Case: Municipal Corporation Vs. Sri Niyamatullaii S/O Masitulla

2. The plaintiffs suit against the Indore Municipal Corporation was for a declaration that the dismissal of the plaintiff was illegal and that the plaintiffs 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 15 April, 1953 till the date of institution of the suit viz, 15 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.3. The case of the plaintiff Niyamatulla was that the plaintiff was suspended by the order of the Municipal Engineer dated 15 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.4. 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.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 15 April, 1953 and on 1 May, 1953 when the plaintiff was dismissed from service and on 11 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.

Reasoning: 10. 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 the dismissal passed by Shri Ghatpande was beyond his jurisdiction and is therefore not an act done under the Act.11. 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 for 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.12. This Court in the case of Bharat Kala Bhandar Ltd. v. Municipal Committee, Dhamangaon, (1965) 3 SCR 499   = (AIR 1966 SC 247), 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 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 accrual of the cause of action. 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 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.