MAHAMAHOPADYAYA RANGA CHARIAR Vs. MUNICIPAL COUNCIL

JUDGEMENT

(1.) This case was argued fully and ably on both sides. The important questions for determination are: 1. Whether this second appeal cannot be prosecuted by the appellant as against the present Municipal Councillors;

(2.) Whether the suit, in so far as the prayer for injunction is concerned, is unsustainable for want of notice under Section 261(1) of the Madras District Municipalities Act; and

(3.) Whether the appellant was disentitled to raise the ridge put up by him on his own land adjoining the highway vested in the Municipal Council, for the purpose of keeping off from his land water on the surface of the highway which otherwise would flow by gravitation on to his land. 2. Now as to the first question, by the notification of the Government, dated the 29 August 1905, issued under Section 4B(1)(b) of the District Municipalities Act (Madras Act IV of 1884), the Municipal Council of Kumbakonam then existing was superseded for a period of seven months till the 31 March 1906. Subsequently Councillors were appointed or elected for the Municipality and they entered on their duties after the expiry of the period of supersession. Mr. Sundara Aiyar for the Councillors contended that the present suit, which had been instituted against the superseded Council, necessarily terminated on the supersession taking place having regard to the definition of "Municipal Council" in Section 3(XV) of the District Municipalities Act and to Section 21 of the same Act which makes every Municipal Council a body corporate. In other words, he urged that the corporation that subsisted up to the date of the supersession became thereafter completely extinct and that the Councillors who took office subsequent to the expiry of the period of supersession constituted a fresh corporation which cannot be proceeded against for the damages stated to have been caused by, or the injunction claimed on account of, what had been done by the superseded Council, the alleged cause of action being purely personal in reference to that body. It was argued that, though the idea of corporation implies something more than the group of natural persons with reference to whom the corporate character is predicated, the corporation cannot be taken to subsist when that group has been completely broken up and that the provisions of the District Municipalities Act relating to supersesion are only consistent with this view. The difficulty of formulating a theory as to the true nature of a corporation that would satisfy minds bent upon proving the matter from more than a practical point of view will be found well suggested in the recent brilliant paper of Prof. Maitland on "Moral Personality and Legal Personality" in No. 14 of the Journal of the Society of Comparative Legislation. It seems to me that in discussions like the present we may not unprofitably turn for light to the rules of English Law relative to corporations even taking that law has, as the learned writer humorously put it, been muddling along with semi-personality and demi-semi- personality towards convenient conclusions prompted by its characteristic sound instincts. The subject of abeyance of fictitious personality will be found discussed in Grant on Corporations in the chapter on "Dissolution." At page 301 cases analogous to the present are considered and the author states the following propositions as deducible from the authorities: That the misuse or abuse of only some of the legal attributes of a corporation or the usurpation of fresh liberties, &c., are either of them, when proved, ground for a judgment of seizure of all the liberties, etc., and therefore of the removal from the corporators, doing the pleasure of the Crown, of the corporate character in all its parts. That such seizure does not operate to dissolve a corporation but only to suspend its regular operation during the pleasure of the Crown. That judgment of ouster of all the corporators upon information against them does not dissolve the corporation but only suspends its operation. That in either of the two last cases the corporation may be revived by a new charter which operates by relation, so as to make the new body in all respects identical with the old one as regards prescription, chases in action, rights of common, etc. and also as regard debts, liabilities, &c., and the same of a writ of restitution. That, the usual practice upon seizure has been for the Crown to appoint a custos who appears of himself to have discharged all the functions, duties, &c., of the corporation until the restitution of the liberties or revival of the corporation. 3. A possible objection on theoretical grounds to the doctrine of dormancy is met by the learned author thus: In fact there seems to be a difficulty in reconciling the doctrine of dormancy or dissolution for some purposes only with strict principles of corporation law; on the other hand, however, the inconvenience of holding that a corporation in such circumstances is wholly dissolved - so that their leases would be disturbed because the lands themselves would revert to the original owners, lands given for charitable purposes would be lost, persons having debts due to them from the corporators could not recover them, the corporators would lose their rights of common &c. : - is manifestly so great that the doctrine though it has been treated lately with some degree of doubt must probably be considered as almost established, and that such a revival operates by relation so as to prevent the destruction of prescriptive rights vested in the corporation, and not to interfere with the operation of statutes of limitation either for or against them.