The District Local Board Of Poona vs Vishnu Raghoba Waderkar on 2
August, 1932
The District Local Board Of Poona vs Vishnu Raghoba Waderkar
on 2 August, 1932
Equivalent citations: (1933)35BOMLR55, AIR 1933 BOMBAY 164
JUDGMENT
Patkar, J.
1. In this case, the plantiff sued to recover Rs. 1,777-8-0 as damages from the
District Local Board of Poona, for breach of a contract entered into on February 8,
1926, with the District Local Board to construct a building at Junnar for the use of the
office of the Sub-Inspector of Police. The learned Subordinate Judge held that the suit
was barred under Section 136 of the Bombay Local Boards Act, 1923, Bom. Act VI of
1923, which runs as follows :-
No suit shall be commenced against any local board, or against any
officer or servant of a local board, or any person acting under the orders
of a local board, for anything done, or purporting to have been done, in
pursuance of this Act, without giving to such local board, officer, servant,
or person one month's previous notice in writing of the intended action
and of the cause thereof, nor after three mouths from the date of the act
complained of.
2. The suit was tiled more than three mouths after the accrual of the alleged cause of
action.
3. On appeal, the learned Assistant Judge hold that Section 136 of the Bombay Local
Boards Act had no application to a suit based on a contract.
4. Section 136 of the Bombay Local Boards Act is framed in terms of Section 167 of the
Bombay District Municipal Act, III of 1911, similar to Section 48 of the Bombay
District Municipal Act, II of 1884, and Section 527 of Bombay Act III of 1888. It was
held by the full bench in Manohar Ganesh Tambekar v. Dakor Municipality (1896)
I.L.R. 22 Bom. 289, F.B. that the provisions of Section 48 of Bombay Act II of 1884 do
not apply to actions for the possession of laud brought against a Municipality.
Ranade J. observed (p. 299):-
Actions based on contracts, and claims in the nature of ejectment,
have been accordingly held not to fall within the scope of this section-
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The District Local Board Of Poona vs Vishnu Raghoba Waderkar on 2
August, 1932
Mayandi v. McQuhae (1878) I.L.R. 2 Mad. 124.
5.And again at page 301 observed :-
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The District Local Board Of Poona vs Vishnu Raghoba Waderkar on 2
August, 1932
Claims based on contract can never bo included under this section for the
simple reason that they are not claims ' for anything done or purporting
to have been done in pursuance of the Act.' Claims for the specific
performance of a contract to sell or lease land will not, therefore, fall
within the section.
6. In the case of Municipality of Faizapur v. ManaJe Dulab (1897) I.L.R. 22 Bom. 637 it
was held that Section 48 of the Bombay District Municipal Act, Amendment Act II of
1884, does not apply to a suit for the specific performance of a contract or for
damages for breach thereof. It was observed at
p. 639 as follows:-
It is thus a suit for specific performance of a contract, or for damages for
broach thereof. Such a suit is not an action for anything done or
purporting to bo done in pursuance of the Bombay District Municipal Act;
for the Act, though it may give the municipality power to make contracts,
does not authorize them to refuse to perform them, and no section of the
Act has boon quoted as one under which they are now purporting to act.
That Section 48 does not apply to actions on contracts was ruled in
Mayandi v. MeQuhae (1878) I.L.R. 2 Mad. 124, and was also stated in the
judgment of Ranade, J., in Manohar Ganesh Tambehar v. Dakor
Municipality (1896) I.L.R. 22 Bom. 289, 299,F.B.
7.In Ranchordas Moorarji v. The Municipal Commissioner for the City of Bombay
(1901) I.L.R. 25 Bom. 387, s.c. 3 Bom. L.R. 158 it was observed by Sir Lawrence
Jenkins at p. 393 as follows:-
There is another mode of approaching this case. It is established that
notice is not required where the action is brought on a contract: for the
conduct leading to the action is a wrongful act or omission under the
contract, as distinct from One in the execution of the Act; and it is the
breach of a specific contract that is the occasion of the right to sue.
The same view is taken by the Madras High Court in Mayandi v.
McQuhae, in the case of Truntees of the Harbour, Madras v. Best & Co.
(1899) I.L.R. 22 Mad. 524, and Muthya Chettiar v. The, Secretary of State
for India (1908) I.L.R. 31 Mad. 522.
8. In Halsbury's Laws of England, Vol. XXIII, page 342, Article 693, it is observed as
follows :-
The performance of a specific contract; made in pursuance of a public
duty is not the performance of a public duty, oven though the defendant
is a public authority and the making of such contract would have been
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The District Local Board Of Poona vs Vishnu Raghoba Waderkar on 2
August, 1932
ultra vires save for statutory powers; nor is the performance, oven by a
public authority, of acts merely incidental to the ownership of
property the performance of a public duty.
Consideration of the cases decided under the Public Authorities
Protection Act, 1893 (56 & 57 Vic. c. 6!) also loads to the same result.
The question is discussed in the judgments of Farwell J. in Sharpington
v. Fulham Guardians [1904] 2 Ch. 449 and
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August, 1932
Homer L.J. in Jermiah Ambler & Sons, Limited v. Bradford Corporation
[1902] 2 Ch. 585, 594, and Vaughan Williams L.J. in Lyles v. Southemd-
on-sea Corporation [1905] 2 K.B. 1, 14. It was observed by Farwell J. in
Sharpington's case as follows (p. 456) :-
The public duty which is hero cast...is to supply a receiving house
for poor children,.,In order to carry out that duty they have power to
build or alter a house, and they accordingly entered into a private
contract. It is a broach of this private contract that is complained of in
this action...It is a complaint of 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,...that if it were not for the public duty any such contract would be ultra
vires.
9. The point has been dealt with authoritatively by the House of Lords in Bradford
Corporation v. Myers [1916] 1 A.C. 242, where Viscount Haldane observed at p. 251
as follows :-
My Lords, in the case of such a restriction, of ordinary rights I think that
the words used must not have more read into them than they express or
of necessity imply, and I do not think that they can bo properly extended
so as to embrace an act which is not done in direct pursuance of the
provisions of the statute or in the direct execution of the duty or
authority.
10. And at p. 252, as follows:-
For it seems to me that the language of Section 1 does not extend to an
act which is done merely incidentally and in the sense that it is the direct
result, not of the public duty or authority as such, but of some contract
which it may be that such duty or authority put it into the power of a
public body to make, but which it need not have made at all.
11. The point has been dealt with by the Calcutta High Court in
Jatindramohan Ghosh v. Rebatimohan Das (1931) I.L.R. 59 Cal. 961, 973, where the
question was considered whether the word " act " as used in Section 80 of the Civil
Procedure Code is used in a generic sense and embraces a suit on a contract, and the
question arising under the Public Authorities Protection Act of 1893 Was discussed at
pp. 968 to 975 and it was observed at p. 975, following the decision of the Privy
Council in Bhagchand Dagadusa v. Secretary of State for India (1927) L.R. 54 I.A. 338,
s.c. 29 Bom. L.R. 1227, that the words of Section 80 "Suit...in respect of" are wider
than the words of the statute of 1893, viz., "Any action...for any act done in pursuance
or execution or intended execution of any Act of Parliament or of any public duty or
authority". It is not necessary in this case to consider the question whether the suit on
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The District Local Board Of Poona vs Vishnu Raghoba Waderkar on 2
August, 1932
a contract falls within Section 80 of the Civil Procedure Code. In Bhagchand Dagadusa
v. Secretary of State for India the question for consideration was whether Section 80
of the Civil Procedure Code applied to a suit for an injunction to prevent serious and
irreparable injury, and it was held that the section applied to all forms of suit and
whatever the relief sought including a suit for injunction, as the section is express,
explicit and mandatory and
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The District Local Board Of Poona vs Vishnu Raghoba Waderkar on 2
August, 1932
admits of no implications or exceptions, and after referring to cases under the Public
Authorities Protection Act 1893 it was observed that the words "in respect of" a form
going beyond " for any thing done or intended to be done " show it to be wider than
the statute on which the English authorities were decided.
12. It is the obligatory duty of the Local Boards under Section 50, Clause (b), of
Bombay Act VI of 1923 to make adequate provisions in regard to the construction and
repair of public buildings, and under Section 45, Sub-section (2), all works other than
those to be executed by the Government Executive Engineer under Sub-section (1) of
the section shall be executed by such agency and subject to such supervision as the
Local Board at whose cost any such work is to be executed thinks fit. There is no
provision in the Act, making it obligatory to execute the construction of a building
through a contractor, or indicating that the execution of the construction of a building
through a contractor was a performance of its statutory duties. The work could have
been executed by the Government Executive Engineer if the Local Board had
communicated a desire to that effect. The complaint in the present case is by a private
individual in respect of private injury done to him by breach of the contract. The
question of public duty arises only in a remote way inasmuch as but for such public
duty any such contract would be ultra vires. The performance of the contract is only
incidental to the statutory powers of the Local Board.
13. We think, therefore, that the consensus of authority is in favour of the view that
an action based upon a breach of contract would not fall within the ambit of Section
130 of the Bombay Local Boards Act of 1923.
14. The only case cited in favour of the appellants is Baban Hemraj v. The City
Municipality, Poona (1921) I.R. 40 Bom. 122, s.c. 23 Bom. L.R. 881, where the plaintiff
entered into a contract with the defendant Municipality to carry soil water for one
year, and the Municipality levied from time to time fines and penalties from the
plaintiff for breaches of contract, as provided for in the contract, and the plaintiff sued
to recover the amount of fines and penalties so levied, and it was held that the suit
was governed by Section 167 of the Bombay District Municipal Act, 1901, and not
having been brought within a period of six months from the acts complained of was
time-barred. The question arising in this case does not appear to have been discussed
in the judgment. The case might also be distinguished on the ground that the
Municipality claimed, according to the terms of the contract, to deduct a certain
amount from the plaintiff's deposit for non-performance of his contract, and as such
deductions were justified under the powers conferred upon them by the Act, it was
held that their powers to enforce the contract, according to the construction they put
upon it, must also be in pursuance of the Act. If it was intended to hold that suits for
damages for breach of contract come within the protection afforded by Section 167 of
the Bombay District Municipal Act, corresponding to Section 136 of the Bombay Local
Boards Act, I am with all respect unable to agree.
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15.The view which we have arrived at has also been accepted by Baker J., in The
Poona City Municipality by its President v. Dhondiba (1932) F.A. No. 80 of 1927,
decided by Baker J. on January 1,9, 1932 (Unrep.) Ganpatrao Kenjale.
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The District Local Board Of Poona vs Vishnu Raghoba Waderkar on 2
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16.I think, therefore, that the view taken by the learned Assistant Judge is right and
this appeal must be dismissed with costs.
Murphy, J.
17. The point to decide is whether the plaintiff's suit, which was one for damages
for breach of a contract to build an office for the Sub-Inspector of Police and was
brought against the Poona District Local Board, is within limitation, it not having been
filed within three months of its alleged cause of action, as is required by Section 136
of the Bombay Local Boards Act, 1923.
18.The learned Assistant Judge has found that since the acts complained of were not
done in pursuance of the provisions of the Act, the bringing of the suit beyond three
months did not bar it. The appellants rely on a ruling in Baban Hemraj v. The City
Municipality, Poona (1921) I.L.R. 46 Bom. 123, s.c. 23 Bom. L.R. 881. There are
numerous provisions to the same effect in many special Acts relating to public bodies
all similarly curtailing the usual periods of limitation, and the general view taken of
such restrictions is that given in Myers v. Bradford Corporation [1915] 1 K.B. 417, the
same case having been considered by the House of Lords [1916] 1 A.C. 242, a
distinction being drawn between acts actually done in pursuance of the directions of
the statute and acts incidental to the exercise of powers arising out of the power to
enter into contracts, but not in reality provided for by the statute. The Bombay full
bench case is Manohar Ganesh Tambekar v. Dakor Municipality (1896) I.L.R. 22 Bom.
289, F.B., and there is another case on the same point in the same volume in The
Municipality of Faizpur v. Manak Dulab (1897) I.L.R. 22 Bom. 637, in which the
question of breaches of contract is especially noticed and discussed. To the same
effect is the case of Ranchordas Moorarji v. The Municipal Commissioner for the City
of Bombay (1901) I.L.R. 25 Bom. 387, s.c. 3 Bom. L.R. 158.
19.The current of decisions with the exception possibly of the case in Baban Hemraj v.
The City Municipality, poona, is clearly to the effect that such cases, as the one we
have to deal with, are not brought for acts done in pursuance of the provisions of the
Act, and the exception seems, as far as one can gather, to have been made, in the
special circumstances of fines and penalties inflicted by a local board on a contractor,
the authorities being neither referred to nor discusssed.
20. I think that the decree appealed against is in harmony with the rulings of
this Court generally-and with all other High Courts also-and that it should be
confirmed and the appeal dismissed with costs.
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