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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

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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. 49

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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.

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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

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dismissed. 52