Citation Codes

Equivalent Citations

citation codes

Case Number

Second appeal No. 317 of 1932

Judges

N.J Wadia, J.

Acts

(1) of Section 11 of the Bombay Municipal Boroughs Act.
Section 206 of the Bombay Municipal Boroughs Act.6.
Section 206 of the Bombay Municipal Boroughs Act.
Bombay Municipal Boroughs Act.

See more information ...

Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The Municipal electoral roll for the triennial elections (to be held on 19 October 1930) was first published on 21 July 1930 under Rule 6. On 6 August 1930 the Chief Officer (the Returning Officer) referred to the Municipality that 936 persons shown on the roll as qualified under Section 11(2) were in fact disqualified under that sub-section. The Municipality rejected that reference. The respondent appealed to the District Judge under R. 11, sub‑R. (6); on 30 September 1930 the District Judge allowed the appeal and directed omission from the roll of those who had not paid all arrears of qualifying taxes within the three months preceding the relevant date in S.11(2).

On 7 November 1930 the Municipality asked the District Judge for directions, asserting that the District Judge's order had been construed by some as disqualifying voters who might be qualified under S.11(1). The District Judge declined to give further directions, concluding there was no ambiguity. Despite the District Judge's order, on 15 November 1930 the Municipality passed a resolution retaining on the electoral roll the names of some persons whose omission had been ordered, on the ground that they were entitled to be on the roll because they were qualified under S.11(1).

The respondent filed a suit for an injunction restraining the Municipality from giving a fresh qualification to those persons. At trial the Municipality contended it was competent to retain certain names (including persons who were voters for the Bombay Legislative Council) and that the suit was bad for want of notice under Section 206 of the Bombay Municipal Boroughs Act. The trial court held that notice was not necessary and that the Municipality's act was illegal. On appeal the District Judge upheld that decree. The Municipal Borough of Dhulia then filed the present second appeal to the court which issued the opinion summarized here.

Legal Issues Presented

Whether the Municipality was competent, after the District Judge's order, to retain on the electoral roll the names of persons whom the District Judge had held to be disqualified under S.11(2) but who might also have a qualification under S.11(1).
Whether a notice under Section 206 of the Bombay Municipal Boroughs Act was required before the respondent could bring the suit for an injunction challenging the Municipality's act of retaining names on the roll.

Arguments of the Parties

Appellant (Municipality) — Contentions as recorded in the opinion

The Municipality asserted it was competent to retain on the electoral roll certain persons who had been held disqualified under S.11(2) because those persons were voters for the election of members to the Bombay Legislative Council (i.e., they claimed an alternative qualification under S.11(1)).
The Municipality contended that the respondent's suit was bad for want of the statutory notice required under Section 206 of the Bombay Municipal Boroughs Act (they relied on the reasoning in 54 IA 338 regarding mandatory notice provisions).

Respondent — Contentions as recorded in the opinion

The respondent contended that Section 206 was not applicable because the act of the Municipality in retaining the names (despite the District Judge's order) was not an act done or purporting to be done in pursuance of the Bombay Municipal Boroughs Act; in other words, the Municipality's action was so "outrageous and extraordinary" that it could not be treated as an act under the statute.
The trial courts (as reflected in the opinion) treated the Municipality's action as illegal and held that notice was not necessary; that position was challenged on appeal to the present court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
54 IA 338 (Privy Council)	Interpreted Section 80 CPC as express, explicit and mandatory; admitted of no exceptions — used as authority on mandatory notice requirements.	The opinion discusses 54 IA 338 as the controlling authority on mandatory notice provisions and notes that subsequent decisions of this Court have held that its reasoning applies to Section 206 of the Bombay Municipal Boroughs Act. The court relied on subsequent binding decisions which apply 54 IA 338 to S.206 to conclude notice was necessary.
L.P.A. No. 14 of 1929 (Division Bench — Madgavkar and Barlee, JJ.)	Held that Section 206 does not limit the requirement of notice to particular kinds of suits and that prior decisions purporting to confine notice by reference to relief claimed could not be supported after 54 IA 338.	Described as a binding Division Bench decision on the court; used to support the proposition that Section 206 requires notice and is not limited to particular classes of suits.
S.A. No. 669 of 1930 (Murphy, J.)	Applied the reasoning of 54 IA 338 to suits under Section 206, holding that the Privy Council's reasoning must be held applicable.	Relied upon as confirming that 54 IA 338 is applicable to Section 206; cited as part of the justification for holding notice necessary in the present case.
22 Bom 230 and 22 Bom 636	Earlier decisions which, according to the opinion's account of L.P.A. No. 14 of 1929, had sought to limit the necessity of notice to particular kinds of suits according to the relief claimed.	The opinion records that, in view of 54 IA 338, the limitations in these earlier decisions could not be supported; they are thus treated as superseded for the purpose of notice under S.206.
41 Mad 792 (Full Bench, Madras)	Interpreted the phrase "purporting to be done" in Section 80 CPC; held that good faith or alleged official capacity is irrelevant unless the act is so outrageous that no reasonable man could regard it as within the officer's powers.	The court cited this decision when considering the respondent's submission that the Municipality's act was not "purporting to be done" under the Act. The opinion applied the test but found the Municipality's conduct—having sought directions from the District Judge and Collector—to be honestly based on a perceived doubt, and therefore within the scope of "purporting to be done" under the Act for notice purposes.

Court's Reasoning and Analysis

The court's analysis proceeds in two main parts corresponding to the principal issues.

1. Competence of the Municipality to retain names after the District Judge's order

The court examined the statutory scheme and the rules governing preparation and revision of the electoral roll: publication under R.6, reference procedures under R.10 (including sub‑rules (1), (3), (4) and (6)), and the formulation of the Municipal Election Roll under R.11.
The originally published roll (21 July 1930) included persons qualified under S.11(1) and S.11(2). The Chief Officer reported 936 persons as wrongly entered under S.11(2). Some of these persons may also have qualified under S.11(1) but that qualification had not been shown in the published roll.
The court emphasized that those persons could have sought rectification under R.10, sub‑R. (1), and that the Returning Officer (Chief Officer) could have brought errors to the Municipality's attention under the rules; he did so by a reference under sub‑R. (3), which the Municipality rejected, precipitating the appeal to the District Judge who exercised the powers under sub‑R. (6).
The court interpreted R.11 as implying that, once a roll is published under R.6, only alterations made under R.10 sub‑Rrs. (4) or (6) are permissible. The Municipality had no power, after the appeal and after the prescribed time for references (a fortnight from publication), to make further unilateral alterations not authorized by the enumerated sub‑rules.
Accordingly the court agreed with the lower courts that the Municipality acted beyond its powers in retaining certain names contrary to the District Judge's order and that the aggrieved persons should have used the procedural route available to them within the time limits set by the rules.

2. Requirement of notice under Section 206

The Municipality argued that, in view of 54 IA 338 (a Privy Council decision about Section 80 CPC), a notice under Section 206 was necessary before the respondent could maintain the suit. The court reviewed subsequent rulings of this Court (notably L.P.A. No. 14 of 1929 and S.A. No. 669 of 1930) which had applied the reasoning of 54 IA 338 to Section 206 and held those decisions binding.
The respondent contended that Section 206 was not applicable because the Municipality's act was not an act done or purporting to be done under the Bombay Municipal Boroughs Act; the court considered the test articulated by the Madras Full Bench in 41 Mad 792, which states that an officer's good or bad faith is irrelevant unless the act is so outrageous that it bears no resemblance to an act the officer could plausibly have power to do.
The court evaluated the facts: the Municipality had applied to the District Judge for directions on 7 November 1930 and, after that refusal, had sought the Collector's opinion (Ex. 18). These steps indicated an honest doubt as to the interpretation of the District Judge's order and showed that the Municipality believed it was acting under Rrs. 10 and 11 of the Rules.
Applying the 41 Mad 792 test to these facts, the court concluded the Municipality's conduct could be regarded as an act purporting to be done under the statute and rules; consequently, the requirement of notice under Section 206 attached.
Because the plaintiff had not given the statutory notice under Section 206, the court held the suit must fail notwithstanding the correctness of the lower courts' determination on the Municipality's lack of power to alter the roll.

Holding and Implications

Holding: The court reversed the decree of the lower courts and granted the appeal. The opinion states: Appeal allowed. The court concluded that, although it agreed with the lower courts that the Municipality had no power to retain the names contrary to the District Judge's order, the respondent's suit was brought without the notice required by Section 206 and therefore could not be maintained.

Implications:

Direct effect on the parties: The decree in favour of the respondent at the lower courts was reversed; the appellant Municipality's appeal succeeded and the respondent's suit failed for lack of the statutory notice. The appeal was allowed with costs throughout.
Broader legal significance: The court's decision applies binding precedents (including the Division Bench decision in L.P.A. No. 14 of 1929 and S.A. No. 669 of 1930) that the reasoning of 54 IA 338 (regarding mandatory notice requirements) applies to suits under Section 206 of the Bombay Municipal Boroughs Act. The opinion does not purport to create a new legal principle beyond its application of those authorities.

Reference: All factual statements, cited authorities, and reasoning in this summary are drawn exclusively from the provided opinion and do not add information beyond that text.

Show full summary ...

Municipal Borough v. Mahomed Isak Abdul Karim

1. The respondent had filed a suit against the appellant, the Municipal Borough of Dhulia, for an injunction restraining it from giving a fresh qualification to certain persons who, according to him, had been disqualified by an order passed by the District Judge under R. 10, sub-R. (5), of the Municipal Election Rules. On 21st July 1930, the electoral roll of the Municipality was published under R. 6 for the purposes of the triennial elections which were to take place on 19th October 1930. On 6th August 1930, a reference was made by the Chief Officer to the Municipality under sub-R. (3) of R. 10 pointing out that 936 persons whose names appeared on the list of voters were disqualified under sub-S. (2) of S. 11 of the Act. The Municipality rejected the reference and the respondent preferred an appeal to the District Judge against the decision of the Municipality under R. 11, sub-R. (6) of the Municipal Election Rules. On 30th September 1930, the District Judge allowed the appeal holding that those persons who had not paid all arrears of qualifying taxes within three months next preceding the date mentioned in sub-S. (2) of S. 11 were not entitled to have their names retained on the list of voters. After this decision the Municipality made an application to the District Judge on 7th November 1930, in which it pointed out that the order passed by the District Judge in the appeal directing the Municipality to omit the names of those who had not paid all arrears of qualifying taxes within three months next preceding the date mentioned in sub-S. (2) of S. 11, had been construed by some as disqualifying the voters who were qualified to vote under sub-S. (1) of Section 11 of the Bombay Municipal Boroughs Act. As there was some doubt and confusion on the subject it asked for directions of the Court in the matter. The District Judge held that there was no ambiguity in the language of the judgment and declined to give any further directions. After this order the Municipality on 15th November 1930, passed a resolution by which it retained on the electoral roll the names of some persons whose omission had been ordered by the District Judge, on the ground that these persons were entitled to be on the roll because of their being qualified to vote under S. 11(1) of the Act.

2. It was contended by the Municipality in the trial Court that it was competent to it to retain on the electoral roll the names of some of the persons who were held to be disqualified by the District Judge, by reason of the fact that they were voters for the election of members to the Bombay Legislative Council, and that the plaintiff's suit was bad for want of notice under Section 206 of the Bombay Municipal Boroughs Act. The trial Court held that notice was not necessary and that the act of the Municipality was illegal. On appeal the District Judge confirmed the decree of the lower Court holding that it was not competent to the Municipality to retain on the electoral roll the names of some of the persons who were held by the District Judge to be disqualified, and that no notice was necessary under S. 206 of the Act. Against this decision the Municipal Borough of Dhulia has filed this second appeal. With regard to the question whether it was competent to the defendant Municipality to retain on the electoral roll the names of some of the persons who were held by the District Judge to have been disqualified, I am of opinion that the view taken by both the lower Courts is correct. The roll which was first published by the Municipality on 21st July 1930, contained the names of persons qualified to vote under S. 11, sub-Ss. (1) and (2) of the Act. In this roll 936 persons who were shown as qualified to be voters under S. 11, sub-S. (2), were reported to the Municipality by the Chief Officer as having been wrongly so-entered.

3. It appears that some of these persons were also qualified to vote under sub-S. (1) of S. 11, but this qualification had by mistake not been shown against their names in the roll already published. It was open to these persons to have this omission rectified under R. 10, sub-R. (1). It was also open to the Returning Officer, who in this case was the Chief Officer of the Municipality, to bring the error to the notice of the Municipality. Neither of these things was done. The Chief Officer only brought to the notice, of the Municipality the fact that these 936 persons had been shown as qualified under R. 11, sub-R. (2), when they were not. His reference was rejected by the Municipality and the plaintiff thereupon preferred an appeal to the District Judge from the decision of the Municipality. In appeal the District Judge directed that the names of those out of these 936 persons who had not paid all arrears of qualifying taxes within three months next preceding the date mentioned in sub-S. (2) of S. 11, should be omitted from the roll. After this order the Municipality, instead of omitting from the roll the names of all the persons who were held by the District Judge to have been disqualified, retained on the roll the names of some of them who, though disqualified under S. 11, sub-S. (2), were qualified under S. 11, sub-S. (1). It seems to me clear from the rules that the Municipality had no power to make any alterations in the rolls already published, except such as had been made by it on a reference by the. Returning Officer under R. 10, sub-R. (4), or such as had been ordered by the District Judge on appeal under sub-R. (6), R. 10. R. 11 provides that when the list of voters has been prepared and, where necessary, revised as provided in accordance with any order passed in that behalf by the Municipality or by the Judge in appeal, a copy thereof signed by the Returning Officer shall be the Municipal Election Roll. The wording of this rule clearly implies that once a roll has been published under R. 6 the only alterations which can be made in it are those which are made under sub-Rr. (4) and (6), R. 10. It is not open to the Municipality to mate any alterations not falling under these two sub-rules of R. 10, even though errors in the roll may afterwards be detected.

4. The omission from the roll of persons who were qualified under S. 11, sub-S. (1), was no doubt a hardship. But it was one which the persons aggrieved could have remedied if they had taken proper action under R. 10, sub-R. (1). There was no power left in the Municipality, after the appeal to the District Judge, to make any further alterations in the electoral roll. The Municipality's own power to alter the rolls is strictly limited by R. 10 to alterations made on a reference by the Chief Officer or by persons aggrieved. Such references have under the rules to be made within a fortnight from the date of the first publication of the list—in this case (21st July 1930)—and under sub-R. (4), R. 10, these references have to be decided by the Municipality at its next meeting. This period had passed long before 15th November 1930—the date on which the Municipality actually made the alterations. I agree therefore with the view taken by the learned District Judge and by the learned First Glass Subordinate Judge, that it was not competent to the Municipality to make any alterations in the roll originally published, except those ordered by the District Judge.

5. I am however unable to accept the finding of the lower appellate Court that no notice under Section 206 of the Bombay Municipal Boroughs Act was necessary. It was contended on behalf of the appellant Municipality that in view of the decision of their Lordships of the Privy Council in 54 IA 338 (1), a notice under S. 206 was necessary. The question in 54 IA 338 , was one of notice under section 80 of the cpc. Prior to this case there had been a marked difference of opinion between the view taken by this High Court on the one hand and the High Courts of Calcutta, Madras and Allahabad on the other with regard to section 80 of the cpc. It had been held by this Court that in suits to restrain by injunction the commission of some official act prejudicial to the plaintiff where the immediate result of the act would be to inflict irremediable harm, S. 80 did not compel the plaintiff to wait for two months before bringing his suit. Their Lordships of the Privy Council agreeing with the view taken by the other High Courts held that the provisions of S. 80 were express, explicit and mandatory, and admitted of no implications or exceptions. Both the lower Courts have taken the view that the ruling in 54 IA 338 was not applicable to the facts of the present case, it was a ruling with regard to Section 80 of the CPC, and not with reference to Section 206 of the Bombay Municipal Boroughs Act. But in two recent decisions of this Court: L.P.A No. 14 of 1929 (2) & S.A No. 669 of 1930 (3), the decision of their Lordships of the Privy Council in 54 IA 338 was held applicable to suits coming under Section 206 of the Bombay Municipal Boroughs Act.

6. In L.P.A No. 14 of 1929 it was held by Madgavkar and Barlee, JJ., that Section 206 of the Bombay Municipal Boroughs Act did not limit the requirement of notice to particular kinds of suits for damages or money, and that the decisions in 22 Bom 230 (4) and 22 Bom 636 (5), in so far as they purported to limit the necessity of notice to particular kinds of suits according to the relief claimed, could not,.in view of the decision in 54 IA 338 , be supported. In S.A No. 669 of 1930 , Murphy, J., held that the reasoning in 54 IA 338 must be held applicable to suits coming under Section 206 of the Bombay Municipal Boroughs Act, and pointed out that there were two decisions of this Court holding that the view taken in 54 IA 338 applies also to suits in which a notice was required under Section 206 of the Bombay Municipal Boroughs Act. The decision in L.P.A No. 14 of 1929 is a decision of a Division Bench and is binding on this Court.

7. It has been contended on behalf of the respondent that S. 206 is not applicable to this case because the action of the Municipality in retaining the names on the list of voters, in spite of the order of the District Judge, was not an act which was done or which purported to have been done in pursuance of the Act. The words “purporting to be done” used in; Section 80 of the CPC, were interpreted in 41 Mad 792 (6), and it was held by a Full Bench of the Madras High Court that the question of the good faith or bad faith of the Public Officer either as regards his belief in the legality or propriety of his act, or the limit of his powers, or the existence of facts justifying the exercise of such powers, is irrelevant in the consideration of the question whether the officer is entitled to notice under section 80 of the cpc. In the course of his judgment Sadasiva Ayyar, J., said (p. 810):

But if the act done is so outrageous and extraordinary that no reasonable man could detect in it any resemblance to any act which the powers of such an officer could allow him to do on the facts as represented and declared by such officer, his mere allegation that he did the act in his official capacity would not suffice.

8. It is contended on behalf of the respondent that the act of the Municipality in the present case was so outrageous and extraordinary that it could not be said that it acted or purported to act in pursuance of the Bombay Municipal Boroughs Act. I am unable to accept this contention. That the Municipality had an honest doubt as to the interpretation of the order passed by the District Judge is clear from the application which was made by it to the District Judge on 7th November 1930, asking for directions on this particular point.

9. The District Judge unfortunately refused to pass any order on the ground that there was no ambiguity in the language of his judgment. After this, as appears from Ex. 18, the Municipality made a reference to the Collector asking for his orders in the matter. It seems clear from this that the Municipality was honestly under the impression that the District Judge's order did not prevent it from amending the roll so as to enter on it the names of persons who it thought had been through oversight omitted from the electoral roll, and whose qualifications under S. 11, sub-S. (1), had not been considered at all. The act of the Municipality was clearly one which purported to have been done under Rr. 10 and 11 of the Rules under the Municipal Boroughs Act. In my view therefore notice of the suit was necessary, and the plaintiff having brought his suit without such notice, the suit must fail. The decree of the lower Court will therefore be reversed and the appeal allowed with costs throughout.

B.D/R.K

10. Appeal allowed.

Municipal Borough v. Mahomed Isak Abdul Karim

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Municipality) — Contentions as recorded in the opinion

Respondent — Contentions as recorded in the opinion

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Municipal Borough v. Mahomed Isak Abdul Karim

Comments