Tiruveriamuthu Pillai alias B.T. Pillai vs The Municipal Council, Shencottah

Jagadisan, J.—This second appeal arises out of an action in tort filed by the owner of a dog against a Municipal Corporation which killed the

dog through its servant in purported exercise of its statutory power.

B.T. Pillai a resident of Ariyannalloor street in Shencottah owned a young dog of Fox Terrier Species worth about Rs. 50. On 20-12-1954, the

dog was out On the street accompanied by a servant of B.T. Piilai. One of the employees of the municipal Council of Shenottah killed it. U.T. Pillai

complained to the Municipal Council that his dog was killed by its employee unlawfully in spite of warning given to the employee by his own

servant not to kill it.

B.T. Pillai submitted in that complaint that the ''killing of his dog was illegal, high-handed and unjustifiable'' that the incident caused him not merely

financial loss but also mental anguish and that unless he was given redress adequately by the Municipality he would be constrained to sue it in a

court of law for damages.

To this the Municipality sent a reply stating that one of its servants, Mookan Nayakar, was engaged in killing stray dogs found within the

Municipal limits of Shencoltah and that several stray dogs were killed on 20-12-1954, and that one such stray dog was killed at a spot 20 ft. away

from the residence of B.T. Pillai .

The reply further stated that the dog so killed was an old dog affected with serious skin disease, and that the dog was a source of danger to the

residents of the town. The Municipality denied that the dog was killed deliberately without heeding the warning given by the servant of B. T. Filial.

Finally the Muncipality justified its action under the provisions of Section 254 of the Travancore District Municipalities Act, XXIII of 1116.

B.T. Pillai filed O. S. No. 9 of 1955 on the file of the District Munsif Court of Shencottah, against the Municipal Council, Shencottah,

represented by its commissioner for recovery of damages of a sum of Rs. 100 alleging that the defendant municipality was not justified in killing his

dog in the manner done by it, and that Section 254 of the Travancore District Municipalities Act cannot afford any protection to the Municipality to

escape from the consequences of its wrongful act. The plaintiff claimed Rs. 50 as damages representing the value of the dog he lost and Rs. 50 as

damages for the mental agony which he suffered consequent on the loss of his pet dog.

The defendant Municipality was not even willing to admit that the plaintiff''s dog was killed and put forward a dubious defence bordering on

disingenuity. Its primary defence however was that the wrongful act complained of was done only in exercise of its statutory power, and that

therefore it was not liable to be sued in tort for damages. There was also a further defence that the suit itself was barred u/s 375 of the Act.

The learned District Munsif of Shencottah who tried the suit found that the plaintiffs dog was destroyed by the servant of the Municipal Council

on 20-12-1954 in pursuance of the direction of the council. The action of the municipal council was found to be unlawful on the ground that

Section 254 of the District Municipalities Act was inapplicable to the facts and circumstances of the case. On these findings the learned District

Munsif decreed the suit in favour of the plaintiff as prayed for.

The Municipal Council preferred an appeal which was A.S. No. 171 of 1957, on the file of the District Court, Tirunelveli. The learned District

Judge held that quite apart from Section 254 of the District Municipalities Act, the municipality had the power to direct destruction of dogs straying

in public streets. He further held that the employee of the Municipal council who killed the dog acted in excess of the authority conferred upon him

which was confined only to killing of stray dogs without owners, and that therefore the Municipal Council was not liable. The learned District Judge

was also of opinion that Section 375 of the Municipalities Act was a bar to the maintainability of the suit. The judgment and decree of the trial court

were therefore set aside and the suit was dismissed.

This second appeal has been preferred by the aggrieved plaintiff. Ex. III in the case is the extract from the proceedings of the Municipal Council

of Shencottah held on 2-12-1954. The proceedings are in Tamil and can be translated as follows:

It is resolved unanimously that as there is increasing nuisance of dogs in the town, dogs which are straying without safeguards and are capable of

harming the people in general should be destroyed and any person who destroys such dogs shall be paid at the rate of four annas per dog "".

The evidence on the side of the defendant was that there was proclamation by tom tom in the town or this resolution passed by the Municipal

Council. There was some controversy on the question whether (he dog that was killed bore a strap collar or not, The trial Court accepted the

evidence on the side of the plaintiff and found that the dog had a collar, The learned appellate Judge however failed to record any definite finding in

this behalf.

It is unnecessary to advert to that fact in deciding the question whether the Municipal Council had authority to kill the plaintiff''s dog or not It is now

established clearly and beyond all doubt that the plaintiff''s dog was killed on 20-12-1954 by Mookan Nayakar an employee of the Municipal

Council of Shencottah in the course of the discharge of his function of killing stray dogs in the Municipal town of Shencottah expressly authorised

by the Municipal Council.

The point for consideration is whether the Municipal Council can justify its action by taking shelter u/s 254 of the Travancore District

Municipalities Act, 1116. Before discussing the question I must say that the learned District Judge was totally wrong in holding that the municipality

can authorise killing of dogs in public streets without even any statutory sanction for so doing.

The fact that the Municipality has got some measure of control over the streets within the municipal limits cannot and will not authorise the

municipal council to direct killing of dogs sighted in the streets. It is in the nature of dogs to stray and to go about in the streets. The owner of a dog

who fails to chain it and keep it in his house and thereby allows it to go about the streets does not admit (commit?) any offence known to law.

If such a dog bites a person or cattle or poultry belonging to another, the question as to how far the owner of the dog will be liable in an action on

tort for damages is a question with which we are not concerned. Even in such cases the owner of the dog will be liable only on proof of scienter or

knowledge of the vicious propensity of the dog owned by him. Section 254 of the Travancore District Municipalities Act is as follows:

The Council may, and, if so directed by the District Magistrate, shall give public notice that unlicensed pigs or dogs straying within the specified

limits will be destroyed.

When such notice has been given any person may destroy in any manner not inconsistent with the terms of the notice any unlicensed pig or dog

(as the case may be) found straying within such limits"".

The foundation of the right of the Municipal Council to destroy pips or dogs as contemplated by this provision is that they should be unlicensed and

that they should be straying within the limits specified. There is a dispute between the parties in the present suit whether there was a system o!

licensing dogs in the Shencottah Municipality on the date of the destruction of the plaintiffs dog.

The Sanitary Inspector of the Municipality gave evidence as D.W. 3 and he admitted that only from 1-4-1955 a licence fee of Re. 1 per dog per

year came to be fixed in the municipality. According to him prior to that date it was possible for the owner of a dog to obtain what he called a ""free

licence"". But he was however unable to produce any register of licences so issued. It is clear that this Municipality had no system or machinery of

licensing dogs or pigs before 1-4-1955,

The plaintiff could not therefore have obtained a licence for his dog prior to 20-12-1954, the date on which his dog was destroyed. Mr.

Ramamurthi Iyer, the learned counsel appearing for the respondent Municipality submitted that the Act need not contain any specific provision for

licensing dogs or pigs, and that it is implicit in Section 254 itself that such licensing can be done. It is however, unnecessary for me to express any

opinion on this question raised by him in the view which I am going to take in the matter.

The Public notice contemplated to be given u/s 254(1) of the Act is that unlicensed pigs or dogs straying within specified limits will be

destroyed. Sub-section 2 of Section 254 provides that when such notice has been given any person may destroy in any manner any unlicensed pig

or dog found straying within such limits. Unless there is a public notice within the express provisions of Section 254(1) that unlicensed pigs or dogs

will be destroyed Section 254(2) will not be attracted so as to clothe any person with the authority to destroy.

The resolution passed by the Municipal Council which according to the Municipal Council was published by tom tom does not say that unlicensed

dogs or pigs straying will be destroyed. The contents of the resolution show that rabid dogs straying in the streets are liable to be killed. I have no

hesitation in holding that the public notice given of this resolution does not satisfy the requirements of Section 254(1) and Section 254(2) of the

Act. The defence of the Municipal Council that the act complained of by the plaintiff was warranted by the provision of Section 254 of the Act

therefore fails.

Domestic animals like dogs are capable of being owned absolutely. The owner can maintain an action in trover for them and he retains his

property in them even if they stray or are lost. In Halsbury''s Laws of England, Vol. I, page 689 paragraph 1314, it is stated as follows:

To kill, shoot, or injure another man''s dog without legal justification is an actionable wrong at common law. It is no legal justification that the dog

was trespassing. In order legally to justify such an act and it must be proved that the act was reasonably necessary in the sense of being an act

which a reasonable man would properly do to meet a real and imminent danger as, for example, to protect the person or to save property in peril.

In this case the Municipal council hopelessly failed to prove any justification for killing the plaintiffs dog. Some attempt was made on the part of the

council to show that the plaintiff''s dog was diseased. But there was no evidence of an acceptable kind to prove this. The learned trial Judge rightly

rejected it for good and sufficient reasons. The Sanitary Inspector D. W. 3 admitted that the dog was harmless.

There are provisions in other Municipal Acts corresponding to Section 254 of the Travancore District Municipalities Act. Reference may be

made to Section 241 of the Madras District Municipalities Act. In every such enactment a public notice stating that unlicensed dogs straying in the

streets will be killed has to issue before the destruction is brought about. There is no general power in Municipal Corporations to destroy animals

supposed to be straying about in a manner harmful to the public. Section 133 of the Criminal Procedure Code is as follows:-

Whenever a District Magistrate, a sub-Divisional Magistrate or a Magistrate of the first class considers on receiving a police report or other

information and on taking such evidence (if any) as he thinks fit that.....that any dangerous animal should be destroyed, confined or otherwise

disposed of such Magistrate may make a conditional order requiring the person owning or possessing such animal to destroy, confine or dispose of

such dangerous animal in the manner provided in the said order and to appear before himself or some other Magistrate of the first or second class

at a time and a place to be fixed by the order and move to have the order set aside or modified in the manner hereinafter provided.''''

It is to be noted that in the exercise of such power the concerned Magistrate has to issue notice before a final order is passed.

The next question to be considered is whether the Municipal council is liable for the act of killing of the plaintiffs dog brought about by its

employees who acted at the instance of the council. A corporation is a fictitious and a legal person having an entity in law distinct from its members

and by its very nature can only act through its servants or agents, and not in propria persona. It is settled law that a Corporation is as much liable in

an action on tort as an individual but there are conflicting theories on the legal basis of this liability, where the act of the corporation complained of

is an ultra vires act. Professor Salmond in his text book on the Law of Torts at page 65 observes:-

It is now well settled however, that the liability of a corporation for the torts committed by its agents, or servants is governed by the same rules as

those which determine the liability of any other principal or employer. Thus a corporation can be sued for malicious prosecution or for malicious

libel on a privileged occasion or for fraudulent misrepresentation, no less than for trespass, conversion or negligence.

It is commonly said, however, that this liability of corporation for the acts of its agents or servants exists only where the scope of the authority or

employment of those agents or servants is within the statutory or other legal limits of the corporation''s powers, and that if a corporation goes

beyond the limits set by law for its activities, and enters upon any business or undertaking which is ultra vires, it cannot be made liable for torts

committed by its agents or servants in the course of that business or undertaking..... There is however no sufficient authority for any such exemption

of corporations from the consequences of their disregard of the limits of their powers. It is contrary to practical requirements and has been rejected

in numerous American decisions.

At page 69 it is further observed as follows;-

The true principle is, it is submitted, the following; Every act done, authorised, or ratified on behalf of a corporation by the supreme governing

authority of that corporation, or by any person or body of persons to whom the general powers of the corporation are delegated, is for the

purpose of the law of torts the act of the corporation itself, whether intra vires or ultra vires of the corporation, and the corporation is liable

accordingly for that act or for any tort committed in respect of it by any agent or servant of the corporation within the scope of his authority or

employment.

In Halsbury''s Laws of England, Vol. 1, 3rd Edn. page 87 the position dealing with Corporations is set out thus:-

A corporation aggregate is liable to be sued for any tort, provided that (1) it is a tort in respect of which an action would lie against a private

individual; (2) the person by whom the tort is actually committed is acting within the scope of this authority; and (3) the act complained of is not

one which the corporation would not, in any circumstances, be authorised by its constitution to commit. Thus an action will lie against a corporation

for conversion for trespass, for wrongful distress, for assault, for negligence, for nuisance, for false imprisonment, for infringement of a patent, for

keeping a dangerous animal or breach of trust, and even for fraud and for torts involving malice, such as malicious prosecution and libel.

Professor Winfield in his text book on Torts has dealt with the matter thus at page 103:-

A distinction must be taken, between torts which are intra vires and torts which are ultra vires. Many corporations are expressly limited by the

terms of their incorporation as to the acts which they may lawfully do. If they observe those restrictions they are said to be acting intra vires, and

this is still the case even when they commit a tort, provided it is done as an incident of some act which falls within their powers. If it is not

connected in this way with what they are. lawfully entitled to do, the tort is said to be ultra vires.

At page 104, the learned author observes:-

But it the ultra vires tort is committed in pursuance of the express authority of the corporation it is doubtful whether it is liable. There seems to be

no direct decision on the point and the text books are not in agreement.

Winfield suggested :

that on principle, the Corporation ought to be liable, for there was no, reason to invoke the doctrine of ultra vires in this connection because the

liability of the Corporation is completely and rationally explicable without recourse to it. The principles, and the only principles, which need have

been applied are these. If the Corporation expressly authorised X to commit the tort, it should be liable (together with X) just as any other joint

tortfeasor would be liable. The fact that one of the joint tortfeasors is a corporation and not an ordinary person is irrelevant; nor is there any need

to describe the case as one of vicarious liability. No doubt vicarious liability is in one sense a species of joint liability; but it is peculiar in that A (the

employer of X) who was neither committed nor connived at X''s tort may be liable jointly with X, provided the tort is within the scope of X''s

employment. But this italicised proviso is inapplicable to that species of joint liability which arises from A''s express instructions to X to commit a

tort. In that case it is immaterial -- indeed it is senseless -- to talk about ""scope of employment"". It is quite true that a corporation can act only

through servants or agents, but it is a fallacy ""to argue that because an employer is vicariously responsible for the torts of his servant therefore he

and the servant can never be liable as ordinary joint tortfeasors. If I order my butler to assault you, he and I are ordinary joint tortfeasors; there is

no question of vicarious liability.

Whatever difference of opinion there may be on the question of the abstract legal doctrine as to how far an agent or servant of a corporation

can be said to act within the scope of his employment in respect of a tort which is ultra vires the corporation, it seems to be clear that there is

consensus of authority for holding that a corporation cannot be immune from liability in respect of torts brought about at its instance on the ground

that the act was not intra vires the corporation.

Prof. Salmond is of opinion that the act of the servant of the agent of the corporation is the act of the corporation itself and Prof. Winfield is of the

opinion that in any event the corporation is a joint tortfeasor along with the agent or the servant. I hold that the defendant is liable for the unlawful

act of having brought about the destruction of the plaintiffs dog and the fact that the Municipal Council acted in excess of its statutory powers is not

a defence to the action but is only an aggravating circumstance.

There remains the question as to whether, Section 375 of the Act bars the present suit. Section 375 is as follows:-

No suit shall he maintainable, against our Government the Peishkar or any Municipal Chairman, executive authority, officer or servant or any

person acting under the direction of any Municipal Chairman or executive authority, officer or servant, or of a magistrate in respect of anything in

good faith done under this Act or any rule, bye-law, regulation or order made under it.

That section bars a suit against the Government, the peishkar or Municipal Chairman, executive authority, officer, servant or any person acting

under the direction of chairman, executive authority, officer or servant or magistrate in respect of anything done in good faith under the act or any

rule, regulation, bye-law or order under it. Executive authority is defined under the Act in Section 3(10) as follows :-

Executive authority means in the case of a municipality for which a commissioner is appointed u/s 13, the Commissioner or if there is no

Commissioner in charge the Chairman; and in the case of any other Municipality the Chairman.

The present suit is against the Municipal Council as such represented by its Commissioner. Section 375 does not bar such an action. I am of

opinion that Section 375 is not an impediment to the maintainability of the suit. The plaintiff has claimed damages in the sum of Rs. 100/- consisting

of Rs. 50/- the value of the dog lost and a sum of Rs. 50/- the estimated measure of damages for the mental agony suffered by him. In my

judgment the plaintiff will not be entitled to recover any damage for the mental pain and anguish suffered by him. He will however be clearly entitled

to recover the sum of Rs. 50 representing the value of his pet dog.

In the result, the second appeal is al-lowed, the judgment and decree of the learned District Judge are set aside and there will be a decree in

favour of the plaintiff for Rs. 50/- against the defendant. The appellant will have his costs in all the courts. No leave.