Fakira Tejaji v. Municipal Committee, Javad — 1951 DIGILAW 28 (MP)

JUDGMENT : 1. This is a second appeal by the plaintiffs arising out of a suit against the Municipal Committee, Javad. The plaintiffs claimed that since very old time they had a customary right for taking carcasses of the dead animals within the area of Jawad Municipality and they are entitled to get two annas for cleaning the skin "Hindi Matter" under certain circumstances. The Municipal Committee, Jawad, ignored their rights and the right of collecting the bodies of dead animals was auctioned and was knocked down to the highest bidder. The suit was for a declaration that the plaintiffs alone have the right of collecting bodies of dead animals and the prayer was also for restraining the Municipal Committee not to interfere with the rights of the plaintiffs. It was also prayed that the auction should be cancelled. 2. The plaintiffs' suit was dismissed by the trial Court which held that the plaintiffs had not given two months' notice to the Municipal Committee under S. 48, Gwalior Municipalities Act Samvat 1993. This decision was upheld by the first appellate Court and they have come to this Court in second appeal. 3. The relevant portion of sub-clause (i) of S. 48 of the said Act which closely follows S. 49. Punjab Municipal Act of 1911 is in the following words : "No suit shall be instituted against a Committee, or against any Officer or a servant of a Committee, in respect of any act done or purporting to be done in its or his official capacity, until the expiration of 2 months next after notice in writing has been in the case of a committee, delivered or left at its office and in the case of an officer or a servant, delivered to him or left at his office or place of abode, stating the cause of action and the name and place of abode of the intending plaintiffs and the plaint must contain a statement that such notice has been so delivered or left." 4. Mr. Samvatsar, learned counsel for the appellants, has contended that S. 48 does not apply to the facts of this case as this was not a suit "for anything done or purporting to have been done in its official capacity." According to him S. 48 or Ss. Mr. Samvatsar, learned counsel for the appellants, has contended that S. 48 does not apply to the facts of this case as this was not a suit "for anything done or purporting to have been done in its official capacity." According to him S. 48 or Ss. 102, 105 or 156, Gwalior Municipal Act do not deal with the right to auction or to sell the bodies of dead animals found within the Municipal Area, as if the carcasses were Municipal property. Reliance is placed by him on - 'Ramchander Sahai v. Cantonment Board, Meerut', AIR 1947 All 42 (A), which interpreting S. 273 of the Cantonments Act (1924) held that it is to acts which the Board has not merely the authority but also the duty to perform, i.e., acts which are enjoined upon the Board that the protection allowed by S. 273 extends. In other words 'act done by the Board in pursuance-of this Act' means an act enjoined upon the Board by the Act. 5. Mr. Samvatsar contends that S. 48 would apply to a case where the Committee has not only power to auction the dead bodies, but there is also statutory obligation on or duty of the Committee to auction them. According to him, the question should be : whether any obligation was created by the statute on the Municipality to auction the right of collecting of bodies of dead animals? Reliance is also placed by him on two-English cases - 'McManus v. Bowes', (1937) 3 All ER 227 (B) and - 'Compton v. West Ham County Borough Council', (1939) 3 All E R 193 (C), which took this view while interpreting S. 1 of the Public Authorities Protection Act, 1893. 6. It may, however, be mentioned here that the words in the said Section of the English statute are "for any act done in pursuance of execution or intended execution of any act of Parliament" whereas in S. 48, Gwalior Municipal Act the wording is "in respect of any act done or purporting to have been done in its official capacity." The wordings of these two Acts are not identical. The wording of Cantonments Act 1924 closely follows, S. 1 of the English Statute, but S. 48, Gwalior Municipal Act follows the provisions contained in S. 80, Indian Code of Civil Procedure. Owing to this difference the rulings cited by Mr. The wording of Cantonments Act 1924 closely follows, S. 1 of the English Statute, but S. 48, Gwalior Municipal Act follows the provisions contained in S. 80, Indian Code of Civil Procedure. Owing to this difference the rulings cited by Mr. Samvatsar cannot be held to be applicable to the facts of the case before me. Mr. Balwantsingh, who appears on behalf of the respondents, relies on - 'Bhagchand v. Secy. of State', AIR 1927 PC 176 (D) and on - 'Vithoba Babaji v. Sholapur Municipality, AIR 1947 Bom 241 (E), which lay down that S. 80, Civil P.C. is express, explicit and mandatory and admits of no implications or exceptions and that the words 'in respect of a form going beyond 'for anything done or intended to be done' show it to be wider than the statutes on which the English authorities were decided. 7. I am quite clear in my mind that the words "in respect of any act" and "purporting to be done in its official capacity" are of much wider import than the words "act done in pursuance of an Act" and that S. 48, Gwalior Municipal Act extends generally to all acts of a Municipal Committee which it does within the scope not merely of its duty but also of its powers under the Act. The question which now arises for determination is whether the order passed by the Municipal Committee in the present case was or was not within the scope of its powers ? If it was so, it will be deemed to be an "act done or purporting to have been done in its official capacity" and a two months' notice will be necessary under S. 48. 8. The learned counsel invite my attention to the provisions in Ss. 102 and 105, Gwalior Municipal Act Samvat 1393. Section 102 lays down that the Committee will fix places where the dead bodies of the animals will be deposited and will issue directions about the route through which the dead bodies will be carried to those places. Section 105 enjoins upon the owner of a dead animal to send it within 24 hours to the place one mile away from the Municipal Area where such dead bodies are deposited or inform the Municipality which will arrange to send the body of a dead animal there. Section 105 enjoins upon the owner of a dead animal to send it within 24 hours to the place one mile away from the Municipal Area where such dead bodies are deposited or inform the Municipality which will arrange to send the body of a dead animal there. Sub-Section (ii) lays down that the Municipal Committee will charge the prescribed fee for sending the carcass to the said place. Then there is S. 156 which authorises the Municipal Committee to frame bye-laws in accordance with the provisions of the Municipal Act for many purposes including for demarcation of places where bodies of dead animals are to be deposited and also for inspection and other necessary arrangements. Sub-clause 23 enables the Municipality to do everything which it may consider necessary or expedient in order to carry into effect the provisions and purposes of the Act. 9. Mr. Balwantsingh who appears on behalf of the respondents has taken me through the bye-laws framed by the Municipal Committee, Jawad, which have been published in the Gwalior Government Gazette dated 6-4-1945, under Sub-Clause (8) of S. 156, Gwalior Municipal Act. Under Rule No. 1 it is laid down that the owner of a dead animal should remove the dead body within 24 hours to the place fixed by the Municipal Committee. Rule No. 2 lays down that if the owner is not in a position to remove it himself he must immediately inform the Secretary of the Municipal Committee, who will be duty bound to remove it and arrange for its burial after paying the remuneration to the persons who take the dead body to the place fixed. Rule No. 4 empowers the Municipal Committee to remove the ownerless dead bodies of animals within the Municipal area and to take their skin. Rule No. 5 provides for auctioning of the skins of the ownerless dead animals. Rule No. 6 prescribes the rate of remuneration which is to be paid to the persons who remove dead animals and bury them. 10. Mr. Balwantsingh also produced a copy of the bye-laws framed by the Minister for the Municipalities Gwalior State and published in the Gwalior Government Gazette dated 6-11-1924. These bye-laws do not seem to be relevant as according to S. 2, Gwalior Municipal Act Samvat 1993 they were repealed as soon as the new Act came into force. 11. 10. Mr. Balwantsingh also produced a copy of the bye-laws framed by the Minister for the Municipalities Gwalior State and published in the Gwalior Government Gazette dated 6-11-1924. These bye-laws do not seem to be relevant as according to S. 2, Gwalior Municipal Act Samvat 1993 they were repealed as soon as the new Act came into force. 11. It will be clear from the bye-laws framed in 1948 that the Municipal Committee, Jawad is bound to remove the bodies of those dead animals! which have no owners; if there are owners the Municipal Committee has the power to remove only those bodies of dead animals, the owners of which ask the Municipal Committee to remove them. The Municipal Committee, according to the bye-laws framed, has neither the power nor the duty to remove the dead animals, if the owners want to arrange for their removal themselves and the skin of such animals remains the property of the owners themselves and over such skin the! Municipal Committee has no right. It follows, therefore, that if the plaintiffs are required, according to old custom, by owners of dead animals, to remove their carcasses to the burial ground, the Municipal Committee cannot prevent such removal by the plaintiffs. It has neither the power nor any duty in this respect. The order of the Municipal Committee for auctioning the right of collecting the bodies of all dead animals, without discrimination, and knocking it down to the highest bidder, was, therefore, an act not in its official capacity and not in pursuance of the provisions of the Municipal Act.In my judgment, therefore, prima facie, there was neither the power nor the duty of the Municipal Committee to make an order for the auction, of the right of collecting the dead bodies of the animals within the municipal area; and, therefore, the case cannot be brought within the scope of S. 48, Gwalior State Municipal Act Samvat 1993 and no notice was necessary. I express no-opinion on the question whether the action of the Municipal Committee can be justified on ground of sanitation or hygiene or under some other provision of law; or, on the question whether the suit as framed is maintainable at all. I express no-opinion on the question whether the action of the Municipal Committee can be justified on ground of sanitation or hygiene or under some other provision of law; or, on the question whether the suit as framed is maintainable at all. But as I am of opinion that the order of the Municipality impugned is not an act "done or purporting to-have been done in its official capacity", I think that the decrees and judgment of the Courts below cannot be sustained. The decrees of the Courts below dismissing the plaintiffs' suit must, therefore, be set aside. 12. I, therefore, allow the appeal, set aside the decrees and judgments of the Courts below and remit the case back for disposal according to law. Costs will abide the result. Court fees will be refunded to the appellants. Appeal allowed.