Delhi High Court
Dina Nath Malhotra And Ors. vs Union Of India (Uoi) And Ors. on 6 January, 2003
Equivalent citations: AIR2003DELHI92, 2003(67)DRJ543, AIR 2003 DELHI 92, (2003) 67 DRJ 543
Author: Manmohan Sarin
Bench: Manmohan Sarin
ORDER Manmohan Sarin, J.
1. Petitioners, by this writ petition, seek a writ of prohibition to restrain the respondents from recovering the alleged dues as arrears of land revenue or otherwise. Petitioners seek a restraint on the respondents from taking any coercive steps for recovery of the alleged dues except in due course of law and/or without getting the same finally adjudicated from a Civil Court. Petitioners also seek a declaration that the order issued to the Collector for recovery, be declared to be without jurisdiction and be quashed.
Further, petitioners seek a direction for release of postal articles belonging to M/s. Hind Pocket Books Pvt. Ltd. and Gharelu Library Yojna and other postal mails/articles including letters, envelopes, business reply cards, registered letters, money orders etc., belonging to the said concern, withheld illegally.
2. The facts in brief culminating in filing of the present writ petition, may be briefly noted:--
(i) Petitioner M/s. Hind Pocket Books Pvt. Ltd. was engaged in the business of publishing newspapers, periodicals, journals, children books, cheap pocket books, and other literary works. Petitioners in the course of their business dispatch by post their various publications, journals, letters, inviting orders, etc., to their customers and clients. For facilitating the above, petitioners had entered into a special arrangement with the respondents, as contemplated under the Indian Post Office Act. The said facility is known as "Business Reply Service", as prescribed under Rules 110 to 112 of the Post Office Guide. Under the rules, parties, such as petitioners obtained reply from their clients without putting the latter to the expenditure of paying the postal charges. A self-addressed reply card, envelope or label is attached/sent along with the communication. In this process, the said card, envelope or label or reply card can be posted by the client, giving the order in the ordinary manner but without paying stamp and postal charges. These are collected by the postal department from the sender on delivery. The permit is issued by the Post Master (General) on application and the fee is payable in advance.
(ii) Petitioners had obtained two permits, one for M/s. Hind Pocket Books Pvt. Ltd.. numbering 30 and second for its Gharelu Library Yojna i.e. No. 31 with Delhi G.P.O. Petitioners were required to pay the amount marked on the business reply cards/letters before taking delivery under Rules 46 and 49. Under the said rules, the Postman is forbidden to deliver the articles without collecting payment of amount due. Petitioners state that the postal authorities at the time of delivery of the letters/envelopes, duly collected the amount marked as due. Petitioners claim to have paid Rs. 75,000/- to Rs. 1,00,000/- every month on account of such postage.
(iii) Petitioner No. 3, Gharelu Library Yojna, was surprised to receive a letter dated 16-2-1978, from the Senior Superintendent of Post Office, Delhi, claiming that for the period 15-5-1974 to 3-4-1976, there had been a short recovery of Rs. 29,326.67 (Rs. twenty nine thousand three hundred twenty six and paise sixty seven), in respect of the amount payable for business reply cards/ letters. According to the respondents, with effect from 10-5-1974, handling fee of 10 paise for each business reply card, was to be recovered, but had inadvertently not been so done. Similar letter had also been received by the petitioner No. 2 M/s. Hind Pocket Books Pvt. Ltd., demanding Rs. 2221.20 (Rs. two thousand two hundred twenty one and paise twenty) on this account.
(iv) Petitioners disputed the demand for the handling fee and claimed that all the due charges had been paid. Further, petitioners had not been notified of the said handling fee. Respondents from 9-11-1979. started to withhold all mail/postal articles, including letters/envelopes, business reply cards, registered letters, money orders, addressed to M/s. Hind Pocket Books Pvt. Ltd. and Gharelu Library Yojna. Petitioners claimed that the demand of huge amount of Rs. 29,326.67 and 2221.20 paise. without supplying any data or material was wholly illegal. Petitioners contend that the Indian Post Office Act as well as the Rules do not permit the respondents to withhold the mail by raising an illegal demand, which was yet to be adjudicated upon and ascertained.
3. Rule in the writ petition was issued on 17-12-1979. Stay of recovery and withholding of the mail, subject to the petitioner No. 1 giving personal security to the satisfaction of the Post Master (General) was ordered. Pleadings have since been completed. Arguments were heard and judgment reserved on 11-12-2002.
4. Petitioners in the petition assail the alleged demand and the act of withholding of the postal articles as illegal and mala fide. There was no provision or rule regarding demand of "handling fee" at the rate of 10 paise per postal article. The demand of the alleged amount was made, without the data or record having been furnished by the respondents. The action of the respondents was assailed as violative of Articles 14, 19(1)(g) of the Constitution of India.
5. Respondents in the counter-affidavit have take the position that the postal tariff was revised by the Director General as per his order dated 10-5-1974, whereby "handling fee" at the rate of 10 paise per article was to be charged w.e.f. 15-5-1974. It was on account of an inadvertent omission that the handling fee could not be recovered from the petitioners for the relevant period. It is claimed that there was no limitation prescribed for recovering the said charges. The Post Master (General) was competent under Section 12 of the Indian Post Office Act to issue orders for recovery of the amount as land revenue and in default in payment, to withhold the mail/postal articles. It is claimed that the said demand was computed on the basis of records and made known to the petitioner on a number of occasions. As the provisions of the Indian Post Office Act, specifically provide for withholding of mail etc., in case dues are not paid, there was no need to file a civil suit. Respondents could accordingly legitimately withhold the mail/ articles.
6. Mr. Ashok Marwaha, learned counsel for the petitioners in support of the petition has urged the following points:--
(i) Petitioner had duly and regularly paid the postage as due on the business reply cards/articles. The amount due had been marked by the clerk with endorsement and the mail/articles were delivered only upon payment being made. Mr. Marwaha submitted that it was not open to the respondents to raise a fresh demand/bill belatedly. Whatever postage was payable had been paid. The amounts in question were barred by limitation, as they admittedly relate to the period 1974 to 1976.
(ii) Secondly, he submits that the amounts being claimed cannot be regarded as an ascertained sum, which has been found due and payable, so as to enable the respondents to withhold the mail. He submits that in the absence of the amount being duly ascertained and found due and payable by adjudication or any other machinery, such as, an arbitral award, the respondents cannot recover the same. He submits that the amount being barred by limitation, resort cannot be had to Section 12 of the Indian Post Office Act for withholding mail.
7. Learned counsel for the petitioner has placed reliance on the following authorities in support of his above contentions.
(i) Custodian General of Evacuee Property. New Delhi v. Harnam Singh, reported at (ii) Marwar Tent Factory v. Union of India, and lastly on Mohan Meakin Breweries Limited, Mohan Nagar, Ghaziabad (U. P.) v. Union of India, .
8. Respondents on the other hand, have relied on Swastic Industries v. Maharashtra State Electricity Board, reported at .
9. It would be worthwhile to reproduce Section 12 of Indian Post Office Act as also Rules 46, 49 and 50.
"12. Recovery of Postage and other sums due in respect of postal articles:--if any person refuses to pay any postage or other sum due from him under this Act in respect of any postal article, the sum so due may, on application made by an officer of the Post Office authorised in this behalf by the written order of the Post Master General, be recovered for the use of the Post Office from the person refusing as if it were a fine imposed under this Act, by any Magistrate having jurisdiction where that person may for the time being resident; and the Post Master General may further direct that any other postal article, not being on (Government) service, addressed to that person shall be withheld from him until the sum as due is paid or recovered as aforesaid."
Rule 46.--Duties of Postmen and other delivery agent: Postmen and other delivery agents are forbidden to deliver any article on which any sum of money is due to the Post Office, whether on account of postage, customs duty, or on any other account without receiving immediate payment of the amount due or to deliver any registered or insured letter or parcel without obtaining the signature of the addressee or his agent on the receipt and acknowledgment. They are also forbidden to deviate from their prescribed beats, and cannot, therefore, be required to call again to receive payment of sums due. They are not bound to give change."
Rule 49--Obligation to pay charges: When a person takes delivery of an article on which any sum is due to the Post Office, he must pay the amount marked upon it. Any complaint of overcharge should be made to the Postmaster of the office of delivery to whom the article should be taken before being opened.
Rule 50--Remedy of post office for recovery of charges due: If a person after taking delivery of an article on which any postage or other sum or customs duty is payable, refuses to pay the amount marked as due it will be recovered from him in the same way as a fine imposed under the Post Office Act and the Post Office has further the power of withholding from him until such charge be paid or recovered, any article addressed to him not being on India Government Service."
Mr. Marwaha urges that upon a reading of the above rules, it would be seen that the obligation of the petitioners was to pay only the amount marked on the postal articles, The said amount having been paid, the respondents cannot resort to withholding of mail in respect of disputes for amounts, which are not marked due. He submits that Rule 50, which enables the recovery as fine is also in respect of amounts, which were marked as due and there was refusal to pay. In other words, the submission is that resort to withholding of mail cannot be had in respect of dues, which were not marked on the postal articles.
10. In Custodian General of Evacuee Property, New Delhi v. Harnam Singh (supra), the Division Bench of Punjab and Haryana High Court held that a debt or other obligation is due. when it is legally enforceable i.e. when the creditor has a right to demand payment and to enforce collection. The Court further held that the summary remedy provided by Section 48 for the recovery of sum due to the State Government or to the Custodian must be restricted to sums legally recoverable i.e. sums which are admitted or proved to be due and cannot be extended to sums which are alleged or claimed to be due. The Court while interpreting the provisions of the Evacuee Property Act further held that the legislation was not intended to deprive the Courts of the jurisdiction which they possess in such cases and to empower the Custodian to adjudicate on the controversies which arise between him and the members of the public on disputed questions about the amount of compensation which should be recovered for use and occupation of property. The Custodian has no power to determine disputed questions of title or to determine whether a debt is barred by time or not or to recover any debt under Section 48, when the debtor declares that the debt is barred by time.
The aforesaid authority, no doubt, supports the petitioner's case i.e. if the amount is barred by limitation and is disputed, it cannot be said to be due and recoverable and the postal authorities cannot adjudicate upon the same and order recovery.
In Marwar Tent Factory v. Union of India (supra), the Division Bench of this Court while interpreting Clauses 18 and 18-A of the General Terms and Conditions of Tender for Supply of Goods held that, "the claim of the Government for damages or compensation which the Government may think is due to it in regard to the contract or under any other contract confers only a right to sue. If the claim is not admitted and is disputed then it is not a debt. It cannot be unilaterally adjusted or arbitrarily appropriated by the Government. The above case would be distinguishable inasmuch as it is an authority for the proposition that the amount being claimed as damages, cannot be unilaterally adjusted or appropriated, without the same being adjudicated upon. In the instant case, it is not damages, which are sought to be claimed. Rather what is sought to be claimed is handling fee, as part of postal charges, which is quite different from ascertainment and adjudication of a claim for damages.
In Mohan Meakin Breweries Limited, Mohan Nagar, Ghaziabad (U. P.) v. Union of India (supra), it was held that the demand of Rs. 2,57,337 was just a claim by the Government against the petitioner therein on the allegation that a breach of contract was committed. Petitioner-company denied its liability. It was held that the validity of such a disputed claim for money based on an alleged breach of contract, is to be canvassed either for or against, in ordinary civil suit or by resorting to arbitration, if applicable. Accordingly, the respondents were restrained from adjusting or recovering the amount of Rs. 2,57,337/- out of the security amount and other pending bills of the petitioner -company.
11. Relying on the aforesaid judicial pronouncements, as noted above, learned counsel for the petitioner submitted that the claim of the respondents for handling fee, required to be adjudicated upon. Besides, it was not enforceable being barred by limitation. It could thus not be recovered as arrears of land revenue by the Collector by imposing a fine. He submits that since it was not an ascertained sum, which was due and payable. Resort also could not be had to withholding of the mail and articles under Indian Post Office Act.
12. Mr. Jayant Bhushan, learned counsel for the respondent, submitted that what was being claimed was handling fee, which partakes the character of postal charges. The Director General of Post Office, had rightly in exercise of his power revised the tariff and imposed the handling fee. He also refutes the submission of Mr. Marwaha that since the handling fee was not marked on the envelope or the postal article, as required under Rules 49 and 50, the same could not be recovered as a fine or resort could not be had to Rule 50 or Section 12 of the Indian Post Office Act. Mr. Jayant Bhushan is right in his submission that if handling fee was not recovered on account of inadvertent omission along with the postal charges, petitioner cannot be permitted to take an unfair advantage of the same. He submits that as regards the amount not being due and being barred by limitation, assuming but not admitting that the amount being claimed was barred by limitation, it would still not cease to be "sum due" for the purposes of Section 12 of the Indian Post Office Act. He rightly submits that if an amount is barred by limitation, it only means that the remedy for seeking enforcement or realisation is barred and not that it ceases to be due. He submits that even if the remedy to recover the amount is barred, it will not cease to be a sum due. The entire philosophy behind Section 12 of the Indian Post Office Act is to provide an easy remedy to the postal authorities to realise their dues rather than going through the route of legal process of instituting a suit for recovery.
13. I find considerable merit in this submission. Respondents are not claiming any amount by way of damages for breach of contract. What they are claiming is handling fee, which partakes the character of postal charges, which was inadvertently not collected. Petitioner does not assail or challenge the levy of handling fee as ultra vires or as beyond the powers of the postal authorities. Petitioner's case is that it was not demanded and collected along with the postal charges. Whatever postal charges were demanded, were paid and collected by it. Hence, nothing further is due. The main plank of petitioners' submission is that the amount is also barred by limitation. Learned counsel for the respondent is right in his submissions that even if the amount is held to be barred by limitation, it would only mean that the remedy in the form of suit for recovery is barred. It would still not change the character of the amount as being "due".
14. Reference is invited to the decision of the Supreme Court in Swastic Industries v. Maharashtra State Electricity Board (supra). In the cited case, the Electricity Board had issued a supplementary bill to the petitioner demanding payment of Rs. 3,17,659/-. Petitioner had objected to the bill but paid it under protest. A complaint was lodged with the State Consumer Disputes Redressal Commission, The Commission allowed the complaint of the petitioner and held that the claim was barred by limitation being beyond three years. The Electricity Board filed an appeal. The National Commission held that there was no limitation for making the demand by way of a supplementary bill. It held that Section 24 of the Indian Electricity Act gives power to the Board to issue such demand and to discontinue the supply to a consumer, who neglects to pay the charges. Petitioner contended before the Supreme Court that under Section 60-A of the Electricity Act a period of three years was prescribed for the Board to institute any suit for recovery of arrears. The Board in negation of Section 60-A cannot be permitted to exercise power under Section 24 of the Act to resort to disconnection. The Supreme Court held that, "It would be clear from the provisions of Section 24 of the Indian Electricity Act that the right to recove the charges is one part of it and right to discontinue supply of electricity energy to the consumer, who neglects to pay charges is another part of it. The right to file suit is a matter of option given to licensee. Therefore, the mere fact that there is a right given to the Board to file the suit and limitation has been prescribed to file a suit, it does not take away the right conferred on the Board under Section 24 to make a demand for payment of the charges and on neglect to pay the same, they have the power to discontinue the supply or cut-off the supply as the case may be, when the consumer neglects to pay the charges."
15. Applying the above cited decision of the Supreme Court to the facts of the present case, the respondents cannot recover the amount as a fine in terms of Section 12, as if it was imposed by a Magistrate. This is because remedy of recovery of the sum due stands barred by limitation and permitting the same would amount to defeating the provisions of the Limitation Act. However, the above would not foreclose the option of the respondents to press into service the second part of Section 12, that is the power to withhold the mail/postal articles, since the party was neglecting or refusing to pay the sums which were due. The above approach would be in consonance with the judgment of the Supreme Court in Swastic Industries v. Maharashtra State Electricity Board, .
16. One of the grievances of the petitioners is that the basis of computation of the amount claimed as due has not been furnished while the respondents claim that the said amount has been claimed based on record and position has been explained to the petitioners number of times. Nothing has been placed on record giving the computation of the amounts claimed. Let the respondents, within a period of four weeks from today, furnish to the petitioners the computation and the basis of amount being claimed from M/s. Hind Pocket Books Pvt. Ltd. and Gharelu Library Yojna. The interim protection granted shall ensure to the benefit of the petitioners for a period of four weeks or till the computation and basis of the amount claimed is intimated to the petitioners.
17. It is held that the respondents after one month of having furnished the computation and basis of the amount claimed as due, shall be at liberty to invoke Section 12 of the Indian Post Office Act to withhold mail/postal articles, if the amount claimed remains outstanding. However, in the facts of the present case, respondents are restrained from recovering the amount as fine or arrears of land revenue under Section 12 of the Indian Post Office Act.
The writ petition stands disposed of with the directions, as given in paras 16 and 17 hereinbefore.