The Municipal Committee Ludhiana vs Surrinder Kumar

D.S. Tewatia, J.—This appeal arises out of a suit for declaration to the effect that the plaintiff-respondent was entitled to his reinstatement and the consequential relief in the form of mandatory injunction to reinstate him and pay salary from the date of dismissal till the date of reinstatement. The trial Court decreed the, suit which led the defendant-appellant Municipal Committee to file an appeal to the First Additional District judge, Ludhiana. which was dismissed by the first appellate court on the ground that the appeal.was not competent as it was not properly filed and it is against this judgment of the First Additional District Judge, dated the 19th of April 1969. that the present appeal has been filed by the defendant-appellant in this Court.

The learned counsel for the appellant has urged that the appeal before the first appellate Court was competent for the following three reasons:

(i) That the counsel who presented the appeal had a proper power of attorney in his favour at the trial stage of the suit and the said power of attorney was wide enough to authorise him to file and conduct the appeal from the decision of the trial Court on behalf of the Municipal Committee;

(ii) That the Executive Officer was invested by a legal authority u/s 35 of the Punjab Municipal Committee Act, 1911, to act for the Municipal Committee, and he correctly authorized the filing of the appeal in question; and

(iii) That the Municipal Committee by its resolution, dated 22nd of April 1969, approved the filing of the appeal in question and this ex post facto approval cures the irregularity, if there was one.

In support of the first ground the learned counsel for the appellant drew my attention to decisions of various High Courts, e. g Punjab Co-operative Bank Ltd. Vs. L. Naranjan Dass Budwar, , Moolchand Prop. Firm Lallimal Biharilal and Others Vs. Ram Babu Vaishya, and Sri Keshav Gupta Chhajju Singh Vs. Ghayur Ali Khan, . There is no dispute a bout the principle enunciated in the three decisions relied upon by the learned counsel for the appellant, but the facts of this case are entirely different and the ratio of those three decisions is not attracted to the facts of this case. There cannot be any quarrel with the proposition that appeal is the continuation of a suit, and if a counsel has a power of attorney in his favour to file a suit and if the terms of the power of attorney are wide enough to authorise him to file the appeal, then no fresh power of attorney will be necessary to authorise the counsel to file or conduct the appeal, but that will be true only when the litigant is a private individual. However, in a case where the litigant happens to be a corporation, the scope of the authority enjoyed by the attorney will be decided with reference to the contents of the resolution passed by the corporation investing the counsel with the authority to file or defend the suit, as the case may be, and then again it will be further dependent on the fact as to whether the corporation is competent to pass the resolution in question. For the sake of argument, even if it is taken for granted that the corporation has a power to pass a resolution authorising a person to decide for himself as to whether in a matter legal proceedings are to be initiated or not and, when initiated whether to be carried on at every stage, in the present case the appellant has not placed on the record the resolution of the Municipal Committee which could have enabled the Court to form an opinion about the scope of the resolution, and in the absence of the resolution the contents of the power of attorney become entirely meaningless for the purpose of deciding the extent of the authority of the counsel in the matter because the counsel can merely to file and conduct the appeal, but whether an appeal has to be filed or not that matter has to be decided by the Municipal Committee itself and by none else, and in this view of mine I am supported by a Single Bench decision of this Court, reported in Punjab Agricultural University v. Messra Walia (1969) 71 P.L.R. 257 where P.C. Pandit, J., after following the dictum of their Lordships of the Supreme Court in The Vice-chancellor, Utkal University and Others Vs. S.K. Ghosh and Others, and after referring to a decision of the Lahore High Court, reported in Bawa Bhagwan Dass v. Municipal Committee, Rupar AIR 1943 Lah. 38 with approval made the following observation at page 261:

The question, however, still remains, which are those suits which could be instituted with the sanction of the Vice Chancellor. That has not been made clear in the said Schedule. Besides, no power had been given to the Vice-Chancellor to decide whether a suit or appeal in a particular case should be filed or not. It is for the Board of Management to decide by Resolution the nature or type of the suits which could be instituted with the sanction of the Vice-Chancellor. No such material has been brought on the record to show that the present suit or appeal was of that type.

Learned counsel for the appellant places reliance on yet another decision of this Court, reported in The Municipal Committee. Pathankot v. Roshan Lal (1957) 59 P.L.R. 470, where Chief Justice Bhandari observed that sanction accorded by a Municipal Committee to defend a suit against it is equivalent to a sanction accorded to the defense of the suit from the lowest to the highest Court. No fresh sanction to file an appeal is necessary. Again, there is no quarrel with this proposition that once the Municipal Committee had passed a resolution in very wide terms, authorising a person to conduct the suit and appeal, then no fresh power of attorney need have been executed to enable him to present the appeal, but whether the appeal should be filed or not, that action would be dependent on the decision of the Municipal Committee to go in for an appeal.

Dealing with the second argument of the learned counsel for the appellant, I am of the opinion that there is no merit therein at all. but to appreciate the point the relevant provisions of Section 35 of the Punjab Municipal Act require notice. They are:

35 (1) On the occurrence or threatened occurrence of any event involving or likely to involve extensive damage to property or danger to human life or grave inconvenience to the public, the President or the executive Officer, or, in the absence of the President or during the vacancy of his officer, a Vice-President may, if in his opinion there is an emergency necessitating action before the matter can be considered by the Committee direct the execution of any such work or the doing of any such act which the Committee is empowered to execute or do, as the emergency shall in his opinion justify or require and may direct that the expense of executing such work or doing such act be paid from the municipal fund:

a bare perusal of the provisions of Section 35 set out above makes it clear that the person named therein are authorized by the statute to act only in a given contingency and that is where such persons are required to act in. order to avert the occurrence or threatened occurrence of an event which is likely to do extensive damage to property or endanger human life or to put the public to grave inconvenience. Non-filing of an appeal on the part of the Municipal Committed against the decree and judgment of the trial Court would not have entailed any damage to property or danger to human life or grave inconvenience to the public. So, I am afraid, Section 36 does not coaler any power on the executive Officer to authorise filing of the appeal in question.

As regards ground No. (iii) urged by the learned counsel for the appellant, I am of the view that ex post facto approval granted by the Municipal Committee to file an appeal by passing a resolution is not sufficient to cure the defect as the same had to be prospective in operation and the said approval cannot be deemed to have been given on the date on which the appeal was filed. In case the ex-post facto approval was given within the period of limitation, then of course it could be considered to have cured the irregularity, but in the present case the resolution in question was passed long after the expiry of the period of limitation for filing the appeal. I, therefore, hold that the lower appellate Court rightly held the appeal to be incompetent.

For the reasons recorded above, this appeal fails and is dismissed, but there is no order in regard to costs.