DESAI KANTILAL MAGANLAL Vs. NADIAD BOROUGH MUNICIPALITY
HIGH COURT OF GUJARAT
DESAI KANTILAL MAGANLAL
NADIAD BOROUGH MUNICIPALITY AT NADIAD
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(1.)Mr. Oza who appears for the appellant-plaintiff has raised two questions before me :
(1) Whether the notice addressed to the municipality through the President and served at the municipal office was valid ? and (2) Whether on the facts and circumstances of this case notice was at all necessary under section 206A of the Acts?
(2.)Now the first thing that Mr. Oza contended was that under section 206 what was contemplated was a notice on the municipality. He argued that under section 8 of the Act a municipality is a body corporate with perpetual succession and which can sue and be sued in its name. A municipality therefore being a legal entity a notice to the municipality though addressed through its President was a valid notice. Mr. Oza also contended that under section 206A the only requirement was that a notice should be delivered at the municipal office when a suit is to be filed against such a municipality. Since the notice in fact was served at the municipal office and handed over to a clerk of the municipality who accepted it though on behalf of the President the requirement of section 206 was fulfilled and therefore the notice cannot be said to be an invalid notice. It is no doubt true that by virtue of section 8 of the Act a municipality is a body corporate has perpetual succession and may sue and be sued in its corporate name. But though the municipality is a body corporate it has to act through some agency. Under section 9 a municipality consists of elected councillors and the municipal affairs are to be transacted therefore by those councillors. It is obvious however that the municipal administration cannot be run by a large number of councillors. It is true that the Act provides for the office of a President but under section 31 of the Act he has specific duties and functions assigned to him. The provisions of section 31 show that his duties and functions are to exercise supervision and maintain general control over the municipal administration which would be carried out through the officers of the municipality. Sec. 33 provides for the appointment of a Chief Officer and lays down certain conditions of tenure of his service. Under sub-sec. 2 of sec. 30 it is provided that the executive powers for the purpose of carrying out the provisions of the Act vests in the Chief Officer appointed under v section 33 subject to certain limitations and restrictions with which I am not concerned in this appeal. Under section 8 of the Act though the municipality can sue or be sued under its corporate name it is specifically provided that it can sue or be sued through its Chief Officer. It is thus clear that though the municipality has been created under section 8 as a body corporate with perpetual succession the legislature realised that a municipality can act only through some agency. Section 8 shows that that agency is the Chief Officer for it provides that it is only through the Chief Officer that a municipality can sue or be sued.
(3.)Section 206A then provides that no suit shall lie against a municipality in respect of any act done in pursuance or execution or intended execution of the Act or in respect of any alleged neglect or default in the execution of the Act unless it is commenced within six months next after the accrual of the cause of action and until the expiration of one month after notice in writing has been in the case of a municipality delivered or left at the municipal office. It is true as was contended by Mr. Oza that section 206A does not lay down specifically that the notice contemplated thereunder has to be addressed or sent in the name of the Chief Officer. He argued that there being no such provision the notice addressed to the municipality itself cannot be said to be a notice which is not valid. He contended that if a notice is given in the name of the municipality but it contains the further words through the President such a notice cannot be treated as one which is not valid in as much as the legislature has given legal entity to the municipality by constituting it as a body corporate. Therefore he argued that the notice was a valid notice. There is so no force in Mr. Ozas contention. But as I have already said under section 8 of the Act a municipality can sue or be sued only through its Chief Officer in whom under sub-section (2) of section 30 the executive power of the municipality vests. Therefore in its executive functional the municipality acts in its day today administration through the Chief Officer. Since the municipality can be sued through its Chief Officer only it would seem that all processes as also a notice required to be served under section 206A have to be served upon the municipality through its Chief Officer. This is also the view taken in two decisions of the High Court of Bombay. It is no doubt true that when these decisions were given the section dealing with notice was the old sec. 206 as it stood before it was amended by sec. 29 of the Bombay Act. XXXVI of 1949. The amendment in 1949 however does not seem to mike any difference as the provisions with regard to a notice are mare or less the same. Under sec. 206 of the Act as it stood prior to the amendment it was provided that no person shall commence any suit against any municipality for anything done or purporting to have been done in pursuance of this Act without giving to such municipality two months previous notice in writing of the intended suit and of the cause thereof nor after six months from the date of the act complained of. The requirements both under sec. 206 as it originally stood and under sec. 206A of the present Act are thus more or less the same. In S. M. D. Thakersey & Co. v. The Poona City Municipality I. L. R. 1951 Bom. 302 the plaintiffs entered into a contract With the Supply Department of the Government of India for supply to tent to Defence Services at Kirkee Arsenal within the octroi limits of the Poona City Municipality. In 1940 and 1941 the plaintiffs imported into the limits of the municipality goods out of which tents were manufactured by them within the municipal limits and then delivered to the Supply Department. The plaintiffs had to pay Rs. 8000 and odd by way of octroi duty on the goods so imported but they did that under protest. Considerable correspondence ensued between the parties and ultimately on 2/01/1942 the plaintiffs solved a notice on the Octroi Superintendent of the municipality demanding the octroi duty paid by them under protest. The question arose whether the notice was valid under sec. 206 as it stood then The High Court on a consideration of sec. 206 as also secs. 8 and 30 sub-sec. (2) observed that since under sub-sec. (2) of sec. 30 the executive power vested in the Chief Officer the notice of the suit must be given to the Chief Officer of the municipality. The learned Judges who decided that appeal approvingly cited an unreported judgment in First Appeal No. 396 of 1945 to which one of them was a party and where it was held that the notice of the suit against the municipality addressed to its President was invalid and that it ought to have been sent to the Chief Officer and not to the President. It was also held that the notice not being one contemplated under sec. 206 was not a valid notice and hence the plaintiffs suit was liable to be dismissed.
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