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Commissioners Of Pabna Municipality v. Nirode Sundari Dasya Basak

Calcutta High Court

Jun 30, 1942

Judgment

Subsequent
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Structured Summary of the Judicial Opinion

Factual and Procedural Background

The plaintiff sued the Commissioners of the Pabna Municipality (defendant 1) and its Vice-Chairman (defendant 2) for damages of Rs. 50, claiming that three simul trees standing on his land had been cut down. The defendants denied responsibility, alleging the trees were cut by volunteers of the Anti Malaria Society and asserting statutory protection under Section 535 of the Bengal Municipal Act (Act 15 of 1932). They also challenged the form and proof of a statutory notice and pleaded that the suit was barred by the six-month limitation in S.535(2).

At trial the learned Munsif held for the defendants on notice and limitation and generally on the merits, dismissing the suit; he recorded, however, that if the plaintiffs had succeeded they could have recovered Rs. 30. On appeal the Subordinate Judge reversed the trial Court on notice and limitation, accepted that the trees had been cut (an admission before the appellate Court), accepted the trial findings (not challenged) that there was no legal justification or consent, and decreed Rs. 30 in favour of the plaintiff with proportionate costs. The defendants appealed to the present Court.

Legal Issues Presented

Whether the appeal to the lower appellate Court and to this Court was competent, given the suit's valuation and the Small Cause Court rules (i.e., jurisdictional question under Article 35 of Sch. 2 and Section 102 CPC).
Whether the suit was barred by limitation under Section 535(2) of the Bengal Municipal Act, and if so whether the one-month notice required by sub-s. (1) should be excluded in computing limitation in accordance with Section 15(2) of the Limitation Act and Section 29(2) of the Limitation Act.
Whether the statutory notice under Section 535(1) was sufficiently specific (e.g., specified abode) and whether it had been properly proved.
Whether the defendants (municipality) can be held responsible for the cutting of the trees where the trial Court found that volunteers of an Anti Malaria Society had carried out the act.
Whether the municipality's exercise of discretion in treating the trees as noxious undergrowth (and cutting them) was immune from civil review.
Whether any protection might arise under other statutory provisions (e.g., S. 242 or S. 369) relied upon by the municipality.

Arguments of the Parties

Appellants' Arguments (Defendants)

The appeal to the Subordinate Judge (and further appeal) was incompetent because the suit, valued at Rs. 50, was of a Small Cause Court nature and barred by Section 102 of the CPC.
The statutory notice of suit required by S.535 was not in proper form (e.g., did not specify abode) and had not been proved.
The suit was time-barred because it was not instituted within six months after accrual of cause of action as mandated by S.535(2) of the Bengal Municipal Act.
The municipality or its officers had nothing to do with the cutting; it was done by over-zealous volunteers of the Anti Malaria Society and therefore no decree could lie against the municipal defendants.
Even if cutting occurred, it was an exercise of municipal discretion (to clear noxious undergrowth) and thus not for the civil Court to challenge; alternatively, protection might be available under other statutory sections such as S.242 or S.369.

Plaintiff's / Respondent's Arguments

The appeal route was competent: the suit fell within cl. (ii) of Article 35 of Sch. 2 (Provincial Small Cause Courts Act) because the act complained of amounted to mischief or criminal trespass under Chapter 17 of the Penal Code; therefore appeals to the Subordinate Judge and a second appeal to this Court were competent.
The period of the one-month statutory notice required under S.535(1) should be excluded when computing limitation, under Section 15(2) of the Limitation Act, in light of S.29(2) of the Limitation Act which makes certain Limitation Act provisions applicable to special/local laws unless expressly excluded.
The original notice was available at the appellate stage and service of the notice had been evidenced at trial; consequently the notice was proved in accordance with S.535(1).
The cutting of the trees had been admitted before the appellate Court; the trial Court's ancillary findings did not sustain any defence of lawful authority or consent by the plaintiff, and the plaintiff was entitled to the damages found (Rs. 30).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Henderson J., reported in 44 C.W.N. 362	Considered a provision (similar to S.535) containing the words "and not afterwards" and held that such wording amounted, at best, to an exclusion by inference and did not constitute an "express exclusion" of Limitation Act provisions.	The Court followed Henderson J.'s view in holding that the phrase "and not afterwards" in S.535(2) does not expressly exclude the operation of relevant provisions of the Limitation Act (notably S.15(2)), so the notice period must be excluded in computing limitation.
Division Bench decision of this Court, 56 Cal. 805	Authority relied upon in relation to the interpretation of similar statutory limitation wording and the requirement for an express exclusion to displace Limitation Act provisions.	The Court treated the cited Division Bench decision as having settled the matter in the same way as Henderson J.'s decision, reinforcing the conclusion that an express exclusion is required and that mere words like "and not afterwards" do not suffice.

Court's Reasoning and Analysis

The Court addressed the issues in sequence and explained the legal reasoning that led to the dismissal of the appeal:

Jurisdiction: The appellants argued the suit was of Small Cause Court nature and so appeals were barred by Section 102 CPC. The Court observed that if that contention were accepted it would also bar the appeal to this Court; the appellants ultimately did not press the point. The Court held the suit fell within cl. (ii) of Article 35 of Sch. 2 (Provincial Small Cause Courts Act) as it was for compensation for an act (cutting trees) that constituted mischief or criminal trespass under Chapter 17 of the Penal Code. Hence appeals were competent and a second appeal to this Court lay.
Limitation: The Courts below found the trees were cut on 28 November 1937 (the accrual of cause of action). The suit was instituted on 6 June following, more than six months later. Section 535(2) prescribes that such suits must be commenced "within six months next after the accrual of the cause of action, and not afterwards." If that provision alone governed, the suit would be time-barred.
Application of the Limitation Act: The plaintiffs invoked Section 15(2) of the Limitation Act, which mandates that where notice has to be given by an enactment, the period of such notice is excluded in computing limitation. They relied on Section 29(2) of the Limitation Act (added in 1922) which makes sections of the Limitation Act applicable to special/local laws "only in so far as, and to the extent to which, they are not expressly excluded by such special or local law." The Court accepted that S.15(2) applies to special/local laws unless expressly excluded.
Whether the Bengal Municipal Act expressly excluded Limitation Act provisions: The appellants contended that the terminal words "and not afterwards" in S.535(2) were an express exclusion of Limitation Act provisions. The Court analysed the meaning of "expressly excluded" under S.29(2)(a) and concluded that mere wording such as "and not afterwards" falls short of an express exclusion. The Court found authority (Henderson J., 44 C.W.N. 362; Division Bench in 56 Cal. 805) supporting the view that such wording only indicates exclusion by inference and is not sufficiently explicit to displace the Limitation Act provisions.
Conclusion on limitation: Applying S.15(2) (on exclusion of the notice period) to S.535(2) via S.29(2), and finding no express exclusion in the Bengal Municipal Act, the Court overruled the plea of limitation and held the suit was within time.
Notice under S.535(1): The appellants attacked the notice as not specifying abode and as not proved. The Subordinate Judge had the original notice before him and was satisfied on the matter; service had been evidenced at trial. The present Court accepted that the original notice (produced on appeal) and the trial evidence on service together established proof of notice within the meaning of S.535(1). Accordingly the notice objection failed.
Responsibility for cutting and merits: Although the trial Court had findings indicating volunteers of an Anti Malaria Society had carried out the cutting, the appellants admitted before the Subordinate Judge that the trees had been cut. The appellate Court accepted the unchallenged trial findings that there was no legal justification and no consent. The present Court observed that the trial finding that volunteers (and not municipal officers) performed the work did not necessarily absolve the municipality; those volunteers might have acted under municipal orders. Given the admission and the lower appellate Court's findings, the present Court would not treat the trial finding as establishing that the defendants were not responsible.
Municipal discretion and other statutory protections: The appellants argued the municipality had discretion to treat the trees as noxious undergrowth and that civil courts should not interfere. The Court answered that treating the cutting of the simul trees as clearance of noxious undergrowth would be an outrageous exercise of discretion and civil courts would not be fettered from reviewing such an exercise. Moreover, the municipality did not claim to rely on that ground. The Court briefly noted that S.242 and S.369 were not engaged on the facts.
Outcome of the points: All points urged in support of the appeal were rejected by the Court on the basis set out above.

Holding and Implications

Holding: The Court DISMISSED THE APPEAL.

Direct consequences and orders recorded in the opinion:

The decree of the Subordinate Judge in favour of the plaintiff for Rs. 30 (with proportionate costs) stands.
All objections raised by the appellants (jurisdiction ultimately not pressed, limitation, insufficiency/proof of notice, non-liability because volunteers acted, municipal discretion, reliance on other sections) were overruled.
Leave to appeal under Clause 15, Letters Patent was refused.
The appellant's alternative petition under Section 115 of the Civil Procedure Code was dismissed without costs.

Broader implications: The opinion does not purport to lay down a novel or broad precedent beyond applying existing principles concerning the interaction of special/local limitation provisions with the Limitation Act (notably the requirement of an "express exclusion" to displace Limitation Act sections). The decision resolves the parties' rights in this litigation but does not announce a new, sweeping rule of law.

Final line from the Court: "Appeal dismissed."

Show all summary ...

1. This appeal is on behalf of the defendants, and arises out of a suit for damages. The defendants are the Commissioners of the Pabna Municipality (defendant 1) and its Vice-Chairman (defendant 2). The plaintiff laid his claim at Rs. 50, and the act for which he claimed this compensation was the cutting down of three simul trees standing in the plaintiffs' land. The suit was resisted on a variety of grounds. On the merits it was alleged that the municipality or any of its officers had nothing to do with the cutting down of the trees, but that this was the work of some enthusiastic volunteers of a body known as the Anti Malaria Society who were operating in the area at the time. The defendants further claimed statutory protection for the act complained of. It appears that sometime in the month of August 1937 the municipality had actually served a notice on the plaintiffs, calling upon them to clear the jungles and other noxious undergrowth and vegetation from their lands on the ground that they were injurious to health and offensive to the neighbourhood. There was no specific requisition by this notice for the cutting down of the three simul trees. Further objections to the suit were taken by the defendants based on the provisions of Section 535 of the Bengal Municipal Act (Act 15 of 1932). It was conceded that a notice of suit had been given under this section, but the contention was that the notice was not in proper form and that it had not been proved. It was further pleaded that the suit was out of time, not having been instituted within six months next after the accrual of the alleged cause of action as required by S. 535(2). The learned Munsif expressly held in favour of the defendants on the question of notice and of limitation. On the merits also, the findings were generally in their favour, and in the result he dismissed the suit. On the question of quantum of damages, however, he recorded a finding to the effect that is the plaintiffs were otherwise entitled to succeed, they could recover damages to the extent of Rs. 30. On appeal the learned Subordinate Judge reversed the decision of the learned Munsif both on the question of the notice of suit and on that of limitation. As regards the merits, he stated that the cutting down of the trees had been admitted by the defendants, and accepting on that basis the further findings of the trial Court, which were not also challenged before him by the defendants, to the effect that there was no legal justification for the cutting down of the trees and that this had not been done with the consent of anyone on behalf of the plaintiffs, as well as the finding as to the quantum of damages, he made a decree in favour of the plaintiffs for a sum of Rs. 30 with proportionate costs. It is against this decision that the defendants have preferred the present appeal.

2. The learned advocate for the appellants has practically argued all the points which his clients had unsuccessfully raised in the Court below. He further took the point that the appeal to the lower appellate Court was without jurisdiction, and it is just as well that I should dispose of this question at once. The contention was that the suit was of a Small Cause Court nature and that, therefore, no appeal lay against the decision of the trial Court. The learned advocate realised that if he was right, he would be shutting himself out from his own appeal to this Court. The suit being valued at Rs. 50, there would be no escape from the bar of Section 102 of the CPC. Mr. Roy's only answer to this was a petition in the alternative under Section 115 of the CPC. In the end the learned advocate thought it wise not to press this particular objection, and it is worth while mentioning that the learned advocate on behalf of the respondents, Mr. Lahiri, was only too willing to make a present of this point to his friend on the other side. I might, all the same, state that in my view the suit would come within cl. (ii) of Article 35 of Sch. 2, Provincial Small Cause Courts Act, as being a suit for compensation for an act which would be an offence punishable under Chap. 17, Penal Code. The cutting down of the trees in respect of which damages were claimed was undoubtedly an act of mischief or criminal trespass as defined in the Penal Code, and I see no reason why the suit should not accordingly be regarded as falling strictly within the terms of cl. (ii) of the said Article. The appeal to the learned Subordinate Judge would in that view be quite competent, and a second appeal would also lie to this Court.

3. As regards the other objections raised on behalf of the appellants, the only one which seemed to me to have some substance was that of limitation, and I might deal with it first. The Courts below have found that the trees were cut down on 28th November 1937. This was, therefore, the date of the accrual of the cause of action. The suit was actually instituted on 6th June of the following year, which was more than six months after the said date. Now, S. 535(2) provides that a suit such as this against the Commissioners of any municipality or any of its officers shall be commenced “within six months next after the accrual of the cause of action, and not afterwards.” Clearly, therefore, if this was the only provision which governed the question of limitation, the suit would be out of time. On behalf of the plaintiffs, it was not disputed that S. 535(2) applied to the case, but they claimed to be entitled to deduct the period of the notice which they had to give under sub-s. (1). The period of notice was one month, and if one month was excluded the bar of limitation would be successfully met.

4. In support of their contention, the plaintiffs relied on the provisions of Section 15(2) of the Limitation Act, which specifically lays down that in computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded. It is pointed out that this provision is applicable not merely to suits for which limitation is prescribed under the various Articles of the Limitation Act, but also in the case of suits for which a different period of limitation is prescribed by a special or local law. Reliance is placed in this connexion on sub-s. (2) of S. 29, which, as is well-known, was added to the Limitation Act in 1922 in order to remove a lacuna in the law to which attention had been drawn in various decisions of the Indian High Courts. Sab-section (2) of Section 29 of the Limitation Act, expressly provides that for the purpose of determining any period of limitation prescribed for any suit by any special or local law, the provisions contained in S. 4, Ss. 9 to 18 and S. 22 shall apply “only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.” It follows, therefore, that the plaintiffs will be entitled to the benefit of S. 15(2) in computing the special limitation under Section 532(2) of the Bengal Municipal Act.

5. Mr. Boy was not slow to appreciate the position, but he still endeavoured to get out of it by relying on the qualifying words of cl. (a) of sub-s. (2) of S. 29 quoted above where it is stated that the specific provisions of the limitation Act therein referred to shall apply only ‘to the extent to which they are not expressly excluded by such special or local law.’ His argument was that there was express exclusion here by the terms of sub-section (2) of Section 535 of the Bengal Municipal Act. As already pointed out, this sub-section ends with the words ‘and not afterwards.’ It was contended that these words would really have no effect unless they were words of exclusion within the meaning of cl. (a) of sub-section (2) of Section 29 of the Limitation Act. There is a good deal of force in the contention. It may well be that the Legislature by adding the words ‘and not afterwards’ did intend to exclude the applicability of those provisions of the Limitation Act which would operate to extend time in various contingencies. Unfortunately, however, if that was the intention of the legislature, they failed to carry it out by using appropriate language for that purpose. The language they used ‘and not afterwards,’ might possibly operate in the way intended, but by reason of the terms used in Section 29(2)(a) of the Limitation Act, I think it fell short of what was thereby required. The words ‘expressly excluded’ mean what they say. In order that the exclusion may be express, I think that the particular sections of the Limitation Act which are intended to be excluded must be specifically indicated by the special or local law in question. So far as the words ‘and not afterwards’ are concerned, the utmost that can be said is that the exclusion of those sections of the Limitation Act may be easily spelt out therefrom, but, in my opinion they will not amount to an express exclusion. In support of this view, I am fortified by a decision of Henderson J. to which my attention was drawn by Mr. Lahiri, reported in 44 C.W.N 362.1 The question was there considered in connexion with Section 146 of the Bengal Local Self-Governments Act, (Bengal Act 3 of 1885), a section which is almost identical in terms with Section 535 of the Bengal Municipal Act, with which we are concerned here. The relevant provisions there also contained the words ‘and not afterwards,’ and Henderson J. held that it was difficult to say that this would be anything more than an exclusion by inference. The learned Judge went on to add that the matter had really been settled by the decision of a Division Bench of this Court in 56 Cal. 805.2 I see no reason whatsoever to differ from the views expressed in this case. I must accordingly overrule the plea of limitation which was raised on behalf of the appellants and hold that the suit was within time.

6. Turning now to the other points raised in connexion with the notice under Section 535 of the Bengal Municipal Act, the first point taken was that the notice did not specify the abode of the persons to whom it was addressed. I think it is sufficient to refer to the judgment of the learned Subordinate Judge in this matter. The learned Judge had before him the original notice, and he was satisfied that it was not defective in this particular. It was next urged that the notice had not been proved, though service of the notice was admitted. I was unable to fully appreciate the argument of Mr. Boy in this connexion. The original notice was produced before the appellate Court. Evidence regarding service of that notice had been given in the trial Court, though the original was not available then, but that evidence has got to be read in connexion with the original, because it was evidence regarding service of the original notice. In fact, there was no question so far as I can see regarding service of the notice. That being so, I hold that notice had been proved within the meaning of sub-s. (1) of S. 535, and the Court was under no duty of finding for the defendants, as contended for on their behalf. The next point taken was that on the findings of the Court below there could be no decree against the defendants. This again was an argument which I could not follow. As already pointed out, it was admitted before the learned Subordinate Judge that the defendants had cut the trees. It was, therefore, futile on the part of the learned advocate for the appellants to point out that the trial Court had in a manner found that the trees had been removed not by the officers of the municipality, but by the over-zealous volunteers of the Anti Malaria Society. That finding was not expressed in connexion with the question as to the persons by whom the trees had been cut down. It may well be that although the actual cutting was done by the volunteers, they had set out on their operations under the orders of the municipality. Be that as it may, having regard to the admission made in the lower appellate Court, I am not prepared to hold that the lower appellate Court accepted any contrary finding of the trial Court to the effect that the act complained of had been done by persons other than the defendants concerned. This particular objection must accordingly be also overruled.

7. The last argument, almost an argument of despair, was that the cutting down of the trees was a matter within the discretion of the municipality, and that it was not for the civil Court to say that the simul trees were not noxious undergrowth, if the municipality had chosen to treat them as such. All that I need say is this that if the municipality regarded the cutting down of simul trees as the clearance of noxious undergrowth or vegetation, it would be an outrageous exercise of discretion on their part, and the hands of the civil Court would not be fettered in order to our the exercise of such discretion, but I do not think that the municipality ever intended to claim any protection for their act on any such ground.

8. It was further urged that the act of the municipality was not necessarily under S. 242 or S. 369. All that need be said is that on the facts there could be no question of action having been taken by the municipality under any of these other sections. The result is that all the points urged in support of the appeal fail. The appeal is accordingly dismissed with costs. Leave to appeal under Cl. 15, Letters Patent is refused. As I have held that the appeal is competent, the application in the alternative filed under Section 115 of the CPC will be dismissed without costs.

G.N/R.K

9. Appeal dismissed.