JUDGMENT Agarwala, J. - This is a Plaintiff's appeal arising out of a suit for declaration that the Plaintiffs were not liable to be ejected from the property in dispute. The facts briefly stated are as follows: The property in dispute consists of certain Kotharis, a verandah and an open space in front thereof in Sarai Kham, Mohalla Azam Nagar. The Plaintiffs claimed that these Kotharis had been in their possession from time immemorial, rather, since the time of the Moghul Emperors, that the Defendant Municial Board of Bareilly had obtained certain decrees for ejectment from those Kothries of certain persons not parties to the suit, that the Plaintiffs were not bound by the same and were not liable to be ejected in the execution of the aforesaid decrees. The Plaintiffs filed objections under Order 21, Rule 27, Code of Civil Procedure. But those objections were dismissed. Hence they filed the present suit under Order 21, Rule 103 of the Code of Civil Procedure. 2. The suit had been dismissed on the ground that no proper notice as required by Section 326 of the Municipalities Act was given prior to the institution of the suit. The Plaintiffs claimed that they had given a notice which is printed at page 33 of the paper book. The Defendant Municipal Board denied that such a notice had ever been given and alleged that all that had been sent to them was a notice printed at page 31 of the paper book. The Court below went into the evidence and held that no notice as printed at page 33 was ever sent to the Municipal Board and that the only notice sent to the Municipal Board was one printed at page 31. We have no hesitation in upholding the finding of the lower court on this point. 3. The next question to consider is whether the notice printed at page 31 can be treated as a valid under notice Section 326 of the Municipalities Act. The notice printed at page 31 is signed by three persons i.e. Hafiz Mohammad Ali, Salim Ullah and Wali Mohammad. One of them only namely Hafiz Mohammad Ali was the Plaintiff in the present case. No notice seems to have been given by the other five Plaintiffs in the suit. The notice printed at page 31 is signed by three persons i.e. Hafiz Mohammad Ali, Salim Ullah and Wali Mohammad. One of them only namely Hafiz Mohammad Ali was the Plaintiff in the present case. No notice seems to have been given by the other five Plaintiffs in the suit. In the notice it was stated that the Municipal Board had filed suits for dispossession in respect of the Kothris against certain Bhatiyaras and had obtained decree thereof, that on this pretext the employees of the Municipal Board want to dispossess all the Bhatiyaras, that the Bhatiyaras called upon the chairman to persue their papers but no heed was paid to them, that the Sarai was in possession of the Bhatiyaras since the time of the Nawabs of Oudh and that if no attention was paid to them they could be compelled to file a complaint in the court of the Collector of Bareilly. They further prayed that they might be informed of necessary orders through Hafiz Mohammad Ali. Then it was added that in their case is not heard by the Collector they will file a suit in the civil court, and that the notice was issued in accordance with the provisions of Section 80, CPC and Section 326 of the Municipalities Act. 4. Now this notice cannot be considered to be a proper notice u/s 326 of the Municipalities Act. Section 326 requires that "no suit shall be instituted against a Board, or against a member, officer or servant of a Board, in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice in writing has been, in the case of a Board, left at its office, and, in the case of a Member, Officer or servant, delivered to him or left at his office or place of abode, explicity stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intended Plaintiff, and the application shall contain a statement that such notice has been so delivered or left." In the present case, as already pointed out, the name and place of only one of the intended Plaintiffs was given. The other five Plaintiffs were not mentioned in the notice. The other five Plaintiffs were not mentioned in the notice. The cause of action which appears in the plaint arose as a result of the dismissal of their objection under Order 21, Rule 97, Code of Civil Procedure. The notice under discussion seems to have been given much before those proceedings took place. The nature of the relief sought in the plaint is not mentioned in the notice. It cannot, therefore, be said that the notice complied with the provisions of Section 326 of the Municipalities Act. 5. It was next urged that no notice, in fact, was required to be given under the provisions of Section 326 of the Municipalities Act because the action of the Board which formed the cause of action for the suit was not done in its official capacity. The scope of Section 326 has been the subject of discussion in several cases. Language similar to Section 326 is found in other Acts. For instance, in Section 80 of the CPC the words are: No suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such a public officer in his official capacity.... 6. In this section the 'official capacity' mentioned is that of the public officer alone and not of the Govt. u/s 326, however, the words 'official capacity' refer not only to the acts of the public officer or servant of the Board but also of the Board. The word 'its' in the phrase 'its or his official capacity' clearly refers to the Board. The words in Section 191 of the U.P. District Boards Act are similar to those used in Section 326 of the Municipalities Act. In some other Acts the language is slightly different. For instance, in Section 273 of the Cantonments Act the words 'official capacity' are not used. Instead, the words "in pursuance of the Act" are used. 7. The words "in pursuance of the Act" have acquired a special meaning. In some other Acts the language is slightly different. For instance, in Section 273 of the Cantonments Act the words 'official capacity' are not used. Instead, the words "in pursuance of the Act" are used. 7. The words "in pursuance of the Act" have acquired a special meaning. Under the English Act, Public Authorities Protection Act 61 of 1893, the provision is: Where after the commencement of this Act any action, prosecution or other proceedings is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act, duty or authority the following provision shall have effect.... 8. In Bradford Corporation v. Myers 1916 1 A.C. 242 the House of Lords had occasion to consider the implication of Section 1 of the Public Authorities Protection Act. In that case the Defendants, a municipal corporation, were authorised by Act of Parliament to carry on the undertaking, of a gas company and were bound to supply-gas to the inhabitants of the district, and they were also empowered to sell the coke produced in the manufacture of the gas. The Defendants contracted to sell and deliver a ton of coke to the Plaintiff, and by the negligence of their agent the coke was shot through the Plaintiff's shop window. More than six months afterwards the Plaintiff commenced an action of negligence against the Defendants. The Defendants pleaded Section 1 of the Public Authorities Protection Act, 1893, as a bar to the action. It was held that the act complained of was not an act done in the direct execution of a statute or in the discharge of a public duty or the exercise of a public authority, and that the Public Authorities Protection Act, 1893, afforded no defence to the action. 9. The principle underlying this decision was applied to the Cantonments Act by a Bench of this Gourt in Ram Chander Sahai v. Cantonment Board, Meerut AIR 1947 All. 42. 9. The principle underlying this decision was applied to the Cantonments Act by a Bench of this Gourt in Ram Chander Sahai v. Cantonment Board, Meerut AIR 1947 All. 42. See also Cantonment Board, Allahabad v. Hazari Lal 1934 A.W.R. (H.C.) 393, in which it was held that a suit for recovery of the value of goods supplied to a Cantonment Board does not fall within the description of suits mentioned in Section 273(1) of the Cantonments Act. 10. The language of Section 80, CPC and of Section 326 of the Municipalities Act, however, is wider. In Revati Mohan v. Jatindra Mohan 1931 A.W.R. (P.C.) 561, where Section 80, CPC had to be construed, the Manager of a court of wards and borrowed some money from a third person on a mortgage of his ward's property. In the mortgage deed it was stipulated that the mortgagee's only remedy would be by the sale of the property mortgaged. The Manager of the court of wards failed to pay the money. The mortgagee then filed a suit on the basis of the mortgage without giving notice u/s 80, Code of Civil Procedure. The contention was that since the illegal omission to do an act is also covered by the expression, 'acts done', u/s 4(2) of the U.P. General Clauses Act the omission of the Manager to pay was done in his official capacity. Their Lordships repelled this contention and observed that: The manager for the time being no doubt had an option to pay in order to save the sale, but failure to exercise an option is not in any sense a breach of duty. 11. It may be observed that this was a case of an omission to do an act which act the officer was not bound to do. In order that an action may be founded upon an omission to do a certain act it must obviously be shown that the omission was illegal or, in other words, it was a breach of duty. Therefore, where the case is of an omission to do a certain act, then in order that the omission may amount to be an 'act' in one's official capacity it must be established that the officer was bound to do the act. Therefore, where the case is of an omission to do a certain act, then in order that the omission may amount to be an 'act' in one's official capacity it must be established that the officer was bound to do the act. Where, however, the cause of action is founded on a positive act and not on a mere omission, the case may be different and the official act may not necessarily be an act which the officer concerned was bound to do. It may, on the other hand, be an act which he had a discretion to do and having chose to exercise that discretion does it or purports to do it. The Municipal Board under the Municipalities Act has certain duties to perform which are mentioned in Section 7 of the Act and also to perform certain discretionary acts, vide Section 8 of the Municipalities Act. Further in order to carry out these duties it has also the power to do certain other acts, for instance, appointment of certain officers or servants to carry out the duties and functions entrusted to the Board. Where the Board performs the duties or purports to perform any of the duties mentioned in Section 7 or resolves to exercise any of the discretionary functions it is empowered to do u/s 8 or to carry into effect incidental powers to enable it to perform its duties or to exercise its discretionary functions it cannot but be said that it is acting in its official capacity. Thus in D.L. Nigam v. Kanpur Municipal Board 1952 A.L.J. 122, a Full Bench of this Court held that the omission to pay the salary to a servant whom the Board had resolved to point was an official act and, therefore, notice was necessary. 12. The earlier Full Bench decision of this Court District Board, Allahabad v. Behari Lal 1935 A.W.R. (H.C.) 1330 was a case of a suit by a contractor who had entered into a private contract with the District Board, for refund of a deposit made by him as security and for recovery of money on account of extra work done by him under the orders of the overseer and engineer of the Board, which was not expressly sanctioned by a resolution of the Board. It was held that Section 192(1) of the District Boards Act which is in the same language as Section 326 of the Municipalities Act did not apply to the case. It may be pointed out that the act complained of in that case was the omission to refund the security and to pay for the extra work done not under a resolution of the Board but under the order of the overseer and engineer of the Board. The omission to make the payment in the circumstances could not be said to be a breach of duty under the District Boards Act or under a resolution passed or decision taken in the performance of any duty binding or optional prescribed by, or in furtherance of the objects of the Act. 13. In the present case the act of the Board complained of is the action taken by it to have the Plaintiffs ejected from the property claimed by the Board as its own on the ground that the Plaintiffs were trespassers. To maintain and develop the property vested in or entrusted to the management of the Board is one of the duties of the Board as mentioned in Clause (q) of Section 7 of the Act. In performance of this duty the Board must take steps to eject trespassers from its land. And in so acting the Board cannot but he said to be acting in its official capacity. 14. We, therefore, hold that Section 326 applied to the facts of the present case and as no proper notice under that section was given prior to the institution of the suit, the suit was not maintainable. 15. The appeal, therefore, fails and is dismissed with costs.