1. In 1921 tenders were invited for the contract of the Markapur toll-gate and the plaintiff's tender was accepted on the 28th March, 1921 by the President, District Board, subject to the Board's approval. In pursuance of this arrangement the plaintiff executed an agreement and deposited a sum of Rs. 100, whereupon he was authorised by the President to keep the toll-gate and make collections from the beginning of the year, 1st April. He continued to make collections for two or three days after which, owing to the non-co-operation movement, his work was interfered with and eventually on the 17th April proceedings of the District Board were passed refusing to accept the tender. The plaintiff accordingly sued the Board for damages for breach of contract.
2. The question is whether the agreement between the President and the plaintiff constituted a valid contract which was binding on the District Board. Two arguments have been used to support this position one that the District Board's sanction was a mere formality and the other that the matter was an urgent one and therefore that under the Act the President had power to accept the contract. The first argument is clearly untenable, because under Section 89(1) of the Local Boards Act (V of 1884) power to lease out toll-gates is reserved to the Board itself. This argument in fact has not been seriously pressed here. Turning to the second ground urged, under Section 33(a) of the Act the President is empowered in cases of emergency and when the immediate execution of any work or the doing of any act is in his opinion necessary for the service or safety of the public to execute that work or do that act. There is hardly any doubt that the matter was one of urgency in this case as the President's acceptance was on 28th March, and, if the plaintiff was to open the gate on the 1st April, there was no sufficient time to obtain the District Board's sanction. The President himself in fact admits as P.W. 2 that it was a matter of urgency and that in anticipation of the Board's approval he allowed the plaintiff to enter on his duties. The question, however, remains whether such an act can be said to have been necessary for the service or safety of the public. There can be no question of the safety of the public being involved in the opening of a toll-gate nor, so far as I can see, is it an act which is necessary for the service of the public. In fact in order to make this out the appellant's pleader has to resort to the argument that if arrangements had not been made to collect the tolls, the road itself would have been closed to traffic. This, I think, is clearly incorrect. The Act gives the District Board a right to collect tolls but I can find no warrant in it for the position that it has authority to close a road if it does not suit it to make arrangements for so collecting the tolls. If there is no demand for tolls there is no obligation on the public to pay them and in fact the collection of tolls is purely a matter for the benefit of the District Board and does not in any way serve the public. The obvious intention of the section is that the President should have the power when an emergency arises to abate a nuisance or remove dangerous conditions and I do not think that it can be applied to circumstances such as the present. I conclude accordingly that the District Board was not bound by the President's act and that the plaintiff has therefore no cause of action against it. I dismiss the Second Appeal with costs.