MOHNIRAJ WAMAN Vs. MUNICIPAL COMMITTEE, BASIM

JUDGEMENT

(1.) BOSS , A.J.C. 1. The suit is for an injunction to restrain the Municipality of Basim from recovering a sum of Rs. 44-6-0 from the plaintiff for the use and occupation of its land. It is admitted that the plaintiff occupied some portion of Municipal land though the extent and the duration of the occupation are disputed. The plaintiff does not deny that some land was occupied for at least 10 days, but he claims that, the Municipal Committee has no right to recover any sum of money from him. The lower appellate Court found that the plaintiff occupied 400 square feet of road for 32 days and 75 square feet for one day; also 264 square feet in the Deopeth School compound for 32 days and 54 square feet for one day. It held that the claim of the Municipal Committee so far as the school land is concerned was ultra vires and so disallowed it. The rest of the claim was allowed. The only question before me now is about the claim regarding the use of the road. The school compound matter has been dropped.

(2.) THE foundation of a right to recover for the use and occupation of land has always been a contract either express or implied. In its earliest forms it lay under a claim for a fixed sum of money upon an express contract recoverable under the old action of debt. Then in the gradual struggle which arose in the 17th century 'to make assumpsit do the work of debt, the action was extended to cases in which there had been no express contract but where one could be implied from the facts of the case. This history is of importance because the action of assumpsit was slowly stretched to include other instances of quasi contract until its foundations began to be vague. Claims under it were said to be recoverable acquum et bonum, because they were in accordance with natural justice, or, as Lord Mansfield put it in Towers v. Barret (1786) 1 TR 133, because they were "founded on principles of eternal justice;" others place them simply on the basis of an implied contract. This latter view has received powerful support from the House of Lords in Sinclair v. Brougham (1914) AC 393. But as Winfield points out at p. 139 of his Law of Torts, even that does not set the controversy at rest, for there are other varieties of quasi contract where there is no room for the fiction of an implied contract and he prefers to found liability on the ground of unjust benefit when the matter is not exclusively referable to any other head of the law (p. 119).

(3.) IT is urged in the present case that the Committee could not have entered into an express contract because of Section 44, C. P. Municipalities Act, 1922, as applied to Berar; therefore none can arise by implication. But this argument overlooks Clause (2) of the proviso under which an oral contract not more than Rs. 50 in value is permitted unless there is some law to prevent it. The Committee claimed only Rs. 44-6-0 and both parties are agreed that this is a right valuation. But this in itself is not enough. The Committee is a corporation aggregate under Section 37 of the Act, and, where a corporation is created by statute, its powers are limited and circumscribed by the statute creating it, and extend no further than is expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of its incorporation. What the statute does not expressly or impliedly authorize is to be 3 (1841) 1 QB 850 taken to be prohibited. A corporation cannot grant a valid license to do that which is beyond its own powers": 8 Halsbury's Laws of England p. 359.