MORVI MUNICIPALITY v. J. N. GANATRA — 1984 DIGILAW 211 (GUJ)

J. P. DESAI, J. ( 1 ) THE question however which requires serious consideration is the question of limitation The resolution of the General Board was passed on 1 The present suit was admittedly filed more than six months after the dismissal of the plaintiff-respondent from the service of the Municipality It appears. from the judgment of the trial Court at para. 13 that the learned advocate for the plaintiff submitted at the time of arguments that the plaintiff had filed the suit in forma pauperis earlier within six months from the date of his dismissal and therefore. the present suit was within time The learned Judge has observed at para 13 of his judgment that there was nothing on record to substantiate his submission made by the learned advocate for the plaintiff The learned trial judge has observed that without any documents on record no finding can be given in favour of the plaintiff on such submission. The learned trial Judge has very rightly observed that there is also no such pleading on this point. The learned advocate Mr. J R Nanavati who appears for the plaintiff respondent before this Court was unable to point OUt anything on record to substantiate this submission made by the plaintiff at the time of arguments before the learned trial Judge There is no mention in the plaint that earlier the suit was filed in forma pauperis. It appears that the stamp paper for filing the present suit was purchased on 23-11-1971 and the suit was filed on 26-11-1971. I may also mention here that the plaintiff has not stated a word in his deposition also that he had filed any such suit in forma pauperis. In view of this the learned advocate Mr. It appears that the stamp paper for filing the present suit was purchased on 23-11-1971 and the suit was filed on 26-11-1971. I may also mention here that the plaintiff has not stated a word in his deposition also that he had filed any such suit in forma pauperis. In view of this the learned advocate Mr. Nanavati was unable to substantiate such submission which was made before the trial Court We have therefore to proceed on the basis that the Suit was filed on 26-11-1971 This was admittedly more than six months after the date of dismissal of the plaintiff The question is whether the suit can be said to have been filed within the period of limitation The contention of the defendant-Municipality so far as the question of limitation is concerned is base on section 253 (1) (a) of the Gujarat Municipalities Act 1963 (hereinafter to be referred to as the Act) Sec 253 (1) (a) of the Act reads as follows"253 No suit shall lie against a municipality or against any officer or servant of municipality in respect of any act done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default In the execution of this Act (a) unless it is instituted within six months next after the accrual of the cause of action; and " ( 2 ) THE contention of the learned advocate for the plaintiff is that the act of the Municipality in dismissing the plaintiff from service cannot be said to be an act done in pursuance or execution or intended execution of the Act and hence sec 253 (1) (a) can have no application. On the other hand the contention of the learned advocate for the defendant-Municipality is that even if the act of the General Board of the Municipality in dismissing the plaintiff is found to be bad on the ground that the procedure laid down under the rules was not followed or for any such other reason the act of the General Board can be said to be in pursuance or execution or intended execution of the Act because there cannot be any dispute that the General Board of the Municipality was competent to dismiss the plaintiff from service on facts 1 have found as discussed earlier that the action of the Municipality was bad in that the procedure laid down by the rules has not been followed and further because no reasons have been given either by the Controlling Committee or by the General Board for reaching the conclusion to dismiss the plaintiff from service. The question is whether in view of this factual position can it be said that the act of the Municipality was in pursuance or at any rate execution or intended execution of the Act? ( 3 ) THE learned trial Judge held against the plaintiff on the question of limitation. The learned Assistant Judge who heard the appeal however held against the defendant-Municipality on the question of limitation relying upon some observations made by a Division Bench of this Court in the case of Kanji Zainabhai Vaidya v. Dwarka Nagar Panchayat and Another. This decision rendered by the Division Bench in Second Appeal No. 673 of 1969 has not been reported but some observations made therein have been extracted and reproduced in 12 G. L. T. 162. It appears that the learned advocate for the defendant-Municipality relied upon some observations made in this very judgment while the learned advocate for the plaintiff relied upon some other observations made in the very judgment of this Court. The Gujarat Law Times does not contain all the necessary facts of the case. It contains only short notes of some observations extracted from the judgment. In view of this I have perused the original judgment delivered by the Division Bench. The main judgment is delivered by learned brother N. H. Bhatt while some more reasons have been given by D. P. Desai J. . as he then was while concurring with the judgment of brother N. H. Bhatt. In view of this I have perused the original judgment delivered by the Division Bench. The main judgment is delivered by learned brother N. H. Bhatt while some more reasons have been given by D. P. Desai J. . as he then was while concurring with the judgment of brother N. H. Bhatt. In the main judgment delivered by brother N. H. Bhatt the following observations have been made which were relied upon by the learned advocate for the defendant-Municipality:"the term purporting to have been done is suggestive of the action which would appear to a by stander or a casual onlooker. In the act is done strictly in accordance with the provisions of the Act and is in accordance with all the principles of procedure. it would be an act under the Act. But if outwardly it is a valid act and Is appearing to bear a direct nexus with the provisions of the Act or the Rules made thereunder but if it becomes vitiated because of some procedural detects or infirmities which are not apparent or manifest the act would be an act purporting to be done under the Act". In the same judgment the following observations have been made by brother N. H. Bhatt which were relied upon by the learned advocate for the plaintiff:"if the act lacks in inherent jurisdiction or the act is so manifestly outrageous or extraordinary that no man would even think of associating it with his duties the action cannot be said to be done by the man purporting to act under the authority of the Act. on the other hand if the act is done by a man who has constitutional or legal authority to do it but who while exercising that power acts in a manner that would vitiate the act the action is to be deemed to be one done by him purporting to act under the Act". NOW even the observations which have been made by brother N. H. Bhatt which have been relied upon by the learned advocate for the plaintiff do not support the contention of the plaintiff that his suit in the present case will not attract the provisions of sec. 253 (1) (a) of the Act. The act of the Municipality in dismissing the plaintiff cannot be said to be lacking in inherent jurisdiction. 253 (1) (a) of the Act. The act of the Municipality in dismissing the plaintiff cannot be said to be lacking in inherent jurisdiction. It can be said in the present case looking to the way in which the Municipality acted in dismissing the plaintiff that the act of the Municipality is manifestly outrageous or extraordinary. But simply because the act is manifestly outrageous or extraordinary it will not take the case out of the purview of sec. 253 (1) (a) of the Act. It must further appear that the act is so manifestly outrageous or extraordinary that no man would even think of associating with his duties and only then it can be said that the action cannot be said to have been done by the concerned authority purporting to act under the authority of the Act or in other words in pursuance or execution or intended execution of the Act. Unless it appears that the act is either lacking in inherent jurisdiction or is so manifestly outrageous or extraordinary that no one would even think of associating it with the duties of the authority the provisions of sec. 253 (1) (a) will be attracted. Even Justice Bhatt has observed in the same para that if the act is done by a man who has constitutional or legal authority to do it but with while exercising that power acts in a manner that would vitiate the act the action is to be deemed to be one done by him purporting to act under the Act. These observations made by brother N. H. Bhatt upon which reliance has beet placed by the learned advocate for the plaintiff when read as a whole go to show that unless the act lacks in inherent jurisdiction or the act is so manifestly outrageous or extraordinary that no man would even think of associating it with his duties the provisions of sec. 253 (1) (a) of the Act will be attracted even if the authority which had constitutional or legal authority has while exercising that power acted in a manner that would vitiate the act. 253 (1) (a) of the Act will be attracted even if the authority which had constitutional or legal authority has while exercising that power acted in a manner that would vitiate the act. It can thus be saidt apphying the ratio of these observations of brother N. H. Bhatt that the act of the General Board of the Municipality though vitiated for the reasons which have been stated in the earlier portion of this judgment is still to be deemed to be one at least in intended execution of the Act and therefore the provisions of sec. 253 (1) (a) of the Act will he attracted. It appears that because the act of the Municipality in dismissing the plaintiff without a proper inquiry is found to be manifestly outrageous and extraordinary the learned Assistant Judge felt that the provisions of sec. 253 (1) (a) will not be attracted. It appears that the learned Assistant Judge did not properly appreciate even the ratio of the observations made by the Division Bench which are reproduced at page 163 in Gujarat Law Times and relied upon by the the plaintiffs advocate. It cannot be said with any stretch of imagination that no man would even think of associating the act of the Municipality with its duties because it is not disputed that the Municipality had jurisdiction and power to dismiss the plaintiff from service. It cannot be said with any stretch of imagination that the plaintiff who was an employee of the Municipality would think that the act of the (Municipality cannot be associated with its powers. The learned Assistant Judge also lost sight of the latter portion of the same judgment which clearly indicates that once it is found that the act is done by a person who has constitutional or legal authority to do it is to be deemed to be one done by him purporting to act under the Act even ii. the ultimate action is found to be vitiated on account of the manner in which that action is taken. If the learned Assistant Judge had carefully read the whole of these observations in their proper perspective he would not have fallen in error in coming to the conclusion that the above observations made by brother N. H. Bhatt support the contention of the plaintiff that the provisions of sec. If the learned Assistant Judge had carefully read the whole of these observations in their proper perspective he would not have fallen in error in coming to the conclusion that the above observations made by brother N. H. Bhatt support the contention of the plaintiff that the provisions of sec. 253 (a) will not be attracted in the present case. ( 4 ) IT appears that it was contended before the Division Bench that if the order is void or a nullity the question of limitation would never arise. Dealing with this submission made before the Division Bench on behalf of the original plaintiff following observations have been made at para. 15 of the judgment:"mr. Shah at one stage tried to urge that as the order in question was void or was a nullity the question of limitation would never arise. This submission of his would mean that a suit can be filed to question such an order at any time may be decades after. This is not what is understood in law when it is observed in some judicial precedents that orders that are nullities need not necessarily be declared so by any proceedings. What it simply means is that a person can set up the nullity of such orders by way of defence or in any collateral proceedings whenever it is sought to be used against him. Despite the order being a nullity if he wants an adjudication about a nullity through the channel of civil courts he must go within the period of limitation It is not obligatory on the part of a party to such an order to rush to a court of law to seek an adjudication about voidness or non est nature of the adjudication of a judicial of a quasi judicial tribunal. and he can defend his position is and when the said order is sought to be brought in his way by way of a impediment". THE above observations made in para. is of the judgment are also reproduced at page 163 in 15 G. L. T. 162. The above observations go to show that even is an order is void or a nullity action has to be brought within the period of limitation if the person aggrieved by the same wants an adjudication about a nullity through the channel of a civil court. The above observations go to show that even is an order is void or a nullity action has to be brought within the period of limitation if the person aggrieved by the same wants an adjudication about a nullity through the channel of a civil court. ( 5 ) THE observations made by the Division Bench which were relied upon by the learned advocate for the plaintiff before the learned Assistant Judge and which were relied upon by the learned Assistant Judge in reaching the conclusion that the provisions of sec. 253 (1) (a) of the Act cannot be attracted in the present case have been extracted from a Full Bench decision of the Madras High Court reported in Samanthala Koti Reddi v. Pothuri Subbiah and Others A. I. R. 1918 Madras 62. In that Full Bench decision of the Madras High Court. the question was whether a public officer was entitled to a notice under sec. 80 C. P. C. even if he acts mala fide. The Madras High Court held that he was entitled to a notice under sec. 80. In this Full Bench decision it has been observed as follows:"an act done by a public officer would purport to be an act done in his official capacity not only if it was properly and rightly done by him in such capacity and within his powers but also if it has such a reasonable resemblance (though a false or pretended resemblance) to a proper and right act that ordinary persons could reasonably conclusion from the character of the act and frown the nature of his official powers and duties that it was done in his official capacity". THE above observations made by the Full Bench of the Madras High Court have also been reproduced in the judgment of the Division Bench at para 24 These observations also clearly go to show that the act of the Municipality in dismissing the plaintiff by passing a resolution by the General Board would attract the provisions of sec. 253 (1) (a) of the Act even though the action can he said to be null and void. ( 6 ) JUSTICE D. P. Desai as he then was gave additional reasons while concurring with Justice N. H. Bhatt in his main judgment as stated by me a little earlier. 253 (1) (a) of the Act even though the action can he said to be null and void. ( 6 ) JUSTICE D. P. Desai as he then was gave additional reasons while concurring with Justice N. H. Bhatt in his main judgment as stated by me a little earlier. D. P. Desai J. has observed at para 5 of his concurring judgment as follows:"for the present we have assumed that the appellant has succeeded in making out his case of mala fides bias and personal animosity against the President. All the same. the President had unquestionable authority to dismiss the appellant under the law. His act of dismissal if not challenged on the aforesaid grounds would be an act done under the Act. With this challenge it can still be said that it was an act purported to be done under the Act. Bias and mala fides if proved will only vitiate this act in the sense that the ultimate order passed will be vitiated. That however cannot forfeit the power of the President to do an act; only a particular act purported to have been done under the Act is struck down. not the power to do the act of this nature". ( 7 ) THE above observations made by D. P. Desai J. also clearly show that the provisions of sec. 253 (1) of the Act will be attracted in the present case because it is not disputed that the General Board of the Municipality had unquestionable authority to dismiss the plaintiff from service though ultimately the action is found to be null and void for the reasons which have been stated earlier. ( 8 ) THEN D. P. Desai J. has proceeded further to consider as to what questions should be posed while examining this problem of limited nature. The first question according to him to be put is under what power the delinquent came to be dismissed. The second question. according to him would be was it a power exercisable under the Act. The answer to these questions is obvious in the present case as well as in the case before the Division Bench because undoubtedly the General Board of the Municipality had power or authority to dismiss the plaintiff the only challenge being that the power has not been properly exercised after following the proper procedure laid down by the Rules. The answer to these questions is obvious in the present case as well as in the case before the Division Bench because undoubtedly the General Board of the Municipality had power or authority to dismiss the plaintiff the only challenge being that the power has not been properly exercised after following the proper procedure laid down by the Rules. in that case D. P. Desai J. then posed a further question as follows:"if the President had this power to dismiss the appellant under the provisions of the Act can it be said that his act of dismissal though tainted with bias and mala fide attributed to him was not an act purported to have been done under this power "?he then observed that the answer to this question is also obvious viz. that it can be said to be an act purported to have been done under the powers vested in the president. In the present case also the answer to the question would be obvious because the General Board of the Municipality had unquestionable authority to dismiss the plaintiff from service though of course after holding a proper inquiry as laid down under the rules. ( 9 ) I may mention here that the words used in the relevant provisions of the Panchayat Act as well as the other Acts are anything done or purporting to have been done by or under the Act while in sec. 253 of the Act the words used are any act done in pursuance or execution or intended execution of this Act but that will mean the same thing as anything done or purporting to have been done by or under the Act. ( 10 ) IN the case of Betts v. Receiver for the Metropolitan Police District and Carter Paterson and Co. Ltd. 2 Kings Bench Division 595 the Court was called upon to consider the provisions of sec. 1 of the Public Authorities Protection Act 1893 wherein also the material words are any act done in pursuance or execution or intended execution of any Act of Parliament. It was found that the police instead of approaching the Court as required by law passed some orders which police had no authority to pass. It was contended that the Police Officer had acted in intended execution of public duty under the Act. It was found that the police instead of approaching the Court as required by law passed some orders which police had no authority to pass. It was contended that the Police Officer had acted in intended execution of public duty under the Act. While negativing this contention the Court observed as follows:"in my view it is at least doubtful whether the Act protects a public officer who while rightly apprehending the facts takes a mistaken view as to his legal obligations and executes or intends to execute some function which he has no duty to execute. On the other hand if a public officer makes an honest mistake of tact and does that which it would be his duty to do if his view of the facts were correct he is in my judgment acting in intended execution of a duty within the meaning of the section". The above observations show that intended execution means the same thing as purporting to act. I may also mention here that according to the Concise Oxford Dictionary to purport in this context means to be intended to seem. While considering as to what is meant by the expression any act purporting to be done by such public officer in his official capacity found in see. 80 Civil Procedure Code Sadasiva Aiyar J. observed as follows:"i therefore think that the expression any act purporting to be done by such public officer in his official capacity found in 5. 80 Civil P. C. means any act of a public officer which is intended by him to carry forth or convey to the minds of all persons who become aware of that act the impression that he did the act in his official capacity and not as all ordinary private individual and which has the effect or conveying such an impression by its seeming or appearance". In the case before the Madras High Court it appeals that file question was whether the act of the Village Munsif in handing over the balance of the revenue sale proceeds to the defaulting owner was an act purporting to be clone in his official capacity or in other words was an act intended to seem to be done by him in his official capacity so as to render a notice of suit necessary and the answer to the question by the Full Bench was that such a notice was necessary even though the officer concerned had acted mala fide. Sadasiva Aiyar. J. Observed in this contention as follows:" I think the question of the good faith or the 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 5. 80 Civil P. C". ( 11 ) THE discussion made above clearly shows that even though the action of the Municipality in dismissing the plaintiff was null and void for the reasons which have been stated in the beginning nonetheless the Municipality can be said to have acted in intended execution of the Act and hence the provisions of sec. 253 (1) (a) will be attracted in the present ease. It seems that the learned Assistant Judge fell into an error in reaching a contrary conclusion because he did not properly appreciate the observations made by the Division Bench in that he only focussed his attention on the words manifestly outrageous or extraordinary while not giving due importance to the words no man would even think of associating it with his duties. It also appears that the learned Assistant Judge also fell into an error because he also did not properly appreciate the observations which have been reproduced in 12 G. L. T. 162 at page 163. If the learned Assistant Judge had carefully read all the observations which have been reproduced at page 163 in their proper perspective then learned Assistant judge would not have fallen into this error. If the learned Assistant Judge had carefully read all the observations which have been reproduced at page 163 in their proper perspective then learned Assistant judge would not have fallen into this error. ( 12 ) IN view of the discussion made above I am included to hold that suit of the plaintiff was barred by limitation in that it was not filed within period of limitation prescribed by sec. 253 (1) (a) of the Act. . . . . . . . . . . . . . . . . ( 13 ) BEFORE parting with this case I would like to observe here that the Gujarat Law Times does not contain full report of a ease. The Gujarat Law Times only contains extracted observations made in a particular case. It is only a sort of a digest. It only contains notes which are intended to convey information to all concerned that there is a judgment Supreme Court or the High Court on a particular question of law and one who wants to rely upon the same has to either find out whether the matter is reported in any other full report and if not a certified or an authenticated copy of the judgment is required to be perused and produced for relying upon any such decision referred to in the Gujarat Law Times. It cannot be cited as an authority before a Court of Law. When attention of any Court is drawn to any case reported in the Gujarat Law Times or any such digest the Court should insist on production of full text of the judgment in the form of a Law Reporter or a true or at any rate an authenticated copy of the judgment. Appeal allowed. .