UNION OF INDIA AND ANR.

A v.

RANCHI MUNICIPAL CORPN. RANCHI AND ORS.

FEBRUARY 16, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] B

Constitution of India, 1950/Railways Act:

A1t. 285/ 135-Municipalit:y demanding payment of se1vice charges from Railway-Held : It is ultra vires the power of the Municipality to demand C se1vice charges from Railways-S. 135 of Railways Act subject to the provisions of Alt, 285.

Code of Civil Procedure, 1908.

S.11-Res-judicata-Summmy dismissal does not constitute res D judicata for deciding the controversy-More so when the recuning liability is ultra vires the power.

Union of India v. Puma Municipal Counsel & Ors., [1992] 1SCC100, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3646 of 1996. .

From the Judgment and Order dated 15.5.95 of the Patna High Court in C.W.J.C. No. 3223 of 1994 (R).

V.R. Reddy, Additional Solicitor General, A.K. Srivastava and B.K.

Prasad for the Appellants.

M.P. Jha for the Respondents.

The following Order of the Court was delivered :

Leave granted.

We have heard learned counsel on both sides.

The respondent-Municipality has made a consolidated outstanding H 761

SUPREME COURT REPORTS

[1996] 2 S.C.R.

A demand for a sum of Rs. 1,01,501 for years 1993-94, 1994-95 on December 16, 1993 towards the service charges. The appellants challenged the validity of the demad. On reference, the Division Bench in the impugned order dated May 15, 1995 in CWJC No. 3223/94 upheld the demand of the Municipality. Thus this appeal by special leave.

B The controversy is no .longer res integra. This Court in Union of India

v. Puma Municipal Council & ors., [1992] 1SCC100 had held that Section

135 of the Railways Act is subject to the provisions of Article 285 of the Constitution. Therefore, the respondent-Municipality was restrained from demanding any payment by way of service charges from the Railways. Shri C M.P. Jha, learned counsel appearing for the Municipality sought to rely on clause ( 4) of Section 135 of the Railway Act which contemplates a contract between the Central Government and the Municipality and payment thereof on the basis of the said contract. In this case the contract now sought to be relied upon is only to relieve distress warrant pending disposal of the dispute in the High Court. Therefore, it cannot be construed that there is D any contract between the Union of India and the Municipality. In view of the fact that the Municipality has no right to demand service charges from the Union of India, the demand made by the Municipality is clearly ultra vires its power. It is true that earlier W.P. No. 2844/92 was filed and was dismissed by the High Court and the special leave was refused by this Court E on the ground of gross delay.

It is now settled law that the sufilmary dismissal does not constitute res judicata for deciding the controversy. Moreover, this being recurring liability which is ultra vires the power, earlier summary dismissal of the case does not operate as a res judicata.

The appeal is accordingly allowed. Writ is issued as prayed for.

Whatever amount has been paid by now cannot be recovered from the Municipality. No costs.

G.N.

Appeal allowed.