G. BRAHMAJI Vs. THE VISAKHAPATNAM MUNICIPALITY

JUDGEMENT

(1.) The plaintiff is a consumer of water supplied by Visakhapatnam Municipality. On 30th September, 1969 the Municipality sent to the plaintiff bill for the period of 1963 64 to 1967-66 and called upon him to pay a sum of Rs. 4,506-00 within seven days from the date of the service of that notice failing which, the Municipality threatened to disconnect bis water supply and to take legal action to recover the mount due from him the plaintiff, therefore, hied the present suit for a perpetual injunction restraining the Municipality from cutting off his water supply. It may be stated that the Municipality served upon the plaintiff the impugned bill in respect of water supplied 10 the plaintiff in his theatre known as 'Poorna Theatre'. The plaintiff's case was that there were no bye-laws at the relevant time which authorised the Municipality to levy water tax or water charges in respect of the water supplied to the residents of Visakhapatnam town. Secondly, be pleaded that there was an earlier litigation between the parties on the same subject and that decision operated as res judicata. The principal grievance which the plaintiff made was that he was liable to pay water charges only for domestic supply of water and not at higher charges for supply of water to his theatre which is his business concern.

(2.) In defence the Municipality contended that under Section 140 of the Andhra Pradesh Municipalities Act, 1965 (here in after referred to as "The Act") it was entitled to charge a different the water supplied to a business concern. Secondly the Municipality pleaded that no bar of res judicata hit the present suit. At the appellate stage it was contended by the Municipality that the suit a for mere injunction without seeking a declaration was not maintainable. The learned trial Judge negatived the Plaintiff's case on merits the plaintiff, thereafter, appealed to the appellate Court the Appellate Court confirmed the findings recorded by the trial court and also held that the suit for a mere injunction was not maintainable without the plaintiff seeking a declaration the appeal was, therefore, dismissed.

(3.) It is that appellate decree which is challenged by the plaintiff in this second appeal. So far as the plaintiff's contention relating to res judicata is concerned it is without any substance. OS. 61/1970, was the earlier suit between the parties in which the plaintiff's liability 10 pay water charges was challenged. A certified copy of the Judgment recorded in that suit is at Ex. A.I. It was decided on 26th September 1972. The amount which the Municipality claimed from the plaintiff represented the water charges for the period from 1st, March 1958-59 to 1st Nov. The bye-laws under which the suit claim is made from the plaintiff came in to force on 31st December 1960. Therefore, the present bye-laws with I am concerned in this suit did not govern the claim of the Municipality in the earlier suit. Since the bye-laws came into force subsequent to the period for which the claim was made in the earlier suit they were not applicable to that case. Therefore, the suit claim made under the bye-laws which came into force on 31st December 1960 cannot be said to be hit by res judicata ta nor can it be said that the principle laid down in that decision would govern the present claim the Courts below were, Therefore, justified in taking the view that the decision recorded in O.S. 61/1960 on the subject of plaintiff's liability to pay water charges does not bar or govern the present claim made by Municipality.