Municipal Corporation of Ludhiana vs Sargodha Iron and Hardware Store

J.V. Gupta, J.—This is Defendant''s second appeal against whom suit for recovery of Rs. 7000/- has been decreed by both the Courts below.

The Plaintiff firm M/s Sargodha Iron and Hardware Store, Ludhiana deals in the sale of hardware and girders and had placed its girders in front of the shop and was paying Tehbazari to that effect It was averred that on 23-10-1973, the Defendant Municipal Corporation removed 275 girders and 52 T iron belonging to the Plaintiff firm from in front of the shop. On 2-11-1973 Plaintiff made an application for the recovery of goods. The Plaintiff was to pay Rs 7000/- under protest failing which the goods seized were to be auctioned. Consequently, the Plaintiff had to deposit Rs. 7,000/-. In the suit the Plaintiff challenged the said act of the Municipal Corporation to be illegal, mala fide arbitrary and without jurisdiction and against the provisions of Section 173(2) of the Punjab Municipal Act (hereinafter called the Act).

In the written statement, the Defendant Corporation controverted the said allegation and pleaded that the Plaintiff had voluntarily paid this amount as composition charges and therefore, was not entitled to recover the same. The trial Court came to the conclusion that no reasonable opportunity for removing the goods as provided u/s 173(2) of the Act was provided, so the question of composition between the parties did not arise. The plea that the amount had been validly recovered by the Corporation in view of the provisions of Section 229 of the Act was also negatived as no reasonable opportunity had been afforded to the Plaintiff for the removal of the goods as provided u/s 173(2) of the Act. Ultimately it was found that the Plaintiff was entitled to the refund of Rs. 7,000/- from the Defendant. In appeal, the learned District Judge affirmed the said finding of the trial Court and thus maintained the decree passed in favour of the Plaintiff.

The learned Counsel for the Defendant Appellant has submitted that the amount was deposited voluntarilv and, therefore, the question of its refund did not arise.

After hearing the learned Counsel for the Appellant, I do not find any merit in this appeal. On the appreciation of the entire evidence it has been concurrently found that the amount was not paid voluntarily, but was paid under protest in order to get the goods back from the Municipal Corporation. No reasonable opportunity was provided to the Plaintiff for removing the goods before he could be penalized for the same The question of the amount having been paid as composition fee as alleged by the Corporation did not arise and it has been rightly observed by the lower appellate Court in the instant case that the composition fee charged could not have been agreed to by the Plaintiff and the evidence on behalf of the Plaintiff on oath is clear that to save the material from auction, they had to pay Rs. 7,000/-.

Consequently, the appeal fails and is dismissed with no order as to costs.