PETITIONER:
MUNICIPAL CORPORATION
Vs.
RESPONDENT:
SRI NIYAMATULLAII S/O MASITULLA
DATE OF JUDGMENT:
21/08/1969
BENCH:
RAY, A.N.
BENCH:
RAY, A.N.
HEGDE, K.S.
CITATION:
1971 AIR 97 1970 SCR (2) 47
1969 SCC (2) 551
CITATOR INFO :
RF 1976 SC1207 (102)
ACT:
Indore Municipal Act, 1909, s. 135-Suit declaring dismissal
illegal-Dismissal order without jurisdiction-Limitation
special plea not pleaded.
Limitation-Special plea, whether must be pleaded.
HEADNOTE:
The respondent--an employee of the appellant-Municipality
filed a suit for declaring his dismissal illegal as the
order of dismissal was not passed by the Municipal
Commissioner as required by s. 13 of the Indore Municipal
Act, but was made by one G, who was then acting in place of
the Municipal Commissioner. The trial court accepted the
respondents plea and decreed the suit. The District Judge
in appeal set aside the decree holding that the suit was
barred by limitation as under s. 135(2) of the Act a suit in
respect of any act done under the Act by an officer of the
Municipality had to be filed within six months of the
actual of the cause of action. The special plea of
limitation under s. 135(2) was not taken in the trial court,
though in general terms a plea of limitation was raised.
The: High Court set aside the decree of the District Judge
and restored that of the trial court. The High Court on the
evidence came to the conclusion that no order of the
Government was produced to show that G, was appointed to act
in place of the Municipal Commissioner, and that the order
of dismissal was passed by G, Dismissing the appeal, this
Court,
HELD: On the findings. the dismissal order passed by G,
was beyond his jurisdiction. The provisions contained in s.
135 of the Act will be applicable to things done under the
Act. Since the order of dismissal passed by G was beyond
his jurisdiction, it was, therefore, not an act done under
the Act. [50 D---E]
If any special plea of limitation is a defence such a
defence of limitation should be pleaded. In the present
case the Municipal Corporation did not plead s. 135 of the
Indore Municipal Act, 1909 as a defence. Such a plea was
not taken in the pleadings or in the trial court and the
District Judge should not have entertained such a plea. [50
C D]
Bharat Kala Bhandar Ltd., v. Municipal Committee,
Dhamnangaon, [1965] 3 S.C.R. 499, followed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1733 of 1966.
Appeal by special leave from the judgment and decree
dated March 30, 1966 of the Madhya Pradesh High Court,
Indore Bench in Second Appeal No. 341 of 1964.
M.C. Bhandare and P.C. Bhartari, for the appellant.
S.K. Mehta, A.P. Tayal and K.L. Mehta, for the
respondent
48
The Judgment of the Court was delivered by
Ray, J. This is an appeal from the judgment dated 30th
March, 1966 of the High Court of Madhya Pradesh (Indore
Branch) allowing the appeal and setting aside the decree of
the lower appellate court and restoring the decree of the
trial court with costs.
The plaintiff’s suit against the Indore Municipal
Corporation was for a declaration that the dismissal of the
plaintiff was illegal and that the plaintiff was still on
the post of Removal Sub Inspector and a decree against the
defendant for Rs. 7,488/- on account of salary at the rate
of Rs. 104/- p.m. from 15th April, 1953 till the date of
institution of the suit, viz., 15th April, 1959 and other
reliefs. The trial court decreed the suit. The lower
appellate court set aside the decree. The High Court
restored the decree passed by the trial court.
The case of the plaintiff Niyamatulla was that the
plaintiff was suspended by the order of the Municipal
Engineer dated 15th April, 1953. One Shri Ghatpande who
acted in place of the Municipal Commissioner in the month of
May 1953 directed the dismissal of the plaintiff. The
plaintiff contended that the dismissal could have been only
under the orders of the Municipal Commissioner. The
plaintiff further contended that there was no opportunity
given to the plaintiff against the proposed dismissal.
The defence of the Municipal Corporation was that the
plaintiff preferred a review petition to the Municipal
Commissioner who rejected the same. The plaintiff
thereafter preferred an appeal to the Appeal Committee of
the Municipal Corporation which was dismissed. Thereafter,
a revision petition against the order was heard by the
Minister-in-charge of the Government of Madhya Bharat and
the same was rejected in the month of September, 1955. It
was, therefore, contended that the plaintiff had no right to
file the suit. Another defence was that the suit was barred
by limitation.
Counsel for the appellant canvassed three grounds.
First, that the order of dismissal was valid and Shri
Ghatpande had jurisdiction to pass the order of dismissal.
Secondly, the suit was barred by limitation. Thirdly, the
provisions of section 135 of the Indore Municipality Act was
a plea in bar of the suit.
The authority of Shri Ghatpande to dismiss the plaintiff
was based on the provisions contained in section 13 of the
Indore Municipal Act, 1909. Section 13 of the Indore
Municipal Act, inter alia, reads as follows:
“(1) The Municipal Commissioner for the City of Indore
shall, from time to time, be appointed by the Government.
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(2) (a) Leave of absence may be granted
to the Commissioner, from time to time,
according to the Indore Civil Service
Regulations.
(b) During such absence of the
Commissioner the Government may appoint any
person to act as Commissioner. Every person
so appointed shall exercise the powers and
perform the duties conferred and imposed by
the Act or by any other enactment at the time
in force, on the person for whom he is
appointed to act, and shall be subject to the
same liabilities, restrictions and conditions
to which the said person is liable and shall
receive such monthly salary as may be
determined by the Government.
In order to rest the defence on section 13 of the Indore
Act, it has to be first found out that there is an
appointment by the Government of any person to act as
Commissioner. The finding of fact by the High Court is that
no order of the Government was produced to show that Shri
Ghatpande was appointed to act in place of Shri Rao who was
the then Municipal Commissioner. The further finding of the
fact was that the order of dismissal was passed by Shri
Ghatpande.
The defence of limitation pleaded by the Indore
Municipal Corporation was in general terms that this suit
was barred by limitation. The plaintiff in the plaint
alleged that the cause of action arose on 15th April, 1953
and on ist May, 1953 when the plaintiff was dismissed from
service and on 11th January, 1954 when it was passed by the
Appeal Committee of the Indore Municipality. At the trial
the plaintiff contended that the suit was well constituted
and was governed by Article 120 of the Limitation Act,
1908.
At the time of the hearing of the appeal before the
District Judge, Indore, the Municipal Corporation, Indore
contended that under section 135(2) of the Indore Municipal
Act, 1909 a suit in respect of any act done or purporting to
be done under the Act by an officer or servant of the
municipality or by any person acting under the order of the
Government was to be filed within six months from the date
of the actual of the cause of action. The District Judge
accepted the plea. The alternative contention on behalf of
the Municipal Corporation before the District Judge was that
Article 115 of the Limitation Act, 1908 will apply if the
special period of limitation prescribed by the Act did not
apply. The District Judge did not accept that contention on
the reasoning that the plaintiff was not under any contract
of service and Article 115 applied to compensation for
breach of
50
contract. The District Judge held that Article 14 of the
Limitation Act, 1908 would apply when an order of an officer
in his official capacity was set aside and no special period
of limitation was prescribed.
In the High Court the Municipal Corporation repeated the
plea under section 135 of the Indore Municipal Act, 1909.
The High Court, however, repelled that contention by holding
that Shri Ghatpande was not the Commissioner when he passed
the order, and, therefore, the order being without
jurisdiction, the provisions contained in section 135(2) of
the Indore Municipal Act were inapplicable and the
plaintiff’s suit was governed by Article 120 of the
Limitation Act, 1908.
The provisions of the Code of Civil Procedure enjoin that if
any special plea of limitation is a defence such a defence
of limitation should be pleaded. In the present case, the
Municipal Corporation did not plead section 135 of the
Indore Municipal Act, 1909 as a defence. Such a plea was
not taken in the pleadings or in the trial court and the
District Judge should have not entertained such a plea. The
provisions contained in section 135 of the Indore Municipal
Act will be applicable to things done under the Act. It is
manifest that in the present case the order of dismissal
passed by Shri Ghatpande was beyond his jurisdiction
and is therefore not an act done under the Act.
Furthermore, section 8(1)(b) of the Indore Act says that
the Council shall bear the name of the Municipal Council of
the Indore City and be a body corporate and have perpetual
succession and a common seal and by such name may sue and be
sued. A distinction is to be noticed between suing the
Municipal Council of the Indore City as contemplated in
section 8(1)(b) of the Act and suits against the
Commissioner or any officer or servant of the Municipality
or any person acting under the direction of the Government
or the Commissioner as contemplated in section 135 of the
said Municipal Act. One of the purposes of section 135 of
the Municipal Act is to, afford an opportunity to the
persons mentioned in the section to make amends within the
period of notice. The suit that was filed in the present
case was not in respect of any act done or purported to be
done under the Act.
This Court in the case of Bharat Kala Bhandar Ltd. v.
Municipal Committee, Dhamangaon(1) examined the provisions
of section 48 of the Central Provinces and Berar
Municipalities Act, 1922 which was to the effect that no
suit shall be instituted against any Committee or any
member, officer or servant thereof or any person acting
under the direction of any such committee, member, officer
or servant for anything done or purporting to be done
under the Act, until the expiration of two months next after
notice
(1) [1965] 3 S.C.R. 499.
51
in writing stating the cause of action, the name and place
of abode of the intending plaintiff and the relief which he
claims. Section 48 of the said Central Provinces and
Berar Municipalities Act further provided that every such
suit shall be dismissed unless it was instituted within six
months from the date of the actual of the cause of action.
The appellant in that case contended that it was a case of
recovery of an illegal tax and therefore a claim for its
refund fell outside the provisions of section 48 of the said
Act. The respondent, on the other hand, contended there that
the collection of tax was not without jurisdiction but only
irregular and therefore the suit would be in respect of a
matter purporting to be done under the Act. This Court held
that where power existed to assess and recover a tax up to a
particular limit the assessment or recovery of an amount in
excess was wholly without jurisdiction. To such a case, the
statute under which action was purported to be taken could
afford no protection. On logic and principle the same
reasoning applies to the provisions contained in section 135
of the Indore Municipal Act, 1909 with the result that the
suit in the present case is not within the mischief of
section 135 of the Indore Municipal Act.
For these reasons, the appeal fails and is dismissed with
costs.
y.p. Appeal
dismissed.
52