MRITUNJAY PRASAD SITALA PRASAD Vs. DISTRICT COUNCIL

JUDGEMENT

(1.) THIS is a suit by a member of the District Council, Hoshangabad, against the District Council for travelling allowance. Under the Travelling Allowance Rules of the District Council (District Council Manual p. 106) the District Council is empowered to pay members a certain travelling allowance, not beyond a certain maximum, when travelling on duty. A resolution fixed this allowance at 3 annas a mile. The plaintiff made the journeys to which the rule and resolution apply and sent in a bill for his dues. This was refused to the extent claimed and the suit is for the balance. The defence to the action is limitation, and the competition is between Articles 61, 115 and 120. If either of the first two apply then the suit is beyond time; if the last, it is within time. I am clear Article 61 does not apply but I am of opinion that Article 115 does. This, in my opinion, is a case of an implied contract which has been broken by the District Council. It is elementary that every action must be found on some right and every claim must be brought under some definite head of law. The only possible heads here are contract or statutory liability. It is said that the obligation on the District Council to pay is statutory. The provision referred to is Rule 79(i)(xvii) at p. 106 of the Manual. This says: A District Council may pay etc

(2.) MATHURA Prasad v. Gaya Municipality A.I.R. 1938 Pat. 192 is not, in my opinion, in point. There was a statutory obligation on vendors on platforms to pay certain licence fees. I have already shown there is no statutory obligation to pay in the present case. It is true the members are under a statutory duty to attend meetings and so forth but there is no statutory obligation on the District Council to pay them. The question of payment is left to the discretion of the Council. It may pay, or it may not, as it pleases. But if it undertakes to pay and members act on the faith of this undertaking then there is an implied contract and any refusal to pay is a breach of that contract.

(3.) IT is then said that as the allowance paid in the beginning was accepted without protest no suit for the balance can lie. Bhusawal Municipality v. Nusserwanji is relied on. But that ruling decides that there is a cause of action in such a case. If the liability is statutory then according to the decision Article 62 will apply. It is not statutory here but contractual and so Article 115 applies, but the fact that the liability is there is not disputed so far as the Bombay case goes.