AMBA PRASAD MAHESHWARI Vs. JUGAL KISHORE

JUDGEMENT

(1.) The attempt of the District Board of Saharanpur in the year 1929 to grant to the plaintiff a monopoly or exclusive right to run lorries on hire on certain roads in the District of Saharanpur has been productive of much contusion and has eventually culminated in the present litigation. On the one hand it has been argued that the Board has the right to grant exclusive permits to ply lorries on hire on the District Board road and prevent the owners of lorries who have not been given such permits from using the roads for such purpose, whereas on the other hand it has been contended that it is not within the competence of a Board to create monopolies of this description. For the decision of the civil revision before me it is not necessary to decide the point as, on the findings recorded by the Small Cause Court Judge, the question of law that has been argued does not arise, but as the question has been argued at some length and is of general importance, I consider it desirable to express my opinion on the subject. In the beginning of the year 1929 a proposal was brought before the Board to give exclusive right to the plaintiff for a period of 5 years to ply motor oars and lorries on hire on kachcha roads of the District Board, provided the plaintiff agreed to keep and regularly run buses and cars on fixed hire and further agreed to do the necessary repairs to the roads, bridges and culverts. The plaintiff was agreeable to the proposal and accordingly the Board, by a resolution dated 15 January 1929, approved of the proposal and gave full power to the Chairman to decide the matter with the consultation of the Collector and Superintendent of Police and have trial.

(2.) The matter appears to have been discussed between the Chairman and the Collector with the result that the plaintiff executed a document embodying the proposal and the terms mentioned above. A document purporting to be an agreement on behalf of the Secretary of State for India in Council giving to the plaintiff the exclusive right to use the road for the purpose mentioned above was also drawn up but does not appear to have been signed by any person authorized to do so. The question whether it was within the competence of the Board to create a monopoly in favour of the plaintiff does not appear to have engaged the attention either of the Chairman or of the Collector, nor did they take the trouble of getting the documents mentioned above duly executed and registered before translating the proposal into action. This was the beginning of the confusion. Though the documents remained incomplete and ineffectual in law, the plaintiff commenced to run lorries in assertion of his exclusive right to do so; This evoked, as it was bound to do, public protest and the matter was taken to, de-bated and discussed in the Local Legislative Council. The proceedings in the Council were followed by orders issued by various executive authorities, but these, far from easing the situation, made confusion worse confounded. It is obvious that the proceedings in the Council and the consequent correspondence between, or the orders passed by, various Executive Officers are wholly irrelevant for the decision of the question of law mentioned above and, if I refer to these, I do so merely to illustrate the inconsistent and contradictory nature of the correspondence and the orders that were passed by various Executive Officers. All this would have been avoided if any one concerned had paused to consider the elementary question whether the Board had the statutory right to create monopolies of the nature mentioned above and, if so, the manner in which it could be created. This was however not done and the matter was allowed to drift till the Local Government confirmed certain bye-laws framed by the Saharanpur District Board under Section 174(2)(q), United Provinces District Boards Act, on 10 January 1933. A reference to these bye-laws shall presently be made.

(3.) By G.O. No. 850-VIII-12, dated 8 March 1930, (Ex. A), the alleged agreement between the plaintiff and the Board was declared void and against public policy. Further in answer to a question in the Legislative Council the Hon ble the Home Member replied that no sanction of the Government was obtained for the monopoly alleged by the plaintiff and that the monopoly had since been cancelled. Notwithstanding all this plaintiff continued to exercise the monopoly granted to him and by D. O. No. 600-C, dated 23 April 1930, the Secretary to the Local Self-Government Department informed the plaintiff that he can continue to hold a virtual monopoly of the motor traffic in the District and that: There was nothing to prevent this monopoly being continued at least until the whole question had been thoroughly gone into.