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PETITIONER: UNION OF INDIA & ANR.

       Vs.

RESPONDENT: RANCHI MUNICIPAL CORPN. RANCHI & ORS.

DATE OF JUDGMENT:       16/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 SCC  (7) 542        JT 1996 (2)   171  1996 SCALE  (2)412

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      The respondent-Municipality  had  made  a  consolidated outstanding 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 demand. 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.      The controversy is no longer res integra. This Court in Union of  India v. Purna, Municipal Council & Ors. [(1992) 1 SCC 100]  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 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  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 on the ground of gross delay.      It is  now settled  law that the summary dismissal does not constitute  res judicata  for deciding  the controversy. Moreover, this  being recurring  liability  which  is  ultra

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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.