Allowed

Paras Nath Singh v. State of U.P. and 04 Others

Allahabad HC7 Feb 2020WRIC/40523/2019

Case brief

AI extract

What is this about?

The petitioner challenged recovery certificates issued for unpaid contractual amounts related to vehicle fees. The court held that the UP Kshetra Samiti and Zila Panchayat Adhiniyam, 1961 does not empower authorities to recover contractual dues as arrears of land revenue and quashed the orders.

What did the court decide?

Impugned recovery certificate dated 24.8.2019 and recovery citation dated 1.1.2019 are quashed.

Paras Nath Singh Vs State of U.P. and 04… — Contract and Commercial Disputes | Allahabad HC (2020)

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A.F.R.

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Reserved on 10.12.2019 Delivered on 07.2.2020

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Court No. - 32

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Case :- WRIT - C No. - 40523 of 2019 Petitioner :- Paras Nath Singh Respondent :- State Of U.P. And 04 Others

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Counsel for Petitioner :- Javed Husain Khan,Gulrez Khan,Sri. W. H. Khan (Sr. Advt.)

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Counsel for Respondent :- C.S.C.,Vinod Kumar Chandel

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Hon'ble Shashi Kant Gupta,J. Hon'ble Piyush Agrawal,J.

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[Delivered by Piyush Agrawal, J.]

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1. Heard Sri W.H. Khan, learned Senior Advocate assisted by Sri Javed Hasain Khan, for the petitioner, learned Standing Counsel for State-respondents and Sri Vinod Kumar Chandel, for respondent nos. 2 and 3.

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2. By means of the present writ petition, the petitioner is challenging the recovery certificate dated 24.8.2019 issued by Upper Mukha Adhikari, Zila Panchayat, Sonebhadra as well as recovery citation dated 0.1.2019 issued by Tehsildar Chunar, District Mirzapur, on the ground that there is no provision under UP Kshetra Samiti and Zila Panchayat Adhiniyam, 1961, to recover the contractual amount as arrears of land revenue.

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3. Brief facts of the case is that in pursuance of the Advertisement dated 4.7.2015 issued by Adhyaksh and Upper Mukhya Adhikari, Zila Panchayat Sonebhadra and published in daily ‘Aaj’ dated 7.7.2015 for awarding contract of realizing Parivahan Shulk for the year 2015-16, the petitioner submitted his tender and was a successful bidder of the price of

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Rs. 8 crores. In pursuance thereof an agreement was executed on 20.7.2015 between the petitioner and Zila Panchayat, Sonebhadra.

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4. It has been averred that neither at the time of advertisement dated 4.7.2015/7.7.2015 nor at the time of entering into the contract dated 20.7.2015, the respondents informed the petitioner that validity of the by-laws of Zila Panchayat, Sonebhadra was under challenged by several persons whereby the realization of Pariwahan Shulka was stayed. In view of the pendency of litigation at various stages i.e. before this Court as well as before the Apex Court, the company as well as the firms did not pay the prescribed Pariwahan Shulka to the petitioner and therefore, the petitioner could not realize the same.

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5. It is further averred that somehow, the petitioner deposited the first instalment of Rs. 01 crore and security deposit of Rs. 25 lakh, which was to be adjusted in the last instalment. Thereafter another two instalments, firstly on 30.9.2015, the petitioner deposited Rs. 3.50 crore along with tax of Rs. 7 lakhs and additional tax of Rs. 14,000/- and the other on 31.12.2015, deposited Rs. 3.25 crores along with tax of Rs. 07 lakhs and additional tax of Rs. 14,000/-.

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6. Learned counsel for the petitioner submitted that on 26.12.2015, Upper Mukhaya Adhikari wrote a letter to the petitioner for deposit of remaining amount of Parivahan Shulk within three days and in case of default the loss caused to the Zila Panchayat would be realized from the petitioner. In response thereto, the petitioner sent a reply dated 5.1.2016 to the Upper Mukha Adhikari in which it has been submitted that the petitioner was not informed by Zila Panchayat about the pending litigation, therefore, different companies are neither paying the tax nor cooperating with the petitioner as such the petitioner could not collect the prescribed fee.

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7. He further submitted that when the coercive action was taken against the petitioner by terminating the agreement by order dated 18.1.2016, a Writ Petition No. 3954 of 2016 was filed before this Court in which the pleadings have been exchanged but the same is still pending. In the meantime, the impugned recovery notice has been issued for realization of Rs. 3,26,21,116/- including 10 % collection charges as arrears of land revenue.

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8. The counsel for the petitioner submitted that admittedly in pursuance of advertisement dated 7.7.2015 published in daily ‘Aaj’ , the petitioner applied for contract of Pariwahan Shulk for the period 201516 and the petitioner was successful bidder, thus the contract was executed in favour of the petitioner on 20.7.2015. But neither at the time of advertisement nor at the time of execution of contract, Zila Parishad had intimated the petitioner that litigation in respect of validity of by-laws of Zila Parishad is pending as such the Parivahan Shulk cannot be realized. It is further submitted that in view of pending litigation, the Parivahan Shulk could not be realized and the same was duly intimated to the respondents but instead of co-operating with the petitioner, the respondents choose to terminate the contract of the petitioner and also issued impugned recovery certificate to recover the contractual amount as the arrears of land revenue.

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9. He further submitted that under UP Kshetra Samiti and Zila Panchayat Adhiniyam, 1961, there is no provision for recovery of contractual amount as an arrears of land revenue.

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10. In support of his contention, learned counsel for the petitioner has relied upon the judgement and order passed by this Court in Writ C No. 12575 of 2013 (Subhas Tiwari Vs. State of UP) decided on 17.10.2014; relevant part of the judgement is extracted below :-

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“Sri W.H. Khan, learned Senior Counsel appearing for the petitioner has contended before us that the amount which are claimed under the recovery certificate are the sums which the Zila Panchayat alleges to be payable under the contract aforementioned and which cannot be recovered as arrears of land revenue in the light of various Division Bench judgments of this Court. In support of his submission Sri Khan has placed reliance on the judgment rendered by this Court in Mohd. Umar Vs. Collector / District Magistrate, Moradabad and others 2006 (3) AWC 2412; Sanjay Kumar Gupta Vs. State of U.P. and others 2013 (5) ADJ 506; Abrar Hussain Vs. District Magistrate / Collector and others in Writ Petition No. 40319 of 2006 decided on 26.11.2013. The counsel for the Zila Panchayat does not dispute the legal proposition and principles laid down in the aforementioned judgements and is also not able to dispute the position in law as noticed and declared in the aforesaid judgments.

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For the view taken by the Division Benches of this Court, we find it just and proper to conclude that the impugned recovery certificate, seeking to enforce the recovery as arrears of land revenue, cannot be sustained.”

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11. The counsel for the petitioner further contended that in the absence of any provision under UP Kshetra Samiti and Zila Panchayat Adhiniyam, 1961, no recovery of contractual amount can be made as arrears of land revenue and in view of the judgement passed by this Court in case of Subhash Tiwari ( supra ) , the impugned recovery citation is liable to be set aside.

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12. Learned counsel for the respondents did not dispute the aforesaid contention made by the learned counsel for the petitioner.

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13. We have considered the arguments of the learned counsel for the parties and perused the material on record.

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14. There is no factual dispute in the matter. The only contention raised by the counsel for the petitioner for consideration of this Court is that the contractual amount cannot be recovered as arrears of land revenue as U.P. Kshetra Samiti and Zila Panchayat Adhiniyam, 1961 does not empower the respondents to do so, therefore the impugned

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recovery certificate is liable to be set aside.

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15. The respondents could not place any material before this Court to show any provision which empowers the Zila Panchayat to recover the contractual amount as arrears of land revenue.

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16. This Court in the case of Subhash Chand Vs. Collector, Etawah and others, 1999 (1) AWC, 582 held as follows:

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In our view the Theka money due is on account of Tehbazari fee payable to the Zila Parishad. The Zila Parishad in order to managing itself realisation of the Tehbazari fee has given it on Theka of the petitioner. It has passed its headache or burden to the Thekedar. The loss and profits are his responsibility. The Theka money flows from Tehbazari fee therefore how could it be taken away from the scope and ambit of the Act. In our view it has a direct nexus with the Tehbazari fee. We have to consider the substance and not the form while interpreting the document.

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The Legislature has used the phraseology "any sum due" in Section 161 of U. P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. Similarly, the Legislature has used the phraseology "any sum due" in Section 159 also of the said Act. Thus, a combined reading of both these statutory provisions, i.e. Sections 159 and 161 of the said Act makes it crystal clear that the phraseology "any sum due" has been used by the Legislature in such a comprehensive sense that it covers in its widest amplitude any sum due under the Act or under any rule/bye-law framed thereunder and therefore, any such sura would be recoverable as arrears of land revenue, i.e. in the manner as provided under Chapter VIII of the said Act. Accordingly we are of the considered view that the term 'any sum due' in the facts and circumstances of present case, would Include the Theka money, i.e. the amount due from the Thekedar towards the Tehbazari fee or licence fee. This is the harmonious construction of the two provisions. The Legislature has used the term 'mutatis mutandis' in Section 161 of the Act which means in the given context that the provisions of Chapter VIII would apply to deal the recovery of taxes and certain other claims. The Legislature has purposely used the terms 'certain other claims' which includes any sum due. The mode of recovery provided by the Legislature is to recover as arrears of land revenue is a speedy and expeditious mode of recovery and we cannot question the wisdom of the Legislature in providing such a speedy and effective mode of recovery. It is very interesting aspect of the matter to note in the instant case. that

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the recovery certificate issued by the Atirikt Mukhya Adhikari, the respondent No. 3 to Collector Etawah attached as Annexure-1 to the writ petition has been challenged by means of this writ petition. A bare perusal of Annexure-1 shows that the amount of Rs. 2,75,000 which was sought to be recovered was shown as the amount due to the Zila Parishad. The relevant portion of Annexure-1 reads as under :

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jsosU;w fjdojh ,DV &1989 ds mica/kksa ds v/khu jgrs gq;s /kujkf'k vkids ftys esa izfrHkwfr gqbZ eky xqtkjh cdk;s ds :i esa vki }kjk olwy dh tk ldus okyh gS vkSj vkils vuqjks/k fd;k tkrk gS fd vki mls olwy djokus dk d"V djsa rFkk ftyk ifj"kn bVkok dks ftyk fuf/k] ftyk&ifj"kn ,dkmUV esa tek djkus dk d"V djsa A bl cdk;k dh olwyh gsrq ftykf/kdkjh@v/;{k us ogSfl;r ifj"kn LohÑfr iznku dj nh gS A

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After hearing the learned counsel for the parties we are of the view that the amount in question can be recovered as arrears of land revenue and it is unfortunate that public money is not being paid by the petitioner. We are also of the view that the submissions raised by Mr. Agarwal that it cannot be recovered as arrears of land revenue are of no substance and we are also of the view that the petitioner introduced some pleas of the writ petition filed by one Sri Ali Hasan which is of no relevance in this petition as the land was different and the scope of that writ petition was different. It was regarding validity of fee.

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We have considered the aforementioned judgments referred by the learned counsel for the petitioner first in Surendra Kumar Rai (supra) --the question of Section 161 was never discussed in this case. Similarly in Raj Bahadur Singh (supra) --it deals with U. P. Town Area Act. Bhagwati Prasad (supra)--it also deals with U. P. Town Area Act (Sections 20 and 21} Angad Pandey (supra)--it also deals with U. P. Town Area Committee and money dues which cannot be recovered as arrears of land revenue and it was held that any amount due to the Thekedar in view of the contractual term cannot be recovered as arrears of tax. Similarly in Umesh Chandra

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(supra)--it was observed that amount of Rs. 5,500 can be recovered under Section 158 of the Act as it is due to a Contractor and cannot be recovered under U. P. Moneys Recoveries of Dues Act as it is not tax or rent.

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In other words the consistent view was that it is a contractual amount between the Contractor and Zila Panchayat and has no link with the fee. On the aforesaid facts we do not accept the ration as Section 161 did not fall for consideration in those judgments.

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We are of the considered view that the plea raised by the petitioner that the money due cannot be recovered as arrears of land revenue and should not be ordinarily entertained in writ proceedings. We refuse to exercise, in the facts and circumstances, our discretion under Article 226 of the Constitution of India.

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17. Similar view has been taken by this Court in the case of Titu Singh Mathura Vs. District Magistrate/Collector, Mathura and others, 2003 (5) AWC 3479 . Relevant part of the judgement is extracted below:-

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From perusal of the aforesaid provisions of the Municipalities Act and Town Area Act, it is clear that the contention of the learned Counsel for the petitioner is well founded. Under Section 173-A of the Municipalities Act, it is provided that any sum due on account of tax, other thanoctroi or toll or any similar tax payable upon immediate demand, from a person to a board, the board may, recover as arrears of land revenue. In the instance case the amount in question became due from the petitioner as a result of default in payment of Theka money between the parties. Similarly Section 21 of the Town Areas Act provides that arrears of any tax imposed under this Act may be recovered and no other amount. Therefore, the provisions of Section 173-A of the Municipalities Act, and Section 21 of the Town Areas Act are not attracted. The amount in question is not a tax imposed under the aforesaid two Act and as such the amount due from the petitioner could not be recovered as arrears of land revenue. Besides the aforesaid decisions, there are two recent decisions also in Bisheshwar Singh @ Kalloo v. District Magistrate/Collector. Shahjahanpur and Ors. MANU/UP/0433/2001 and Rakesh Shukla v. District Magistrate/Sub-Divisional Magistrate, Phoolpur, Allahabad and Anr. MANU/UP/0554/2002. In these decisions also, the Division Bench found that the Theka money could not be recovered as arrears of land revenue. However, the Bench did not interfere on the ground that the equity was not in favour of the petitioner.

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Therefore, in view of the decisions of the Division Benches, clearly holding that only taxes imposed under the Municipalities Act, and Town Area Act can be recovered as arrears of land revenue, we are of the opinion that the amount in question cannot be recovered as arrears of land revenue and the recovery certificate as well as the citation are liable to be quashed.

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18. In the case of Iliyas Vs. State of UP and others, 2007 (2) ADJ, 143 (D.B.) this Court has held as follows:

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In view of the aforesaid provisions the learned counsel for the petitioner submits that it is clear that only taxes, which are due to the municipalities can be recovered as arrears of land revenue and no other sum can be recovered as arrears of land revenue.

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The petitioner has placed reliance upon a Division Bench judgment of this Court reported in 2006(3) UPLBEC, 2643 Mohammad Umar Vs. Collector/District Magistrate, Moradabad and others and reliance has been placed upon paras 10, 12 to 14 and paras 15 and 17 of the said judgment and has submitted that the Division Bench of this Court has held that amount due towards the contract for realization of Tehbazari cannot be recovered as arrears of land revenue and there is no provision under the Municipalities Act or U.P. Town Area Act authorizing the respondents to realize theka money as arrears of land revenue, as such, the said amount cannot be recovered in the said manner and has held that in view of the aforesaid fact, the respondents have no authority to recover the amount due to the petitioner as arrears of land revenue.

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We have considered the submission made on behalf of the petitioner and the respondents. We are in full agreement with the judgment relied upon by the counsel for the petitioner. As there is no factual dispute in the present writ petition, the only question was to be decided whether the amount due against the petitioner can be recovered as arrears of land revenue or not. As in view of the Division Bench judgment of this Court, which is fully applicable to the present case, the Tehbazari amount due against the petitioner cannot be recovered as arrears of land revenue, as such, without inviting the counter affidavit, with the consent of the parties, the writ petition is being disposed of.

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In view of the aforesaid fact, the recovery certificate dated 10.5.2004 (Annexure 5 to the writ petition issued by the respondents is hereby quashed. The writ petition is allowed. It is, however, open to the respondents to recover the amount from the petitioner in accordance with law.

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19. This Court in the case of Mohd. Umar Vs. Collector / D.M.

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Moradabad and others, 2006 (9) ADJ 66 (All) (DB) has held herein below:

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The first question which poses consideration is whether in the absence of execution of agreement an enforceable contract between the parties came into existence. The petitioners participated in the public auction for the collection of Tehbazari dues and were highest bidders. In a public auction the bidders offer their bids and the moment of fall of hammer on highest bid, that highest bid is taken to be accepted. In a public auction the fall of hammer concludes the contract. The auction proceedings, the list of bidders is the only evidence of the contract indicating that out of various offers the highest bid was accepted. Section 97 of the U.P. Municipalities Act relates to the execution of the contracts and provides that every contract made by or on behalf of a Municipality whereof the value or the amount exceeding to Rs.250/- shall be in writing provided that unless the contract has been duly executed in writing, no work including collection of materials in connection with the said contract shall be commenced or undertaken. Every such contract shall be signed by the President or the Vice President or by Executive Officer or Secretary or by any person or persons empowered under sub section (2) of sub-section (3) of previous section to sanction the contract if further and in the like manner empowered in this behalf by the Municipality. The auctions of Tehbazari contract were held in which the petitioners offered highest bids and made part payment of auction money. The petitioners having accepted the conditions of auction sale and having made payment in part performance of the contract a binding contract came into existence between the petitioners and the respondents. In a public auction on the acceptance of the highest bid of the tenderer a concluded contract between the parties enforceable at law came into existence. The highest bids of the petitioners at various auctions were in the nature of an offer which were accepted by the petitioners who were highest bidders and the petitioners deposited the amount in part a performance of the conditions of auction sales, therefore, a valid and legally enforceable contract came into being. Reliance in this regard may be placed on the decision in B.C. Mohendra Versus Municipal Board, Saharanpur AIR 1970 SC 729. Section 10 of the Indian Contract Act provides that all agreements are contracts if they are made by free consent of the parties competent to contract, for a lawful consideration and with a lawful object and are not expressly declared to be void. In all these cases the petitioners participated in an auction sale and being highest bidder made part payment under the terms and conditions of auction sales and carried out the

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work of collection of Tehbazari dues. The petitioners cannot wriggle out of the contract on the ground of non-execution of agreements. A concluded contract at auction sales came into being between the parties on the fall of hammer and acceptance of higher bid.

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The decisions in the cases of Mahesh Chand (supra) and Surendra Kumar Rai (supra) have been distinguished and held to be per incuriam in the case of Subhash Chand Versus Collector Etawah and others 1999 (1) AWC 582 as the provisions of section 161 of the Adhiniyam 1961 did not fall for consideration in those judgments. Section 161 of the Adhiniyam 1961 provides that any sum due to Kshetra Panchayat under this Act or under any rule or under any bye-law made therein and declared by this Act or such rule or bye-law to be recovered in the manner provided by this Chapter shall mutatis mutandis be recoverable as provided in this Chapter. Section 161 deals with the recovery of dues of Kshettra Panchayat which is a distinct and separate body from a Zila Panchayat. The provisions exclusively relating to Kshettra Panchayat are not applicable to Zila Panchayats. Moreover, for the applicability of the provisions of section 161 any sum must be due to a Kshettra Panchayat and it must have been declared to be recoverable in the manner provided in Chapter VIII. In these writ petitions the Theka money is not due to Kshettra Panchayat under this Act or under any rule or any bye-laws made thereunder. The auction money is due to Zila Panchayats which are distinct and separate body. The amount being due to Zila Panchayats, the facts of the case of Subhash Chandra (supra) are distinguishable. In view of these facts, the unpaid amount of auction sale held by the Zila Panchayat cannot be recovered as arrears of land revenue.

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20. Similar view has been taken by this Court in the case of Sanjay Kumar Gupta Vs. State of UP and others, 2013 (5) ADJ 506 (DB). Relevant part of the judgement is extracted below :-

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Admittedly, the contract between the petitioner and Nagar Palika Parishad, Mawana was for realisation of entry fees/parking fees from the vehicles which enter the territory of Nagar Palika Parishad, Mawana, Meerut. It is thus in the nature of 'toll' and not 'tax'. Under Section 173(A) of the Municipalities Act, 1916, the Municipal Board can only recover a sum due on account of tax as arrears of land revenue. The section itself carves out an exception, by laying down that the Board will have no power to recover arrears of octroi or toll as arrears of land revenue. Interpreting the aforesaid provision of law, a Division Bench of this Court in Titu Singh v. District Magistrate/Collector, Mathura,

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2003 (5) AWC 3479, has held that the arrears of theka money (parking fees) cannot be realised as arrears of land revenue. The said decision has been followed in [Iliyas v. State of U.P. and others, ].

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We are in respectful agreement with the view taken in the aforesaid decisions. Accordingly, it is held that the impugned citation for recovery of balance theka money, as arrears of land revenue is without jurisdiction.

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Before parting, it may be stated that the contention of the respondents that since it is public money and therefore, the petitioner may be directed to pay the said amount, does not desist us from granting aforesaid relief to the petitioner as even in case it is public money, it has to be recovered only in accordance with the procedure prescribed by law.

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The Apex Court in its judgment in Iqbal Naseer Usmani v. Central Bank of India and others, 2006 (2) SCC 241, repelled similar contention and held as under:

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According to the High Court "the money of the Bank and financial institutions is public money, which should be in circulation, otherwise the Bank and depositors will suffer." We are afraid that while this may be very good sentiment, it cannot apply in the face of Section 3 of the Act for the reason that Section 3 does not envisage the provisions of the Act being utilised for recovery of every loan taken. Section 3(1)(b) permits this to be done only in respect of loans taken under a "State-sponsored scheme", which expression has been defined in Section 2(g) of the Act. Since it is admitted that the loan taken by the appellant was not under or in relation to a "State-sponsored Scheme" within the meaning of Section 2(g), whatever else it may be, it would not be recoverable by recourse to the machinery under Section 3 of the Act.

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Following the law laid down by the Apex Court, we have no hesitation in granting the relief prayed for. Accordingly, the impugned citation dated 1.12.2009 issued by the Tehsildar, Mawana, District Meerut is hereby quashed.

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21. In view of the legal proposition enumerative above as well as the principles laid down by this Court in the aforesaid judgements, it is very clear that contractual amount cannot be recovered as arrears of land revenue, in the absence of any provisions contained under UP Kshetra Samiti and Zila Panchayat Adhiniyam, 1961. Therefore, the action taken by the respondents by way of issuing the recovery citation

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is not legally justified.

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22. The counsel for the respondents also could not bring any material or law contrary to the aforesaid judgements, before this Court, therefore, the action taken by the respondents in issuing recovery citation for recovery of the contractual amount as arrears of land revenue, is illegal.

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23. In the facts of the case, we find just and proper to conclude that the impugned recovery certificate dated 24.8.2019 issued by Upper Mukhya Adhikari, Zila Panchayat, Sonebhadra and recovery citation dated 1.11.2019 issued by Tehsildar Chunar, Distt. Mirzapur, seeking to enforce the recovery of contractual amount as arrears of land revenue, cannot be sustained and are hereby quashed.

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24. The writ petition is allowed . No order as to costs.

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Order Date :- 07.02.2020 Rahul Dwivedi/-

Paras Nath Singh v. State of U.P. and 04 Others

Case brief

What is this about?

What did the court decide?

Paras Nath Singh v. State of U.P. and 04 Others

Case brief

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