S V MANDLIK Vs. BOROUGH MUNICIPALITY

JUDGEMENT

(1.) THIS is an application in revision against a decree of the First Class Subordinate; Judge, Jalgaon, dismissing a suit brought by the petitioner, the principal officer of the Jalgaon Electric Supply Company, Ltd., against the Borough Municipality of Jalgaon, The suit was to recover a sum of Rs. 32-10-0 due to the Jalgaon Electric Supply Company for the balances remaining due on two bills for electricity supplied in December, 1940, and January, 1941. The greater portion of the amount of each bill was paid by the Municipality but a sum of Rs. 18-10-6 remained unpaid for the bill of December, 1940, and a sum of Rs. 13-12-6 remained unpaid for the bill of January, 1941, making in all Rs. 32-7-0. The Electric Company gave notice to the Municipality on January 8, 1941, calling upon it to pay the amount. When this notice was not complied with another notice was given on March 5, 1941, and that also not being complied with, a suit was filed on March 29, 1941, for the recovery of Rs. 32-7-0, the amount of the bills, and Re. 0-3-0 by way of interest. On March 31, 1941, two days after the suit was filed, the Municipality paid up the amount of arrears, Rs. 32-7-0, but did not pay the three annas for interest. Thereafter on July 18, 1941, the Municipality filed its written statement in which inter alia it contended that the suit was bad for want of notice under Section 206 of the Bombay Municipal Boroughs Act. The only question in dispute was, therefore, as to the liability of the Municipality to pay three annas for interest and costs' of the suit.

(2.) THE learned trial Judge dismissed the suit on the ground that notice under Section 206 was necessary and such notice had not been given. THE plaintiff has come in revision. Although the amount involved is extremely Small, the application has been admitted because a question of principle is involved which is likely to recur constantly.

(3.) IN Vishwanath Sadashiv v. Bombay Municipality (1938) 40 Bom. L.R. 685, the question again arose as to the interpretation of Section 527 of the Bombay Municipal Act III of 1888, and Beaumont C.J. in dealing with the question said (p. 691) : The next question is, does the cause of action fall within the terms of Section 527, that is to say, was the wrongful act complained of done in execution or intended execution of the Act ? Now the House of Lords in Bradford Corporation v. Myers [1916] 1 A.C. 242 had to consider the true construction of Section 1 of the Public Authorities Protection Act, 1893, which seems to me to be worded in substantially the same language as Section 527 of the Bombay Act, and what the House of Lords decided was that the protection of the statute extended to acts done in direct execution of the powers conferred by the particular Act of the local authority, but that it did not cover acts which were done in pursuance of a contract which the local authority was empowered to enter into, but was not required to enter into, by its Act. I think that that principle applies to the construction of Section 527 of the City of Bombay Municipal Act, and one has to see whether the act complained of was done pursuant to the direct requirements of the Act, or was done under some contract which the Corporation entered into under the powers conferred by the Act but which it was not compelled to enter into. After examining the provisions of Sections 106 and 110 of the Act which deal with the powers of the Corporation to borrow on the security of debentures the learned Chief Justice said (p. 692) : I am clearly of opinion that the wrongful action charged against the Corporation is not an action which is directly required by the statute, and therefore Section 527 has no application to the case.