PATHROSE Vs. STATE

JUDGEMENT

(1.) This is a plaintiffs appeal. During the years 1119 and 1120 the Trichur Municipality farmed out to him by public auction the right to levy tolls on vehicles and animals entering the Municipality. The suit giving rise to this appeal was brought to realise from the Government unpaid tolls in respect of certain motor lorries used by them during that period. That was a period of acute shortage in fire-wood and the Government through their Forest Department took upon themselves the task of selling that essential article at fair prices at depots run by or under the control of the Forest Department. For the purpose of the said venture fire-wood had to be brought to Trichur Municipal area from the Government Reserve Forests. A few Government owned motor lorries and some hired lorries were used for that purpose. The plaintiffs case was that in spite of demand the tolls due on account of those vehicles entering the Municipality were not paid by Government. In this plaint he claimed Rs. 8,500/- or such other sum as may be adjudged due on scrutiny of the log-books maintained by the Forest Department. In the course of the suit the sum total of the unpaid tolls was ascertained to be Rs. 2,362. Of this sum Rs. 1,228/- represented the amount due in respect of the vehicles owned by the Government and the balance Rs. 1,134/- the amount due for hired lorries. The Government contested the suit on various grounds and ultimately the learned Additional District Judge, Trichur, who tried it dismissed it with costs. The plaintiff has hence brought this appeal claiming a decree for the aforesaid sum of Rs. 2,362/- together with future interest and costs in both the courts.

(2.) The written statement the Government filed in the suit makes queer reading. It raises several defences which could better have been left unsaid. We shall however confine ourselves to the consideration of such defences as found favour with the learned Judge in the Court below and another ground of defence raised before us. The lower Court dismissed the suit mainly on two grounds. With respect to the claim for unpaid tolls on account of the hired lorries, the learned Judge held that a notification issued by the Government on 6.11.1120 exempting those vehicles from payment of Municipal tolls in the State furnished a complete answer to repel it. As for the claim relating to Government owned vehicles the reason the learned Judge mentions is that the plaintiff as the tolls contractor or the rent farmer had by himself no right to maintain the suit. According to the learned Judge the toll contractor or the rent farmer was only an agent of the Municipal Council and a suit instituted otherwise than in the name of the principal was not maintainable. This reason, if good, was sufficient to entail the dismissal of the entire suit and no independent ground need have been found to repel the claim relating to the hired lorries. Besides repeating these two grounds a third ground urged before us on behalf of the Government, the respondent herein, was that as the right to levy tolls was a statutory right and as the statute creating the right had provided a remedy for its realisation, that remedy was the sole or the exclusive remedy open to the person entitled to claim the tolls and that the common law right of recovering the dues by means of a suit was not available to him.

(3.) We shall now proceed to consider these grounds one by one, but in so doing it is convenient to take up the second ground that the plaintiff by himself had no right of suit first. Though this ground had found favour with the lower court it was only a half hearted support which the learned Government Pleader was able to give to it. The effect of farming out the right to levy tolls or to collect the fees for the use of a cart or bus stand belonging to a local authority is that such farmer becomes the sole person entitled to collect those dues. The local authority is only entitled to get the lump sum fixed by the contract from the rent farmer. There is no provision in the Municipal Act which would go to show that after the farming out any further right to the tolls or other fees will inhere in the Municipality. This position has been given judicial recognition by the Madras High Court in Karuppanna v. F.W. Haughton AIR 1936 Mad. 547 . That case was the off-shoot of a prosecution which the Chairman of the Coonoor Municipality launched against a Councillor of that Muncipality for persistent refusal by the latter to pay the prescribed fee for the use of the municipal cart-stand. The prosecution failed as the dues were really payable to the contractor to whom the right of collecting cart-stand fees had been granted by the Municipal Council. The Councillor afterwards brought a suit for damages for malicious prosecution against the Chairman and the High Court in restoring the decree the Subordinate Judge passed awarding damages to the plaintiff which the District Judge had reversed observed that the amounts due to the contractor cannot be said to be amounts due to the Municipality and that the prosecution launched by the Chairman was rightly thrown out. In United Motors Ltd. v. Palghat Municipality, AIR 1943 Mad. 122 this decision came up for consideration and it was explained (page 126) that its implication was that the person to whom a Municipality had sold the right to collect certain fees and not the Chairman of the Municipality had to take the necessary steps to collect those fees whether by litigation or otherwise. These two cases fully support the view we expressed earlier that once a local body farms out the right to collect tolls or other fees due to it the responsibility to take the steps necessary to realise it is that of the farmer and not that of the local body concerned. No doubt sometimes the assistance of a Municipal Council or a Local Board might be found necessary when the contractor seeks to realise it by seizure or distraint. The relevant Act or Rules may also provide for such assistance, but it is entirely a different proposition to hold that the right to receive unpaid tolls or fees would continue to vest in the Municipal Council or other local body notwithstanding the farming out of the right. It is therefore difficult to sustain the lower courts decision on this ground.