1. This appeal is by defendant 1 who is the Golaghat Municipal Board and it arises out of a suit instituted against the municipal board and certain other persons for damages. The facts which need be stated for the purposes of this appeal briefly are as follows: There was certain land belonging to the Golaghat Municipal Board which was let out to one Rebakanta Gohain. He erected a hut on the land which, I am told, was used as a stall in the municipal market. Rebakanta sold the hut to Jewram who is defendant 4. The municipality renewed the lease of the land in favour of Jewram. The rent for this land fell in arrear. Rebakanta owed some rent and after him Jewram owed it. The municipal board purporting to act under Section 144,. Assam Municipal Act, brought the hut to sale on 27th February 1937. Defendant 3, Shankar Chandra Barua, was the purchaser. On 24th June 1937 Shankar Chandra Barua dismantled the hut. The plaintiff sues the municipal board, Sankar Barua, Jewram and the chairman of the municipal board for, damages on the following allegations:
2. He instituted a suit for Rs. 88-15-3 against Jewram and attached the hut before judgment on 9th January 1927. He alleges that while this attachment was pending, the municipality and the other defendants in collusion with one another got the hut sold fraudulently. His case is that the municipality had no legal grounds for selling the hut and he accordingly claimed the damages. The defence taken is that the municipality was acting within the Assam Municipal Act in bringing the property to sale and therefore the plaintiff had no right to claim any damages against the municipality. Secondly, it was contended that proper notice in accordance with the provisions of Section 320. Assam Municipal Act, had not been served upon the municipality. Thirdly, it was contended that the suit was barred by limitation inasmuch as it was brought more than three months after the accrual of the plaintiff's cause of action. These are the main grounds upon which the suit was resisted. The trial Court held in favour of the defendants and dismissed the suit, against all the defendants except defendant 4. Against this decision the plaintiff appealed and the learned lower appellate Court has decreed the suit against the municipal board; the municipal board appeals to this Court.
3. Now, the first question for decision is whether notice under Section 320, Assam Municipal Act, is necessary in this suit and if so, whether such notice has been served on the defendant municipality. The learned lower appellate Court has held that the notice has been served. In my opinion, the lower appellate Court has erred in law in coming to this finding. Section 320 says that no suit shall be brought against any board, for any. thing done under this Act until the expiration of one month next after the notice in writing has been delivered at the office of the board. It goes on to say that 'unless such notice be proved the Court shall find for the defendant.' It is clear from the pro 'visions of this section that the onus is upon the plaintiff to prove not only service of notice but also that the notice is of the kind of notice contemplated by the section. The section says : that the notice should State the cause of the suit, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the person who intends to bring the suit. The plaintiff has merely pledged his oath to the fact that notice was sent by registered post to the municipal board and the other defendants. But he nowhere stated that the notice complied with the requirements of S.320. In the written statement there was a specific denial of the validity of the notice. There can be no doubt that the plaintiff has succeeded in proving the service of a notice. That is not sufficient. The plaintiff must prove that the notice was valid. The learned Additional District Judge states that as a notice had been served on the municipality it was the duty of the Board to produce the notice to show that it was not in accordance with the provisions of Section 320. I am unable to accept this proposition. By reason of the denial of the validity of the notice the plaintiff was put to strict proof of its validity. It was the duty of the plaintiff to call for the notice from the Municipal Board and on the failure of the Municipal Board to produce the document, to give secondary evidence thereof. No such thing was done. The notice has therefore not been proved and the section is quite clear that unless such notice is proved the Court shall find for the defendant.
4. If therefore notice was necessary then in my opinion there can be no escape from the position that the suit must be dismissed. This leads me to the question whether notice was necessary. Now the section says that a notice is necessary in the case of a suit brought against any Board or any of its officers or any person acting under its directions for anything done under this Act. The learned advocate for the respondent contends that the sale of the hut by the municipality was ultra vires of the Act and that therefore it cannot be said that this suit was a suit brought for anything done under this Act. I shall now examine the grounds upon which the learned advocate for the respondent bases his case that the act of the municipality was ultra vires. The municipality had sold this hut for arrears of rent and the sale was held according to the provisions of Section 144, Assam Municipal Act. Now, I entirely agree with the learned advocate for the respondent that this hut could not be sold under the provisions of Section 144, Assam Municipal Act. That section says that if money be due under this Act in respect of any holding from the owner thereof, on account of any tax, expenses or charges recoverable under this Act and if the owner of such holding or his whereabouts are unknown or the ownership thereof is disputed the Board after taking certain steps may sell the holding to the highest bidder. Section 144 contemplates the sale of a holding. The word 'holding' has been defined in Section 3, Sub-section (10) and it is clear from that definition that the hut erected on this land by Rebakanta, which was sold to Jewram, cannot possibly be a holding. Further, it cannot be said that the owner of the hut or his whereabouts were unknown, nor can it be said that there was any dispute regarding the ownership of the hut. I therefore agree with the learned advocate for the respondent that the municipality committed an error in selling the hut under Section 144 of the Act. Next, it was argued by the learned advocate for the respondent that the municipality could not sell the hut under any of the provisions of the Act. All that the municipality could have done was to sue Jewram for the rent in the civil Court in the ordinary way and then execute the decree obtained in the suit. The learned advocate for the appellant, on the other hand draws my attention to Section 141, Assam Municipal Act, which is in the following terms:
All rents, tolls and fees and all costs, expenses, or other moneys duo under this Act to the Board may be recovered in the manner provided in Sections 99 to 108, both inclusive,
and he says that as rent was due by Jewram for the land held under the municipality, the municipality was entitled to recover it in the manner provided in Sections 99 to 108, Assam Municipal Act. I am not inclined to accept this view urged on behalf of the learned advocate for the appellant. In my opinion, S.141 should be read together with Section 140. Section 140 says that:
The Board at a meeting may charge rents, tolls and fees for the right to expose goods for sale in a municipal market and for the use of shops, stalls and standings therein.
5. It provides for the charging of rent not for land but for the right to expose goods for sale in the municipal market and for the use of shops, stalls and standings. In the present case the rent was charged for the land. Such rent therefore could not be recoverable in my opinion with the help of the provisions of Section 141. My attention was also drawn to the provisions of Section 40, Assam Municipal Act, which empowers the Board at a meeting to acquire land by purchase or by gift for the purposes of the Act and also to sell, let, exchange or otherwise dispose of any land not required for such purposes. It is argued by the learned advocate for the appellant that the Board had the power therefore to let the land, which is the subject-matter of this appeal and to realize the rent therefor according to the provisions of Section 141. As I have said before, in my opinion Section 141 relates to rents specified in Section 140 and to other moneys due under the Act. The rent which may be recovered for land let out under Section 40 cannot come under the term 'moneys due under the Act,' because Section 40 expressly says that only such land may be let out as is not required for the purposes of the Act. I am of opinion therefore that upon a proper construction of the various provisions of the Assam Municipal Act the remedy of the Municipal Board for the recovery of the rent of the land lay in a suit brought in accordance with the provisions of the Civil Procedure Code and that the municipality could not recover this rent by having recourse either to the provisions of Sections 99 to 104 or to the provisions of Section 144. But does it follow from this that no notice was necessary under Section 320, Assam Municipal Act? In my opinion, although the municipality has not followed the correct procedure in its attempt to realize the rent of the land, it cannot be said that the Board was not acting under the Act. The Board took a wrong course but it certainly purported to proceed under the Act, and once it was established that the act complained against was one which was done by the Board purporting to act under the Municipal Act then notice is necessary. In this connexion I would refer to the case in Sasanka Sekhar v. Sudhansu Mohan ('21) 8 AIR 1921 Cal 91. This was a suit for the recovery of damages due to an unauthorized distress warrant issued by the Vice-Chairman of a municipality.
6. It was contended there that the act was ultra vires and it was not something which was done under the Act to which the provisions of Section 363, Bengal Municipal Act, apply. That section is similar to Section 320, Assam Municipal Act, and provides for a notice to the Commissioners of the Municipality. Reference was made to certain English cases and it was held that anything done by the defendants acting colore officii would amount to something done under the Act and would be protected. Everything done bona fide under the colour of the provisions of the statute would come under the protection of the statute. If a person knows that he has not under a statute authority to do certain thing and yet intentionally does that thing, he cannot shelter himself by pretending that the thing was done with the intent to carry out that statute. But if he had a reasonable and bona fide belief that he was acting within the statute then he will be protected. Of course that belief must not be an absurd belief. That is the view which has been taken in the case just referred to by me. Now, in this case I do not think that it is possible to say that the municipal board acted mala fide. The trial Court found that there was no fraud or collusion and the lower appellate Court has come to a similar finding saying that there was no sufficient evidence to establish fraud or collusion. But the learned Additional District Judge holds that it was the duty of the chairman of the municipality to acquaint himself with the provisions of law. He says:
There is no definite evidence to show that defendants 2, 3 and 4 acted in collusion or fraudulently to bring about the sale of the disputed hut. On the other hand, I must remark that it was the duty of defendant 2 as the then chairman of the municipality to make himself fully acquainted with the provisions of the law. Ignorance of law is no excuse and in the present case the action of the municipal authorities in selling the house, attached by the civil Court at the instance of the appellant, must be characterized as high-handed, arbitrary and absolutely unlawful. Such irregular acts have the effect of riding roughshod over the valued rights and privileges of the citizens.
7. Now, these rather strong and high sounding words do not really touch the matter. The act of the municipality would be protected so long as the municipality purported to act according to the provisions of the Act and so long as it acted bona fide and in the belief that what it was doing was lawful. In my opinion the municipal board acted in the bona fide belief that it was acting legally. This belief is not absurd; I hold that notice was necessary; as the plaintiff has not been able to prove that a valid notice had been given, the suit is liable to be dismissed.
8. The next question relates to whether the suit is barred by limitation. Section 320 of the Act says that every such action shall be commenced within three months next after the accrual of the cause of action and not afterwards. The point for decision is whether the cause of action arose on the date of the sale which was 27th February 1937. The learned advocate for the respondents contends that the cause of action did not arise when the hut was sold but it arose when the hut was dismantled. The dismantling of the hut was done on 24th June 1937. He points out that if that date is taken to be the date of the accrual of the cause of action his suit is within time. I am not able to accept this view. In my opinion, the cause of action arose on the date of the sale. So far as the municipality is concerned it cannot be said that the cause of action arose on the date of the dismantling inasmuch as the municipality had nothing to do with the dismantling of the hut. The hut was dismantled by the purchaser and not by the municipality. The cause of action arose, in my opinion, when the property was sold. The suit has been brought more than three months thereafter and it is, therefore, barred by limitation. The trial Court found against the plaintiff on the ground of limitation. The learned Additional District Judge has dealt rather curiously with this point. This is what he says:
I must hold that, even if, for arguments sake, it be held that Section 320 applies, there has been substantial compliance with the provisions of Section 320 of the Act, on the part of the plaintiff and that the suit was instituted within the limited time fixed by this Act. If Section 320 does not apply, the plaintiff would have one year's time to sue for damages under the ordinary statutes of the land. Therefore no question of limitation can arise.
9. I have not been able to understand what the learned Additional District Judge means. It is true that if Section 320 does not apply, the ordinary law of limitation would apply and not the special law. This would give the plaintiff one year's time to institute the suit and the suit would be in time. But if Section 320 does apply, then the period of limitation is three months from the date of the accrual of the cause of action. The learned Judge really does not deal with the question as to when the cause of action arose nor does he give any reason for his view that the suit is within the special period of limitation fixed by Section 320. The question of substantial compliance with section 320 has nothing to do with the question of limitation. I am unable to appreciate how the learned Judge comes to hold that the suit is within the special period of limitation fixed by Section 320. In my view the suit is barred by limitation.
10. Another point taken by the appellant is that even if the action of the board was ultra vires, the plaintiff could not succeed inasmuch as it cannot be held that there was any intentional infringement of the rights of the plaintiff by the municipal board. I do not think it is necessary for me to go into this question in view of the findings already arrived at by me on the other points. I hold that this suit is liable to be dismissed on the ground that the plaintiff has failed to prove that a valid notice had been served and also on the ground of limitation. I, accordingly, allow this appeal and dismiss the suit. The appellant will get his costs throughout. Leave to appeal under Section 15, Letters Patent, is asked for and is refused.