SHINGHAL, J. - (1.) -
(2.) THIS special appeal against the judgment and decree of a learned Single Judge of this court dated September 4, 1963, has come to us on a reference by a Division Bench in these circumstances. The plaintiffs were the owners of a part of the Shahpura Haveli, in Udaipur City. Some debris was lying on a portion of that property. The plaintiffs asked the Municipal Corporation to remove it, and it is claimed that the Corporation promised to do so within 3 months. As the debris was not removed within that period, a representative of the association of the plaintiffs, styled as "the Shahpura House Sarrafa Market Committee", met Ismail AH Bohra (defendant No. 2), President of the City Municipal Corporation, who asked the representative of the plaintiffs' Committee to remove the debris and promised that for doing so a sum up to Rs 3,000/- would be got deducted from the sum payable by the plaintiffs to the State Government. A resolution was accordingly passed by the Council of the City Corporation, of which a copy was sent to the Secretary of the plaintiff's Committee. Relying on the aforesaid talk with defendant No. 2 and the resolution, the plaintiff's Committee got the debris removed by giving out a contract for the purpose. The debris was removed by October 4, 1958, and the plaintiffs altogether spent Rs. 4,287/- for the work. They asked the Municipal Corporation to have the sum of Rs. 3,000/- adjusted in the account with the State Government in accordance with the aforesaid promise, but to no avail, and the plaintiffs had to deposit the money with the State Government. According to the plaintiffs the debris was utilised by the Municipality. Alleging that as the work of removing the debris was undertaken for the benefit of the Municipal Corporation in pursuance of the assurance given by Ismail Ali Bohra (defendant No. 2) and the resolution of the Municipal Council (defendant No. 1), the plaintiffs instituted the present suit on August 10, 1961, for the realisation of Rs. 2,648/50, after deducting Rs. 351/50 payable by them to the Municipality. The defendants denied the claim and pleaded, inter alia, that the resolution was not enforceable and that the agreement was without consideration. They also pleaded that the plaintiffs had no cause of action and that the suit was not maintainable without the two 'months' notice prescribed by sec. 271 of the Rajas-than Municipalities Act, 1959, hereinafter referred to "the Act. " The learned Civil Judge, in whose court, the suit was instituted, framed 6 issues. Issue No 1, with which we are concerned in this controversy, raised the question whether the suit was not maintainable without a notice under sec. 271 of the Act? It was argued on behalf of the plaintiffs (in the trial court) that a notice under sec. 271 was not necessary as the suit was based on a contract, and reliance was placed on Ram Narain vs. Municipal Board, Muttra (1 ). The argument was repelled by the learned trial Judge on the grounds that the suit was not based on a contract and was not maintainable without a notice under sec 339 of the Udaipur City Municipal Act, 1945, and that it was filed beyond the period of 6 months prescribed by that section. The learned Civil Judge accordingly dismissed the suit on February 23, 1962. The plaintiffs preferred an appeal to the District Judge of Udaipur. The learned appellate Judge held that as the Udaipur City Municipal Act, 1945, was replaced by the Act with effect from October 17, 1959, the controversy in the suit had to be determined with reference to sec. 271 of the Act. He referred to certain decisions of the Allahabad High Court and held that the suit did not fall within the purview of sec. 271 of the Act. He therefore allowed the appeal, set aside the judgment and decree of the trial court, and remanded the case. The defendants preferred a second appeal to this court. After considering the decisions in Mathura Prasad vs. Chairman, District Board, Sitapur (2), and District Board, Allahabad vs. Lala Beharilal (3) on the wordings of sec. 192 of the U. P. District Boards Act, 1922, as well as the decision in Faquir Muhammad vs. Municipal Committee, Phillaur (4) with reference to sec. 49 of the Punjab Municipal Act (No. 3 of 1911), the learned Single Judge held that a notice under sec. 271 of the Act would have been necessary only if the suit had been instituted in respect of any "act" done or purported to have been done by the Board or its Chairman, Vice Chairman, member, officer or servant in an official capacity. The learned Judge held further that as sec. 271 of the Act prescribed a shorter period of limitation, it had to be construed strictly ; and proceeded to hold that as the plaintiffs did not complain against any act of the Municipal Board or its officer or servant, and as the suit was for recovery of money due under an agreement where there was a mere omission to pay on the part of the defendants, it did not fall within the purview of sec. 271 of the Act as "mere omission to pay cannot be described as an act". The learned Single Judge appreciated the contention that an act includes an "illegal omission" according to its definition in the Raj General Glauses Act, but he took the view that an illegal omission" was one which was illegal, i. e. forbidden by some law. The non-payment of the money due to the plaintiffs could not therefore be said to be an illegal omission as it was not forbidden by any law. In reaching this conclusion the learned Judge placed reliance on the decision of their Lordships of the Privy Council in Revati Mohandas vs. Jatindra Mohan Ghosh (5) and held that the omission to make the payment could not be regarded as an official act within the meaning of sec. 271 of the Act. He accordingly dismissed the appeal, but granted leave to file a special appeal. The defendants preferred the present special appeal. It came up for consideration before a Division Bench of this Court. The learned Judges examined the argument regarding the applicability of sec. 271 of the Act to suits based on contracts, and referred to the view expressed by another Division Bench of this Court in Municipal Board, Bhilwara vs. Bhuralal (6) that suits against municipalities "of whatever nature and description be they contractual or of a tortious nature, except in so far as they have been otherwise provided for in the section itself, are intended to be governed by the special period of limitation provided in this section and not by the general law of limitation in force in the country. " The learned Judges took particular notice of the Full Bench decisions in Lucknow Nagar Maha-palika vs. Sardar Karamjeet Singh (7) and Antarim Zila Parishad vs. Shanti Devi (8 ). They observed however that it was not necessary for them to go into all the controversial decisions because, according to them, the controversy had been set at rest by the pronouncement of their Lordships of the Supreme Court in Provincial Govt. , Madras vs. J. S. Basappa (9 ). They noticed the difference in the language of sec. 18 of the Madras General Sales Tax Act, 1939, which was considered by their Lordships of the Supreme Court in that case, and sec. 271 of the Act, but held that it was not of much significance and had no effect on the true scope of sec. 271. Accordingly, they held that the 'safeguard" of sec. 271 was not available for "the contractual liability" of the Board or its officers and that sub-sec. (1) of sec. 271 would govern "only such cases which are filed for the recovery of damages or compensation". They finally set out their view as follows - "the provision of sub-sec. (1) of sec. 271 of the Act, therefore, can be attracted only when a suit for damages or compensation is brought against the Board or officers for the discharge of their official duties under the Act and not for performing any act which the Board or its officers could do in the discharge of their official functions. " The learned Judges however thought it proper to refer the entire case to a larger bench because they differed from the earlier decision of another Division Bench in Municipal Board, Bhilwara vs. Bhurala! (6 ). It is in these circumstances that this special appeal has come up for consideration before us. As is obvious, the question which directly arises for consideration in this case is whether the present suit is barred by sec. 271 of the Act? That section reads as follows - "sec. 271. Suits against Boards or its officers - (1) No suit shall be instituted against a Board, or against the Chairman, Vice-Chairman, member, officer or servant of a Board or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or his official capacity until the expiration of two months next after notice thereof in writing has been in the case of a Board, left at its office and, in the case of the Chairman, Vice Chairman, member, officer servant or person, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff, and the plaintiff shall contain a statement that such notice has been so delivered or left. (2) No action such as is described in sub-sec. (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action. (3) Nothing in sub-sec. (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding. " Thus the suit referred to in the section must arise out of an "act" done or purported to have been done by a Municipal Board, or its Chairman, Vice-Chairman, member, officer or servant in its or his official capacity, and we must therefore examine the all important question whether the defendants did, or purported to do, any "act" in their official capacity within the meaning of the section. We have referred already to the nature of the claim in the suit, and the basis thereof. The plaintiffs have no doubt relied on the promise made by defendant No. 2, and the resolution passed by the councils of the City Corporation, but they do not feel aggrieved against that promise or resolution. In fact they have themselves placed reliance on them. The fact therefore, remains that, apart from the aforesaid promise or resolution, the plaintiffs have not alleged what other act was done, or was purported to be have been done, by the defendants to attract the application of sec. 271 of the Act. When asked to clarify the matter, Mr Shrimal could do no more than refer to the averment in paragraph 7 of the plaint that the plaintiffs had to incur the expenditure of Rs. 3,000/ and could not secure its adjustment with the State Government because of the failure of the municipality to fulfil its promise. The learned counsel has thus relied on the averment in the plaint regarding the omission on the part of the defendants to make the payment of Rs. 3,000/-either in cash or by adjustment, and it must, therefore be held that the suit is not based on any direct "act" done or purported to have been done by the defendants as such. It is true that according to clause (2) of sub-sec. (2) of sec. 32 of the Rajasthan General Clauses Act, 1955, the expression "act", "used with reference to an offence or a civil wrong, shall include a series of acts; and words which refer to acts done extend also to illegal omission," but it is nobody's case that the Act, or for the matter of that any other law, enjoined the payment of money due under any such promise or resolution as is the subject matter of the present suit, on pain of penalty, so that it cannot be said that the defendants were guilty of an "illegal omission" in not making the payment to the plaintiffs. A similar point arose for consideration before their Lordships of the Privy Council in Revati Mohan's case (5) on which reliance was placed by the learned Single Judge, and it was held as follows - "under the general definitions contained in S. 3, General Clauses Act, 1897, an 'act' might include an illegal omission, but there clearly was no illegal omission in the present case. It is also difficult to see how mere omission to pay either interest or principal could be an act purporting to be done by the manager in his official capacity. " This decision fortifies the view we are inclined to take in this case. The decision in Revati Mohan's case (6) was noticed by a Full Bench of the Allahabad High Court in District Board, Allahabad vs. Lala Behari Lal (3) while considering the provisions of sec. 192 of the U. P. District Boards Act. 1922, which were similar to those of sec. 271 of the Act, and it was observed as follows, - "there may therefore be considerable difficulty in holding that the word 'act' in S. 193. District Boards Act, includes all cases of mere omission to per-form a private contract, even though not amounting to an illegal omission within the meaning of S. 4, General Glauses Act. A similar view has been taken in Antarim Zila Parishad vs. Shanti Devi (8 ). In fact the meaning of the expression "act" recently came up for consideration before their Lordships of the Supreme Court in Amalgamated Electricity Co. (Delgaum Ltd. vs. Municipal Committee, Ajmer (10) with reference to a very similar provision in sec. 233 of the Ajmer Merwara Municipalities Regulation (1925) and they have held as follows - "in the suit, the plaintiff does not complain of any act done by the defendant nor does it say that defendant was guilty of any illegal omission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Every omission is not an illegal omission. Before an omission can be considered as an illegal omission it must be shown that the official concerned had omitted to discharge some official duty imposed on him in public interest. The omission in question must have a positive content in it. In other words the non-discharge of that duty must amount to an illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . But the failure on the part of the Municipality to discharge its liabilities will not ordinarily become illegal omissions. The Municipality or its members or office bearers cannot be punished for their failure to pay the amount due to the plaintiff To put it differently, the omission complained does not entail any penal consequence for the public official responsible for it. " In taking this view, their Lordships have approved the decision in Revati Mohan Das's case (5) and held that "a mere omission to discharge the debt without anything more is not an illegal omission". In this state of the law, we have no hesitation in holding that the learned Single Judge was quite right in taking the view that sec. 271 of the Act has no application to facts and circumstances of this case.
(3.) IT appears, however, that this aspect of the matter was not canvassed for the consideration of the learned Judges who have made the present reference although it was the basis of the judgment of the learned Single Judge and was sufficient for the disposal of the second appeal. The learned Judges making the reference have paid much attention to the argument that sec. 271 the Act does not apply to a contract, and we may well deal with it. In doing so, we shall of course proceed on the assumption that the suit has been based on a contract and that it has been instituted in respect of an "act" done or purporting to have been done by the Municipal Council. A reading of sub-sec. (1) of sec. 271 of the Act shows that, apart from the expression "act" to which reference has been made above, the other emphasis in the section is on the requirement that the "act" should have been done, or should be purported to have been done, in official capacity". The two propositions which therefore stand out are these: (i) the "act" may be of any nature as long as it falls within the definition contained in clause (2) of sub-sec. (2) of sec. 32 of the Rajas-than General Clauses Act, and (ii) it should be "official" as contradistinguished from the "non-official" act. So where these requirements are fulfilled, sec. 271 would, speaking broadly, apply to the suit. The execution of a contract is, in our opinion, as much an "act" as a breach thereof or an act giving rise to an action in tort. To all such "acts", the test whether they are official or unofficial will therefore apply in order to decide whether they fall within the purview of sec. 271; for it is the clear intention of the section that private acts should be kept outside its purview. It would follow that it would not be permissible for us to hold that all contracts must be excluded from the ambit of the section, irrespective of their nature. In restricting its scope to acts "done or purporting to have been done in. . . . . . . . . . . . official capacity", it is the clear intention of the legislature to exclude non-official or private acts. Private contracts are not therefore within the purview of the section, whereas there is no justification for excluding official contracts from it. Now while dealing with an official body like a Municipal Board it is not always possible or proper to lay down any general rule for distinguishing an official from a non-official contract, for the dividing line may sometimes be so thin as to be incapable of easy perception. Nonetheless, it cannot be doubted that there is always a distinction between an official and an unofficial contract; and it appears to us that the best way to take a decision is to base it on the facts and circumstances of each case. We may in this connection make a reference to the well-known decision in Sharpington vs. Fulham Guardians (11 ). There the guardians for the parish of Fulham entered into a contract with the plaintiff for the execution of certain works, consisting of altering and adding to an old mansion house, for the purpose of carrying out their public duties. The works were completed and were paid for. The plaintiff then claimed an additional sum by way of damages for loss alleged to have been caused by negligence and frequent changes of plans by the defendants. The matter was referred to arbitration, and there the defendants, inter alia, took the plea that the claim was for neglect or default in the execution of the defendants' public duty and the proceedings had not been commenced within 6 months as required by sec, 1 of the Public Authorities Protection Act, 1893. That Act, inter alia gave the protection for "any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any public duty or authority. " Farewell J, held as follows, - "the public duty which is here cast upon the guardians is to supply a receiving house for poor children; a breach or negligent performance of that duty would be an injury to the children; or possible to the public, who might be injured by finding the children on the highway. In order to carry this duty they have power to build a house or alter a house, and they accordingly entered into a private contract. It is a breach of this private contract that is complained of in this action. It is not a complaint by a number of children or by a number of the public in respect of the public duty. It is a complaint by a private individual in respect of a private injury done to him. The only way in which the public duty comes in at all is, as I have pointed out, that if it were not for the public duty any such contract would be ultra vires. But that would apply to every contract. I cannot find any ground for saying that this particular contract comes within the Act. I think it is clear that what is complained of is a breach of a private duty of the guardians to a private individual. " If we may say so with respect, this is the correct view to take in such matters. ;