Amberson Marten, Kt., C.J.
1. When this Second Appeal No. 974 of 1928 came before me for admission, I held that the suit was barred under Section 206 of the Bombay City Municipal Act 1925, as had been held in both the Courts below. I thought that the present suit was in respect of something done or purporting to have been done under the existing Act, and that it could not be said that the suit was founded on something that took place prior to the 1925 Act. I also thought that certain arguments raised on the wording of the section did not avail the applicant, particularly having regard to the decision of the Privy Council in Bhagchand v. Secretary of State : (1927)29BOMLR1227 reversing what had hitherto been the Bombay view that suits for an injunction were not within Section 80 of the Civil Procedure Code.
2. Following on my decision Mr. Shah applied for leave to appeal and I asked him to put his grounds in writing. A formal application was accordingly put in, but before it came on for hearing the Letters Patent of December 12, 1928, were published in the Bombay Government, Gazette on January 24, 1929, at p. 131. It is now claimed that having regard to those Letteis Patant no leave is necessary. I am not satisfied by any means that that contention is correct, As I read these new Letters ' Patent of 1928 I think it clear that under ol,|15, as now amended, leave will be necessary as regards all decisions in second appeals by a single High Court Judge on and after February 1, 1929.
3. But by Clause 2 these new Letters Patent are only to come into operation on February 1, 1929. I say this because in my opinion it is clear that the words 'these Letters Patent' in clause two are the same as the words 'These Our Letters to be made Patent' in the testatum, which can only refer to the new Letters. I also think that the expression 'these. Letters Patent' is used in direct contrast to the expressions adopted for reference to the older Letters Patent as for instance in pi. 1, where reference hi made to 'the said Letters Patent bearing date December 28; 1865,' and also to 'the fifteenth clause! of the said Letters Patent'
4. That being so I am of opinion that the new Letters Patent are not in actual operation today and that accordingly the parties are in the same position to-day as they were when this second appeal came on for admission. The present position then is this. Clause 15 has been amended by the Letters Patent of December 9, 1927. But on the other hand there is a; difference of opinion between the Calcutta and Madras High Colurts on the one hand and this High Court on the other, as to whether the amendment made by those Letters Patent of 1927 is in any way retrospective. Our Court has held that it is. Two other High Courts, viz,, Calcutta and Madras have held the Contrary. Technically, therefore, it may be that I as a single Judge would be bound by the decision given by Sir Charles Faweetfe and Mr. Justice Mirza in Badruddin v. Sitarama : AIR1928Bom371 . and that acceordingly one would hold that up to February 1, 1929, leave fs necessary under the Letters Patent of 1927 and thereafter under the new Letters Patent of 1928.
5. But whether that is the correct view or not, I think the proper course in the present case, having regard to those new Letters Patent, is to give leave to the present applicant to appeal. That will remove his difficulties, If he is entitled to appeal without leave, then the appeal will lie. If on the other hand leave is necessary, it might result in some further argument despite Badruddin v. Sitaram if I did not grant leave to-day. Accordingly, I think, it will be proper for me to grant leave under these circumstances of doubt as to what is the true legal situation under the various Letters Patent to-day.
6. It will be understood that I am not doing this because I doubt the correctness of my previous decision on the points then raised, I am, however, influenced in part by another point which was never raised before me, and which I think was not taken in either of the Courts below. That is whether Section 206 of the Municipal Act is in itself ultra vires the Legislature. Now this Act was passed by the Bombay Legislature and not by the Central Legislature, Accordingly, it would not appear to be within the exception given by Section 44 of the Letters Patent of 1865. I do not want to prejudge what the eventual decision may be, but it may be argued that if the local Legislature has power to direct that a suit shall not be brought for two months, it might also have power to direct that it should not be brought for two years, or possibly not at all. And if it has power also to direct that a plaintiff shall not recover more than a certain amount, or that he shall pay certain costs, it might have power also to give other directions as regards the suit and its procedure, I appreciate that in any matter concerning 'the revenue' the jurisdiction of the Court is ousted by Section 106(2) of the Government of India Act, But we are here dealing with a Municipality as opposed to Government (see Section 20).
7. Accordingly, in giving leave to appeal, I also (in so far as I have the power) give leave to the applicant to amend his memorandum of appeal by alleging that Section 205 of the Bombay City Municipalities Act 1925 is ultra vires and not binding on the plaintiff. A copy of this judgment to be shown to the Court hearing the Letters Patent appeal.