FAKIRA TEJAJI AND ORS. Vs. MUNICIPAL COMMITTEE

JUDGEMENT

(1.) THIS is a second appeal by the Plaintiffs arising out of a suit against the Municipal Committee, Javad. The Plaintiffs claimed that since very old time they had a customary right for taking carcasses of the dead animals within the area of Jawad Municipality and they are entitled to get two annas for cleaning the skin "gkFk /kqykbZ" under certain circumstances. The Municipal Committee, Jawad, ignored their rights and the right of collecting the bodies of dead animals was auctioned and was knocked down to the highest bidder. The suit was for a declaration that the Plaintiffs alone have the right of collecting bodies of dead animals and the prayer was also for restraining the Municipal Committee not, to interfere with the rights of the Plaintiffs. It was also prayed that the auction should be cancelled.

(2.) THE Plaintiffs' suit was dismissed by the trial Court which held that the Plaintiffs had not given two months' notice to the Municipal committee under Section 48, Gwalior Municipalities (sic) Samvat 1993. This decision was upheld, by first appellate Court and they have come to Court in second appeal. The relevant portion of Sub -clause (i) Section 48 of the said Act which closely follows Section(sic) Punjab Municipal Act of 1911 is in the follow words:

(3.) MR . Samvatsar, learned Counsel for Appellants, has contended that Section 48 does apply to the facts of this case as(sic)was not a suit "for anything done or purporting have been done in its official capacity." Accruing to him Section 48 or Sections 102, 105 or 156, Gwalior Municipal Act do not deal with the right to (sic)tion or to sell the bodies of dead animals for within the Municipal Area, as if the car(sic)were Municipal property. Reliance is placed him on - 'Ramchander Sahai v. Cantonments Board, Meerut', AIR 1947 All 42 (A), which interpreting Section 273 of the Cantonments Act (sic) held that it is to acts which the Board has merely the authority but also the duty to(sic)form, i.e., acts which are enjoined upon the(sic)that the protection allowed by Section 273 extends other words 'act done by the Board in pursuance of this Act' means an act enjoined upon the Board by the Act.