Municipal Corporation Vs. Sri
Niyamatullaii S/O Masitulla  INSC 196 (21 August 1969)
21/08/1969 RAY, A.N.
CITATION: 1971 AIR 97 1970 SCR (2) 47 1969
SCC (2) 551
CITATOR INFO :
RF 1976 SC1207 (102)
Indore Municipal Act, 1909, s. 135-Suit
declaring dismissal illegal-Dismissal order without jurisdiction-Limitation
special plea not pleaded.
Limitation-Special plea, whether must be
The respondent--an employee of the
appellant-Municipality filed a suit for declaring his dismissal illegal as the
order of dismissal was not passed by the Municipal Commissioner as required by
s. 13 of the Indore Municipal Act, but was made by one G, who was then acting
in place of the Municipal Commissioner. The trial court accepted the
respondents plea and decreed the suit. The District Judge in appeal set aside
the decree holding that the suit was barred by limitation as under s. 135(2) of
the Act a suit in respect of any act done under the Act by an officer of the
Municipality had to be filed within six months of the actual of the cause of
action. The special plea of limitation under s. 135(2) was not taken in the
trial court, though in general terms a plea of limitation was raised.
The: High Court set aside the decree of the
District Judge and restored that of the trial court. The High Court on the
evidence came to the conclusion that no order of the Government was produced to
show that G, was appointed to act in place of the Municipal Commissioner, and
that the order of dismissal was passed by G, Dismissing the appeal, this Court,
HELD: On the findings. the dismissal order
passed by G, was beyond his jurisdiction. The provisions contained in s. 135 of
the Act will be applicable to things done under the Act. Since the order of
dismissal passed by G was beyond his jurisdiction, it was, therefore, not an
act done under the Act. [50 D---E] If any special plea of limitation is a
defence such a defence of limitation should be pleaded. In the present case the
Municipal Corporation did not plead s. 135 of the Indore Municipal Act, 1909 as
a defence. Such a plea was not taken in the pleadings or in the trial court and
the District Judge should not have entertained such a plea. [50 C D] Bharat
Kala Bhandar Ltd., v. Municipal Committee, Dhamnangaon,  3 S.C.R. 499,
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1733 of 1966.
Appeal by special leave from the judgment and
decree dated March 30, 1966 of the Madhya Pradesh High Court, Indore Bench in
Second Appeal No. 341 of 1964.
M.C. Bhandare and P.C. Bhartari, for the
S.K. Mehta, A.P. Tayal and K.L. Mehta, for
the respondent 48 The Judgment of the Court was delivered by Ray, J. This is an
appeal from the judgment dated 30th March, 1966 of the High Court of Madhya
Pradesh (Indore Branch) allowing the appeal and setting aside the decree of the
lower appellate court and restoring the decree of the trial court with costs.
The plaintiff's suit against the Indore
Municipal Corporation was for a declaration that the dismissal of the plaintiff
was illegal and that the plaintiff was still on the post of Removal Sub
Inspector and a decree against the defendant for Rs. 7,488/- on account of
salary at the rate of Rs. 104/- p.m. from 15th April, 1953 till the date of institution
of the suit, viz., 15th April, 1959 and other reliefs. The trial court decreed
the suit. The lower appellate court set aside the decree. The High Court
restored the decree passed by the trial court.
The case of the plaintiff Niyamatulla was
that the plaintiff was suspended by the order of the Municipal Engineer dated
15th April, 1953. One Shri Ghatpande who acted in place of the Municipal
Commissioner in the month of May 1953 directed the dismissal of the plaintiff.
The plaintiff contended that the dismissal could have been only under the
orders of the Municipal Commissioner. The plaintiff further contended that
there was no opportunity given to the plaintiff against the proposed dismissal.
The defence of the Municipal Corporation was
that the plaintiff preferred a review petition to the Municipal Commissioner
who rejected the same. The plaintiff thereafter preferred an appeal to the
Appeal Committee of the Municipal Corporation which was dismissed. Thereafter,
a revision petition against the order was heard by the Minister-in-charge of
the Government of Madhya Bharat and the same was rejected in the month of
September, 1955. It was, therefore, contended that the plaintiff had no right
to file the suit. Another defence was that the suit was barred by limitation.
Counsel for the appellant canvassed three
First, that the order of dismissal was valid
and Shri Ghatpande had jurisdiction to pass the order of dismissal.
Secondly, the suit was barred by limitation.
Thirdly, the provisions of section 135 of the Indore Municipality Act was a
plea in bar of the suit.
The authority of Shri Ghatpande to dismiss
the plaintiff was based on the provisions contained in section 13 of the Indore
Municipal Act, 1909. Section 13 of the Indore Municipal Act, inter alia, reads
"(1) The Municipal Commissioner for the
City of Indore shall, from time to time, be appointed by the Government.
49 (2) (a) Leave of absence may be granted to
the Commissioner, from time to time, according to the Indore Civil Service
(b) During such absence of the Commissioner
the Government may appoint any person to act as Commissioner. Every person so
appointed shall exercise the powers and perform the duties conferred and
imposed by the Act or by any other enactment at the time in force, on the
person for whom he is appointed to act, and shall be subject to the same
liabilities, restrictions and conditions to which the said person is liable and
shall receive such monthly salary as may be determined by the Government.
In order to rest the defence on section 13 of
the Indore Act, it has to be first found out that there is an appointment by
the Government of any person to act as Commissioner. The finding of fact by the
High Court is that no order of the Government was produced to show that Shri
Ghatpande was appointed to act in place of Shri Rao who was the then Municipal
Commissioner. The further finding of the fact was that the order of dismissal
was passed by Shri Ghatpande.
The defence of limitation pleaded by the
Indore Municipal Corporation was in general terms that this suit was barred by
limitation. The plaintiff in the plaint alleged that the cause of action arose
on 15th April, 1953 and on 1st May, 1953 when the plaintiff was dismissed from
service and on 11th January, 1954 when it was passed by the Appeal Committee of
the Indore Municipality. At the trial the plaintiff contended that the suit was
well constituted and was governed by Article 120 of the Limitation Act, 1908.
At the time of the hearing of the appeal
before the District Judge, Indore, the Municipal Corporation, Indore contended
that under section 135(2) of the Indore Municipal Act, 1909 a suit in respect
of any act done or purporting to be done under the Act by an officer or servant
of the municipality or by any person acting under the order of the Government
was to be filed within six months from the date of the actual of the cause of
action. The District Judge accepted the plea. The alternative contention on
behalf of the Municipal Corporation before the District Judge was that Article
115 of the Limitation Act, 1908 will apply if the special period of limitation
prescribed by the Act did not apply. The District Judge did not accept that
contention on the reasoning that the plaintiff was not under any contract of
service and Article 115 applied to compensation for breach of 50 contracts. The
District Judge held that Article 14 of the Limitation Act, 1908 would apply
when an order of an officer in his official capacity was set aside and no special
period of limitation was prescribed.
In the High Court the Municipal Corporation
repeated the plea under section 135 of the Indore Municipal Act, 1909.
The High Court, however, repelled that
contention by holding that Shri Ghatpande was not the Commissioner when he
passed the order, and, therefore, the order being without jurisdiction, the
provisions contained in section 135(2) of the Indore Municipal Act were
inapplicable and the plaintiff's suit was governed by Article 120 of the
Limitation Act, 1908.
The provisions of the Code of Civil Procedure
enjoin that if any special plea of limitation is a defence such a defence of
limitation should be pleaded. In the present case, the Municipal Corporation
did not plead section 135 of the Indore Municipal Act, 1909 as a defence. Such
a plea was not taken in the pleadings or in the trial court and the District
Judge should have not entertained such a plea. The provisions contained in
section 135 of the Indore Municipal Act will be applicable to things done under
the Act. It is manifest that in the present case the order of dismissal passed
by Shri Ghatpande was beyond his jurisdiction and is therefore not an act done
under the Act.
Furthermore, section 8(1)(b) of the Indore
Act says that the Council shall bear the name of the Municipal Council of the
Indore City and be a body corporate and have perpetual succession and a common
seal and by such name may sue and be sued. A distinction is to be noticed
between suing the Municipal Council of the Indore City as contemplated in
section 8(1)(b) of the Act and suits against the Commissioner or any officer or
servant of the Municipality or any person acting under the direction of the
Government or the Commissioner as contemplated in section 135 of the said
Municipal Act. One of the purposes of section 135 of the Municipal Act is to,
afford an opportunity to the persons mentioned in the section to make amends
within the period of notice. The suit that was filed in the present case was
not in respect of any act done or purported to be done under the Act.
This Court in the case of Bharat Kala Bhandar
Ltd. v. Municipal Committee, Dhamangaon(1) examined the provisions of section
48 of the Central Provinces and Berar Municipalities Act, 1922 which was to the
effect that no suit shall be instituted against any Committee or any member,
officer or servant thereof or any person acting under the direction of any such
committee, member, officer or servant for anything done or purporting to be
done under the Act, until the expiration of two months next after notice (1)
 3 S.C.R. 499.
51 in writing stating the cause of action,
the name and place of abode of the intending plaintiff and the relief which he
claims. Section 48 of the said Central Provinces and Berar Municipalities Act
further provided that every such suit shall be dismissed unless it was
instituted within six months from the date of the actual of the cause of
The appellant in that case contended that it
was a case of recovery of an illegal tax and therefore a claim for its refund
fell outside the provisions of section 48 of the said Act. The respondent, on
the other hand, contended there that the collection of tax was not without
jurisdiction but only irregular and therefore the suit would be in respect of a
matter purporting to be done under the Act. This Court held that where power
existed to assess and recover a tax up to a particular limit the assessment or
recovery of an amount in excess was wholly without jurisdiction. To such a
case, the statute under which action was purported to be taken could afford no
protection. On logic and principle the same reasoning applies to the provisions
contained in section 135 of the Indore Municipal Act, 1909 with the result that
the suit in the present case is not within the mischief of section 135 of the
Indore Municipal Act.
For these reasons, the appeal fails and is
dismissed with costs.
y.p. Appeal dismissed.