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Ram Pitam Shah Vs. Shoobul Chunder Mullick and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal259
AppellantRam Pitam Shah
RespondentShoobul Chunder Mullick and ors.
Cases ReferredWaterhouse v. Keen
Excerpt:
notice of action - bengal act ix of 1871, section 27--tolls paid in excess of powers given--suit for refund of money. - .....the facts of these cases are as follows : at the howrah station large quantities of goods come in which have to be brought into calcutta by vehicles which pass over the bridge, in respect of which tolls are levied. when that bridge was constructed provision was made by the legislature for the levying of tolls, and for the issuing of notifications by the lieutenant-governor with reference to those tolls ; and one of the provisions was, that certain charges might be made for railway-borne goods coming to howrah which were to be paid by the railway company, and when paid that was to be sufficient, and the goods were to be brought into calcutta across the bridge without the payment of any extra toll.2. now the eases in respect of which the question arises are cases which come.....
Judgment:

W. Comer Petheram, C.J.

1. These are actions brought by various carriers or coke merchants for the purpose of recovering tolls, which have been levied from them for passing over the bridge, in excess of the powers created by the Act and the notification of the Lieutenant-Governor. The facts of these cases are as follows : At the Howrah station large quantities of goods come in which have to be brought into Calcutta by vehicles which pass over the bridge, in respect of which tolls are levied. When that bridge was constructed provision was made by the Legislature for the levying of tolls, and for the issuing of notifications by the Lieutenant-Governor with reference to those tolls ; and one of the provisions was, that certain charges might be made for railway-borne goods coming to Howrah which were to be paid by the Railway Company, and when paid that was to be sufficient, and the goods were to be brought into Calcutta across the bridge without the payment of any extra toll.

2. Now the eases in respect of which the question arises are cases which come within that provision, so that if they come within the terms of the statute and the terms of the notification the owners of the goods or the persons dealing with them are entitled to bring them into Calcutta without extra toll, and are also entitled to the use of the bridge for the purpose of vehicles which are engaged in carrying the goods to Calcutta if those vehicles come within the statute and the notification. An objection is taken by the Advocate-General in answer to these actions that under Section 27 of Act IX of 1871 no suit of this kind can be maintained against the present defendants, who are the lessees of the Port Commissioners, unless they have had notice given to them within the meaning of the section. The section is in these words: 'No suit or other proceeding shall be commenced or prosecuted against any person for anything done or professing or purporting to be done in pursuance of this Act without giving to such person a month's previous notice of the intended proceeding, and of the cause thereof, nor after tender of sufficient amends, nor after the expiration of three months from the accrual of the cause of suit or other proceeding.'

3. It is contended on behalf of the plaintiffs that this section does not apply to the case, because it is said that the mere levying of toll is not anything done within the meaning of this section which must mean some wrong committed in pursuance of the powers of the Act for which damages are payable. The learned Advocate-General, on the other hand, contends that these tolls are livable under the powers of the Act, and whether they are paid under protest, or after levying of distress, or whether they are paid without distress, that Act applies and they are entitled to notice ; and he cites in support of that view a ease of Waterhouse v. Keen 4 B. & C. 200, and also the case of Midland Railway Co. v. Withington Local Board L.R. 11 Q.B. 788. The case of Waterhouse v. Keen 4 B. & C. 200 is directly in point. The facts of that case are almost identical with those of the present case, and as that ease is law at the present day I think it is a binding authority upon us; and in the case of the Midland Railway Co. v. Withington Local Board, which was a case in the Court of Appeal, and was decided by the present Master of the Bolls sitting with Lindley, L.J., and Fry, L.J., though the facts of that case are not absolutely identical with the facts of this case, or with the facts of the case of Waterhouse v. Keen, the learned Judges in that ease expressly affirm the latter decision. That being so, and the facts of the earlier case being, as I said, almost identical with those of the present case, we are of opinion that that decision is binding upon us, and consequently we hold in accordance with that decision that the defendants were entitled to notice of action; and it being admitted that notice of action was not given, we think that these suits must for that reason be dismissed.


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