Rukmini Kumar Das vs The Chairman of the Silchar Municipal Board and Another

Thadani, C.J.—This is a second appeal from the judgment and decree of the Subordinate Judge, U. A. D., dated 28th February 1949, by which he affirmed the judgment and decree of the trial Court which had dismissed the plaintiff''s suit, with no order as to costs.

The plaintiff-appellant brought a suit against the Silchar Municipal Board for a permanent injunction restraining the Board from turning off a water-pipe connection from a building in occupation of the plaintiff within the municipal area of Silchar.

The defence taken to the suit was that the plaintiff''s failure to comply with the provisions of Section 320, Assam Municipal Act was a bar to the institution of the suit. Both the trial Court and the lower appellate Court upheld the defence.

The relevant part of Section 320, Aasam Municipal Act is in the these terms:

No suit shall be brought against any Board or any of its officers, or any person acting under its direction for anything done under this Act, until the expiration of one month next after notice in writing has been delivered or left at the office of such Board, and also (if the suit is intended to be brought against any officer of the said Board or any person acting under its direction) at the place of abode of the person against whom such suit is threatened to be brought, stating the cause of 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; and unless such notice be proved, the Court shall find for the defendant.

Mr. Ghose for the appellant contends that in this case, no notice was necessary as the suit brought by the appellant was not a suit for anything done under the Assam Municipal Act by the Board or any of its officers or any person acting under its direction; it was a suit for injunction in respect of a threatened act which the Municipal Board of Silchar intended to take in the event of the appellant''s failure to comply with a notice served upon him by the Board calling upon him to turn off the water-pipe connection from the premises in question; in other words, the Silchar Municipal Board merely contemplated doing something in the future in the event of the failure of the appellant to comply with the terms of the notice; to such an act to be done in the future, the provisions of Section 320 were not applicable.

In support of his contention Mr. Ghose has relied upon certain decisions of the Bombay High Court reported in Panachand v. Ahmedabad Municipality 22 Bom. 230, Kashinath v. Gangabai 22 Bom. 288; Manohar Ganesh v. Daker Municipality, 22 Bom. 289 (F.B.); Shidmallappa v. Gokak Municipality 22 Bom. 605 and Harilal Ranchodlal v. Himat Manekchand, 22 Bom. 636, and to a case reported in Municipality of Parola v. Laxman Das, 25 Bom. 142 : (2 Bom. L. R. 857 ). But many years later, a Division Bench of the Bombay High Court in a case reported in Vithoba Babaji Narote Vs. Sholapur Municipality, had occasion to review the previous decisions of the Bombay High Court to which Mr. Ghose has referred. In the Bombay case reported in Vithoba Babaji Narote Vs. Sholapur Municipality, the act done or purporting to be done under the Bombay Munioipal Boroguhs Act was a notice served on the plaintiff as a licensee of the Municipality, to quit. Before the matter came to the stage of litigation, the plaintiff claimed to be a tenant, contending that the notice to quit was illegal in view of certain orders made under the Defence of India Rules, and asked the Municipality to reconsider the matter. The municipality however adhered to its previous resolution and the notice was served upon the plaintiff to quit. At page 245 of the report Vithoba Babaji Narote Vs. Sholapur Municipality, , Sen J. observed:

In the present case, by their notice of August 1942, the Municipality (a) had purported to terminate their contract with the plaintiffs, and (b) had attempted to evict them. It seems to us that as regards the termination of the contract, the Municipality was perfectly within its rights. The terms of the contract with the plaintiffs are to be found in the pavati Ex. 24, one of the terms of which was, ''The permit-holder should vacate the site without any objection, whenever the municipality requires it and without the notice being given to the permit-holder.'' Section 48 (1) of the Act enables the Borough Municipality inter alia to enter into and perform all such contracts as it may consider necessary or expedient in order to carry into effect the provisions and purposes of the Act.... The termination of the contract was necessitated, according to the municipality, because it was going to start town planning operations. Many, if not all, of those operations would mean carrying out duties imposed on the municipality by Section 68 and the exercise of its discretionary powers u/s 71 of the Act. Thus, there can be no doubt that the termination of the contract was done, or at least it purported to be done, in pursuance of the Act...there can be no doubt that the municipality was dealing with property lawfully vested in it when it attempted to evict the plaintiffs. The question, therefore, arises whether the notice of August 1942 and the municipality''s subsequent resolution and the letter to the plaintiffs, dated 7-6-1948, should not be regarded as acts done or purporting to be done in pursuance of the Act within the meaning of Section 206 of the Act, acts which, according to the plaintiffs'' contention, were illegal, in view of the District Magistrate''s order.

Sen J., then referred to the decision of the Privy Council reported in AIR 1927 176 (Privy Council) in which the act in question was, in their Lordships'' opinion, the Government order or Notification directing that the sums in question should be recovered by the Collector from the shop-keepers of Malegaon. Sen J. observed:

though their Lordships'' decision was not based on the argument that the threatened enforcement of the same was the act that came u/s 80, Code of Civil Procedure, it was based on the argument that the order of Government did so.... It is important to remember that no overt action by the Collector in pursuance of the Government Notification against the shop-keepers, had yet been taken. It seems to me that in the present case also, the notice of August 1942, the resolution and the subsequent letter of the municipality sent to the plaintiffs in June 1943 can be said, within the meaning of Section 206, to be acts done or purporting to be done in pursuance of the Act. It does not seem to me that there is any material difference as to the principle involved between the wording of Section 80, Code of Civil Procedure. and Section 206, Bombay Municipal Boroughs Act,...

Sen J. then referred to the previous decisions of the Bombay High Court and observed:

That, however, was a case of an intentional breach of contract on the part of a Municipality and it was held, relying on Ranchordas Moorarji v. Munioipal Commr. Bombay, 25 Bom. 387 : (3 Bom. L.R. 158 ) and Vishwanath Sadashiv Natu Vs. The Municipal Corporation of The City of Bombay, , that it would be difficult to say that a Municipality or an officer of a Municipality committing a breach of a contract entered into by the Municipality does such act, or purports to do it, in pursuance of the provisions of the Act. Such a consideration cannot be said to arise in our present case, and we do not think that the decision in S.V. Mandlik Vs. The Borough Municipality, can be regarded as any guide in this case.

The facta before us are similar to the Bombay case reported in Vithoba Babaji Narote Vs. Sholapur Municipality, The statutory provisions relating to the powers of the Municipal Board of Silchar in the matter under consideration are to be found in Section 286, Assam Municipal Act (I [1] of 1923). Section 286 is in these terms:

The Board may cause the water to be turned off from any premises which are supplied with water, after giving notice in writing of not less than twenty-four hours:....

Then follow the conditions under which a notice can be given. Condition (d) reads:

if the owner or occupier of the premises willfully or negligently misuses or causes waste of water;....

u/s 41, Assam Municipal Act, a Municipal Board

at a meeting may appoint from among its members or, if it so desires, from among its members and the residents of the Municipality not being members, committees to assist it in the discharge of any specific duties or class of duties devolving upon it under this Act,....

It is reasonable to suppose that it was in pursuance of Section 41 that the Committee considered the question of the water supply to this house and, having found that there were two water-pipe connections, it came to the conclusion that one ''of them should be turned off, apparently to prevent waste of water. The Chairman of the Board, on receiving the resolution of the Water Works Committee, Silchar, served a notice upon the appellant, the terms of which constitute, in our opinion the cause of action for the present suit. To meet this difficulty it was contended by Mr. Ghose that assuming that the giving of a notice is an act done u/s 286, Assam Municipal Act, nevertheless Section 286 contemplates the giving of notice by the Board itself, and not by the Chairman, that as there has been a departure from the strict observance of Section 286, the giving of notice in this case cannot be regarded as an act done under the Assam Municipal Act. We do not think there is any substance in this contention. The Board must act through its officers, and in this cage, it has acted through its principal officer, namely, the Chairman. The act of the Chairman, therefore, must be regarded as the act of the Board within the meaning of Section 286, Assam Municipal Act. In any case, it must be regarded as purporting to be done under the Act. It is true that the words "purporting to be done" do not find place in Section 320 as they do in Section 206. Bombay Municipal Boroughs Act (I [1] of 1923), but we do not think that the omission of the words ''''purporting to be done" in Section 320 is of any consequence, for the words "purporting to be done" are a necessary implication of the words "an act done." Apart from this necessary implication, the act of the Chairman in giving notice in pursuance of Section 286, must, on the facts of this case, be regarded as an act done by the Board within the meaning of Section 320.

Our conclusion then is that the giving of notice by the Chairman of Silchar Municipal Board to the plaintiff, was an act done u/s 286, Assam Municipal Act, and that a notice u/s 320, Assam Municipal Act, was therefore, obligatory before a suit could be brought. In the absence of such a notice, the suit must fail.

The result is that the appeal is dismissed. As the Courts below have dismissed the suit with no order, we do not propose to make any order as to costs of the appeal.

Ram Labhaya, J.

I agree.