Maniam Palanisami Gounder vs P. Karuppa Gounder

The plaintiff in O. S. No. 345 of 1963 on the file of the Court of the District Munsif, Tiruppur, who lost before the trial court as well as the first

appellate court, is the appellant before this court. He instituted the suit claiming a sum of Rs. 1000 by way of damages on the ground of a false

complaint made by the respondent herein. The short facts that are necessary for purpose of appreciating the contention that is raised in the second

appeal are as follows. The appellant herein was the village munsif of Nambiyamapalayam, while the respondent herein was the President of the

Panchayat Board. Admittedly, there appears to have been some enmity between them. On 26-2-1963, the respondent herein sent a report to the

Collector complaining of the theft of audit vouchers, muster rolls and other records of the Panchayat board premises by the appellant herein and

three other members. A copy of this complaint was sent to the District Superintendent of Police, who forwarded it to the Sub-Inspector of Police

for investigation. The Sub-Inspector of Police searched the premises of the appellant herein and ultimately dropped the complaint as false. It is

thereafter the present suit was instituted by the appellant herein for recovery of Rupees 1000 by way of damages as mentioned above. One of the

defences raised by the respondent herein to the suit was that the suit was bad for non-compliance with the provisions of Section 170 of the

Madras Panchayats Act, 1958 (Madras Act XXXV of 1958) (hereinafter referred to as the Act). Both the courts below have found in favour of

the respondent herein on this point, even though they have come to the conclusion that the complaint preferred by the respondent herein was

without reasonable and probable cause. It is on the basis of their finding on the question of non-compliance with the provisions of Section 170 of

the Act, the suit of the appellant herein was dismissed. It is against this dismissal the plaintiff in the suit has preferred the present second appeal and

contends that the conclusion of the courts below on the question of notice contemplated by Section 170 of the Act is erroneous in law. For the

purpose of understanding this argument, it is necessary to refer to the provisions along with the preceding provisions as well as the succeeding

provision. Sections 169, 170 and 171 of the Act, so far as they are material for purposes of this case are as follows:--

S. 169. Sanction for prosecution. (1) When the president or the executive authority or the chairman or vice-chairman of a panchayat union council

or the Commissioner or any member is accused of any offence alleged to have been committed by him while acting or purporting to act in the

discharge of his official duty, no court shall take cognisance of such offence except with the previous sanction of the Government.

Notice of action against panchayat etc: Subject to the provisions of Section 171, no suit or other legal proceeding shall be brought against any

panchayat or its president or executive authority or any panchayat union council or its chairman or the commissioner or any member, officer or

servant thereof against any person acting under the direction or such panchayat, president, panchayat union council, chairman, executive authority,

Commissioner, member, officer or servant, in respect of any act done or purporting to be done under this Act or in respect of any alleged neglect

or default in the execution of this Act or any rule, by law, regulation or order made under it until the expiration of two months next after notice in

writing, stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of residence of the

intended plaintiff has been left at the office of the panchayat or panchayat union council, and if the proceeding is intended to be brought against any

such president, executive authority, chairman, commissioner, member, officer, servant or person, also delivered to him or left at his place of

residence.

Protection of chairman, president and officers acting in good faith: No suit or other legal proceeding shall be brought against the chairman,

Commissioner, president, executive authority or any member, officer or servant of a panchayat union council or panchayat, or any person acting

under the direction of a panchayat union council or panchayat or of such chairman, commissioner, president executive authority, member, officer or

servant in respect of any act done or purporting to be done under this Act or in respect of any alleged neglect or default on his part in the execution

of this Act or any rule, by-law, regulation or order made under it, if such act was done, or such neglect or default occurred in good faith, but any

such proceeding shall, so far as it is maintainable in a court, be brought against the panchayat union council or the panchayat except in the case of

suits brought u/s 173.

The relevant expressions, which have to be referred to and considered in this second appeal are: ""acting or purporting to actin the discharge of

his official duty"" occurring in Section 169(1) and ""in respect of any act done or purporting to be done under this Act"" occurring both in sub-section

(1) of Section 170 and in Section 171. These three sections are in pari materia with Sections 106, 107 and 108 of the Madras Village Panchayats

Act, 1950 (Madras Act X of 1950), which the Act replaced. Similar provisions are to be found in certain other statutes as well, one such being the

District Municipalities Act 1920 (Madras Act V of 1920). Section 350(1) of that Act is as follows:--

350(1) No suit for damages or compensation shall be instituted against the municipal council, or any municipal authority, officer or servant, or any

person acting under the direction of the same in respect of any act done in pursuance of execution or intended execution of this Act or any rule, by-

law, regulation or order made under it or in respect of any alleged neglect or default in the execution of this Act, or any rule by-law, regulation or

order made under it until the expiration of one month after a notice has been delivered or left at the municipal office or at the place of abode of

such officer, servant or person, stating the cause of action, the relief sought, and the name and the place of abode of the intending plaintiff; and the

plaint shall contain a statement that such notice has been so delivered or left.

Section 197 Criminal Procedure Code reads:

197(1) When any person who is a Judge within the meaning of Section 19 of the Indian Penal Code, or when any magistrate, or when any public

servant who is not removable from his office save by or with the sanction of a State Government or the Central Government, is accused of any

offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognisance

of such offence except with the previous sanction........"" Section 80 C. P. Code uses the language ""in respect of any act purporting to be done by

such public officer in his official capacity"". Though these sections use different expressions, the central theme underlying all these sections is the

protection of or a prior requirement as to the notice to be given to the Government or officer or authority concerned as a condition precedent to

the institution of any action against the Government or the officer or the authority, with reference to an act done or purported to be done by them,

him or it, in the exercise of official duty or in official capacity. The question for consideration in the present case is whether the complaint given by

the respondent herein can be said to be an act done or purporting to be done under the Act. This question has to be answered with reference to

the powers, functions, duties and obligations of the respondent herein as the president of the Panchayat.

In this context reference can be made to certain provisions contained in the Act itself dealing with the powers and functions of the president.

Section 33 of the Act provides that the President shall have full access to the records of the panchayat. Section 173 of the Act provides that the

President, Executive authority and every member of a panchayat shall be liable for the loss, waste or misapplication of any money or other

property owned by or vested in the panchayat, if such loss waste or misapplication is a direct consequence of his neglect or misconduct. As far as

the present panchayat is concerned, there is no separate executive officer, and by virtue of Section 40 Sub-section (2) the respondent himself, as

the president of the panchayat, was the executive officer. A combined reading of Section 33 and S. 173 of the Act makes it clear that the

respondent had a duty to protect the property and the records of the panchayat, and once he found that the records were missing, certainly it was

his duty, as the President and executive authority of the panchayat, to make a report to his superior, namely, the Collector, so that he may protect

himself against any charge of negligence on his part and invite the police to take up investigation into the alleged loss or theft of the records.

Therefore, it is clear from the language of Ss. 33, 173 and 171 of the Act that the complaint given by the respondent herein was an act done or

purported to be done under the Act. The learned counsel for the appellant repeatedly contended before me that when the act is done out of malice

or without good faith, the protection contemplated under S. 170 would not be available to the president. There are more than one answer to this

contention of the learned counsel. In the first place, there is no finding either by the trial court or by the first appellate court that the act, namely, the

complaint given by the respondent herein, was without good faith or was actuated by malice. As a matter of fact, the learned District Judge, who

disposed of the appeal proceeds on the basis that in view of the admitted previous enmity between the parties, as soon as the records were found

missing, the respondent herein might have bona fide thought that it was the appellant and the other members who would have stolen the records.

Consequently, far from there being any finding of malice or want of good faith on the part of the respondent in preferring the complaint, there is the

finding that the respondent acted in good faith in giving the complaint to the Collector and marking a copy thereof to the District Superintendent of

Police inviting the police to take up investigation into the alleged offence.

Secondly, I shall also deal with the question of malice which the learned counsel for the appellant argued, based upon the decision of this Court in

T.D. Karuppanna Pillai Vs. F.W. Haughtan, . In that case, a Bench of this Court was considering the effect of Sec. 350 of the District

Municipalities Act of 1920. In that particular case, the Chairman of the Municipality prosecuted a licensee for non-payment of the licence fee and

the defence was that the Chairman of the Municipality had nor right to prosecute the licensee for non-payment of the licence fee since the licence

fee was not payable to the Chairman, but only to the contractor, as it had been farmed out by the Municipality to the contractor. It is in that context

that the question had to be considered whether the case would fall within the scope of Section 350 of the District Municipalities Act, 1920 already

extracted. With reference to the language of Section 350 of District Municipalities Act, and the facts of the case, King J. states as follows:

Now the respondent in his own evidence in the suit now in question has admitted that he know that Section 344 did not authorise him to

prosecute the appellant. It is found no doubt by the learned District Judge that in the ordinary sense of the word there was no malice and hat the

motives of the respondent were good. But it is perfectly clear from his own evidence, and it cannot be challenged, that the respondent was

definitely aware that in filing this complaint he was doing something which the Act did not permit him to do. It seems to us then that the dictum of

Blackburn, J. in Selmes v. Judge, 1871 6 QB 724, must be taken to apply to the facts of this case, and that it is impossible for the respondent to

argue with any hope of success that, in authorising a prosecution which he know he was not permitted to authorise, he was intending to execute

any portion of the District Municipalities Act. It is impossible that anyone can intend to do a thing which he knows he is not doing.

It is against the background of this observation and the language of Section 350 of the District Municipalities Act that decision has to be

understood.

From what I have stated with reference to the facts of this case, the decision in T.D. Karuppanna Pillai Vs. F.W. Haughtan, , can have no

application to the present case. On the other hand, the decision of the Supreme Court in P. Arulswami Vs. The State of Madras, , directly governs

the present case. That case dealt with the scope of Section 106 of the Madras Village Panchayats Act, 1950 (Madras Act X of 1950), which is in

pari materia with Section 169 of the Act. In that decision, the Supreme Court referred to with approval the following statement of the AIR 1948

128 (Privy Council) :--

In the consideration of Section 197 much assistance is to be derived from the judgment of the Federal Court in AIR 1939 43 (Federal Court) ,

and in particular from the careful analysis of previous authorities which is to be found in the opinion of Varadachariar, J. Their Lordships, while

admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may

be necessary for public officials, cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A

public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official

duty. Thus, a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor

does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the

examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he

does in virtue of his office. Applying such a test to the present case, it seems clear that Gill could not justify the acts in respect of which he was

charged as acts done by him by virtue of the office that he held. Without further examination of the authorities their Lordships, finding themselves in

general agreement, with the opinion of the Federal Court in the case cited, think it sufficient to say that in their opinion on sanction u/s 197, Cri. P.

C. was needed.

(Underlining is mine).

After extracting this observation, the Supreme court proceeded to state:

It is not therefore every offence committed by a public servant that requires sanction for prosecution u/s 197(1) Cri. P.C., nor even every act

done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with the official

duties so that, if questioned, it could be claimed to have been done by virute of the office, the sanction would be necessary. It is the quality of the

fact that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197, Cri. P.C. will be

attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. when it

is unconnected with the official duty there can be no protection. It is only when it is earlier within the scope of the official duty or in excess of it that

the protection is claimable."" (Underlining is mine).

The Supreme court further pointed out which is very important with reference to the context of Section 170 of the Act which we are considering:--

Section 106 of the Madras Act is similar in language to Section 197, Cir. P.C. and for the reasons already expressed we are of the opinion that

the sanction of the State Government was not necessary for prosecution of the appellant u/s 409, I.P.C.

From these decisions, it is clear that the test is, whether a public servant, if challenged, can reasonably claim that what he did was in virtue of his

office In this particular case. I have already referred to the status of the respondent ;as the President of the Panchayat being also the Executive

authority u/s 40(2) of the Act, and his duties and obligations with reference to Sections 33 and 173 of the Act. Having regard to these duties and

obligations which the Executive Authority and the President of he Panchayat have under the provisions of the Act, the complaint given by him on

26-2-1963 was certainly in his official capacity, and, therefore, will fall within the scope of Section 170 of the Act. The result of this is that the

conclusion of the Courts below that a notice under that section is necessary for instituting the present suit is correct.

In view of this conclusion no interference whatever is called for with the decision of the courts below and accordingly the second appeal fails

and is dismissed. There will be no order as to costs. No leave.

I may mention that the respondent remained unrepresented in this court. In view of the discussion regarding the scope of Section 170 of the Act,

I requested Mr. Chidambaram, an advocate of this court, to help the court as amicus curiae and he has accordingly done so. Therefore, I record

my thanks to him for the assistance rendered by him as amicus curiae.

Appeal dismissed.