JUDGMENT By the Court.—The petitioners along with certain other persons were granted licenses for vending country made liquor, foreign liquor and bear for the years 1999-2001 in District Sikar, Rajasthan. In the year 1999-2000, petitioners defaulted in the payment of excise dues of Rs. 8,36,49,712/-. Accordingly, Collector, Sikar on 1.11.2000 sent a recovery certificate to the Collector, Ghaziabad, where the petitioners were said to be residing and having immovable property, to recover the aforesaid amount as arrears of land revenue. A citation for the said amount was issued by the Tehsildar, Ghaziabad on 6.12.2000. The properties of the petitioners at Ghaziabad were put to auction vide sale proclamation dated 15.5.2001 fixing 14.6.2001 but the auction could not be held. The District Excise Officer, Sikar vide letter dated 9.7.2001 addressed to the Collector, Ghaziabad instructed not to auction the properties of the petitioners for the time being. In the meantime, income tax department released sums of (i) Rs. 1,61,43,984.00, (ii) Rs. 1,80,26,031.00, (iii) Rs. 1,40,38,395.00, (iv) Rs. 1,77,54,741.00 and (v) Rs. 1,10,61,845.00 total Rs. 7,70,24,996.00 in favour of District Excise Officer, Sikar, Rajasthan which it had realised from the petitioners as Tax Deducted at Source (TDS). The petitioners deposited a further sum of Rs. 1,64,63,768/-, Rs. 75,23,500/- and Rs. 89,49,600/- on 7.9.2003 before the District Excise Officer, Sikar. In this way, petitioners deposited a total of Rs. 9,34,89,036/- as against the original recovery of Rs. 8,36,49,712/-. In spite of the above, a sale proclamation for the recovery of Rs. 77,10,000/- as excise dues and Rs. 47,47,972 as collection charges by the sale of house No. KK-116, Kavi Nagar, Ghaziabad of the petitioners was issued by the S.D.M. Ghaziabad fixing 10.4.2004 for the auction. 2. The above sale proclamation is under challenge by the petitioners in this writ petition with a further prayer to direct the respondents not to realise any collection charges from the petitioners and to refund the collection charges already paid by them on the ground that the excise dues were paid by the petitioners voluntarily and there was no realisation by the Collector, Ghaziabad so as to entitle the respondent Nos. 2 and 3 to recover any collection charges. 3. The writ petition was entertained and an interim order was passed on 31.3.2004 staying the sale proclamation and the sale of the properties of the petitioners in pursuance thereof. A counter affidavit was also invited. 2 and 3 to recover any collection charges. 3. The writ petition was entertained and an interim order was passed on 31.3.2004 staying the sale proclamation and the sale of the properties of the petitioners in pursuance thereof. A counter affidavit was also invited. In the counter affidavit filed on behalf of the respondent Nos. 1, 2 and 3 the issuance of the recovery citation of the aforesaid amount of Rs. 77,10,000/- as excise dues and Rs. 47,47,972 as collection charges is admitted. It is however, stated that in view of Section (3-a) of the Revenue Recovery Act, 1890, as amended to its application in U.P., Collector is fully authorised to recover the amount indicated in the recovery certificate and to realise 10% of the amount as collection charges. 4. It is abundantly clear from the above facts that the petitioners were facing recovery of excise dues to the tune of 8,36,49,712/- only and a sum of Rs. 9,34,89,096/- was paid and as such there was, in fact, excess payment. This fact has not been denied by respondent Nos. 1, 2 and 3 in the counter affidavit. No counter affidavit on behalf of respondent No. 4 has been filed. Thus, the above fact remains uncontroverted which has to be accepted. Even then the petitioners have been chased with a recovery of Rs. 77,10,000/- as excise dues plus Rs. 47,47,972/- as collection charges. In the absence of any material on record to indicate how in the above circumstances a recovery of Rs. 77,10,000/- as excise dues has been issued against the petitioners, the said recovery of excise dues can not be sustained in law and deserves to set aside. 5. In respect of the collection charges, the submission of Shri Mukesh Prasad, learned counsel for the petitioners is that the excise dues which were recoverable as arrears of land revenue have been paid voluntarily and directly to the Excise Officer, Sikar, Rajasthan and, therefore, the Collector, Ghaziabad is not authorised under law to recover the same. 6. On the other hand, Sri A.C. Tripathi, learned Standing Counsel contended that respondent Nos. 2 and 3 are legally entitled to recover collection charges to the extent of 10% of the amount mentioned in the recovery certificate, as the citation to recover as well as a sale proclamation was issued for recovering the excise dues. 7. 6. On the other hand, Sri A.C. Tripathi, learned Standing Counsel contended that respondent Nos. 2 and 3 are legally entitled to recover collection charges to the extent of 10% of the amount mentioned in the recovery certificate, as the citation to recover as well as a sale proclamation was issued for recovering the excise dues. 7. It would be profitable to address to the procedure prescribed for recovering land revenue or as a matter of fact any other dues which can be recovered as arrears of land revenue before dwelling upon the respective submissions of the parties. 8. The procedure for settlement and recovery of land revenue was previously contained in Chapter V to Chapter VIII of the U.P. Land Revenue Act, 1901 but the provisions of the aforesaid chapter were repealed vide Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (in short U.P.Z.A. & L.R. Act) in its application to the areas where the said Act was made applicable. However, by virtue of the chapter X of the said Act and the Rules framed under the said Act, a similar mechanism for recovery of land revenue has been provided. 9. Any land revenue which remains unpaid after the date on which it becomes payable it termed as an “arrears of land revenue”. 10. The excise dues are not part of land revenue though it may be termed as revenue. “Revenue” is a broader and a general term which is applicable to the income of the Government including public monies which the State collects and receives, from whatever source and in whatever manner. “Land revenue” is a narrower term and signifies tax on land and its produce which is paid annually to the Government. It is a charge upon the land payable to the Government. In other words, revenue derived by the State by taxation of lands and of profits on land is land revenue. 11. The excise dues though revenue in broader sense cannot be technically termed as land revenue recoverable under the provisions of the U.P.Z.A. & L.R. Act but for Section 11 of the Central Excise Act, 1944 read with provisions of Revenue Recovery Act, 1890 (hereinafter referred to as an ‘R.R. Act’) which permits recovery of such excise dues as arrears of land revenue. Section 3 of the said Act empowers the Collector of the District, where an arrear of land revenue or a sum recoverable as an arrear of land revenue is payable, to send a certificate under his signature in the prescribed form to the Collector of the other district wherein the property of the defaulter is situate to recover the said amount whereupon it is obligatory upon the Collector to whom such a certificate has been sent to proceed to recover the amount stated therein with the costs of recovery in accordance with the provisions of Chapter X of U.P.Z.A. & L.R. Act and the Rules. Similarly, Section 5 and 5-A of the R.R. Act provides that where any sum is recoverable as an arrear of land revenue by any public officer other than a Collector or by any local authority, such officer or authority may make a request to the Collector concerned of the district where their office is situate for sending a certificate for the recovery of the said amount to the Collector of the district where the property of the defaulter is situate. 12. Section 279 of the U.P.Z.A. & L.R. Act, 1950 elaborates the various methods by which the land revenue may be recovered, namely - by issuance of writ of demand or a citation to appear, arrest and detention, attachment and sale of movable and immovable property etc. It also provides that the costs incurred in adopting the procedure mentioned therein shall be added in amount due and recoverable and shall be recoverable in the same manner as arrears of land revenue. For the sake of convenience Section 279 of the U.P.Z.A. & L.R. Act is reproduced hereinbelow : “279. It also provides that the costs incurred in adopting the procedure mentioned therein shall be added in amount due and recoverable and shall be recoverable in the same manner as arrears of land revenue. For the sake of convenience Section 279 of the U.P.Z.A. & L.R. Act is reproduced hereinbelow : “279. Procedure for recovery of an arrear of land revenue.—(1) An arrear of land revenue may be recovered by any one or more of the following processes— (a) by serving a writ of demand or a citation to appear on any defaulter, (b) by arrest and detention of his person, (c) by attachment and sale of his movable property including produce, (d) by attachment of the holding in respect of which the arrear is due, (e) [by lease or sale] of the holding in respect of which the arrear is due, (f) by attachment and sale of other immovable property of the defaulter, [and], [(g) by appointment a receiver of any property movable or immovable of the defaulter.] [(2) The costs of any of the processes mentioned in sub-section (1) shall be added to and be recoverable in the same manner as the arrear of land revenue.] 13. Further Section 294 (2)(ee) authorises the State Government to make Rules with regard to the costs to be recovered in respect of the process mentioned in sub Section (1) of Section 279 in exercise of its rule making power. Accordingly, Rule 243 of the U.P.Z.A. & L.R. Rules provides for a fee of Rs. 2/- for the issuance of a writ of demand or citation to appear which shall be added to the arrears sought to be recovered and shall be included in the amount specified therein. Similarly, Rule 248 of the Rules provides for a fee of Rs. 5/- for a warrant of arrest. The fee for attachment of moveable property is Rs. 0.75 and cost for every such sale is 6 paise in a rupee calculated on the amount of arrear etc. as per Rule 255 and 258 of the Rules respectively. A lesser rate is provided where the officer goes to conduct sale of movable property but no sale takes place. The rate of charge for the costs of every sale of immovable property is provided in Rule 284 of the Rules. 14. as per Rule 255 and 258 of the Rules respectively. A lesser rate is provided where the officer goes to conduct sale of movable property but no sale takes place. The rate of charge for the costs of every sale of immovable property is provided in Rule 284 of the Rules. 14. The aforesaid rates of collection charges were probably not found to be sufficient with the passage of time therefore, the State Government vide G.O. dated 30.8.1974 provided for a flat rate of collection charges @ 10% of the dues. The aforesaid G.O. was the subject matter of controversy before a Division Bench of this Court in the case of Mahalakshmi Sugar Mills Co. Ltd. v. State of U.P. and others. On difference of opinion between the two judges, the matter was referred to the third judge and on the basis of the opinion of the third judge, the Division Bench ultimately vide judgment in Mahalakshmi Sugar Mills Co. Ltd. v. State of U.P. and others, 1999 (2) AWC 120 held the aforesaid G.O. to be bad and the demand of collection charges @ 10% was struck down. 15. In Mahalakshmi Sugar Mills Co. Ltd. (supra) the Court was of the opinion that collection charges of 10% of the amount mentioned and recovery certificate cannot be recovered from the defaulter as there is no provision to this effect in the U.P.Z.A. & L.R. Act and the Rules, and the costs of recovery has to be realised in accordance with the rates prescribed under the aforesaid Act and the Rules. The aforesaid decision was followed by the learned Single Judge in the case of Smt. Viddya Devi v. Collector, Mohaba and others, 1999(3) AWC 1885 . 16. However, the law so laid down in the case of Mahalakshmi Sugar Mills Co. Ltd. (supra) was short-lived. The State Legislature in order to nullify the effect of the aforesaid decision enacted Revenue Recovery (U.P. Amendment Act) 2001 i.e. U.P. Act No. 37 of 2001 amending the provisions of the Revenue Recovery Act, 1890 by inserting sub Section (3-a) in Section 3 and 5-A of the said Act thereby providing for imposition of maximum of 10% of the amount referred in the recovery certificate/citation as collection charges. This amendment was made with retrospective effect from 30.8.1974, the date on which earlier the Government Order was brought about to the same effect which was struck down. A conjoint reading of the decision in Mahalakshmi Sugar Mills Co. Ltd. (supra) and the amendment made in the Act demonstrates that the restrictions of levying cost/collection charges over and above the rates prescribed under the U.P.Z.A. & L.R. Act and the Rules has been done away with and the Collector has been authorised to demand 10% of the amount mentioned in the recovery certificate/citation as collection charges. 17. A Division Bench of this Court in Mirza Javed Murtaza v. U.P. Financial Corporation and another, AIR 1983 All 234 , which has been relied upon from the side of the petitioners, lays down that the Collector while recovering any amount as arrears of land revenue cannot include the collection charges in the certificate as the costs of collection are not known at the time when the certificate is sent to the Collector and the actual costs of the proceedings could be determined only when the costs are actually incurred i.e. after the sale. Accordingly, the inclusion of collection charges in the recovery certificate/citation even before the sale takes place were held to be illegal. The aforesaid decision is not an authority on the point as to whether collection charges can be levied and recovered from the defaulter even where no recovery has been made through the process of the Collector or by sale of any property of the defaulter. 18. In view of the aforesaid facts and circumstances, a very important question of law of a fundamental nature arises for determination i.e. whether the costs of collection of recovering land revenue or a sum as an arrear of land revenue can at all be recovered or realised from the defaulter when the recovery has not been made through the process/machinery of the Collector under the provisions of U.P.Z.A. & L.R. Act/Rules despite provisions under the Act to realise 10% of the amount as collection charges. 19. The answer to the above question though intricate is very simple. 20. It is an admitted position that costs of collection or collection charges are not in the nature of tax. 19. The answer to the above question though intricate is very simple. 20. It is an admitted position that costs of collection or collection charges are not in the nature of tax. The same are levied in lieu of the services rendered by the revenue department of the State in recovering the amount due as an arrear of land revenue. Therefore, undisputedly an element of ‘quid pro quo’ comes into play, meaning thereby that the collection charges has to be for the services rendered by the Collector in recovering the amount and not otherwise. Therefore, where no such amount is recovered by the Collector or the machinery of the Collector/revenue department, it cannot be said that they have rendered any service so as to authorise them to levy collection charges. 21. The provisions of R.R. Act as amended to its application in U.P. or the U.P.Z.A. & L.R. Act and its Rules does not mandate that the collection charges can be realised even when the amount has not been recovered by adopting coercive method as envisaged under Section 279 of the U.P.Z.A. & L.R. Act or precisely by sale of any property, rather the Rules stipulate a lower rate of charges than prescribed for the cost of sale of movable or immovable property when the officer goes for conducting the sale but fails to conduct it which element is missing in the R.R. Act. The R.R. Act is completely silent as to what will happen when no amount is recovered by any of the coercive means and actually the amount is directly paid by the defaulter to the authority concerned. In the absence of any specific mandate providing for levying and realising of collection charges even if no sale takes place, the authorities are not empowered in law to recover such collection charge as costs of recovery without rendering any service. 22. In this respect it would be relevant to pay attention to Section 10 of the R.R. Act which in clear term provides that the Collector shall remit to the authority concerned the sum recovered after deducting the costs of recovery. Section 11 of the R.R. Act provides for making rules for carrying out the objects of the Act. In exercise of the said rule making power U.P. Revenue Recovery Rules, 1966 have been framed. Section 11 of the R.R. Act provides for making rules for carrying out the objects of the Act. In exercise of the said rule making power U.P. Revenue Recovery Rules, 1966 have been framed. Rule 8 of the aforesaid Rules also provides that on recovery of any amount under the Act it shall be deposited in government treasury or remitted to the authority concerned after deducting the collection charges, if any, unless wholly or partly exempted. A plain reading of Section 10 along with Rule 8 of the Rules clearly brings out that the Collector i.e. the Recovering Authority has to remit the amount to the authority concerned after deducting the collection charges, if any. This envisages deducting of collection charges only after recovering the amount and before remitting the same to the authority concerned. The necessary corollary of the above is that in the absence of any recovery of the amount due as an arrear of land revenue, no collection charge can be levied and realised. That being the position, there is no question of levying and recovering collection charges in respect of the amount which has not been recovered by the Collector by adopting any of the modes prescribed under Section 279 of the U.P.Z.A. & L.R. Act. 23. There is no provision under any of the Acts for levying any collection charge for mere issuance of citation or sale proclamation. The cost of these items have been taken adequate care in the U.P.Z.A. & L.R. Rules and as such there is no scope for any additional charge in this respect. 24. In view of the legal position enumerated above, we are of the opinion that in the instance case as no recovery of the excise dues has been made by the Collector, Ghaziabad and the amount sought to be recovered through his office has been paid directly by the petitioners to the Excise Commissioner, Sikar Rajasthan partly of their own and partly through remittances made by the Income Tax Department due to them, the demand of collection charges to the tune of Rs. 47,47,972/- is wholly illegal and unjustified. 47,47,972/- is wholly illegal and unjustified. We accordingly, issue a writ of certiorari quashing the impugned sale proclamation (Annexure XXI to the writ petition) and a writ in the nature of mandamus to respondent No. 2 for the refund of any amount which may have been realised as collection charges in connection with the recovery in question. 25. The writ petition is accordingly, allowed. 26. Parties to bear their own costs. ————