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2013 DIGILAW 1227 (ALL)

SANJAY KUMAR GUPTA v. STATE OF U. P.

2013-04-25

MANOJ KUMAR GUPTA, PRAKASH KRISHNA

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JUDGMENT By the Court.—By means of the instant writ petition, the petitioner has prayed for a writ of certiorari quashing the citation dated 1.12.2009 issued by the Tehsildar, Mawana and the order dated 1.10.2009 passed by the Executive Officer, Nagar Palika Parishad, Mawana (Meerut), and the recovery proceedings in pursuance thereof. 2. The petitioner is the highest bidder in an auction for collection of the entry fees/parking fees, from vehicles entering the municipal limits of Nagar Palika Parishad, Meerut. The bid of the petitioner was accepted by the Executive Officer, Nagar Palika Parishad, Mawana, Meerut by order dated 1.4.2008 and whereunder he was required to deposit 25% of the bid amount on or before 8.4.2008. The petitioner claims to have deposited a total sum of Rs. 10,90,940/- in three installments, i.e., on 26.3.2008, 14.5.2008 and 30.5.2008. The petitioner further contends that although he had deposited the requisite sum and the papers for execution of formal contract but no written contract was executed. He claims to have collected entry fees/parking fees during the months April, May, June and July, 2008, but thereafter he could not collect the entry fees/parking fees in view of the fact that number of writ petitions, being writ petition Nos. 1084 of 2008, 1315 of 2008 and 1391 of 2008 were filed before this Court challenging the action of Nagar Palika Parishad, Mawana in realising the parking fees/entry fees and in which interim orders were passed, as a result whereof, the petitioner could not realise the entry fees/parking fees. The petitioner further claims that ultimately these writ petitions were allowed by judgment dated 27.5.2009 and 15.7.2009 and judgment in writ petition No. 1391 of 2008 dated 15.7.2009 has been filed as Annexure 8 to the writ petition. In the said judgment, a Division Bench of this Court held that the Municipal Board has no power to impose tax on vehicles merely for passing through its limit/roads. It was further held that the Municipality cannot compel the persons plying the vehicles for hire to park the same on specified place and to charge a fee in lieu thereof, unless such facility is used by the bus operators voluntarily. 3. The case of the petitioner is that in view of the interim order and subsequent final judgment in the aforesaid writ petition, he could not collect parking fees/entry fees for the remaining period. 3. The case of the petitioner is that in view of the interim order and subsequent final judgment in the aforesaid writ petition, he could not collect parking fees/entry fees for the remaining period. He further claims that for the period during which he could operate the contract, his liability comes to Rs. 7,55,333.33p. while he has deposited a total sum of Rs. 10,90,940.00 and which is much more than the amount to which he could be held liable. The petitioner further contends that inspite of these facts, the Executive Officer, Nagar Palika Parishad issued a notice dated 17.10.2008 calling upon the petitioner to deposit the remaining amount under the contract and thereafter forwarded a recovery certificate for realisation of the said amount as arrears of land revenue and on the basis whereof, the impugned citation to appear dated 1.12.2009 has been issued. 4. According to the petitioner, the recovery proceedings for realisation of the remaining amount of contract money as arrears of land revenue is wholly without jurisdiction as the Nagar Palika Parishad is not vested with any such power under the U.P. Municipalities Act, 1916 or under any other law for the time being in force. 5. We have heard Sri G.K. Singh, advocate for the petitioner and Sri Ajay Rajendra, learned counsel representing respondent Nos. 4 and 5 and learned Standing Counsel for respondent Nos. 1, 2 and 3. The pleadings have been exchanged between the parties and with their consent the instant writ petition is being decided at this stage itself. 6. Sri G.K. Singh, counsel for the petitioner vehemently contended that the recovery of balance amount under the contract cannot be recovered as arrears of land revenue. He also claimed that in view of interim orders passed in various writ petitions, the petitioner could not operate the contract and the demand for payment of entire sum under the contract is, therefore, wholly arbitrary and unjustified. 7. The learned Standing counsel representing respondent Nos. 1, 2 and 3 and Sri Ajay Rajendra, representing respondent Nos. 4 and 5 refuted the submissions made on behalf of the petitioner. They submitted that the petitioner has succeeded in realising the contract fees from the vehicles throughout the contract period as the stay order granted by this Court in various writ petitions challenging imposition of entry fees/parking fees was not absolute one but only a conditional one. 4 and 5 refuted the submissions made on behalf of the petitioner. They submitted that the petitioner has succeeded in realising the contract fees from the vehicles throughout the contract period as the stay order granted by this Court in various writ petitions challenging imposition of entry fees/parking fees was not absolute one but only a conditional one. They further submitted that the petitioner is liable to pay the amount in question, as it is public money. 8. Having considered the rival contentions, we are of the view that the instant writ petition can be decided on the first submission made by the learned counsel for the petitioner viz., that the arrears of theka money cannot be recovered as arrears of land revenue. In this regard, reference may be made to Section 173A of the Municipalities Act, which reads as under : “173-A. Recovery of taxes as arrears to land revenue.—(1) Where any sum is due on account of a tax, other than octroi or toll or any similar tax payable upon immediate demand, from a person to a board, the board may, without prejudice to any other mode of recovery, apply to the Collector to recover such sum together with costs of the proceedings as if it were an arrear of land revenue. (2) The Collector on being satisfied that the sum is due shall proceed to recover it as an arrears of land revenue.” 9. 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, 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, 2007(2) ADJ 143 . 10. The said decision has been followed in [Iliyas v. State of U.P. and others, 2007(2) ADJ 143 . 10. 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. 11. 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. 12. 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 : “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.” 13. 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. 14. Since we have not gone into other questions,and therefore we leave it open for the respondents to recover the amount in question, if payable by the petitioner, by any other mode prescribed by the law. 15. With the aforesaid observations, the writ petition is allowed, but without any order as to costs. ——————