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P. Sowrayya and Brothers Ltd. Vs. Sundaragiri Abdul Khader Saheb - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 1688 of 1950
Judge
Reported inAIR1955AP29
ActsCode of Civil Procedure (CPC), 1908 - Sections 9; Madras Local Boards Act, 1920 - Sections 186 and 186(1)
AppellantP. Sowrayya and Brothers Ltd.
RespondentSundaragiri Abdul Khader Saheb
Appellant AdvocateK. Kannaiah and ;C. Kondaiah, Advs.
Respondent AdvocateC.V. Dikshitulu and ;N. Rajeswara Rao, Advs.
Excerpt:
.....local boards act, 1920 - appeal questioning whether suit related to collection of cart-stand fees lie in civil court - appellant entitled to collect fees from buses and lorries stopping in cart-stand after permission sanctioned by panchayat board - section 186 does not expressly or by implication provide to be only remedy open to person duly authorised to collect fees - panchayat board remedy to recover amount in civil court is not ousted - held, civil court have jurisdiction to decide such matters. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no..........of all the expenses occasioned by the non-payment thereof and by the seizure and detention of the property the property shall be forthwith released. (5) if no tender is made to such officer, he shall sell the said property or a sufficient portion thereof by auction and apply the proceeds of the sale to the payment of the amount due on account of the fee and the expenses incidental to the seizure, detention and the sale of the property and shall return to the person in whose possession the property was at the time of the seizure any property or sum which may remain after the sale and the application of the proceeds thereof as aforesaid.' (6) it is seen from the provisions of s. 186 that it is intended to enable the person authorised to collect fees, to collect the same summarily and.....
Judgment:

(1) The question in this Second Appeal is whether a suit for the collection of cartstand fees would lie in a Civil Court.

(2) The facts are simple. The Gurazala Panchayat Board has provided a stand for the stopping of buses and lorries. The right to collect fees from the owners of the said vehicles was auctioned. The plaintiff was the highest bidder for the years 1946-47 and 1947-48 and he thus became entitled to collect fees from the buses and lorries stopping in the cart-stand. The defendant, who was plying one lorry and six buses, used the cart-stand during that period. The suit was filed for the recovery of a sum of Rs. 482-8-0 as the fees due from him.

(3) The defendant, inter alia, contended that the suit was not maintainable as the Madras Local Board's Act (Act XIV of 1920) provided the machinery for the collection of such fees. Both the courts negatived the said contention. Hence the appeal.

(4) The learned Counsel for the appellant contended that S. 186 provides the machinery for collection of cart-stand fees, that the Panchayat Board or the person authorised by it to collect the same should proceed to collect the said fees only under the provisions of that section and that no separate suit would lie.

(5) It is a well-established principle of law that a Civil Court's jurisdiction is not ousted unless a particular statute expressly or by necessary implication excluded it. The question, therefore is whether the provisions of the Madras Local Boards Act providing for public cart-stands and prescribing the manner of collection of fees has ousted the jurisdiction of a Civil Court in that respect. The relevant provisions of the Act read :

'S. 184 (1) The Panchayat may construct or provide and maintain public landing places, halting places and cart-stands and may levy fees for the use of the same.

(1) A : The Panchayat may (a) place the collection of any such fees under the management of such persons as may appear to it proper or (b) farm out the collection of any such fees for any periods, not exceeding three years, at a time and on such terms and conditions as it may think fit.

S. 186 (1) : If the fee leviable under sub-s. (1) of S. 184 in respect of a vehicle or animal is not paid on demand, the person duly authorised to collect the same may seize such vehicle or animal, or any part of its burden and detain the same in his custody.

(2) If such fee together with the expenss occasioned by such seizure and detention remains unpaid for twelve hours, the person duly authorised as aforesaid shall forthwith send the vehicle .............. animal or other property seized as aforesaid to the nearest public officer empowered to sell destrained property under the Madras Rent and Revenue Sales Act. 1839.

(3) Such Officer shall forthwith give notice to the owner of the property seized, or if the owner is not known or is not resident in the neighbourhood, to the person who was in charge of the said property at the time when it was seized, and if he is not found, publish by beat of drum that, after the expiration of two days exclusive of Sunday from the date of service or after the said publication of such notice, he will sell the property by auction at a place to be specified in the notice.

(4) If, at any time before the sale, the person to whom notice has been given or the owner of the property seized tenders to the said Officer the amount due on account of the fee and of all the expenses occasioned by the non-payment thereof and by the seizure and detention of the property the property shall be forthwith released.

(5) If no tender is made to such officer, he shall sell the said property or a sufficient portion thereof by auction and apply the proceeds of the sale to the payment of the amount due on account of the fee and the expenses incidental to the seizure, detention and the sale of the property and shall return to the person in whose possession the property was at the time of the seizure any property or sum which may remain after the sale and the application of the proceeds thereof as aforesaid.'

(6) It is seen from the provisions of S. 186 that it is intended to enable the person authorised to collect fees, to collect the same summarily and expenditiously. It is enacted to prevent evasion of the payment of fees. The words 'may seize' in S. 186 (1) clearly imply that it is in the discretion of the person duly authorised to collect the fees in the manner prescribed. The Section also does not provide for a remedy to the injured party, who obviously can only go to a civil court, if the collection is made in violation of the provisions of the Act. In short, the section is not a self-contained one. It does not expressly say that it is the only remedy open to the person duly authorised to collect the fees nor does it by necessary implication do so. The section does not exclude in terms the jurisdiction of a civil Court.

(7) But the learned Counsel Mr. Kondiah relied upon certain decisions in support of his contention that the said provision by necessary implication excludes the jurisdiction of civil courts. -- 'Secretary of State v. Mask & Co.', AIR 1940 PC 105 (A) is typical of the cases cited by him. There the importers having imported into British India a consignment of betel-nuts, the Customs authorities levied duty on them on a tariff value. The importers appealed contending that the goods should be assessed on a lesser rate, namely, as raw betel-nuts subject to duty ad valorem. The Collector of Customs dismissed the appeal, the Government of India affirming this decision. The importers, having brought an action against the Collector to recover the amount of duty which they alleged to have been over-paid the Judicial Committee held that the Civil Courts had no jurisdiction to entertain the suit.

From the facts, it is seen that the question was whether the injured party who had an express remedy under the Land Customs Act could file a suit in a civil court ignoring the remedy provided for by the Statute. Their Lordships held, having regard to the provisions of the Act, that the Civil Court's jurisdiction is excluded by the order of the Collector of Customs on appeal under S. 188 which was final, and they did not decide the question whether prior to taking such appeal under S. 188, the repondents would have been entitled to resort to the Civil Courts or whether they would have been confined to the right of appeal under S. 188. At page 110, the Judicial Committee made the following observations :

'The determination of this question must rest on the terms of the particular Statute which is under consideration and decisions on other statutory provisions are not of material assistance except in so far as general principles of construction are laid down.'

(8) So too, the Full Bench decision in -- 'Secretary of State v. Jagannadham', AIR 1941 Mad 530 (B) deals with the question of the right of an aggrieved party to proceed by way of a suit in a Civil Court. The respondent in that case was the President of the Union Board of Dharmavaram. The Examiner of Local Fund Accounts, passed an order of surcharge against him in respect of a sum on the ground that he had failed to collect arrears of house tax. Under the rule relating to the powers of Auditors to surcharge, an aggrieved person may apply to the Principal Civil Court of Original Jurisdiction to set aside the order, or in lieu of applying to the Court, may appeal to the Local Government. He applied to the Local Government for cancelling the order of the surcharge and the petition was dismissed.

Then he filed the suit in a civil Court against the Secretary of State for India in Council for recovering the amount collected from him on behalf of the Government, the contention was raised that the civil Court had no jurisdiction to entertain the suit. Leach C. J. delivering the judgment on behalf of the Bench observed at page 532 as follows :

'Therefore, we have here two principles clearly established. The first is that to exclude the jurisdiction of the civil Court the exclusion must be explicity expressed or clearly implied. The second is that where the liability is statutory as opposed to liability under the common law, the party must adopt the remedy given to him by the Statute. I cannot imagine a clearer case of implied exclusion of the right to file a suit than we have here.'

(9) This decision turns upon the provisions of the Madras Local Boards Act and the rules framed thereunder. The aggrieved party having been given a specific and adequate remedy, the Court held that the Act by necessary implication excluded the jurisdiction of the civil Court. The principle has been correctly and authoritatively laid down by Willies J. in -- 'Wolverhampton New Waterworks Co. v. Hawkesford', (1859) 6 CB (NS) 336 (C). The learned Judge stated thus:

'There are three classes of cases in which a liability may be established by statute. There is that class where there is a liability existing at common law, and which is only re-enacted by the statute with special form of remedy; there unless the statute contains words necessarily excluding the common law remedy the plaintiff has his election of proceeding either under the statute or at common law. Then there is a second class, which consists of those cases in which a statute has created a liability, but has given no special remedy for it; there the party adopt an action of debt or other remedy at common law to enforce it. The third class is where the statute creates a liability not existing at common law and gives also a particular remedy for enforcing it. With respect that class, it has alwasys been held that the party must adopt the form of remedy given by the statute.'

(10) The present case is covered by the first class of cases enumerated by the learned Judge. The liability of a person, who uses another man's property for parking his carts to play the latter for his use and occupation is not a liability created for the first time by the provisions of the Madras Local Boards Act. The Panchayat Board or the person authorised by the Panchayat Board would certainly be entitled to recover rent from a person who occupied its land under a contract, or to recover damages for use and occupation, if there is no specfic agreement. The liability to pay rent or damages for use and occupation existing at general law is only re-enacted by the Statute. It cannot, therefore, be held that by necessary implication the Panchayat Board's remedy to recover the amount in a civil Court is ousted.

The aforesaid principle, though it affords a rule of guidance for construing the provisions of S. 186 as has clearly been pointed out, the provisions of each statute should be scrutinised to ascertain whether the civil Court's jurisdiction is ousted, either expressly or by necessary implications. In this case, the remedy provided for is only discretionary and summary. It is not even self-contained as no remedy is provided for the aggrieved party. It is not statutory liability created for the first time, but only a re-enactment of the general liability. I would, therefore, hold concurring with the courts below, that the jurisdiction of the civil court is not ousted.

(11) In the result, the appeal fails and is dismissed with costs. No leave.

Appeal dismissed.


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