LAWS(BOM)-1947-4-9

MUNICIPAL BOROUGH OF AHMEDABAD Vs. JAYANTILAL CHHOTALAL PATEL

Decided On April 09, 1947
MUNICIPAL BOROUGH OF AHMEDABAD Appellant
V/S
JAYANTILAL CHHOTALAL PATEL Respondents

JUDGEMENT

(1.) THE suit from which this reference to a full bench arises was filed by the plaintiff against the Municipal Borough of Ahmedabad in respect of a contract which the Municipality had entered into with him for the purpose of cleaning the streets of Ahmedabad. THE plaintiff claimed various sums due to him under the contract. THE learned trial Judge decreed the plaintiff's claim in part. From that decision an appeal was preferred to this Court and in that appeal the only question that survived was with regard to a sum of Rs. 4,100, which the Municipality purported to forfeit under the terms of the contract. This sum was deposited by the plaintiff when the contract was entered into, and the question that arose with regard to this sum was whether the plaintiff's suit was maintainable having regard to the provisions of Section 206 of the Bombay Municipal Boroughs Act. THE appeal came before Mr. Justice Macklin and my learned brother Bavdekar and they referred the following question to a full bench;

(2.) WHEN a Municipality has obtained powers from a Municipal Act to enter into a contract, is the exercise of their power to enforce the contract an act. done in pursuance of the Municipal Act?

(3.) TURNING to the authorities, the principle has been discussed and well-settled in England. The first case we should like to refer to is the case of Sharpington v. Fulham Guardians [1904] 2 Ch. 449. In that case the guardians of Fulham entered into a contract with a builder for certain works required by them for the purpose of carrying out their public duties, and the Court held that the plaintiff's claim was in respect of a private duty arising out of a contract, not for any negligence in performing a statutory or public duty, and the Public Authorities Protection Act did not apply. The "relevant section of that Act corresponds substantially to Section 206 which we are considering in this case It was sought to be argued in that case that the contract entered into by the Fulham guardians was a contract entered into in discharge of a public duty or under statutory authority, and therefore a suit in respect of that contract came within the mischief of the Act. Dealing with that argument Mr. Justice Farwell stated that every contract entered into by a local authority must be in discharge of a public duty or under statutory authority, because otherwise it would be ultra vires. The learned Judge also points out that the guardians had entered into a private contract in order to carry out a public duty and what was complained of in the action was the breach of the private contract, and the conclusion he came to was that what was complained of was a breach of a private duty of the guardians to a private individual.