Section 271 of the Rajasthan Municipalities Act, 1959, requiring a two-month notice before filing suit against a municipality, does not apply to suits based on private contracts, as such contracts do not constitute "acts" done in an official capacity.

SHINGHAL, J. :- This special appeal against the judgment and decree of a learned Single Judge of this court dated September 4, 1963*has come to us on a reference by a Division Bench in these circumstances.

*Reported in 1963 Raj LW 605.

2. The plaintiffs were the owners of a part of the Shahpura Haveli, in Udalpur City. Some debris was lying on a portion of that property. The plaintiffs asked the Municipal Corporation to remove it, and it is claimed that the Corporation promised to do so within 3 months. As the debris was not removed within that period, a representative of the association of the plaintiffs, styled as "The Shahpura House Sarrafa Market Committee", met Ismail Ali Bohra defendant No. 2). President of the City Municipal Corporation, who asked the representative of the plaintiffs' Committee to remove the debris and promised that for doing so a sum up to Rs. 3,000/- would be got deducted from the sum payable by the plaintiff to the State Government. A resolution was accordingly passed by the Council of the City Corporation, of which a copy was sent to the Secretary of the plaintiffs' Committee.

Relying on the aforesaid talk with defendant No. 2 and the resolution, the plaintiffs' Committee got the debris removed by giving out a contract for the purpose. The debris was removed by October 4, 1958, and the plaintiffs altogether spent Rs. 4,287/- for the work. They asked the Municipal Corporation to have the sum of Rs. 3,000/-adjusted in the account with the State Government in accordance with the aforesaid promise, but to no avail, and the plaintiffs had to deposit the money with the State Government. According to the plaintiffs the debris was utilised by the Municipality. Alleging that as the work of removing the debris was undertaken for the benefit of the Municipal Corporation in pursuance of the assurance given by Ismail Ali Bohra (defendant No. 2) and the resolution of the Municipal Council (defendant No. 1), the plaintiffs instituted the present suit on August 10, 1961, for the realisation of Rs. 2,648/50, after deducting Rs. 351/50 payable by them to the Municipality.

3. The defendants denied the claim and pleaded, inter alia, that the resolution was not enforceable and that the agreement was without consideration. They also pleaded that the plaintiff's had no cause of action and that the suit was not maintainable without the two months' notice prescribed by Section 271 of the Rajasthan Municipalities Act, 1959, hereinafter referred to as "the Act".

4. The learned Civil Judge, in whose court the suit was instituted, framed 6 issues. Issue No. 1, with which we are concerned in this controversy, raised the question whether the suit was not maintainable without a notice under Section 271 of the Act ? It was argued on behalf of the plaintiffs (in the trial court) that a notice under Section 271 was not necessary as the suit was based on a contract, and reliance was placed on Ram Narain v. Municipal Board, Muttra, AIR 1938 All 540. The argument was repelled by the learned trial Judge on the grounds that the suit was not based on a contract and was not maintainable without a notice under Section 339 of the Udaipur City Municipal Act, 1945, and that it was filed beyond the period of 6 months prescribed by that section. The learned Civil Judge accordingly dismissed the suit on February 23, 1962.

5. The plaintiffs preferred an appeal to the District Judge of Udaipur. The learned appellate Judge held that as the Udaipur City Municipal Act, 1945, was replaced by the Act with effect from October 17, 1959, the controversy in the suit had to be determined with reference to Section 271 of the Act. He referred to certain decisions of the Allahabad High Court and held that the suit did not fall within the purview of Section 271 of the Act. He therefore allowed the appeal, set aside the judgment and decree of the trial Court, and remanded the case.

6. The defendants preferred a second appeal to this court. After considering the