken of the right to collect fees on the slaughter of animals, which the Council are entitled to levy under Section 191 of the District Muncipalities Act (Madras Act IV of 1884.)

2. The Subordinate Judge dismissed the suit on the ground that the Council was not empowered to lease the right in question and that the contract sued on was illegal and could not be enforced. This is the decree which we are now asked to set aside on revision.

3. A case of a precisely similar character, though arising in the city of Madras, turning on the legality of a Municipal Council leasing out the right of collecting slaughtering fees has been decided by Wallis J. (C.S. No. 244 of 1907) (1909) 21 M.L.J. 788 and although it was decided with reference to the provisions of the Madras City Municipal Act III of 1904 and not of the District Muncipalities Act, yet the provisions in the two Acts in this respect run on so nearly identical lines that the reasoning of the learned Judge applies with equal force to the present case. Admittedly the District Municipalities Act does not expressly authorize the leasing or farming out of the right to collect slaughtering fees. Of the several taxes leviable under the Act the only one in respect to which such a provision is to be found is the case of Municipal tolls (Section 92). It is urged that such a power is granted by implication as a necessary incident to the right of levying. But in the first place it cannot be said that the right of farming out is in any way necessary to the exercise of the right of levying : such fees may be naturally and easily collected by Municipal subordinates as has been done for a certain period in this very case. Secondly, the fact that there is an express grant of the power to farm out tolls is difficult to reconcile with the idea that the authorization to levy carries with it an implied power to farm out. The mere fact that the Municipal Account Code contains provisions for the fanning out of slaughtering fees and other taxes besides tolls does not, in our opinion, throw any light on the interpretation of the Act n this respect. We must, therefore, hold that the farming out of the right to collect slaughtering fees is unauthorised by law and is ultra vires.

4. Is the suit contract therefore void and unenforceable? We are forced to the conclusion that it is so, both as infringing the provisions of Section n and Section 23 of the Indian Contract Act IX of 1872. The power of a Corporation must be strictly construed and it is hardly too much to say that what is not permitted to such a bodv is forbidden. To quote from HALSBURY'S Laws of England, Part 8, Article 805:

Where a corporation is created by statute, its powers are I limited and circumscribed by the statute creating it, and extend no further than is expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of its is-corporation. What the statute does not expressly or impliedly authorise is to be taken to be prohibited. If, for instance, the subject-matter of a contract is beyond the scope of the constitution of the Corporation, it is ultra vires, that is, it is beyond the powers of the Corporation to make the contract which is therefore void ab initio and cannot be ratified.

5. The above reasoning exactly covers the present case. It has been suggested that the provisions of the Indian Contract Act are not exhaustive and that Section 11, which deals with the competency to contract, does not contemplate the case of a Corporation. But even if this be so, the matter must be decided in the light of general principles of law as expounded in the passage quoted above, and the result is the same.

6. It is argued for the petitioner, on the authority of the case reported in Abdulla v. Mahmud I.L.R. (1902) M. 156, that nevertheless the contract can be enforced against the defendant. In that case Bhashyam Aiyangar J. held that a sub lease by a ferry renter, though prohibited by the terms of his lease and invalid against Government, might be valid as against the sub-lessee. The case is easily distinguishable on the ground that they sub-lessor in that case was a private person, and no question arose of the peculiarly fettered position of a statutory corporation. A contract, which, like the suit contract, is void ab initio cannot be enforced. Compare Maruda Muthu Pillai v. Rangaswami Mooppan I.L.R. (1900) M. 401.

7. We must, therefore, hold that the suit contract was void, and unenforceable, and that the Subordinate Judge was right in dismissing the suit.

8. The petition is dismissed with costs.


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