SHANKAR RAO JOSHI Vs. NIZAM SUGAR FACTORY

JUDGEMENT

(1.) This appeal is by the plaintiff who filed a suit against the first respondent, the Nizam Sugar Factory, the 2nd respondent, the City Municipality of Bodhan and the 3rd respondent, the Secretary, Local Self-Government, alleging that the 2nd respondent had put up tor auction the right to collect barabarderi tax(or toll-tax) and he being the highest bidder, it was knocked down for Rs. 13,325 for the year 1955-54. this the plaintiff's allegation that he is entitled to collect from the first respondent, the Niam Sugar Factory, Rs, 2 per bogie per day from 1st April, 1953 to 31st March, 1954, which amounts to Rs 5,08,080 on 696 bogies plied on the light railway per day for 365 days at that rate. was further alleged that when she plaintiff moved the 2nd respondent, respondent had issued a demand bill, Exhibit P-6, dated 14th October, oa the first respondent for Rs. 2,11,782-13-9. as against this demand by the 2nd reipondeat, the first respondent Sugar Factory appealed to the Collector and the Secretary, Local Sclf-Governmcnt, 3rd respondent. Inasmuch as,the Local Self-Government Department ruled that no toll-tax is leviable on bogiei which are in municipality the plaintiff could not recover the same. As a consequence, the plaintiff gave a lawyer's notice. Exhibit P-7, to the Sugar Factory as well as to the municipality, on 30tb July, 1955, and received their replies, Exhibits P-8 and P-9.

(2.) The firit defendant-respondent averred that the 2nd defendant as described in the plaint had no existence, that it had not leased out the right of collecting toll on its bogies, that the terms of the sale as mentioned in the Nirkhnama and the rate of toll were illegal and unenforceable inasmuch as the sanction of the Government had not been obtained, that even the Municipal Committee could not realise any toll under section 91 of the Hyderabad Municipal and Town Committees Act, 1981, as the bogies were kept within the municipal limits, that the order dated 29thMehr, 1375-F. Exhibit P-4, was contrary to the Act, that the first defendant had agreed to pay the vehicle tax and not toll through its letter dated 11th Dai, 1359-F., Exhibit P-5, that the payment of toll in the previous years did not entitle the plaintiff to collect from the first defendant toll in 1953-54, that the vehicle-tax and commuted toll-tax were the same in the previous years, that the first defendant paid the sum of Rs 15,740 under protest and duress as the plaintiff held out a threat of paralysing its business by stopping its bogiei which brought cane from its outlying farms, that the first defendant offered to pay vehicle-tax but the same was refused by the ind defendant through its letter dated 18th October, 1954, and therefore the first defendant challenged the right of the 2nd defendant and the plaintiff to impose and collect toll which it bad been raising from the outset, which stand was finally upheld by the Minister by his order dated llth June, 1955, and that the said order is final and binding on the 2nd defendant and the plaintiff-appellant as the agent of the 2nd defendant. The first defendant further averred by an amendment to his written statement, dated 28th july,1956, that the first defendant is an agriculturist and that the bogies Were used for agricultural work and therefore exempt from toll and that in any case, the first defendant had brought a suit also O. S. No. 211 of 1956, for recovery Rs. 15,740 and other sums paid to the plaintiff in the previous years on account of toll, which suit was stayed under section 10, Civil Procedure Code.

(3.) The 2nd defendant-municipality admitted having auctioned the right to collect toll for the year 1953-54 to the plaintiff and stated that the plaintiff could not sue the Municipal Committee inasmuch as the plaintiff failed to pay the monthly instalment of Rs.1,162-2-6 till the expiry of the period of contract under the terms of the Qubuliat dated 12th April, 1953 and failed to give security as well, that the suit agaiust the Municipal Committee was not main tainable on this ground also, that under the Qubuliat the plaintiff agreed not to sue the Municipal Committee for compensation in an unforeseen accident and as the Minister's decision of June, 1955, amounted to such an accident it was binding on the plaintiff and it operated as res judicata, that section 05 of the Act barred the suit , that the suit was barred by time in as much as the eause of action arose to the plaintiff on the same day on which the bogies entered the Municipal limits and the suit was not instituted within six monther under section 66 of the Act, that no notice was given to the Municipal Committee as required under section 66 of the Act,"the object of the notice mentioned in the plaint being different, and that if at all toll at the rate of Us. 2 was legally leviable, the first defendant alone would be responsible. The 2nd defendant also denied the fact that 696 bogies plied throughout the year.