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District Board, Represented by Chairman and anr. Vs. Moulvi Emdadal Hoque and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1940Cal305
AppellantDistrict Board, Represented by Chairman and anr.
RespondentMoulvi Emdadal Hoque and ors.
Cases ReferredSati Prasad Garga v. Gobinda Chandra Shee
Excerpt:
- .....the provisions of section 120, bengal local self-government act. that section lays a duty upon the local government, commissioners and district magistrates to see that the proceedings of the local authorities are in conformity with law. it also empowers the local government to annul any proceeding which it considers not to be in conformity with law, and take any steps which may be necessary to secure such conformity. dr. basack's argument is that the scheme of the act provides for the supervision or control by the local government and by the local government only. i have no hesitation whatever in rejecting that argument. to adopt the present case as an illustration, if the resolution of the union board was supported by one-third of the members of the board, then the action taken by the.....
Judgment:

Henderson, J.

1. These appeals are by the District Board of Chittagong and defendant 2, who is now the Chairman of a certain Union Board. The plaintiff was elected Chairman of that Board and he has now been removed by the District Board in accordance with the procedure laid down in Section 16, Bengal Village Self-Government Act. He instituted a suit for a declaration that these proceedings were ultra vires and for re-instatement in office. The defence raised two preliminary issues: (1) that the Civil Courts had no jurisdiction to try the suit and (2) that the suit was barred by limitation. Both the Courts below held that there was jurisdiction but differed on the point of limitation. The Munsif dismissed the suit as barred by limitation, but his decision was reversed by the Subordinate Judge and he remanded the suit to be tried on the merits. The present appeals have been pressed on both grounds. I have no hesitation in accepting the view of the Courts below on the first point. Dr. Basack's argument depends upon the provisions of Section 120, Bengal Local Self-Government Act. That Section lays a duty upon the Local Government, Commissioners and District Magistrates to see that the proceedings of the local authorities are in conformity with law. It also empowers the Local Government to annul any proceeding which it considers not to be in conformity with law, and take any steps which may be necessary to secure such conformity. Dr. Basack's argument is that the scheme of the Act provides for the supervision or control by the Local Government and by the Local Government only. I have no hesitation whatever in rejecting that argument. To adopt the present case as an illustration, if the resolution of the Union Board was supported by one-third of the members of the Board, then the action taken by the District Board of which the plaintiff complains would be entirely without jurisdiction. If the Local Government refused to take any steps under Section 120 to annul the proceeding, the proceeding would be still without jurisdiction. There is nothing to suggest that the ordinary jurisdiction of the Courts to give the plaintiff a declaration to which he is entitled has been taken away. This objection was not even raised by the Province of Bengal in their written statement,

2. The point of limitation arises in the following way: The cause of action arose on 31st July 1937; the suit was instituted on 25th November following. Section 146, Bengal Local Self-Government Act, provides a period of three months' li2mitation and also service of one month's notice. The point in dispute between the parties is whether this period of one month can be excluded from the period of three months provided for limitation. The learned Subordinate Judge held that the plaintiff is entitled to deduct that period under the provisions of Section 15(2), Limitation Act. Section 29 provides that in the case of a period of special limitation the provisions shall apply only in so far as and to the extent to which they are not expressly excluded by such law. The wording of the relevant portion of Section 146 is as follows:

Every such action shall be commenced within three months next after the accrual of the cause of action and not afterwards.

3. Dr. Basack's argument is that the words 'and not afterwards' amount to express exclusion. It is difficult to say that this would be anything more than an exclusion by inference. There is clearly nothing express about it. An inference has to be drawn as to the precise meaning of the words 'and not afterwards.' The matter has, however, been settled by the decision of a Division Bench of this Court in Sati Prasad Garga v. Gobinda Chandra Shee : AIR1929Cal325 . That decision is binding on me and, as at present advised, I should respectfully agree with it. The result is that in my judgment both the points were correctly decided in the Court of Appeal below. The appeals are accordingly dismissed. I direct that the costs in the Court will abide the result of the suit.


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