RAM CHANDRA KAPALI Vs. SADAY CHANDRA RAHA

JUDGEMENT

(1.) The decision of this appeal involves the construction of Secs.63 and 64, Bengal Village Self-Government Act (Act 5 of 1919) which are in the following terms: Section 63. No suit or other legal proceeding shall lie against a Union Board, or any member or officer thereof acting under the direction of such board, in respect of anything done lawfully and in good faith and with due care and attention under this Act or any rule made hereunder. Section 64(1). No suit or other legal proceeding shall be brought against any Union Board or any of its members or officers, or any parson acting under its direction, for anything done under this Act, until the expiration of one month next after notice in writing has been delivered or left at the office of such Board, and also if the suit is intended to be brought against any member or officer of the said Board, or any parson acting under its direction) at the place of abode of the person against whom such suit is intended to be brought, stating the cause of action and the name and place of abode of the person who intends to bring the suit; and unless such notice be proved, the Court shall find for the defendant. (2) Every such action shall be commenced within three months after the accrual of the cause of action, and not afterwards. <JGN>Page</JGN> 2 of 3 (3) If any Union Board or person to whom a notice under Sub-section (1) is given shall, before a suit is brought, tender sufficient amends to the plaintiff, such plaintiff shall not recover.

(2.) It appears that the Union Board in the Village Kunda within the Brahmanbaria sub-division decided to repair a certain road which runs from Kunda to Maslandpur, and pursuant to the resolution of the Board in that behalf the work of repair was undertaken and was carried out as far as the land in dispute in the present suit. The plaintiff's protested that the land in suit on which the Union Board proposed to execute repairs was not a public road but their private property, and the present suit was brought against the President and members of the Union Board for a declaration of the plaintiffs title to that land, and for confirmation of their possession of the same. The defence was that the property in suit was part of the public road, and did not belong to the plaintiffs, and further that, inasmuch as the plaintiffs had not served a notice as required by Section 64, Sub-section (1) of Act 5 of 1919, the suit was barred. It was contended on behalf of the respondents, and found by both the lower Courts that Section 64 of the Act applied to suits and legal proceedings of every description brought against the Union Board or its members or officers, and the suit was dismissed. In my opinion, the decree of the lower appellate Court cannot stand, and the ratio decidendi of the Full Bench in the case of Chunder Sikhur Bandopadhya V/s. Obhoy Churan Bagahi [1881] 6 Cal. 8 (F.B.) is applicable to the present suit, and concludes the matter against the respondents. In that case, a suit for possession of certain land taken by the Santipur Municipality was filed more than three months after the accrual of the cause of action, and it was contended that the suit was barred under Section 87, Bengal Act 3 of 1864, which is substantially in the same terms as Section 64 of Act 5 of 1919 Garth, C.J. in delivering the judgment of the Full Bench observed: That section, as it seams to us, is applicable only in those cases where the plaintiff claims damages or compensation for some wrongful act committed by the commissioners or their officers, in the exercise, or the honestly supposed exercise, of their statutory powers. The notice in the earlier part of the section is meant to give the defendant the opportunity of making some pecuniary amends for the wrong, without incurring the cost of litigation. We think that it could hardly have been the intention of the legislature to allow the commissioners (even by mistake) to appropriate the lands of private persons without paying for them, and to hold those lands forever as against the true owners, unless the latter should happen to be sufficiently watchful to discover the aggression in time to take steps to protect their property within so short a period as two months.

(3.) See also the case of Sasanka Sekhar Banerjee V/s. Sudhangsu Mohan Ganguly A.I.R. 1921 <JGN>Page</JGN> 3 of 3 Cal. 91. I am of opinion that Section 64 has no application to a suit of the nature of that under appeal. In our opinion, however, in cases to which Section 64 applies, even if the plaintiffs have complied with the provisions of Section 64, it is still incumbent upon them to satisfy the Court that their cause of action is not within the ambit of Section 63, and if they fail to do so the suit or legal proceeding will fail.