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1987 DIGILAW 1072 (ALL)

Agra Carpet Palace v. State Of U. P.

1987-11-12

A.N.VARMA, PALOK BASU

body1987
JUDGMENT A. N. Varma, J. 1. The petitioner, a manufacturer and exporter of hand-knitted carpets, rugs, etc. is aggrieved by a citation dated December 5, 1986 issued by the Tehsildar, Gyanpur, Varanasi and the recovery certificate issued by the respondent no. 4 to the Collector, Varanasi, for realizing the amount stated therein as arrears of land revenue from the petitioner. 2. The parties having exchanged affidavits, we are disposing of this petition finally at the stage of admission. The demand/citation is challenged on four grounds. The first is that the Bhadoi Woolens Limited (respondent no. 4) was not competent to invoke the provisions of U. P. Public Moneys (Recovery of Dues) Act, 1972 and to seek the assistance of the Collector, for the recovery of the amount as arrears of land revenue under the said Act inasmuch as it is not a Government company nor instrumentality of the Government authorised to invoke the provisions of the said Act. The contention is devoid of any merit. Section 3 of the said Act authorises both the State Government or a corporation owned and controlled by the Central Government or the State Government and specified in a notification issued in that behalf by the State Government in the official Gazette under section 2 (a) of the Act. Alongwith the counter affidavit the respondents have filed a copy of the notification dated August 8, 1986 whereby in exercise of powers under section 2 (a) the State Government has declared the respondent no. 4 as a corporation owned and controlled by the State Government. This notification coupled with the admitted fact that the respondent no. 4 is a subsidiary of the U. P. State Textile Corporation which is an undertaking owned and controlled by the State Government leaves no manner of doubt that respondent no. 4 was authorised to issue the recovery certificate in September, 1986 by which date the respondent no. 4 had already been declared to be a Corporation owned and controlled by the State Government entitled to recover its dues under the said Act. We, therefore, reject the first submission. 3. 4 was authorised to issue the recovery certificate in September, 1986 by which date the respondent no. 4 had already been declared to be a Corporation owned and controlled by the State Government entitled to recover its dues under the said Act. We, therefore, reject the first submission. 3. The second argument was that the arrears sought to be recovered from the petitioners were admittedly of a period prior to the date of the issue of the said notification, that is, August 8, 1986, and inasmuch as there was nothing m the notification indicating that past arrears could also be recovered, the entire impugned proceedings are void. 4. The contention is devoid of any merit. After the issue of the aforesaid notification declaring the respondent no. 4 to be a Corporation within the meaning of section 2 (a), it became entitled to apply for recovery of its dues under the Act, whether the dues were of a period prior to the notification or subsequent thereto. Section 3 is not confined to arrears arising only in the future. No such indication is there in the statute. There is, therefore, no element of retrospectivity involved here. Even if it be held to have the flavour of retrospectivity the impugned notification being one pertaining to respondent it would be deemed to authorise the respondent no. 4 to recover even the past arrears. It is a legislation which merely provides an additional or special remedy to a Corporation owned and controlled by the State. It does not create any substantive right. This brings us to the third submission that U. P. Public Moneys: (Recovery of Dues) Act, 1972 is invalid inasmuch as according to the petitioner the State Legislature was not competent to legislate on the subject. It was contended that the amount which was sought to be recovered by the respondent no. 4 was not in the nature of public revenue or public dues because the respondent no. 4 was a private entity. It is unnecessary to pronounce on the correctness or otherwise of this argument in view of the fact that the superior court has already upheld the constitutional validity of an identical provision, namely, section 3 of the predecessor enactment, namely, U. P. Public Moneys (Recovery of Dues) Act, 1965 in the case of Director of Industries, U. P. v. Deep Chand Agarwal, AIR 1980 SC 801 . In fact, the Act dealt with the same subject and it was repealed and re-enacted by the present Act in 1972. Section 3 of the 1965 Act which was considered by their Lordships of the Supreme Court was precisely in same terms as section 3 of the present enactment. The scheme of the two Acts is also the same. The validity of an identical provision having been upheld by the Supreme Court it is not for this Court to consider the correctness of a submission as regards the validity of the same provision or a provision which was identical to the one which is being considered by us. 5. Learned counsel, however, submitted that the points raised by the petitioner were not directly in issue before the Supreme Court in the aforesaid decision and there is, therefore, no decision of the Supreme Court on the point urged by him. We regret we cannot entertain this argument. As already observed the constitutionality of the predecessor Act having been upheld by the Supreme Court we cannot entertain any challenge to its constitutional validity, even if it be assumed that the contention raised by the petitioner was not raised before the Supreme Court in that decision. 6. This brings us to the last submission. The contention was that the impugned demand notice does not represent correctly the amount which is outstanding against the petitioner. So far as this argument is concerned, we find that the allegations made by the petitioner have been controverted by the respondents in the counter affidavit. We would, however, not like to go into the correctness or otherwise of the claim of the petitioner that the impugned notice of demand is factually incorrect as we propose to leave it to the respondent no. 4 itself to consider the representation of the petitioner which he may file in this behalf within 2 weeks. The respondent no. 4 shall thereupon consider the petitioner's representation, and, if there is any mistake or inaccuracy in the demand, the respondent no. 4 may rectify it and pass appropriate orders on the representation within a month from the date on which it is filed by the petitioner. For this duration, namely, a month-and-a-half, the impugned recovery proceedings shall remain stayed. 7. Subject to the directions contained above, this petition fails and is dismissed. But we make no order as to costs. Petition dismissed.