Allahabad High Court
Mahesh Chandra vs The Zila Panchayat, Mainpuri on 8 July, 1996
Equivalent citations: AIR1997ALL248, (1996)3UPLBEC1586, AIR 1997 ALLAHABAD 248, 1997 ALL. L. J. 1252, 1996 (3) UPLBEC 1586, 1996 ALL CJ 1168, 1996 (3) ALL WC 1585, 1996 (28) ALL LR 554
ORDER M.C. Agarwal, J.
1. By this petition under Article 226 of the Constitution of India the petitioner Mahesh Chandra Challenges a recovery certificate issued against him for the recovery of Rs. 51,000/-. A copy of the recover)' certificate has been annexed lo the writ pelition as Annexure '4' which mentions that the money may be recovered under the provisions of Revenue Recovery Act.
2. The petitioner participated in an auction by Zila Panchayat, Mainpuri for settling a right to remove and dispose of dead animals within the limits of block kurawali in district panchayal Mainpuri. The petitioner's bid at Rs. 1,51,000/-was highest and was accepted. He deposited a sum of Rs. 20,000/- on the date of auction i.e. 22-1-1995, Rs. 20,000/- on 7-3-1995, Rs. 35,000/- on 21-3-1995 and Rs. 25,000/- on 22-7-1995, The period of licence was to be for one year from 1-4-1995 to 31-3-1996. The petitioner's case is that in spite of the petitioner's bid having been accepted and he having paid a sum of Rs. 1,00,000/- out of Ihe total bid amount of Rs. 1,51,000/- no licence in the prescribed form was actually issued to him and, therefore, he could not cllect and dispose of the dead animals. According to him this work was got done by Zila Panchayat through its own employees. He is aggrieved by the steps taken by Zila Panchayat for the recovery of the balance of Rs. 51,000/- and claims that since the Zita Panchayat did not issue Ihe licence it is not entitled lo recover the balance and should in law refund the money paid by the petiiioner. According to him Ihe recovery of the balance of the bid money as arrears of land revenue is illegal.
3. In its counter affidavit Ihe Zila Panchayat has contended that on his request the petitioner was allowed to pay the bid money in instalments and that the formal licence in the prescribed form was not issued because the entire bid money was not paid but the petiiioner was in fact permitted to carry out the job of collection and disposal of dead animals. It has filed a copy of the letter written by its president to the petiiioner, copy whereof endorsed to the Station House Officer, Police Station Kurawali permitting the petitioner to carry out the aforesaid job. Its case is that the petitioner actually availed all the rights granted under the licence for which auction was held and is bound to pay the balance of the licence fee i.e. Rs. 51,000/-. It has annexed with the counter affidavit a copy of auction notice which requires the licensee to execute a written duly stamped contract and further says that any arrears may be recovered by the attachment and sale of the movable and immovable properties of the defaulter as drears of land revenue.
4. Since counter and rejoinder affidavits have been exchanged between the parlies we heard the writ petition finally on merits at the admission stage iiself. Sri B. D. Maurya, Advocate represented the petitioner white the respondent was represented by Sri Bengali Yadav, Advocate.
5. As stated above, there is dispute between the parties as to whether the petitioner actually availed of the right to collect and dispose of dead animalsfor which his highest bid was accepted by the respondent and for which the petitioner paid a total sum of Rs. 1,00,000/- as mentioned above. This is a dispute question of fact and, therefore, in exercise of jurisdiction under Article 226 of the Constitution of India it is not feasible to determine this dispute which is of pure fact and depends for its determination on oral and documentary evidence which can appropriately be decided only in other judicial proceedings like a suit. We, therefore, decline to go imo this aspect of the matter leaving the parties to agitate it imappropriate forum. The only other point agitated between the parties was whether the dues in respect of the licence fee can be recovered as arrears cf land revenue.
6. Zila Panchayats have been established under the U. P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. The Aet contains provision for recovery of taxes and other claims in Chapter VIII. Section 147 provides that taxes and other dues, referred to in Section 148 may be recovered by the Zila Panchayat by distraint, and sale of a defaulter's movable property in (he manner hereinafter prescribed. Section 148 requires a bill to be presented to the person so liable in respect of a tax imposed by the Zila Panchayat or any other sum declared under this Act or by any rule or bye-law made under the Northern India Ferries Act, 1878, to be recoverable in the manner provided by this Chapter. Section 150 then says "that where a bill remains unpaid a notice of demand shall be served. Then Sections 151 to 157 prescribe the procedure for the issue of a warrant of distress and sale of the movable and immovable properties of defaulter and in the manner of the execution of the warrant. Section 153 prescribes what properties shall be exempt from distraint Sections 158 to 160 then prescribes other methods of recovery. These sections stand as under:--
"158. Alternative power of bringing suit or recovering as arrears of land revenue -- (1) Instead of proceeding by distress and sale or in case of failure to realize thereby me whole or any part of the demand, the Zila Panchayat may sue the person liable to pay the same in any Court of competent jurisdiction. (2) In the case of an arrear of tax on Circumstances arid Property, a Zila Panchayat may in addition to the power to take recourse to the'provisions of Section 148 or subsection (1) of this Section, but subject to and in accordance with rules made in this behalf recover them as arrears of land revenue."
"159. Recovery of rent of land-- Where any sum is due on account of rent from a person to a Zila Panchayat in respect of land vested in or entrusted to the management of the Zila Panchayat, the Zila Panchayat subject to and in accordance with rules made in this behalf may recover any such arrear as arrear of land revenue."
"160. Recovery of rent for other immovable property-- Any arrears due on account of rent from a person to the Zila Panchayat in respect of immovable property, other than land vested in or entrusted to the management of the Zila Panchayat, shall be recovered in the manner provided in Section 148".
7. The provisions of Sections 158, 159 and 160 thus show that only arrears of tax on circumstances and properly and rent in respect of land vested in or entrusted to the management of the Zila Panchayat can be recovered as arrears of land revenue.
8. Admittedly, the sum of Rs. 51,000/- for which the respondent has issued a recovery certificate to the Collector is not a tax or rent as referred to in Section 158(2) or Section 159.lt is also not a sum of the nature mentioned in Section 148(1) (a)(b). Therefore, the Act neither authorises the recovery of such an amount as arrears of land revenue nor in the manner prescribed in Section 148 to 156. The only method for recovery of such an amount as authorised by the Act is to approach a Court of competent jurisdiction under Section 158(1).
9. Learned counsel for the respondent Sri Bengali Yadav conceded to this legal position and he also conceded that the Revenue Recovery Act, 1819 as well as U. P. Public Moneys (Recovery of Dues) Act, 1972 also had no application. He, therefore, took resort to condition No. 17 in the auction notice, a copy of which has been annexed to the counter affidavit as C. A. '2'. As already stated this term announced that the Zila Panchayat will have the right to recover the dues by the sale of movable and immovable properlies as arrears of land revenue. Admittedly, no agreement was reduced to writing as contemplated in condition No. 16 of the said auction notice and admittedly there was variation in the terms announced inasmuch as instead of requiring the petitioner to deposit the whole of the bid money at the fall of the hammer, he was allowed to pay the same in instalments. As stated above, whether the petitioner actually availed of the rights granted to him or whether because of the non-issue of the formal licence in the prescribed form he could not avail of the right is a matter that has to be gone into in the appropriate forum that the parties may chose for the enforcement of their respective rights in recovering their alleged dues. Therefore, theques-tion whether in fact there was an agreement between the parties agreeing to recover the amount due to the Zila Panchayat may have to be gone into in the appropriate proceedings that may be taken by the parties. However, since the question as to whether such an agreement can lawfully be entered into was agitated before us and is one of the grounds taken by the petitioner in this writ peti-tion, we proceed to determine Ihe same.
10. As is evident the respondent is trying to recover from the petitioner a sum. The petitioner denies his liability to pay the same and challenges the manner of recovery as well. Section 9 of the Code of Civil Procedure creates a forum for such disputes. It says the courts shall have jurisdiction to try all suits of a Civil nature excepting suits of which the cognizance is expressly or impliedly barred. There is an inherent right in every person to bring a suit of a civil nature and unless Ihe suit is barred by statute one may act to one's peril to bringa suit of one's choice. A suit for its maintainability requires no authority of law. It is enough if no statute bars the suit. Therefore, when any amount is due either to an individual or to a State or other public authority, like the respondent, a suit can be fded for recovering the amounts due. Unless a different procedure is statutorily prescribed, the recourse to a Civil Court by filing a suit is the only legal method of recovering one's dues whether the claimant is an ordinarily citizen or a State. It is for avoiding the lengthy procedure of filing a suit and then executing the decree that provision has been made for recovery of various type of amounts due to the State as land revenue or otherwise. For instance, for the recovery of income lax dues provisions have been made in Sections 222 to 227 of the Income Tax Act, 1961 and Schedule II thereof, and in spite of an inde-pendeni machinery creaied under Sections 222 to 226, Section 227 provides that if the recovery of lax in any area has been entrusted to a Slate Government under clause (1) of Article 258 of the Constitution, the Stale Government may direct with respect to that area or any part thereof that the tax shall be recovered therein with and as an addition to any Municipal tax or local rate by the same person and in ihe same manner as the Municipal tax or local rate is recovered. Similarly, for the recovery of sales tax under the U. P. Sales Tax Act, 1948 (Now known as U. P. Trade Tax Act) provisions has been made in sub-section (8) of Section 8 that any tax or other dues payable lo Ihe Slate Government under this Act, shall notwithstanding anything contained in any other law for the time being in force be recoverable as arrears of land revenue. It is not necessary to multiply the instances where fiscal statutes have specifically laid down methods of recovery of dues levied therein and the procedure statutorily prescribed for recovery of the dues by Zila Panchayat has already been described above.
11. Land revenue has not been specifically defined in any law. Section 4(7) of Ihe U. P. Land Revenue Act merely says 'Revenue' means land revenue. Section 58 of the said Act deals with the assessment of revenue sub-section (1) says all land, to whatever purpose applied and wherever situate, is liable to the payment of revenue to the crown except..... Thus a reading of Section 4(7) and Section 58 together shows that revenue assessed on land is land revenue. The procedure for the recovery of such revenue is prescribed in Chapter VIII of the said Act dealing with collection of revenue. The power of collecting the land revenue has been conferred on the Collector and certain functions can be performed by the Tahsildar and olhcr officials. Similar provision have been made in the Ultar Pradesh Zamindari Abolition and Land Reforms Act for realisation of dues under the said Act. Section 225 thereof provides that arrears of rent, sayar or other dues in respect of properly vesting in the Central or State Government or a Gaon Sabha or a local authority in respect of an area attached under the provision of Section 289 may be recovered as arrears of land revenue. Then Section 287 provides that a bhumidhar who has paid the arrears of revenue due on account of any tenure holder may, in addition to any other mode of recovery open to him, within six months of the payment of such amount apply to the Collector to recover such arrears on his behalf as if it were arrear of land revenue payable to Government. This Act too does not define land revenue as such but the provisions of the Act indicate that revenue settled on the land governed by the Act and payable to the State Government is land revenue. The procedure for the recovery of land revenue to which the provisions of the U. P. Zamindari Abolition and Land Reforms Act apply has been laid down in Sections 279, 280, 281, 282, 283 and 286 etc. the procedure is more or less the same as prescribed undpr the U. P. Land Revenue Act.
12. It is thus clear that the mode of recovery of land revenue is statutorily prescribed and where any dues that are not land revenue within the meaning of the U. P. Land Revenue Act or the U. P. Zamindari Abolition and Land Reforms Act are to be recovered as arrears of land revenue, it is done only under the authority of same statute or Rules having the force of law.
13. In this case, however, the recovery certificate has been issued with reference to the Revenue Recovery Act which admittedly, does not apply and the learned counsel placed reliance on the alleged agreement by virtue of terms of auction. Sri Bengali Yadav, learned counsel for the respondent contended that the petitioner having accepted the condition of auction sale, a binding contract came into existence. He placed reliance on Section 2 of the Indian Contract Act and contended that the agreement is enforceable at law. He placed reliance on Ludko Devi v. U. P. State Government, 1966 All LJ 1118 GJ. Fernandez v. State of Karnataka, 1990 UPLBE 2082 : (AIR 1990 SC 958) and M/s Poddar Steel Corporation v. M/s Ganesh Engineering Works, AIR 1991 SC 1579 and contended that a valid agreement came into being between the parties because the condition of auction were in the nature of an offer which were accepted by the petitioner who was the highest bidder at the auction sale. It is not disputed that an agreement comes into being in such circumstances which if valid can be enforced at law. The question however, is whether the dues in question which the Uttar Pradesh Kshettra Panchayats and Zila Panchayals Adhiniyam, 1961, that governs the respondent, does not authorise to be recovered as arrears of land revenue, can be validly agreed to be recovered as such. Section 10 of the Indian Contract Act provides that all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Then Section 23 says that the consideration or object of an agreement is lawful, unless it is forbidden by law or is of such a nature that if permitted, it would defeat the provisions of any law, or is fraudulent or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. The question is whether the respondent is competent to contract that the dues which the Adhiniyam under which it has been created does not allow to be recovered as arrears of land revenue may be recovered as arrears of land revenue (Section 10 of the Indian Contract Act) and whether the object of the alleged agreement is forbidden by law or is of such a nature that, if permited, it would defeat the provisions of any law.
14. As stated above, the mode of recovery permissible in respect of the dues due to Zila Panchayat is statutorily prescribed in the aforesaid Adhiniyam. It has been scttledby the Hon'ble Supreme Court that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or nor at all. Other methods of performance are necessarily forbidden. [See A.R. Antulay v. Ramdas Sriniwas Nayak, AIR 1984 SC 718 paragraph 22]. Thus the Adhiniyam does not permit the recovery of this type of dues as arrears of land revenue.
15. Then land revenue is to be recovered by a statutory authority, namely, the Collector who is a revenue officer appointed under the U. P. Land Revenue Act. The Collector being a statutory authority has powers of recovery of the dues are governed by the two statutes, namely, the U. P. Land Revenue Act and the U. P. Zamindari Abolition and Land Reforms Act. He is also conferred the authority to act as the collecting agent by various other statutes. Therefore, unless some statute authorises the Collector to collect certain dues as arrears of land revenue the Collector has no authority to proceed to recover any dues. Therefore, a Collector can not recover any dues by virtue of a private agreement as asserted by the learned counsel for the respondent. Sri Yadav, vehemently asserted that where there is an agreement between the debtor and the creditor thai the debt may be recovered as arrears of land revenue and the Collector can do so. This contention in our view is not at all tenable. The Collector being a statutory authority can only act in terms of the statute and he cannot exercise his statutory powers in implementing and executing a non-statutory agreement. It is settled law (hat the parties cannot confer jurisdiction on a Court that has no jurisdiction to try a matter non can they take away such jurisdiction. The same rule will by anology apply to a statutory authority. No one can confer on a statutory authority the authority to do what the statute does not authorise or not to do what it is statutorily authorised to do. Such an agreement would be hit by Section 10 of the Indian Contract Act as no one has the authority to enter into an agreement which it is not competent to contract and which if permitted would defeat the provisions of the law. The alleged agreement in question if allowed to be complied with would defeat the provisions of the Adhiniyam as well as those of the Acts governing the recovery of land revenue. In our view, therefore, the alleged agreement in question that the dues arising out of the grant of licence may be recovered as arrears of land revenue is void being hit by Sections 10 and 23 of the Indian Contract Act and by virtue of the statutory provisions the Collector has to authority to recover as arrears of land revenue a revenue which is not statutorily so but is agreed by private agreement to be treated as land revenue. A similar view was taken by a Division Bench of this Court in Raj Bahadur Singh v. Collector, 1986 All LJ 957, wherein arrears of tahbazari were sought to be recovered in the manner laid down in Section 21 of the U. P. Town Areas Act. Section 21 was not applicable to the type of dues i.e. tahbazari being recovered in that case but it was attempted to be so recovered by virtue of an agreement between ihe parties to that effect. It was held that an agreement between the parties cannoi invest jurisdiction in a Magistrate to take proceedings under Section 21 which the statute docs not confer on him.
16. In view of the above discussions, a sum of Rs. 51,000/- being the arrears of licence fee cannot be recovered as arrears of land revenue and neither the executive officer of the respondent had the authority to issue the recovery certificate dated 30th January, 1996, copy of which is Annexure '4' to the writ petition nor the Collector has the authority to execute such a recovery certificate which has no legal sanction.
17. For the above reasons, this writ petition is allowed and the aforesaid recovery certificate is hereby quashed. The petitioner will get its costs from the respondent that we assess at Rs. 1500/- (Rs. one thousand five hundred).
18. Petition allowed.