Asutosh Mookerjee, Acting C.J.
1. This is an appeal under Clause 5 of the Letters Patent from the judgment of Mr. Justice Shamsul Huda in a suit for recovery of damages due to an unauthorised distress warrant.
2. At the time of the incidents which have culminated in this litigation, the plaintiff-respondent was a resident within the Municipality of Bailey, and the defendant-appellant was its Vice-Chairman. On the 8th October 1914, the Vine-Chairman served the plaintiff with a notice of demand for dues claimed as fees payable for removal of filth from a receptacle in his house. On the 31st October 1914, a bailiff under the orders of the Vice Chairman, entered the house of the plaintiff and attempted to execute a distress warrant, as no payment bad been made in response to the demand. The present suit was instituted on the 2nd February 1915, and the substance of the complaint of the respondent was that the proceedings of the ViceChairman were malicious and the Municipality bad no authority to levy the sum claimed by summary process. The Court of first instance decreed the suit. Upon appeal the Subordinate Judge reversed that decision. On second appeal to this Court Mr. Justice Shamsul Huda has set aside the decree of the Subordinate Judge and restored that of the primary Court.'
3. It is not necessary for our present purpose to deal with the question, whether or not the sum claimed by the Municipality was recoverable by summary process. The answer to that question turns upon the consideration of a somewhat recondite argument as to the meaning of the word 'rubbish' in Section 6 (14) of the Bengal Municipal Act. Upon this matter of interpretation, the Courts below have been divided in opinion, and we shall assume that the sum claimed was not recoverable by summary process, as contended by the plaintiff respondent. We must also observe that the allegation of the plaintiff that the proceedings of the Vice-Chairman were actuated by malice has not been established and that finding plainly cannot be assailed in second appeal.
4. The Advocate-General has contended on behalf of the appellant that the suit should be dismissed on the ground that the plaintiff, has failed to comply with the requirements of Section 363 of the Bengal Municipal Act. That section is in these terms:
No suit shall be brought against the Commissioners of any Municipality, or any of their officers, or any person acting under their direction, for anything done under this Act, until the expiration of one month next after notice in writing has been delivered or left at the office of such Commissioners and also (if the suit is intended to be brought against any officer of the said Commissioners or any person acting under their direction) at the place of abode of the person against whom such suit is threatened to be brought, stating the cause of suit and the name and place of abode of the person who intends to bring the suit; and, unless such notice be proved, the Court shall find for the defendant. Every such action shall be commenced within three months next after the accrual of the cause of action, and not afterwards. If the Commissioners or their officer, or any person to whom any such notice is given, shall, before suit is brought, tender sufficient amends to the plaintiff, such plaintiff shall not recover.
5. There can be no doubt that the notice contemplated by Section 363 was not given in the present case. Reference has, no doubt, been made to a letter written by the Solicitors for the plaintiff to the defendant. The letter, however, can in no sense be treated as a notice in compliance with the requirements of Section 363. But, even if it be so regarded by any stretch of language, it is plain that the plaintiff has not complied with Section 363 in so far as notice upon the Commissioners is required. It will be observed that Section 363 requires the service of notice upon the Commissioners in every instance and also upon the person concerned, if the suit is intended to be brought against an officer of the Commissioners or any person acting under their direction. No such notice was served on the Commissioners, and we must proceed on the assumption that the plaintiff has not complied with the requirements of Section 363. But his contention is that, Section 363 has no application to the circumstances of the present case, because what is alleged by him to have been done by order of the defendant was not something 'done under the Act.' It is not necessary to consider seriously the suggestion faintly made that this was not a proceeding brought against a person acting under the direction of the Commissioners. There can be no room for controversy that the Vice-Chairman acted under the direction of the Commissioner, and if what was done under his instructions was something done under the Act,' Section 363 is applicable.
6. The provisions of Section 363 have a parallel in many Statutes in England, and there are cases in the books which lay down principles obviously applicable to the circumstances of the present litigation, In Waterhouse v. Keen (1825) 4 B. & C. 200 : 6 D. & R. 257 : 107 E.R. 1084 : 40 R.R. 858 the plaintiff was obliged to pay, under a Turn-pike Act, two tolls on the same day in respect of the same stage coach, He instituted the suit for recovery of the sum paid on the second occasion, on the allegation that a second toll was not payable and that the levy was wholly unauthorised. The Turn-pike Act provided that no action should be commenced against any person 'for anything done in pursuance of the Act,' until after the service of a notice to the Clerk of the Trustees (similar to what is contemplated by Section 363) and also required that the suit should be instituted within a prescribed time from the date of the Act. It was contended that as the act of which the plaintiff complained could not have been lawfully done under the authority of the Act, the act could not be said to be one done in pursuance of the Act. This contention was overruled, Mr. Justice Bayley pointed out the object of the Act in these terms: 'The substantial part of the enactment is, that notice should be given to the Trustees in order that they may tender satisfaction, and that the action should be brought promptly after the fast committed If the Act of Parliament does not apply to this case, parties may be at liberty to maintain actions for all sums levied under a misconstruction of the Act within a period of six years. And thus the object of the legislature, which was that the action should be brought promptly, will be defeated But it is said that, in this case, there was not anything done by the defendant in pursuance of the Act; but that expression, as used in this Act of Parliament, means that the thing done should be done by the defendant acting colors officii; if he did so act, he is within the protection of the Act of Parliament.' Mr. Justice Holroyd painted out that the protection of the Act was not confined to cases where the party had done an act which could be justified in other words, if the act was so restricted, the result would be that there would be no occasion for the suit, which would necessarily fail on the merits.
7. A similar view has been taken in subsequent cases : Selmes v. Judge (1871) 6 Q.B. 724 : 40 L.J.Q.B. 287 : 24 L.T. 905 : 19 W.K. 1110; Midland Railway Company v. Withington Local Board (1883) 11 Q.B.D. 788 : 52 L.J.Q.B. 689 : 49 L.T. 489 : 47 J.P. 789 where Fry, L.J. observed with reference to Section 264 of the Public Health Act, 1875, that the protection of the Statute extended to everything done bona fide under the colour of the provisions of the Statute; in other words, if a person knows that he has not unclear a Statute authority to do a certain thing and yet intentionally does that thing, he cannot shelter himself by pretending that the thing was done with intent to carry out that Statute. These decisions were reviewed and approved in Cree v. St. Pancras Vestry (1899) 1 Q.B. 693 : 68 L.J.Q.B. 389 : 80 L.T. 338. The substance of the matter is that, an act is to be regarded as done in pursuance of a Statute if the doer had a reasonable and bona fide belief that he was so acting Hazeldine v. Grove (1842) 3 Q.B. 997 : 3 G. & D. 210 : 12 L.J.M.C. 10 : 7 Jur. 262 : 114 E.R. 791; Lea v. Facey (1887) 19 Q.B.D. 352: 56 L.J.Q.B. 536 : 58 L.T. 32 : 85 W.R. 721 : 51 J.P. 756; Agnew v. Jobson (1877) 47 L.J.M.C. 67 : 13 Cox C.C. 625; Heath v. Brewer (1864) 9 L T. (N.S.) 653 : 15 C.B. (N.S.) 803 : 187R.R.776 : 143 E.R. 1000; Burling v. Barley (1858) 3 H.& N. 271 : 27 L.J. Ex. 258 : 4 Jur. (N.S.) 789 : 117 R.R. 684 : 157 E.R. 473; Booth v. Olive (1851) 20 L.J.C.P. 151 : 10 C.B. 827. 2 L.M. & P. 283 : 15 Jur. 683 : 84 R.R. 795 : 138 E.R. 327; Smith v. hopper (1817) 9 Q.B. 1005 : 16 L.J.Q.B. 93 : 11 Jur. 302 : 115 E.R. 1560. Substantially the same view was taken by the Judicial Committee of the Privy Council in the case of Richard Spooner v. Juddow 4 M.I.A. 353 : 6 Moo. P.C. 257 : Perry 0. C. 392 : 1 Sar. P.C.J. 363 : 4 Ind. Dec. (O.S.) 358 : 18 E R.734 : 13 E.R.682., where Lord Campbell said that, if a party bona fide, and not absurdly, believes that he is acting in pursuance of a Statute and according to law, he is entitled to the special protection which the Legislature intended for him, although he has done an illegal act.
8. The same view was taken by a Full Bench of this Court in the case of Chunder Sikhur Bundopadhya v. Obhoy Churn Bagchi 6 C. 8 (F.B.) : 3 Ind. Dec. (N.S.) 6 where Sir Richard Garth observed, with reference to Section 87 of Act III of 1864, B.C., that the section was applicable where the plaintiff claimed damages or compensation for some wrongful act committed by the Commissioners or their officers in the exercise, or the honestly supposed exercise, of their statutory powers. See also Shudhangshu Bhusan Roy Chowdhury v. Bejoy Kali Roy Chowdhury 3 C.L.J. 376; Shama Bibi v. Baranagore Municipality 6 Ind. Cas. 675 : 12 C.L.J. 410 (16)24 W.R.287.
9. Reference has been made on behalf of the respondent to the decision in Soonder Lal v. N.B. Baillie 24 W.R.287 and Gopee Kishen Gossain v. W.H. Ryland 9 W.R. 279. These cases, however, are of no assistance to the respondent, because, on an examination of the judgments, it transpires that in each instance the requisite notice had been served.
10. We are accordingly of opinion that in the present case the parties were governed by Section 363, and that as the plaintiff had failed to serve the notice required by that section the suit was not maintainable.
11. The result is that the appeal is allowed, the decree made by Mr. Justice Shamsul Huda set aside and that of the Subordinate Judge restored with costs both here and before Mr. Justice Shamsul Huda.
12. I agree.