P L D 1952 Dacca 292 (PLP)

IBRAHIM, J.‑--This second appeal arises out of a suit for damage for slander. The cause of action arose out of a proceeding for appointment of Sarpanch in the district of Sylhet under section 3 of the Village Chowkidari Act (Bengal Act VI of 1870). This section runs as follows :‑ "The District Magistrate may,

(1) by an order in writing, appoint not less than three nor more than five residents in any village within the district of which he has charge to be Panchayat thereof, of (2) he may, with the previous sanction of the Provincial Government, direct that the adult male rate‑paying residents of any village shall select, according to any rules that may be prescribed by the Provincial Government and published in the Official Gazette, not less than three, not more than five residents of the village to be the Panchayat thereof ; and the District Magistrate shall, if he approves of the persons so selected appoints such persons to be the Panchayat ; but if in his opinion, any person so selected, is, for reasons to be recorded by him in writing, unfit to be a member of the Panchayat, the District Magistrate shall appoint a fit and proper resident to be member of the Panchayat". Other provisions of this section are not relevant to the present discussion. The Act was not originally applicable to Assam to which Province the district of Sylhet belonged. The Act applicable to the district of Sylhet originally was the Special Chowkidari Regulation (of Assam) I of 1883. The Bengal Chowkidari Act was substituted in the district of Sylhet for the aforesaid Special Regulation from the year 1898: Soon after its intro duction the Chief Commissioner of Assam issued instruction as to the procedure to be followed in the appointments of Sarpanch, by letter No. 447‑Police J‑/46‑17, dated the 18th October, 1904, addressed to the Deputy Commissioner of Sylhet. The material part of this letter is in these terms "It is clear from the wording of section 3 of the Chowkidari Act that the Panchayat is intended to be a representative body and it is only when it acts on the part of the villagers that friction in appointing and paying the Chowkidar will be avoided. The organisation contemplated by the Act, if established upon a basis which commands the confidence of the people will serve many other purposes than that of maintaining village watch. If the Panchayats can be accepted as the representatives and mouth‑pieces of their villages, they will constitute a most valuable intermediary agency between the Government and the people and can be entrusted with such duties as the improvement of village sanitation and village drinking water‑supply, the control of the village schools and dispensaries and perhaps with some petty judicial powers. In fact that Panchayat would play the part of a village authority in the scheme of Govern ment. "It is quite clear that judged by these principles, large numbers of the persons who now hold office on the Panchayats are unsuitable nor is any other result to be expected if appointments are made on the nomination of police officers. The Chief Commissioner has decided that the constitution of the Panchayat must be thoroughly revised. A Panchayat should consist of not less than three persons one of whom will be the executive (or collecting) member, who is at present known as the 'tehsil Panchayat' but for whom a better title would be 'Sarpanch'. It should be regarded as cardinal principle that the members are to be representatives of the villages and appointments should be made in consultation with the people, generally, in fact, according to the result of an informal election. Where party feeling runs high and would be aggravated by such a procedure, it is of course open to the Deputy Commissioner or Sub divisional Officer to appoint. There are other cases in which it would not be safe to accept the result of popular election. But popular election should be the rule." It is to be noted here that the Act does not contemplate any election for the appointment of Panchayat. The words used in section 3 (2) is "select" and not "elect". The instruc tion quoted above provides for an informal election as a method of selection for the appointment of Panchayat. The appointment of Panchayat in the district of Sylhet has, since this instruction, been made according to this instruction read with section 3 of the Village Chowkidari Act. A re‑election of the Panchayat was sanctioned by the Government of Assam by letter No. H. P. L. 55/43/2, dated the 8th February, 1943. A copy of this letter with instruction to the presiding officer was forwarded to Subdivisional Officer, Habiganj, for holding the election before the 31st March, 1943. The defendant who is a Sub‑Deputy Collector was deputed to preside over the election of Circle No. 6 which was to be held on the 24th March, 1943, at the Baniyachong Dak Bungalow. Villagers and the candidates assembled there on the appointed day. The plaintiff, one Abdul Noor and Altafuddin Khan the sitting Sarpanches were among the candidates for the election. Before the proceedings began, Altafuddin Khan filed a petition to ‑the defendant on his arrival, objecting to the candidature of Abdul Noor and Mukimullah on various grounds. The defendant referred this petition to the Officer‑in‑charge of the local police‑station requesting him to let him know if there was anything against these two persons in the thana record. The thana officer, Jitendra Nath Chakravarty, reported in writing that the Record speaks nothing against them but their general reputation is not good. They are also very badly reported being interested in the local pound. After receiving this report the defendant told the plaintiff that there was a police report against him and that he could not be elected either as an assistant Sarpanch or as a Sarpanch. This was said in presence bf the villagers who had assembled for the election. The defendant refused to show him the police report saying that it was confidential. The supporters of tile plaintiff thereupon set up one Syed Zahirul Huq who was elected. Altafuddin Khan who had complained against the, plaintiff was defeated. The plaintiff's case is that the defendant's statement about the police report was false and that by the said false slanderous statements the plaintiff was defamed. He claimed damage of Rs. 1,000 from the defendant. The learned Munsif decreed the suit for a sum of Rs.

200. On appeal the District Judge, Sylhet, reversed the decree on the ground that the defamatory statement complained of in this case was not actionable per se: He relied for this view on the statement of law on this subject in Halsbury's Laws of England (Edition of 1911 at page 607). There can be no question that if the English law be applicable the learned District judge was right. In English common law there is an important distinction between libel, which means written defamation, and slander, which means oral defamation. Libel is actionable per se, but subject to certain exceptions, slander is not. But English common Law was never introduced beyond the ordinary original civil jurisdiction of the High Courts of Calcutta, Madras and Bombay. Even within this limit it was applied as far as the circumstances of the place and the natives permitted its application ; see Advocate‑General of Bengal v.) Ranee Surnamoye Dassee 9 Moo. I A

391. In Hirabai Jahangir Mistry v. Dinshaw Edu1ji Karkaria I L R 51 Bom. 167 ; and A. D. Narayan Sah v. Kannamma Bai I L R 55 Mad. 727 ; which arose within the ordinary original civil jurisdiction of the respective High Courts, the English common law of slander was held to be inapplicable as the circumstances would not permit its application. No doubt in the case of Bhooni Money Dossee v. Natobar Biswas I L R 28 Cal. 452, it was decided following the English common law that a suit for damage by a Hindu married woman for false and malicious importation of unchastity, was not maintainable without proof of special damage ; but this decision has not been followed in case arising in the mofussil. In Sukan Teli v. Bepal Teli 4 C L J 383, which was also a suit for damage for imputation of unchistity in the mofussil, Rampini and Woodroffe JJ. held that the decision in Bhooni Money DOSSee'S case (supra) did not apply as the cause of action "arose in the mofussil and not in Calcutta". In the same case Rampini J., observed "It has been in many case laid down that when words defamatory in themselves, and not mere varbal abuse have been used, a plaintiff is entitled to damage though no special damage is proved to have been sufferred : Ibiri Hossain v. Haider I L R 12 Cal. 109 ; Tralokeya Nath Ghose v. Chandra Nath Dutt I L R 12 Cal. 424 ; dogeswar Sarma v. Duiaram Sarma 3 C L J 140 and Parvathi v. Mannar I L R 8 Mad. 175". In the last mentioned case (Parvathi v. Mannar) it was observed that "the rule of English law which prohibits, except' in certain cases, an action for damages for oral defamation, unless special damage is alleged, being founded on no reason‑C able basis, should not be adopted by the Court of British India." The case has, therefore, to be decided not on the principles of the English common law of slander but according to the rule laid down in section 37 of Bengal, Agra and Assam Civil v Courts Act which is this 37. (1) Where in any suit or other proceeding it is necessary for a Civil Court to decide any question regarding succession, inheritance, marriage, or caste or any religious usage or institution the Muhammadan law where the parties are Muhammadans and the Hindu law where the parties are Hindus, shall form the rule of decision, except in so far as such law has, by legislative enactment been altered. "(2) In cases not provided for by subsection (1) or by any other law, for the time being in force, the Court shall act according to justice, equity and good conscience." I do not think that the defendant can be called upon in justice, equity and good conscience to pay damage to the plaintiff. I do not think a person can recover damage for the publication of a statement that police has submitted a charge‑sheet or reported against him, if in fact police has done so. In this case there was a police report against the plaintiff and what the defendant said was that there was such a report against him and that for '' that reason he would not allow him to contest. There can be no doubt, and the learned District judge has also found, that the defendant said this, without any malice. He was deputed to select Sarpanches by the method of an informal election. He was directed, under the instruction issued to him "to see that really reliable and representative men who command the trust and respect of the community are elected". What he said, therefore, he said from a sense of duty in order to protect public interest. The persons in whose hearing he said it, were also interested in the matter. I am not prepared to hold in these circumstances that the plaintiff is entitled to recover damages. The appeal is dismissed without cost. The cross‑objection is also dismissed without cost. A. H. Appeal and cross‑objection dismissed