MUNICIPAL BOROUGH OF AHMEDABAD Vs. JAYANTILAL CHHOTALAL PATEL

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.) A few facts may perhaps be necessary in order to appreciate what the rival contentions of the parties are. The Ahmedabad Municipality passed a resolution on October 29, 1937, forfeiting this deposit. On March 1, 1938, the plaintiff gave notice of his claim, and on August 31, 1938, he filed the suit. Now, under Section 206 of the Bombay Municipal Boroughs Act- No person shall commence any suit against any municipality or against any officer or servant of a municipality or any person acting under the orders of a municipality for anything done or purporting to have been done in pursuance of this Act, without giving to such municipality, officer, servant or persons two months previous notice in writing of the intended suit and of the cause thereof, nor after six months from the date of the act complained of.