# Bharat Kala Bh,1nd(lr Ltd v. Municioal

- **Citation:** [1970] 2 S.C.R. 47
- **Court:** Supreme Court of India
- **Decided:** 1969-08-21
- **Bench:** K. S. Hegde, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bharat-kala-bh-1nd-lr-ltd-v-municioal-4847
- **Pages:** 5

## Headnote

47
Indore Municipal Act, 1909, s. 135-Suit dec/arinJ? disntissal il!cga[-
Di.;·1nissa/ order without jurisdiction-Lbnilatio11 special plea 1101 pleaded,
lilnitation-Special plea, wh:?ther 1111/Sf be pleaded.
The respondent-an en1ployee of the
appellant~Jvlunicipality fi[eJ a
suit for J::c!aring his dismis.sal illegal a·.; th·:! order of disn1issal \Vas not
passed by the \lunicipal Commissioner as required bys. 13 of the Indore
Municipal Acc. but v;as made by one G. \li'ho \l.·as then actinQ: in place of
the Municipal Con1missioner.
The trial court acccpt-:::d the· rc~pondenfs
plea and decreed the ~uit. The District Judge in appeal set a')ide the Uecre.e
holding tha; the ~uit 1,vas barred by Ji1nitation as under s. 135(2) vf th.::
Act a suit in respect of any act done under the Act by an offio~r of the,
Municipality had tJ be filed \Vithin six months of the accrual of tb.~ cause
of ac:ion.
The special plea of limitation under s. 135 (2) \\·as nut taken
in the trial court, though in general terms a plea of limitation \L:1i; rai.seo.!.
The High Court sot aside the decree of the District Judge and rcstoreJ that
of the trial court. The High Court on the evidence came to the conclusion
that no order of the Government was produced to show that G, wa1 appointed to act in place of the Municipal Cornrnission~r. and that the Jrder of
dismissal was passed by. G. Dismissing the appeal, this Court,
HELD : On the find;n~s. the dismissal o'der passed by G, was beyond
his
juri~diction. The provisions contained in s. 135 of the Act \viH be
applicable to things done under the Act.
Since the order of
chlsmi~sal
passed by G was beyond his jurisdiction. i~ was. therefo ·e, not an act done
under the Act. [50 D-EJ
If any special plea of limi<:ation is a defence such a defence of limita·
tion should b~ pleaded. In the present case the Municipal Corporation did
not plead s. 135 of the Indore Municipal Act, 1909 as a defence. Such a
olea was not taken in the pleadings or in the trial court and the Dic;trict
fodge should not have entertained such a plea. [50 C-D]
Bharat Kala Bh,1nd(lr Ltd., v.
Municioal
Co1111nittee,
Dlu11nu11~adn,
[1965] 3 S.C.R. 499, followed.
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## Text

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MUNICIPAL CORPORATION
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SRI NIVAMATULLAH S/0 MASITULLA
August 21, 1969
(K. S. HEGDE AND A. N. RAY, JJ.]
47
Indore Municipal Act, 1909, s. 135-Suit dec/arinJ? disntissal il!cga[-
Di.;·1nissa/ order without jurisdiction-Lbnilatio11 special plea 1101 pleaded,
lilnitation-Special plea, wh:?ther 1111/Sf be pleaded.
The respondent-an en1ployee of the
appellant~Jvlunicipality fi[eJ a
suit for J::c!aring his dismis.sal illegal a·.; th·:! order of disn1issal \Vas not
passed by the \lunicipal Commissioner as required bys. 13 of the Indore
Municipal Acc. but v;as made by one G. \li'ho \l.·as then actinQ: in place of
the Municipal Con1missioner.
The trial court acccpt-:::d the· rc~pondenfs
plea and decreed the ~uit. The District Judge in appeal set a')ide the Uecre.e
holding tha; the ~uit 1,vas barred by Ji1nitation as under s. 135(2) vf th.::
Act a suit in respect of any act done under the Act by an offio~r of the,
Municipality had tJ be filed \Vithin six months of the accrual of tb.~ cause
of ac:ion.
The special plea of limitation under s. 135 (2) \\·as nut taken
in the trial court, though in general terms a plea of limitation \L:1i; rai.seo.!.
The High Court sot aside the decree of the District Judge and rcstoreJ that
of the trial court. The High Court on the evidence came to the conclusion
that no order of the Government was produced to show that G, wa1 appointed to act in place of the Municipal Cornrnission~r. and that the Jrder of
dismissal was passed by. G. Dismissing the appeal, this Court,
HELD : On the find;n~s. the dismissal o'der passed by G, was beyond
his
juri~diction. The provisions contained in s. 135 of the Act \viH be
applicable to things done under the Act.
Since the order of
chlsmi~sal
passed by G was beyond his jurisdiction. i~ was. therefo ·e, not an act done
under the Act. [50 D-EJ
If any special plea of limi<:ation is a defence such a defence of limita·
tion should b~ pleaded. In the present case the Municipal Corporation did
not plead s. 135 of the Indore Municipal Act, 1909 as a defence. Such a
olea was not taken in the pleadings or in the trial court and the Dic;trict
fodge should not have entertained such a plea. [50 C-D]
Bharat Kala Bh,1nd(lr Ltd., v.
Municioal
Co1111nittee,
Dlu11nu11~adn,
[1965] 3 S.C.R. 499, followed.
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~
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1733 of
H
1966.
Appeal oy special leave from the judgment and decree dated
March 30, 1966 of the Madhya Pradesh High Court, Indore
Bench in Second Appeal No. 341 of 1964.
M. C. Bhandare and P. C. Bhartari, for the appellant.
S. K. Mehta, A. P. Tayal and K. L. Mehta, for the respondent.
48
SUPREME COURT REPORTS
[1970] 2 S.C.R.
The Judgment of the Court was de!iver.~d by
Ray, J.
This is an appeal from the judgment dated 30th
March. 1966 of the High Court of Madhya Pradesh
(Indore
Branch) allowing the appeal and setting aside the decree of the
lower appellate court and restoring the decree of the trial court
with costs.
Tl\e plaintiff's suit against the Indore Municipal Corporation
was for a declaration that the dismissal of the plaintiff was illegal
and that the plaintiff was still on the post of Removal Sub-Inspector and a decree against the defendant for Rs. 7,488/-
on
account of salary at the rate of Rs. 104/- p.m. from 15th April,
1953 till the date of institution of the suit, vi:., 15th April, 1959
and other reliefs.
The trial court decreed the suit.
The lower
appellate court set aside the decree. The High Court restored the
decree passed by the trial court.
The case of the plaintiff Niyamatulla was that the plaintiff was
suspended by the order of the Municipal Engineer dated 15th
April, 1953.
One Shri Ghatpande who acted in place of the
Municipal Commissioner in the month of May 1953 directed the
dismissal of the plaintiff.
The plaintiff contended that the dismissal could have been only under the orders of the Municipal
Commissioner. The plaintiff further contended that there was no
opportunity given to the plaintiff against the proposed dismissal.
The defence of the Municipal Corporation was that the plain·
tiff preferred a review petition to the Munici!Jal Commissioner
who rejected the same.
The plaintiff thereafter preferred an
appeal to the Appeal Committee of the Municipal Corporation
which was dismissed. Thereafter, a revision petition against the
order was heard by the Minister-in-charge of the Government of
Madhya Bharat and the same was rejected in the month of September, 1955. It was, therefore, contended that the plaintiff had
no right to file the suit. Another defence was that the suit was
barred by limitation.
Counsel for the appellant canvassed three grounds. First, that
the order of dismissal was valid and Shri Ghatpande had jurisdiction to pass the order of dismissal. Secondly, the suit was barred by limitation. Thirdly, the provisions of section 135 of the
Indore Municipality Act was a plea in bar of the suit.
The authority of Shri Ghatpande to dismiss the plaintiff was
based on the provisions contained in section 13 of the Indore
Municipal Act, 1909. Section 13 of the Indo.c Municipal Act.
il1fer a/ia, reads as follows :
"(1) The Municipal Commissioner for the City of
Indore shall, from time to time, be appointed by the
Government.
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MUNIC, CORP, I'. NIYAMATULLAH (Ray, J.)
49
('.l) (a) Leave of absence may be granted to the
Commissioner, from time to time, according to the In-.
dore Civil Service Regulations.
(b) During such absence of the Commissioner the
Government may appoint any person to act as Com·
missioner. Every person so appointed shall exercise the
powers and perform the duties conferred and imposed
by the Act or by any other enactment at the time in
force, on the person for whom he is appointed to act,
and shall be subject to the same liabilities, restrictions
and conditions to which the said person is liable and
shall receive such monthly salary as may be determined
by ·,he Government.
In order to rest the defence on section 13 of the Indore Act, it
has to be first found out that there is an appointment by the
Government of any person to act as Commissioner. The finding
of fact by the High Court is that no order of the Government was
produced to show that Shri Ghatpande was appointed to act in
place of Shri Rao who was the then Municipal Commissioner.
The further finding of the fact was that the order of dismissal
was passed by Shri Ghatpande.
The defence of limitation pleaded by the Indore Municipal
Corporation was in general terms that this suit was barred by
limitation.
The plaintiff in the plaint alleged that the cause of
action arose on 15th April, 1953 and on !st May, 1953 when
the plaintiff was dismissed from service and on 11th January,
1954 when it was passed by the Appeal Committee of the Indore
Municipality.
At the trial the plaintiff contended that the suit
was well constituted and "·as governed by Article 120 of the Limitation Act: 1908.
At the time of the hearing of the appeal before the District
Judge. Indore, the Municipal Corporation, Indore contended
that under section 135!2) of the Indore Municipal Act, 1909 a
suit in respect of any act done or purp9rting to be done under
the Act by an officer or servant of the municipality or by any
person acting under the order of the Government was to be filed
within six months from the date of the accrual of the cause of
action.
The District Judge accepted the plea.
The alternative
contention on behalf of the Municipal Corporation before the District Judge was that Article 115 of the Limitation Act, 1908 will
apply if the special period of limitation prescribed by the Act did
not apply. The District Judge did not accept that contention on
the reasoning that the plaintiff was not under any contract of
5ervice and Article 115 applied to compensation for breach of
so
SUPREME COURT REPORTS
[1970] 2 S.C.R.
contract.
The District Judge held that Article 14 of the Limitat10n Act, 1908 would apply when an order of an officer in his
official capacity was 1et aside and no special period of limitation
was prescribed.
In the High Court the Municipal Corporation repeated the plea
under section 135 of the Indore Municipal Act, 1909. The High
Court, however, repelled that contention by holding that Shri
Ghatpande was not the Commissioner when he passed the order,
and, therefore, the order being without jurisdiction, the provisions contained in section 135(2) of the Indore Municipal Act
were inapplicable and the plaintiff's suit was governed by Article
120 of the Limitation Act, 1908.
The provisions of the Code of Civil Procedure enjoin that if
nny special plea of limitation is a defence such a defence of limitation should be pleaded.
In the present ca,e, the Municipal
Corporation did not plead section 13 5 of the Indore Municipal
Act, 1909 as a defence. Such a plea was not taken in the pleadings or in the triaf court and the District Judge should have not
entertained such a plea. The provisions contained in section 135
of the Indore Municipal Act will be applicable to things done
under the Act. It is manifest that in the present case the order of
dismissal passed by Shri Ghatpande was beyond his jurisdiction
and is therefore not an act done under the Act.
Furthermore, section 8(l)(b) of the Indore Act says that the
Council shall bear the name of the Municipal Council of the
Indore City and be a body corporate and have perpetual succession and a common seal and by such name may sue and be sued.
A distinction is to be noticed between suing the Municipu! Cour1cil of the Indore City as contemplated in section 8(1)(b) of the
Aci and suits against hte Comnissioner or any officer or servant of
the Municipality or aqy person acting under the direction of the
Government or the Commissioner as ctntemplated in section 135 of
the said Municipal Act.
One of th~ purposes of 1ection 135 of
the Municipal Act is to afford an opporiunity to the persons mentioned in the section to make amends within the period of notice.
The suit that· was filed in the present case was not in respect of
any act done or purported to be done under the Act.
This Court in the case of Bharat Kala Bhandar Ltd. v. Muni·
cipal Committee, Dhamangaon(') examined the provisions
of
section 48 of the Central Provinces and Berar Municipalities Act,
1922 which was to the effect that no suit shall be instituted against
any Committee or any member, officer or servant thereof or any
person acting under the direction of any such committee, member,
officer or servant for anything done or purporting to be done
under the Act, until the expiration of two months next after notice
(!) [19651 3 S.C.R. 499.
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MUNIC. CORP, V, NIYAMATULLAH (Ray, J)
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in writing stating the cause of action, the name and place of abode
of the intending plaintiff and the relief which he claims. Section
48 of the said Central Provinces and Berar Municipalities Act
further provided that every such suit shall be dismissed unless it
was instituted within six months from the date of the accrual of
the cause of action. The appellant in that case contended that it
was a case of recovery of an illegal tax and therefore a claim for
its refund fell outside the provisions of section 48 of the said Act.
The respondent, on the other hand, contended there that the collection of tax was not without jurisdiction but only irregular and
therefore the suit would be in respect of a matter purporting to
be done under the Act. This Court held that where power existed
to assess and recover a tax up to a particular limit the assessment
or recovery of an amount in excess was wholly without jurisdic·
tion. To such a case, the statute under which action was purported t•) be taken could afford no protection. On logic and principle the same reasoning applies to the provisions contained in
section 135 of the Indore Municipal Act, 1909 with the result
that the suit in the present case is not within the mischief of section 135 of the Indore Municipal Act.
For these reasons, the appeal fails and is dismissed with
costs.
Y.P.
Appeal dismissed.