No notice under Section 80 of the Civil Procedure Code or Sections 535 and 538 of the Bengal Municipal Act is necessary for a suit against a Municipality if the act complained of was not done by a public officer in his official capacity.

The plaintiff-company has alleged that it is a registered contractor of the defendant-Municipality. The work of renewing filter bed No. 10 at the Head Water Works of the defendant Municipality at Serampore for 1954-55 was entrusted to it. It duty completed that work and its total dues amounted to Rs. 20438-9 annas. It was paid Rs. 4508-6 annas and thus Rs. 5930-3 annas remained due. On 7.4.1955, plaintiff company's proprietor, Anil Ghosh, went to the Municipality to recover the dues and he came to know that the Municipality had deducted Rs. 3281/- out of his dues and only Rs. 2649/- was offered in satisfaction of the total dues. It was stated that such amount had been deducted because of the cost of repairing the motor garage at Howrah Municipal market because such work bad been entrusted to the plaintiff-company. That company carried out the work defectively and so it resulted in damages to tile defendant-Municipality. The plaintiff-company has alleged that such work had been duly completed in January, 1950, and final bill had been paid on 9.2.1951. More than two years after the completion or work of that motor garage, the Municipal Engineer sent a letter making an unfounded allegation that the plaintiff company failed to follow his directions to make the structure strong. The plaintiff's grievance is that the defendant cannot claim any such deduction about two years after the completion of the work of that motor garage. The plaintiff-company made representation to the Municipality. Subsequently, an Administrator was appointed and before him representation was made without any success. The suit is for recovery of Rs. 5830-3 annas.

2. The defendant filed a written statement. The defence is that the suit is not maintainable for want of notice under S. 80 of the Civil Procedure Code and under S. 535 of the Bengal Municipal Act and under S. 538 of the Calcutta Municipal Act. The deduction was rightly made and hence, the plaintiff is not entitled to any relief.

3. The suit has a chequered career. Eventually at the trial the learned Subordinate Judge found that no notice under the aforesaid sections was necessary. The suit was decreed in part for Rs. 2649/- with proportionate costs. The plaintiff preferred an appeal. The Municipality also filed a cross-objection. The cross-objection was dismissed and the appeal allowed.

The suit was decreed in full. Hence this appeal by the defendant.

4. Two-fold submissions have been made on behalf of the appellant. It has been contended that the Administrator appointed by the State Government is a public officer within the meaning of the S. 2(17) of Civil Procedure Code and no notice under S. 80 of the Code was given. The plaintiff did not send any notice according to the provisions of S. 535 of the Bengal Municipal Act or according to the S. 538 or the Calcutta Municipal Act. The suit is, therefore, not maintainable. Since no notice under S. 80 of the Code was given, the plaint is liable to be rejected. The case of Raja Jagadish Chandra v. Debendra Prosad in 35 CWN 161 has been cited. The cases of Central Glass Industries Ltd. v. Commissioner, Corporation of Calcutta in ILR 1957(1) Cal. 432 and Shivadhar v. Corporation of Calcutta in 64 CWN 60 have been cited. It has been contended that these decisions will show that a Commissioner is a public officer within the meaning of the S. 2(17) of the Civil Procedure Code and hence, a notice under S. 80 of the Code is necessary for a suit against him. The case of K. C. Deobhanj v. Raghunath in 1959 (1) SCA 168 has been cited to show that in order to be in the service of the Government two essentials of the relationship of master and servant are necessary. The servant must be under the duty of rendering personal service to the matter and the master must have a right to control the servant's work. The S. 554(1)(ii)(cc) of the Bengal Municipal Act deals with the consequences of supersession of the body of Commissioners and says that upon supersession