Fakira Tejaji and Others vs Municipal Committee

Chaturvedi, J.—This is a second appeal by the Plaintiffs arising out of a suit against the Municipal Committee, Javad. The Plaintiffs claimed that since very old time they had a customary right for taking carcasses of the dead animals within the area of Jawad Municipality and they are entitled to get two annas for cleaning the skin "gkFk /kqykbZ" under certain circumstances. The Municipal Committee, Jawad, ignored their rights and the right of collecting the bodies of dead animals was auctioned and was knocked down to the highest bidder. The suit was for a declaration that the Plaintiffs alone have the right of collecting bodies of dead animals and the prayer was also for restraining the Municipal Committee not, to interfere with the rights of the Plaintiffs. It was also prayed that the auction should be cancelled.

The Plaintiffs'' suit was dismissed by the trial Court which held that the Plaintiffs had not given two months'' notice to the Municipal committee u/s 48, Gwalior Municipalities (sic) Samvat 1993. This decision was upheld, by first appellate Court and they have come to Court in second appeal.

The relevant portion of Sub-clause (i) Section 48 of the said Act which closely follows Section(sic) Punjab Municipal Act of 1911 is in the follow words:

No suit shall be instituted against a Committee or against any Officer or a servant of a committee, in respect of any act done or purport to be done in its or his official capacity, under the expiration of 2 months next after in writing has been in the case of a committee delivered or left at its office and in the, of an officer or a servant, delivered to him left at his office or place of abode, stating cause of action and the name and place abode of the intending Plaintiffs and the (sic) must contain a statement that such notice been so delivered or left.

Mr. Samvatsar, learned Counsel for Appellants, has contended that Section 48 does apply to the facts of this case as(sic)was not a suit "for anything done or purporting have been done in its official capacity." Accruing to him Section 48 or Sections 102, 105 or 156, Gwalior Municipal Act do not deal with the right to (sic)tion or to sell the bodies of dead animals for within the Municipal Area, as if the car(sic)were Municipal property. Reliance is placed him on - ''Ramchander Sahai v. Cantonments Board, Meerut'' AIR 1947 All 42 (A), which interpreting Section 273 of the Cantonments Act (sic) held that it is to acts which the Board has merely the authority but also the duty to(sic)form, i.e., acts which are enjoined upon the(sic)that the protection allowed by Section 273 extends other words ''act done by the Board in pursuance of this Act'' means an act enjoined upon the Board by the Act.

Mr. Samvatsar contends that Section 48 (sic) apply to a case where the Committee has (sic) only power to auction the dead bodies, but(sic)is also statutory obligation on or duty of the committee to auction them. According to him (sic) question should be: whether any obligation (sic) created by the statute on the Municipality auction the right of collecting of bodies of dead animals? Reliance is also placed by him on(sic)English cases - ''McManus v. Bowes'' (1937) 3 ER 227 (B) and - ''Compton v. West High Court Borough Council''; (1939) 3 All ER 193 (C), while took this view while interpreting Section 1 of the (sic) lie Authorities Protection Act, 1893.

It may, however, be mentioned here(sic)the words in the said section of the English statute are "for any act done in pursuance of exertion or intended execution of any Act of Parliament" whereas in Section 48, Gwalior Municipal(sic)the wording is "in respect of any act done- purporting to have been done in its official(sic)city." The wordings of these two Acts are(sic)identical. The wording of Cantonments Act(sic)closely follows, Section 1 of the English Statute,; Section 48, Gwalior Municipal Act follows the provisions contained in Section 80, Code of Civil Procedure. Owing to this difference the (sic)cited by Mr. Samvatsar cannot be held to be(sic)cable to the facts of the case before me.

Mr. Balwantsingh, who appears on behalf the Respondents, relies on - AIR 1927 176 (Privy Council) and on - Vithoba Babaji Narote Vs. Sholapur Municipality, which lay down that Section 80, CPC express, explicit and mandatory and admits of implications or exceptions and that the words in respect of'', a form going beyond for any-thing done or intended to be done show it to be (sic) than the statutes on which the English authorities were decided.

I am quite clear in my mind that the words(sic) respect of any act" and "purporting to be done(sic)its official capacity" are of much wider import than the words "act done in pursuance of an Act and that Section 48, Gwalior Municipal Act extends generally to all acts of a Municipal Committee which it does within the scope not merely(sic)its duty but also of its powers under the Act. The question which now arises for determination(sic)whether the order passed by the Municipal committee in the present case was or was not within the scope of its powers? If it was so, it mil be deemed to be an "act done or purporting a have been done in its official capacity" and a two months notice will be necessary u/s 48.

The learned Counsel invite my attention to the provisions in Sections in 102 and 105, Gwalior Municipal Act Samvat 1993 Section 102 lays down that the Committee will fix places where the dead bodies of the (sic) will be deposited and all issue directions about the route through which the dead bodies will be carried to those place Section 105 enjoins upon the owner of a dead animal to send it within 24 hours to the place one mile away from the Municipal Area where such dead bodies are deposited or inform the Municipality which will arrange to send the body of a dead animal there. Sub-section (ii) lays down that the Municipal Committee will charge to prescribed fee for sending the carcass to the (sic) place.

Then there is Section 156 which authorises the Municipal Committee to frame bye-laws in accordance with the provisions of the Municipal Act for many purposes including for demarcation of places where bodies of dead animals are to be deposited and (sic) for inspection and other necessary arrangements. Sub-clause 23 enables the Municipality(sic)to everything which it may consider necessary or obedient in order to carry into effect the provisions and purposes of the Act.

Mr. Balwantsingh who appears on behalf of(sic)Respondents has taken me through the bye-laws framed by the Municipal Committee, Jawad, which have been published in the Gwalior Government Gazette dated 6-4-1946, under Sub-clause (8) of Section 156, Gwalior Municipal Act Under Rule No. 1 it is laid down that the (sic) of a dead animal should remove the dead body within 24 hours to the place fixed, by the Municipal Committee. Rule No. 2 lays down that the owner is not in a position to remove it himself he must immediately inform the Secretary the Municipal Committee, who will be duty (sic) to remove it and arrange for its burial (sic) paying the remuneration to the persons who(sic)the dead body to the place fixed. Rule No. 4 powers the Municipal Committee to remove the (sic) dead bodies of animals within the Municipal area and to take their skin. Rule No. 5 provides for auctioning of the skins of the owner(sic)dead animals. Rule No. 6 prescribes the rate remuneration which is to be paid to the persist who remove dead animals and bury them.

Mr. Balwantsingh also produced a copy of bye-laws framed by the Minister for the Municipal Committes(sic)Gwalior state and published in the Gwalior Government Gazette dated 6-11-1924. to bye-laws do not seem to be relevant as (sic) to Section 2, Gwalior Municipal Act Samvat 1993 they were repealed as soon as the new Act came into force.

It will be clear from the bye-laws framed in 1946 that the Municipal Committee, Jawad is bound to remove the bodies of those dead animals which have no owners; if there are owners the Municipal Committee has the power to remove only those bodies of dead animals, the owners of which ask the Municipal Committee to remove them. The Municipal Committee, according to the bye-laws framed, has neither the power nor the duty to remove the dead animals, if the owners want to arrange for their removal themselves and the skin of such animals remains the property of the owners themselves and over such skin the Municipal Committee has no right. It follows, therefore, that if the Plaintiffs are required, according to old custom, by owners of dead animals, to remove their carcasses to the burial ground, the, Municipal Committee cannot prevent such removal by the Plaintiffs. It has neither the power nor any duly in this respect. The order of the Municipal Committee for auctioning the right of collecting the bodies of all dead animals, without discrimination, and knocking it down to the highest, bidder, was, therefore, an act not in its official, capacity and not in pursuance of the provisions of the Municipal Act.

In my judgment, therefore, prima facie, there was neither the power nor the duty of the Municipal Committee to make an order for the auction of the right of collecting the dead bodies of the animals within the municipal area; and, therefore, the case cannot be brought within the scope- of Section 48, ''Gwalior State Municipal Act Samvat 1993 and no notice was necessary. I express no opinion on the question whether the action of the Municipal Committee can be justified on ground of sanitation or hygiene or under some other provision of law; or, on the question whether the suit as framed is maintainable at all. But as I am of opinion that the order of the Municipality impugned is not an act "done or purporting to have been done in its official capacity", I think, that the decrees and judgment of the Courts below cannot be sustained. The decrees of the Courts below dismissing the Plaintiffs'' suit must, therefore, be set aside.

I, therefore, allow the appeal, set aside the decrees and judgments of the Courts below and remit the case back for disposal according to law. Costs will abide the result. Court fees will be refunded, to the Appellants.