RAJKOT MUNICIPALITY Vs. HAKIM MAHETABALI IMAMUDDIN

JUDGEMENT

(1.) This petition is directed against the order of the District Judge Rajkot appointing Panchas under section 198 of the Bombay Municipal Boroughs Act on an application made by the opponent who alleged that as a result of the digging of a drain by the Municipality his house had collapsed. Section 128 of the Bombay Municipal Boroughs Act 1925 which will hereinafter be referred to as the Act gives powers to a Municipality to make and repair drains. Sub-section (3) of section 128 of the Act provides as under :-

(2.) Section 198 of the Act provides that save as expressly provided in section 198 if an agreement is not arrived at with respect to any compensation or damages which by the Act is directed to be paid the amount and if necessary the apportionment of the same shall be ascertained and determined by a panchayat of five persons of whom two shall be appointed by the municipality two by the party to or from whom such compensation or damages may be payable or recoverable and one who shall be sirpanch shall be selected by the members already appointed as above. An application was made to the District Judge by the opponent for the appointment of Panchas and the District Judge passed an order in accordance with the provisions of section 198 of the Act. This order is now challenged in revision.

(3.) It is clear from sub-section (3) of section 128 of the Act that with reference to a dispute regarding compensation payable compensation shall be ascertained in case of dispute. It is therefore clear that sub- section (3) of section 128 of the Act refers to cases where compensation is in dispute and not where the liability to pay compensation is in dispute. This is also clear from section 198 of the Act which starts by saying that if an agreement is not arrived at with respect to any compensation or damages which are by the Act directed to be paid. The sub-section assumes that compensation is to be paid and that there is no agreement as to the quantum of the compensation to be paid under the Act. Reading section 128(3) and section 198(1) of the Act either separately or together it is clear that these sections apply only where there is a dispute regarding the amount of compensation but do not apply where there is a dispute regarding the liability to pay compensation or damages. In the instant case the Municipality denied the liability in its written statement. The District Judge was therefore wrong in applying the provisions of section 198 of the Act and appointing the Panchas under that section. It is however contended by the learned counsel for the opponent that the denial in the written statement was not supported by any evidence. Under section 198 of the Act the District Judge has no authority to take evidence on the question. The fact that in the written statement the liability was disputed takes the case out of section 198 of the Act.