Govinda Pillai vs The Taluk Board of Kumbakonam

Arnold White, C.J.—The two questions which have been referred to us are:

Is notice of action necessary u/s 156(1) of the Local Boards Act, 1884, when the suit is for an injunction?

Does the six months'' limitation prescribed by Section 156(3) apply to such a suit?

I take it that, for the purposes of our answer to the questions which have been referred to us, it is to be assumed that the suit for an injunction is

on account of an act done or purporting to be done, in pursuance, or execution or intended execution of the act, or in respect of an alleged neglect

or default in the execution of the act within the meaning of Section 156 of the Madras Local Boards Act (V of 1884).

As regards the first question, it was held by this Court in President of the Taluk Board, Sivaganga v. Narayanan 16 M. 317 that under the

provisions of Section 156 of the Local Boards Act, V of 1884, as originally enacted, the section did not apply to a suit for an injunction. I think this

decision was right; Section 156 as originally enacted would seem to be taken from Section 264 of the English Public Health Act, 1875 (38 and 39

Vic. C. 55) and it has been held that that enactment and similar enactments with regard to notices against Public Authorities (now superseded by

the Public Authorities Protection Act, 1893, 56 and 57 Vic. C. 61), were intended to apply to an action for damages and that notice was not

necessary in the case of a suit for an injunction to restrain an immediate injury. See Flower v. Local Board of Low Leyton (1877) 5 Ch. D. 347;

Attorney General v. Hackney Local Board (1875) L.R. 20 Eq. 626; Sellors v. Matlock Bath Local Board (1885) L.R. 14 Q.B. D 928;

Chapman, Mossons and Co. v. Guardians of Auckland Union (1889) L.R. 23 Q.B.D. 294.

The principle of these decisions has been applied in the Indian cases cited in the judgment in President of the Taluk Board, Shivaganga v.

Narayanan 16 M. 317. In the judgment in that case the Judges observed that the cases contemplated by the section of Act V of 1884, as originally

enacted, are suits for compensation and for damages and the principle is to allow public bodies time for tender of amends to the parties so as to

avoid litigation. See also Ameer Sahib v. Venkatrama 16 M. 296; Srinivasa v. Rathna Sabapathi 16 M. 474; Shidmallappa Narandappa v. Gorak

Municipality 22 B. 605.

By the Act of 1890, Section 156 of the Act V of 1884, was amended by adding after the words ""explicitly stating the cause of action"" the

words ""the nature of the relief sought; the amount of compensation claimed."" At the same time the section was further amended by adding Sub-

section (3) for the words and every such action shall be commenced within six months next after the accrual of the cause of action and not

afterwards."" In support of the contention that notice of action was necessary in the case of a suit for an injunction, it was argued that reading the

enactment as amended in Sub-section (1) by the light of the new Sub-section (3) notice of action was only dispensed with in the case of an action

for the recovery of immovable property or for a declaration of title thereto and that the present action being a suit in which neither of these reliefs

was claimed, notice of action was necessary. I cannot accede to this contention. I think the words the nature of the relief sought, the amount of

compensation claimed"" were introduced in order to make it clear that the Legislature recognised and accepted the rule of law laid down in the

authorities to which I have referred.

The question of the construction of the amended Section 261 of the District Municipalities Act(IV of 1884), which is the same as the amended

Section 156 of the Madras Local Boards Act came before this Court in Mahamahopadya Rungachariar v. The Municipal Council of

Kumbakonam 29 M. 539; 1 M.L.T. 888; 16 M, L. 3. 582 and it was held that the notice required by the section was not necessary when the suit

was for an injunction. Sir Subrahmanya Aiyar, J. said, ""next as regards the question of notice I may deal with it quite shortly. Suits referred to in

Clause (1) of Section 261 are, by its very terms, those which relate to acts done or purporting to be done'', whereas, a claim for an injunction, is

with reference to what it is apprehended will be done in the future. It would not be right to impute to the Legislature an intention to insist upon the

lapse of the interval involved in the provision as to notice even in regard to cases where such lapse might be attended with the completion of the

threatened injury, the prevention of which is the very aim and end of the suit of. Kirk v. Todd (1832) 21 Ch. D. 4 84."" The learned Judge would

seem to have been of opinion that a suit for an injunction is necessarily outside the scope of the section since it has reference to what it is

apprehended will be done in the future. However this may be, one thing seems clear, and that is, that the learned Judge was of opinion that the

amendment had not altered the law as laid down in decided cases. Miller, J. said: Before the amendment made by Act III of 1897, sections similar

to Section 261 in other laws were held on general principles not to apply to suits for an injunction; and whatever be the proper construction of

Sub-section (3) to Section 261, added by the Act of 1897, that sub-section does not seem to me to require us to hold that a suit for an injunction

is now within the section.

I think this case was rightly decided, and I am of opinion that, when the suit is for an injunction, notice of action is not necessary.

As regards the second question, I am of opinion that when the suit is for an injunction, the 6 months'' limitation provided by the new Sub-section

(3) does not apply. It seems to me the governing words are ""such as is described in Sub-section (1)."" The suit described in Sub-section (1) is a suit

for which notice of action is necessary. The words of the section, as originally enacted, are ""every such action"" that is, as I read the section, every

action for which notice of action is necessary; and the substitution of the words ""such as is described in Sub-section (1)"" for ""such action"" can

make no difference.

As a suit for an injunction is not, in my opinion, an action ""such as is described in Sub-section (1),"" Sub-section (3) does not apply to such an

action.

I think the intention of the legislature was that the class of suits for which notice of action is necessary should be co-extensive with the class of

suits to which the 6 months'' limitation applies. The learned authors of Darby and Bosanquet on the Statutes of Limitations (supplement to 2nd

Edition, p. 592) observe: ""Most of the statutes that provide a special period of limitation also at the same time make notice of action necessary,

and the decisions on the question whether a person sued is entitled to notice of action are, of course, decisions on the question whether Such a

person is entitled to the benefit of the special period of limitation prescribed by the Act."" By a parity of reasoning the converse proposition would

seem to be good, viz., that where notice of action is not necessary the special, period of limitation does not apply.

The explanation of the words unless it is an action for the recovery of immovable property or for a declaration of title thereto"" in Sub-section

(3) would seem to be that when the section was amended, the Legislature was prepared to accept the view taken by the Bombay High Court in

Naghusha v. Municipality of Sholapur 18 B. 19 decided in 1892 that a suit in ejectment fell within the provisions of the corresponding enactment of

the Bombay Act. This case, however, was overruled by the majority of a Full Bench of the Bombay High Court in Manohar Ganesh Tambekar v.

Dakor Municipality 22 B. 289. In Syed Ali Saheb v. Chairman of the Salem Municipality 3 M.L.J. 223 this Court took the same view as the

majority of the Judges of the Full Bench in Bombay.

I think our answer to both the questions which have been referred to us should be in the negative.

Sankaran Nair, J.

I agree.

Pinhey, J.

I concur. I am of opinion that it was not the intention of the Legislature to change the law and that the words in Sub-section (3) ""unless it is an

action for the recovery of immovable property or for a declaration of title thereto"" were added not for the purpose of bringing such actions within

the scope of Section 156 Clause 1, but for the purpose of excluding such actions from the scope of Sub-section (3) in case the Madras High

Court should follow the decision in Naghusha v. Municipality of Sholapur 18 B. 19 and hold that they did fall within Section 156 Sub-section (1).