Parmeshwar Dayal vs The Barh Local Board

Chatterji, J.—This is an appeal under cl. 10, Letters Patent, by the deft, in a suit brought by the Local Board of Barh through its Chairman for declaration of title & recovery of damages in respect of six palm trees said to have been cut & removed by the deft, from pltf''s plot No. 313 in village Talipur, Police Station Barh.

Undisputedly plot No. 313 is a road. According to the pltf. the trees in question stood on this plot on the road side. The deft, on the other hand, claimed that the trees stood on his plot. No. B12, which adjoins the road.

Both the Courts below held that trees stood on the pltf''s plot No. 313 & were wrongfully cut & removed by the daft. They also overruled the defence that the suit was not maintainable. Accordingly they concurrently decreed the suit with some modification in the amount of damages claimed. On second appeal, Shearer J. upheld their decisions.

The first point raised on behalf of the appellant is that the road on which the trees stood vests in the District Board & not in the Local Board & therefore, the Local Board has no right to sue.

Section 101, Bihar & Orissa Local Self-Govt. Act, 1885, (which will be referred to hereinafter as the Act) provides,

The Local Govt, or, subject to its control, a District Board, may direct that, within the area subject to the authority of a Local Board, any matter placed under the control & administration of the District Board under this Act shall be wholly or partly transferred to the control & administration of the Local Board, with adequate funds for the purposes of such control & administration.

A Local Board, as the agent of, & subject to the control of, the District board, shall, so far as the funds at its disposal permit, make due provision for all matters transferred to its control & administration under this section.

It shall be the duty of the District Board to enforce the responsibility imposed on a Local Board by this section.

It is not disputed that the road bearing plot No. 313 was transferred by the District Board to the Barn Local Board & is in possession of the latter for a long time. But it is contended, relying on the second paragraph of S. 101, that the Local Board is merely the agent of the District Board, What this para, really means is that in regard to making due provisions within the limits of the funds at its disposal, the Local Board will be acting as the agent of the District Board. It by no means follows that if anybody trespasses on the land or causes damage to any property in possession of the Local Board, it will have no right to sue to remove the trespass or to recover damages. The title to the road in question may vest in the District Board, but the right to possession vests in the Local Board. It is a well recognised principle that a person in possession of land, having no more than a possessory title, can maintain ft suit to recover damages for a trespass.

Reliance was also placed on S. 188. Cl (s) of the Act & rule 89 of the rules made by the Local Govt, under S. 138. This section confers power on the Local Govt, to make rules for any District Board or Local Board or Union Committee for the various purposes enumerated in Cls. (a) to (t) of the section. Cl. (s) refers to

affording guidance to District Boards when suits or other proceedings are threatened or have been instituted by or against them in Civil Courts.

It is under this cl. (s) that R. 89 was made. Rule 89 which appears under the heading "Litigation" provides :

In all cases where a District Board desires to sue or is sued or threatened with a ''suit in the civil Court the Board shall communicate with the Superintendent & Remembrancer of legal affairs, & shall be guided by the existing rules for the conduct of Civil Suits by Govt.

It is said that neither in s. 138 of the Act nor in the rules made under that section there is any such provision relating to litigation by or against a Local Board &, therefore, it must follow that the Local Board has no right to sue or to be sued. But s. 146 of the Act itself shows that a suit may be brought against a Local Board. It provides:

No suit shall be brought against any District Board, Local Board or Union Committee....

Apparently, the Local Board being subordinate to the District Board, it was not thought necessary to insert in S. 138 any clause, similar to cl. (s) for "affording guidance" to Local Boards. Consequently there is no rule, similar to R. 89 concerning a Local Board. The omission to make any similar provision for litigation by or against a Local Board, does not & cannot take away any right of suit which belongs to the Local Board under the general law.

It is also said that S. 146 of the Act contemplates that a suit may be brought against a Local Board, but the Act nowhere provides that the Local Board may sue. S. 146 provides for a notice of suit similar to that provided in S. 80, Civil P.C. Right of suit existing under the general law need not be provided or affirmed by a statute. Bight of suit under the general law must always be presumed to exist unless it is taken away or restricted by any statute. It is, therefore, a fallacy to contend that as there is no provision in the Act or in the rules for a suit by the Local Board, it has no right to sue.

Our attention is drawn to s. 29 of the Act :

Every District Board shall be a body corporate by the name of the District Board of the district by reference to which it is known & shall have perpetual succession & a common seal, with power to acquire & hold property both movable & immovable & subject to any rules made under this Act, to transfer any such property held by it, & to do all other things necessary for the purpose of the Act, & may sue & be sued in its corporate name.

It is said that this is a specific provision conferring on the District Board the right to sue. This is not the true meaning of the section. The section is intended to enable the District Board to sue & be sued in its corporate name. The right to sue is one thing and the right to sue a corporate name is quite another..

Reliance is further placed on B. 100 of the rules made by the Local Govt, which provides :

Subject to the limit imposed by the District Board, a Local Board, as the agent of the District Board may, in regard to matters, which may have transferred to its control & administration, enter into any contract or agreement in respect of a sum, or involving the value, not exceeding Rs. 5000/-

It is said that this rule also clearly shows that the Local Board is the agent of the District Board. But it does not carry us any further than s. 101 of the Act itself. In so far as power to contract is concerned, the Local Board is, of course, to act as the agent of the District Board. That the Local Board is not an agent of the District Board for all purposes is quite clear from the fact that under s. 139 of the Act the Local Board, as much as the District Board, is authorised to make by-laws which shall have the force of law. S. 141 empowers the local Board to start prosecution for breach of any by-law made by it Neither S. 101 of the Act nor the aforesaid R. 100 affects in any way the right of the Local Board under the general law to sue for damages in respect of trespass committed on the property in its possession.

The next point argued is that the Local Board is not a corporation &, therefore, it could not sue through its Chairman, but all the members constituting the Board should have sued. It is said that s. 29 of the Act makes the District Board a corporate body, but there is no such provision relating to the Local Board. It cannot be disputed that the Local Board is a body of individuals which can act collectively. It cannot possibly be suggested that the members can do any thing except as representing the Board. Though a Local Board is not treated by the Act as a corporate body, there can be no doubt that it is a quasi-corporation. A quasi-corporation is well recognised in law. That a suit can be brought against a Local Board is expressly provided in s. 146 of the Act. If, therefore, a suit may be brought against the Local Board, there is no reason why, when the suit is by the Local Board, all its members, & not the Board, must sue.

The contentions raised on behalf of the appellant fail & the appeal must be dismissed with costs.

Lakshmikanta Jha, C.J.

I agree.