MUBARAK HUSSAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a civil regular first appeal by the plaintiff Mubarak Hussain against the judgment and decree of the Senior Civil Judge, Jodhpur, dated 31st August, 1957, in a suit for refund of money.

(2.) THE plaintiffs case is briefly this. The plaintiff Mubarak Hussain (along with two other persons named Bhanwarlal and Kanwalchand, who may be ignored for the purposes of the present appeal as we consider it unnecessary to go into the question whether they were joint monopolists with the plaintiff) obtained a monopoly contract for plying passengers and goods motor service for hire on the erinpura-Bali route for a period of three years from 15th March, 1949 to 14th march, 1952 from the Board of Communications of the Government of the State of Jodhpur, as it then was on agreeing to pay a sum of Rs. 33,101/- for the said monopoly (vide Ex A-1 ). On the 7th April, 1949, the State of Jodhpur was integrated with the United State of Rajasthan and the monopoly contract was allowed to continue by the new State. On the 26th January, 1950, the Constitution came into force in our country and the United State of Rajasthan became one of its Part B States. The plaintiff's case is that after the Constitution had come into force, the monopoly contract held by him had become unlawful and null and void and it was open to every citizen to conduct the business of carrying passenger and goods on hire by motor vehicles throughout the length and breadth of the State until the 1st April, 1951 when the Indian Motor Vehicles Act, 1939 (Act No. 4 of 1939) was made applicable to the State of Rajasthan and then a business of this character fell to be regulated by the provisions contained in that Act and no one could carry on such a business except under a permit obtained under the provisions of the said Act. The plaintiff's grievance was and is that under the circumstances the defendant state had no right to recover any money in connection with the contract held by him at law as the same had become wholly null and void after the 26th of January, 1950, on the coming into force of the Constitution and it became virtually impossible for the plaintiff to continue the monopoly as such after the 1st of April, 195t as a result of the Indian Motor Vehicles Act having been made applicable to the State, and yet the State continued to recover from him various amounts in lieu thereof from lime to time aggregating in all to a sum of Rupees 13,050/-by illegal pressure or coercion, and by threat of proceedings under the Public Demands recovery Act up to 31st March, 1951. The plaintiffs claim, therefore, is, that he is entitled to a refund of the sum of Rs. 13,050/-from the State paid by him, under circumstances mentioned above. On the 11th of February, 1954, the plaintiff gave the requisite statutory notice under section 80 of the Code of Civil Procedure for return of the aforesaid amount to him, but without any avail, and consequently he brought the present suit for the recovery of Rs. 15,400/-including principal and interest in the court of the Senior Civil Judge. Jodhpur on the 24th of January, 1956.

(3.) THE, defendant State resisted the suit. The stand taken by it was that the plaintiff had fully enjoyed the benefit of the monopoly contract upto the 3lst of march, 1951 and therefore he was not entitled to any refund of the amounts paid by him to the State from the 26th January, 1950 to the 31st March, 1951. It was also contended that the contract had neither been frustrated nor had it become null and void. Lastly, it was pleaded that the suit was in any case barred by limitation.