Decided on February 23,1971


Referred Judgements :-


Cited Judgements :-



- (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 in the streets. When the defendant cancelled his contract, the plaintiffs reauctioned the right on 20-11-1965 but there was no bidder. No other material is placed before me to show that the defendant was able to collect the material during the contract period. I therefore confirm the finding of the trial court that the dung was removed by the owners of the pigs leaving nothing for the defendant.
(3.)The next pint which was argued before me is that the suit contract is in the ;nature of a farming contract and that the municipality has no authority under the Act or the Rules to enter into such a contract with reference to pig dung. While I agree that there is no rule or provision of law empowering the municipality to auction any such right, I hold that this contract as in the case of tolls, ferries, market placers, fishery rights, etc. In all these cases, the municipality has the right to collect the said dues and it is the said right that was being put to auction and transferred in favour of the purchaser. But in the present case, there is no such right in the municipality like the collection of the dung. The pigs do not admittedly belong to the municipality. It is not disputed that the owners who follow the pigs have got the right to collect the dung for themselves. It is of course open to the municipality to prevent the movement of pigs within municipal, area. The only right of the municipality is to collect the dung which was abandoned on the roads as part of its duty to clean the public streets by removing the rubbish. After the municipality collects the dung as rubbish, it becomes the owner thereof entitled to dispose of the same by sale to third parties. But at the stage when the dung is being deposited by the pigs, there is no right in the municipality to collect the same and hence the municipality is not competent to transfer any such right in favour of an intending purchaser. Under the provisions of the A. P. Municipalities Act, the municipality has the duty of getting the streets cleaned in the interests of public health and in the performance of such a duty, it will be open to the municipality either to get the street cleaned by its own scavenging staff or by employing any other person on a contract of labour. I do not therefore agree with the court below that there is any unauthorised delegation of the owners by the municipality.

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