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2016 DIGILAW 841 (ALL)

Bajaj Hindusthan Ltd. v. State of U. P.

2016-03-04

TARUN AGARWALA, VINOD KUMAR MISRA

body2016
JUDGMENT We have heard Shri Govind Singh, learned Senior Counsel assisted by Shri Diptiman Singh, learned counsel for the petitioner and Shri Anoop Kumar Srivastava, Additional Chief Standing Counsel for the State and Shri Ravindra Singh, learned counsel for respondent nos. 5 to 9. 2. The petitioner is a company incorporated under the Indian Companies Act, 1956 and is engaged in the business of manufacture and sale of production of sugar by various process having its unit at Barkhera, Pilibhit. For the crushing season 2013-2014, the petitioner could not pay the cane price, as a result a recovery certificate dated 23.6.2014 was issued for recovery of Rs. 10692.75 lacs. For the reasons best known, recovery was not being pressed by the State Authorities and subsequently a Public Interest Litigation was filed in which certain directions were issued to the State Authorities to recover the amount. Based on the said directions, the sugar which was kept in the godowns was attached and the same was sold by auction. Certain amount was recovered and a sum of Rs.4.45 crores was retained by the authority towards recovery charges. 3. The petitioner being aggrieved by the retention of this amount towards recovery charges filed Writ Petition No. 54974 of 2014 contending that recovery charges for the entire amount could not be levied in as much as part of the dues was paid voluntarily by the petitioner. 4. This Court by an order dated 16.10.2014 dismissed the writ petition observing that there was no reason to interfere in the recovery certificate and the question as to whether the authorities have not been able to recover the amount through coercive measure, is a question of fact, for which the appropriate remedy for the petitioner is to file a suit. 5. For facility the said order dated 16.10.2014 is extracted herein: "Having heard the learned counsel for the petitioner, the Court find that the petitioner is in arrears of Sugarcane dues amounting to Rs.48 crores including Society Commission. Consequently, we do not find any reason to interfere in the recovery certificate. The question as to whether the authorities have not been able to recover the amount through coercive measure, is a question of fact, for which the appropriate remedy for the petitioner is to file a suit. The writ petition fails and is dismissed. " 5. Consequently, we do not find any reason to interfere in the recovery certificate. The question as to whether the authorities have not been able to recover the amount through coercive measure, is a question of fact, for which the appropriate remedy for the petitioner is to file a suit. The writ petition fails and is dismissed. " 5. The petitioner has now filed the present writ petition praying that the proposed auction which is going to be held pursuant to a notice dated 26.12.2015 should be quashed and the said attachment order dated 9.12.2015 should also be quashed. Further, the excess amount of collection charges collected over and above 10% should be refunded. 6. The contention of the petitioner in this petition is, that the more amount has been realised than the amount shown in the recovery certificate and therefore, the proposed auction was wholly illegal and was liable to be quashed. 7. It was also contended that certain payments were made directly by the petitioner to the Cane Society and therefore, no recovery charges of such amount deposited by the petitioner voluntarily could be charged by the State. It was also contended that the petitioner is collecting 16% charges towards collection charges etc. which was wholly illegal. 8. The learned Senior Counsel further contended that the recovery of the amount also includes an amount of Rs.517.76 lacs towards interest which has been waived by the State Government and therefore, the recovery certificate should be quashed. 9. In so far as the question as to whether the respondents were justified in collecting recovery charges namely 10% as well as 6% under Rule 258 of the U.P.Zamindari Abolition & Land Reforms Rules, we are of the opinion that the petitioner has to file a suit and prove the same before the Trial Court as to whether the authorities had recovered through coercive measures or not in so far as 10% recovery charges are concerned. 10. Similarly, it would be open to the petitioner to question the veracity of calculation of 6% under Rule 258 of the Rules. This is on account of the fact that the petitioner cannot raise this ground, again in the second writ petition, when the same was rejected in the earlier round of litigation, when Writ Petition No.54974 of 2014 was dismissed by the judgement dated 16.10.2014. 11. This is on account of the fact that the petitioner cannot raise this ground, again in the second writ petition, when the same was rejected in the earlier round of litigation, when Writ Petition No.54974 of 2014 was dismissed by the judgement dated 16.10.2014. 11. In the light of the aforesaid, we are entertaining the present writ petition on a limited consideration namely whether the total amount of recovery certificate should be reduced on account of waiver of the interest by the State Government. In this regard, the State Government has filed their counter affidavit admitting that the State Government has waived the interest to the tune of Rs.517.76 lacs. 12. In the light of the aforesaid, we directed the State to file an affidavit indicating the correct status of the amount that is now to be recovered. A second short counter affidavit has been filed on 4.3.2016 indicating that the total amount to be recovered which includes collection charges of 10% and auction charges of 6% under Rule 258 comes to Rs. 11544.75 lacs which has to be recovered and therefore, the balance amount of Rs.258.23 lacs is yet to be recovered from the petitioner. 13. The petitioner is disputing the recovery charges of 10% and 6% for which we have already directed the petitioner to avail the remedy for filing a suit. 14. This Court while entertaining the writ petition, had passed an interim order directing that the auction proceedings may go on but the same would not be confirmed. It has been stated by the respondents that the auction was held and bids were received but the same has not been confirmed as yet. The highest bid received was Rs.2887/- per quintal. 15. On the other hand, the learned counsel for the petitioner states that the bid received was on a lesser side and if the sugar is sold today, it would fetch a higher price. 16. In the light of the aforesaid, we dispose of the matter directing the petitioner to pay the balance sum of Rs.258.23 lacs on or before 30.4.2016. If this amount is deposited, the auction and attachment proceeding would be set aside. If the amount is not deposited, the respondents will proceed with the recovery.