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2015 DIGILAW 273 (JK)

Aijaz Bashir Shah v. SKIMS

2015-05-29

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : Ali Mohd. Magrey, J. 1. The respondents have filed MP No. 1336/2014 seeking vacation of ad-interim order dated 21.11.2013 passed by the Court in the miscellaneous petition accompanying the main writ petition staying the operation of order dated 19.10.2013 and notice dated 02.11.2013 impugned in the writ petition. On this application coming up for consideration, the learned counsel for the parties consented to final hearing of the main writ petition itself. Accordingly, the learned counsels for the parties were heard. I have also perused the materials placed on record of this file and considered the matter. 2. Briefly put, the facts of the case are that SKIMS Medical College Hospital, Bemina, Srinagar, Kashmir, issued auction Notice No. SKIMS MCH/Est-10/2012/772-75, dated 27.06.2012 inviting bids for allotment of car parking contract in the Hospital premises. The petitioner's offer at Rs. 6,60,000.00 was accepted in terms of letter of intent issued under to him under Endorsement No. SKIMS/MCH/EST/10/2012/798-806, dated 18.8.2012 requiring him to undertake the job of car parking with effect from 18.08.2012 as per the terms and conditions detailed in the tender notice. It appears that out of the aforesaid bid amount of Rs. 6,60,000.00, the petitioner paid an amount of Rs. 3,00,000 and rest of the amount remained outstanding against him. 3. The petitioner's case is that the respondents, without any lawful justification, changed the position of the actual parking area notified in the auction notice, inasmuch as they started allowing parking of departmental ambulances, vehicles and staff cars in the said area; decreased the dimensions of the parking area by altering its fencing and thereby allowing the petitioner to conduct the parking activity on a limited space. This, according to the petitioner, was done with effect from 15.01.2013. The petitioner is said to have represented against the same. That apart, it is alleged that by Circular dated 23.02.2013 the respondents ordered that the main parking area shall act as night parking area. 4. It appears that the petitioner did not pay the remaining amount of Rs. 3,60,000.00 outstanding against him. When he failed to pay the same, the respondents issued order dated 16.09.2013 seeking recovery of the aforesaid amount from the petitioner. 4. It appears that the petitioner did not pay the remaining amount of Rs. 3,60,000.00 outstanding against him. When he failed to pay the same, the respondents issued order dated 16.09.2013 seeking recovery of the aforesaid amount from the petitioner. The petitioner challenged the aforesaid order in writ petition, OWP No. 1376/2013, which was disposed of by order dated 04.10.2013 with direction to the respondents not to resort to recovery of balance amount with the assistance of police except in accordance with the option available under law. 5. The grievance of the petitioner is that despite service of a copy of the aforesaid Court order on the respondents, they, vide communication dated 19.10.2013, have referred the matter to the Special Tehsildar Recoveries (Assistant Collector), Srinagar, Respondent No. 5 herein, seeking recovery of Rs. 4,07,000 (Rs. 3,06,000.00 as previous balance and Rs. 1,01,000,00 on account of extension granted) who, in turn, issued notice dated 02.11.2013 to the petitioner calling upon him to deposit the amount of Rs. 4,07,000 by 11.11.2013 failing which action under the Land Revenue Act has been proposed. 6. The petitioner has challenged Communication dated 19.10.2013 issued by the Medical Superintendent, SKIMS Medical College, Hospital, Srinagar, to Respondent No. 5 and the notice dated 02.11.2013 issued to the petitioner by Respondent No. 5 on the grounds taken in the writ petition. 7. Reply/objections stand filed on behalf of Respondents 1 to 4. It is stated therein that the parking area that was notified in the auction notice continues to be same till date. There is no change in the area. It is further stated that as per the terms and conditions of the auction notice the vehicles belonging to the hospital or the employees of SKIMS Medical College were not to be charged any money for parking their vehicles in the parking area. It is stated that the parking area is divided by a central transverse footpath into two areas: one side of the parking lot was reserved for parking of employees' vehicles and the other side was meant for patients/attendants vehicles for which the contractor had to charge. It is alleged that the petitioner would keep Sumos, TATA Matadors and other vehicles parked on the slot which was meant for employees, so and so forth. 8. It is alleged that the petitioner would keep Sumos, TATA Matadors and other vehicles parked on the slot which was meant for employees, so and so forth. 8. It may be mentioned here that in MP No. 1336/2014, it is stated by the respondents that while on the one hand the petitioner is not paying the amount outstanding against him, on the other hand he is continuing without there being any formal order of allotment of the contract in his favour. However, it is averred that the allotment period was extended by two months. 9. During the course of hearing, the learned counsel for the petitioner raised an argument regarding the legality of the Communication dated 19.10.2013 issued by Respondent No. 3 to Respondent No. 5 for recovery of the amount stated to be outstanding against the petitioner The learned counsel submitted that Sections 90 and 91 of the Land Revenue Act, providing for recovery of different kinds of sums as arrears of land revenue, do not envisage recovery of the amount of the nature involved herein as arrears of land revenue. Therefore, Respondent No. 3 lacked the jurisdiction to issue the communication dated 19.10.2013 and the same is, therefore, without jurisdiction. Consequently, the notice issued to the petitioner by Respondent No. 5 suffers from the same vice. 10. Learned counsel for the respondents on the other hand submitted that Communication dated 19.10.2013 clearly makes a request to Respondent No. 5 to take necessary measures so that the government revenue is recovered from the petitioner. He submitted that Section 91 of the Land Revenue Act provides for and specifies the other sums which are recoverable as arrears of land revenue. The learned counsel submitted that in terms of Clause (r) under Section 91 of the Act, all sums payable to the Government are recoverable and can be ordered to be recovered as arrears of land revenue. According to him, SKIMS Medical College being a Government Hospital, Respondent No. 3 was competent to issue the impugned communication. 11. Section 91 of the Land Revenue Act, insofar as relevant, is extracted below: "91. Other sums recoverable as arrears of land revenue: In addition to any sums recoverable as arrears of land revenue under this Act or any other enactment for the time being in force, the following sums may be so recovered, namely:-- (a)... (b)... 11. Section 91 of the Land Revenue Act, insofar as relevant, is extracted below: "91. Other sums recoverable as arrears of land revenue: In addition to any sums recoverable as arrears of land revenue under this Act or any other enactment for the time being in force, the following sums may be so recovered, namely:-- (a)... (b)... (r) all sums payable to the Government, which the Government may from time to time by notification in the Government Gazette, declare to be recoverable as arrears of land revenue." Clause (r), as quoted above, postulates two conditions: first, that the sum must be payable to the Government; and second, that the sum must have been declared by the Government by notification in Government Gazette to be recoverable as arrears of land revenue. When the aforesaid two conditions are met, then only such sum can be recovered as arrears of land revenue. The Revenue Officer, too, would get the jurisdiction only when the aforesaid two conditions are met. 12. In the instant case, there is no doubt that the amount is payable to the SKIMS Medical College Hospital, which is Government Institution. However, the amount stated to be due from the petitioner and payable to the SKIMS Medical College has not been declared by the Government to be recoverable as arrears of land revenue that too, in the Government Gazette. In fact, the Communication dated 19.10.2013 nowhere declares that the sums stated to be outstanding against the petitioner are recoverable as arrears of land revenue. That being so, Respondent No. 3 has proceeded in the matter in a slipshod manner, without taking recourse to the procedure established by law. Consequently, the communication in question has been issued without jurisdiction and in an arbitrary manner. The notice issued by Respondent No. 5 pursuant thereto suffers from the same vice. 13. In view of the above, the writ petition is allowed and the impugned communication dated 19.10.2013 issued by Respondent No. 3 to Respondent No. 5 and the notice issued pursuant thereto by Respondent No. 5 to the petitioner are quashed. This, however, would not preclude Respondents 1 to 4 from proceeding in the matter in accordance with law and seek recovery of the amounts outstanding against the petitioner in due course of law. No order as to costs.