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Andhra Pradesh High Court
Judges : A.V.KRISHNA RAO
Markapur Municipality - Appellant
Versus
Dodda Ramireddi - Respondent
Decided On : 02-23-71
MUNICIPALITIES ACT - AUCTION OF RIGHT TO COLLECT PIG DUNG - VALIDITY - SALE OF FUTURE GOODS - FRUSTRATION OF CONTRACT - PENALTY - ILLEGALITY.
Fact of the Case:
The plaintiff, a Municipal Council, filed a suit against the defendant, a contractor, for recovery of the balance of the amount and penalty due from the defendant for the collection of pig dung in the municipal area. The defendant contended that the owners of the pigs prevented him from collecting the pig dung, that the contract became impossible of performance, and that he was discharged of his obligation to pay the balance. The trial court dismissed the suit, holding that the plaintiff had no power to auction the right to collect pig dung, that the contract was impossible of performance, and that the penalty provision was illegal.
Finding of the Court:
The High Court held that the plaintiff had no authority under the Act or the Rules to enter into a contract with reference to pig dung, that the contract was in the nature of a sale of future unascertained goods, that the goods never came into existence, that no property in the goods passed to the buyer, and that the seller was therefore not entitled to recover the sale price from the buyer. The court also held that the provision in the contract providing for payment of penalty was illegal.
Issues: 1. Whether the plaintiff had the authority to auction the right to collect pig dung. 2. Whether the contract was impossible of performance. 3. Whether the penalty provision in the contract was illegal.
Ratio Decidendi: 1. The court held that the plaintiff had no authority under the Act or the Rules to enter into a contract with reference to pig dung, as the municipality did not have the right to collect the dung and hence could not transfer any such right in favor of an intending purchaser. 2. The court held that the contract was impossible of performance as the goods never came into existence, as the pigs did not belong to the municipality and the owners of the pigs collected the dung themselves. 3. The court held that the provision in the contract providing for payment of penalty was illegal.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS appeal is filed by the plaintiff against a judgment of the learned Additional District Judge, Kurnool, dismissing the suit O. S. 78 of 1967. The plaintiff is the Municipal Council, Markapur represented by its Special Officer who filed the suit for recovery of Rs. 5504. 00 being the balance of the amount and penalty due from the defendant who was the contractor for collecting pig dung in the municipal area of Markapur for the year 1955-56. The case of the plaintiff is that at an open auction held on 16-3-1965, the defendant, became the highest bidder for Rs. 7050. 00 under which the defendant will be entitled to collect and appropriate the pig dung within the municipal area. The defendant paid an advance representating 1/4th of the bid amount and finally executed a written agreement Ex. A-6 on 2-6-1965 in favour of the municipality. As the defendant failed to pay the balance the present suit was filed against him. The suit was contested on the ground that the owners of the pigs prevented the defendant from collecting the pig dung, that the contract became impossible of performance and that the defendant was therefore discharged of this obligation under the contract to pay the balance. The defendant also contended that the municipality had no right to conduct an auction in respect of the collection of the dung. Another contention raised was that the agreement. Ex. A-6 was obtained from the defendant by misrepresentation. On a consideration of the rival contentions between the parties, the court below recorded the following finding: The agreement Ex. A-6 is true and was not executed under the circumstances mentioned by defendant. The plaintiff failed to establish that the defendant collected the pig dung during the material period. The plaintiff is entitled to recover one paisa per rupee per week towards penalty for non-payment of the balance. The plaintiff has no power to auction any such right to collect pig dung within the municipal area as it would amount to creating a monopoly and unauthorised delegation of its statutory duty under the public Health and Sanitation Rules. The plaintiff did not afford any facilities to the defendant in helping him to collect the pig dung. As the dung was taken away by the owners of the pigs, the contract became impossible of performance, by no fault of either party. In view of these findings, the plaintiffs suit was dismissed. Aggrieved y this judgment, the municipality filed the above appeal in this court. The same points were argued before me in this appeal by the learned counsel on either side.
( 2 ) IN the first place, it is necessary to refer to some of the relevant provisions of the Andhra Pradesh Municipalities Act. Section 2 (15) defines "filth" as meaning among other things, dung. Under Section 38 all rubbish and filth and other matter collected by or on behalf of a council under the Act shall belong to the council. Under Section 164 of the Act, the Municipal council shall make adequate arrangements for: (a) the regular sweeping and cleaning of the streets and the removal of the sweeping therefrom; (b) the daily removal of filth; (c) daily removal or rubbish from the dust bins and it shall provide depots for the deposits of filth, rubbish and for its sale. A perusal of the evidence given by P. W. 1. the Special Officer and Secretary of the Municipality, makes it clear beyond doubt that the defendant was obstructed in collecting the pig dung though he wants to qualify his admission that the defendants must have collected something though not to the extent expected. He admitted that subsequent to the contract, the defendant was complaining to him that the pig owners were preventing him from collecting the dung. He admitted that the dung did not belong to the municipality and that the owners of pigs were eking out their livelihood by selling the dung. He also admitted that the owners of the pigs actually collect the dung in baskets while following the pigs
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