Norman Macleod, Kt., C.J.
1. This suit was filed by the plaintiff-appellant in the District Court of Ahmedabad to recover from eighteen persona who were members of the Ahmedabad Municipality from March 1, 1921 to December 17, 1921, and from a nineteenth person who was a member from October 13, 1921, only, the sum of Rs. 1,68,600 being the amount of expenditure incurred by the Municipality on the maintenance of the primary schools during the suit period, on the allegation that it was misapplied, as the schools were maintained 'luring that period contrary to the provisions of the Bombay District Municipal Act, Bom. Act III of 1901, and the rules framed thereunder, The claim was afterwards decreased by amendment to Rs. 1,37,709-5-8, to be recovered against all the defendants jointly and severally, except defendant No. 16 against whom the claim was limited to Rs. 80,825-3 8. Defendants Nos. 2, 3, 4, 9 and 12 put in a joint written statement, the other defendants filed separate written statements.
2. The Judge dismissed the suit with costs allowing only one set of costs amongst all the defendants as they had substantially one defence to make,
3. Twenty-one issues were raised, but issue No 12 was the main issue in the ease, and the only one which has been argued before us in appeal.
Have the Municipality spent any money beyond that sanctioned by the budget ?
If not, is there any misapplication of the Municipal Fund ?
4. The facts stated in the plaint may be taken as admitted by the defendants in their pleadings.
5. The following are the pertinent sections of the Act:-
Section 42. Every councillor shall be personally liable for the misapplication of any fund to which lie shall have been a party, or which shall have happened through, or been facilitated by, gross neglect of his duty us a councillor, and may be sued for recovery of the moneys so misapplied as if such moneys had been the property of Government.
Section 04. it shall be the duly of every Municipality to make reasonable provision,
(1) -for the following matters within the Municipal district under their authority, namely :.,.
(p) establishing and maintaining primary schools !-
Section 58, The management, control and administration of every public institution exclusively maintained out of municipal property and funds shall vest in the Municipality by which it is maintained :
Provided that the extent of the independent authority of any Municipality in respect of public education, and their relations with the Government Educational Department shall from time to time be prescribed by the Governor in Council.
6. Of the rules framed by Government under the provisions of Section 58 the only rule which the appellants have relied upon before us as having been infringed by the respondent is rule 3 which directs that Municipal schools shall, subject to the proviso in rule 2 (which in this case it is unnecessary to consider), be provided for all castes or classes of the community and shall be open to inspection and examination at all times by the Government Inspecting Staff. The Municipality shall in each case make suitable arrangements in communication with the Inspector for the annual examination required by the Educational Department.
7. Section 52 was also relied upon by the appellant, but that section was framed in order to impose the obligation on Municipalities to apply all their properties and funds subject to the provisions of the Act and for the purposes of the Act within the limits of the Municipal District, and is of no assistance towards deciding whether the monies in the suit were misapplied.
8. Generally speaking it may be admitted that a Municipality would be bound to apply its properties and funds subject to the provisions of the Act.
9. Owing to the action taken by the Municipality of which the defendants were members, the Educational Department were in effect prevented from examining the primary schools established and maintained by the Municipality during the suit period. The appellant contended that because the examination could not be made the schools ceased to be primary schools and so the Municipal funds expended on them had been misapplied.
10. The word ' misapplication' in Section 42 must be given its ordinary dictionary meaning. It means the wrong application of funds, the use of funds for purposes outside the scope of the Act.
11. The appellant then would have to prove that the schools on which the money claimed as having been misapplied were not primary schools as contemplated by the Act.
12. It is not necessary to consider the exact definition of a primary school, because it has not been contended by the appellant that the instruction given to the children attending them was other than that prescribed by the Educational Department for primary schools
13. Most of the arguments addressed to the lower Court were either unnecessary or irrelevant and were rightly discarded by the Advocate General who relied on the following syllogism.
14. A primary school to which Municipal funds can be applied is a school established and maintained according to the Act and the rules framed under the Act.
15. A school established and maintained by a Municipality which cannot be inspected by the Educational Department owing to the action of the Municipality in closing the doors to the Inspector is not such a primary school.
16. The money, therefore, which has been spent on such a school has been misapplied.
17. The fallacy in the argument in this, that because the Inspector is not allowed to see what is going on inside the walls of a school it does not follow that the school is not a primary school maintained in accordance with the Act. it would have to be proved that the school was being used for purposes other than that, of primary education. That would have to be proved like any other fact. The ordinary method would be by the annual inspection and report by the Educational Department. If that became impossible from one cause or another, some other kind of proof would have to be led. Rule 3 merely prescribes the ordinary method whereby Government are enabled to satisfy themselves that the Municipality are doing their duty. la other words, it is a rule of procedure, and its infringement could in no way affect the character of the schools referred to in the plaint,
18. The appellant accordingly has failed to prove that Municipal funds have been misapplied by the respondents.
19. We are much indebted to the District Judge for his painstaking judgment but with due respect it was hardly necessary to set out at length the history of primary education in the Presidency.
20. In my opinion the appeal should be dismissed with costs.
Crump, J.
21. There is no dispute about the facts of this appeal and, so far as they are necessary, they are shortly as follows :-
The defendants were in 1921 councillors of the Ahmedabad Municipality. In February 1921, by certain Resolutions the Municipality decided that no further educational grant should be received from Government and that the annual examination and inspection of Municipal schools should no longer be conducted by the Deputy Educational Inspector or his assistants. In pursuance of this decision the Educational Department was prevented from holding the annual examination and inspection from March 1,1921, to December 17, 1921.
22. The only question which has been argued before us is whether the defendants can be held to have misapplied the monies expended on the Municipal schools during this period, The plaintiff relies upon Section 42 of the Bombay District Municipalities Act (Bom. Act III of 1901) By that section 'every councillor shall be personally liable for the misapplication of any fund to which he shall have been a party.
23. What is meant by ' misapplication ' in this section The word has no technical meaning and is no doubt used in its popular sense. To ' misapply' means to apply to a wrong purpose, that is, to a purpose which is not that which the circumstances indicate as correct, or a purpose which is for any reason forbidden. Used in the statute under consideration it is probably an exhaustive definition to say that ' To misapply is to apply to a purpose which the Act neither permits nor requires.' The functions of a Municipality are either obligatory or discretional, and the Municipal funds must be expended on those functions and no others. The obligatory functions are those which the Act requires, the discretional functions are those which the Act permits. Whether the definition of misapplication which I have suggested is exhaustive or not it is at least sufficient for the disposal of this appeal.
24. To provide for primary education is one of the obligatory functions of the Municipality. Section 54 runs as follows:-
54. It shall be the duty of every Municipality to make reasonable provision (1) for the following matters within the Municipal District under their authority namely :...
[p) establishing and maintaining primary schools.
25. To establish and maintain primary schools in thus one of the obligatory functions of a Municipality. Money so expended is money applied to a purpose which the Act requires, and is not, therefore, misapplied.
26. Are then the (schools which this Municipality maintained ' primary schools '? The words are nowhere defined in the Act. A ' primary' school is a school where primary' education is imparted, I am not aware that the word ' primary ' has acquired any special meaning. ' Primary' education means education in its first stages and nothing more. This much at least is clear that the words do not in themselves connote anything in the way of Government support or Government control.
27. The evidence in this case shows- -indeed the point is not contested that the education imparted in the schools in question was 'primary education' in the sense which I have indicated. It follows, therefore, that up to the point which we have reached, the expenditure was expenditure on primary schools, and therefore there was no misapplication.
28. But it is sought to extend the meaning of the words ' primary schools.' I do not say that the argument was put that way, but reduced to its simplest terms that is its meaning. In order to understand the point sought to be made it is necessary to turn to other portions of the Act. I pass over Section 52 of the Act which appears to me to have no bearing on the question at issue. Section 58 runs as follows : -
58. The management, control and administration of every public institution exclusively maintained out of Municipal property and funds shall vest in the Municipality by which it is maintained.
Provided that the extent of the independent authority of any Municipality in respect of public education, and their relations with the Government Educational Department shall from time to time be prescribed by the (governor in Council.
29. The section means this as between Government and the Municipality : ' You (the Municipality) have the management, administration and control of public institutions maintained out of your funds except schools. As to schools we (the Government) retain power to prescribe the extent of your independent authority and your relations with the Government Educational Department.
30. In exercise of this power Government have published certain rules, The controversy turns mainly round rule 3 which runs as follows :-
3. Municipal schools shall ... be open for inspection and examination by the Government inspecting staff. The Municipality shall in each case make suitable arrangements in communication with the Inspector for the annual examination required by the Educational Department.
31. It is not, in my opinion, necessary to consider the effect of the other rules or the breach thereof, if any. The Municipality in this case declined to comply with rule 3.
32. I have said that it is sought to extend the meaning of the words ' primary schools' and the argument can now be stated. It is as follows, ' Primary schools for the purposes of the Act must be taken to mean primary schools maintained in accordance with the rules framed by Government. These schools were not so maintained. Therefore, they are not primary schools, and the money spent on them has been misapplied.' The argument so stated is not devoid of plausibility, but there is a fallacy in it. I cannot accede to the proposition that where the legislature speaks of ' primary schools' it must be held to mean ' primary schools maintained in accordance with such rules as Government may from time to time frame, and no other primary schools.' The Act says the Municipality shall maintain primary schools. Government by rules says ' you shall maintain those primary schools in such and such a manner.' It is not, in my opinion, possible to say ' The Municipality have not maintained their primary schools in the manner enjoined by Government: therefore they have not maintained primary schools.' Unless it can be said that these schools are not ' primary schools' there can be no case of misapplication I would invite attention here to issue No. 10 framed by the lower Court at the instance of plaintiff. It runs thus:-
10. Whether rule 3 of the rules relating to inspection was obligatory and if so whether objection to the inspect m of schools would convert expenditure towards the maintenance of primary schools into a misapplications of the Municipal Funds.
33. That issue contains within itself the same argument in another form. ' The schools no doubt were primary schools as required by the Act, but when the Municipality refused inspection the schools ceased to be primary schools.' It is not permissible to read into the Act words which it does not contain and that plain proposition is decisive of this appeal.
34. It follows that no misapplication has been proved and that the suit fails.
35. I may add that, in my opinion, no useful purpose would be served by a consideration of the position of the Municipal councillors as trustees under Section 50 of the Act We are not concerned with any property of the description specified in that section. If the councillors are regarded as trustees for all purposes of the Act the considerations which 1 have already set out apply equally to their conduct in that capacity.