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IN THE HIGH COURT OF ALLAHABAD
R. R. K. TRIVEDI, D. C. SRIVASTAVA
SURENDRA KUMAR RAI - Appellant
Versus
ZILLA PARISHAD JHANSI - Respondents
C. M. W. P. 23813 Of 1990
Decided On : 04/01/1997
CONTRACT - VOID - RECOVERY OF AMOUNT - FEES AND TOLLS - RECOVERY AS ARREARS OF LAND REVENUE - ADJUSTMENT OF AMOUNT - INTERIM ORDER - RESTITUTION.
Fact of the Case:
Petitioner participated in an open auction and was granted the right to collect fees and tolls from vehicles entering Zilla Parishad territory. He paid part of the bid amount but failed to pay the remaining amount despite several demands. A recovery certificate was sent to the Collector to realize the amount as arrears of land revenue. The petitioner challenged the recovery through a writ petition.
Finding of the Court:
1. The agreement between the petitioner and Zilla Parishad was not void for unlawful object. 2. The petitioner is liable to pay the amount realized from the public during the period for which the license was granted. 3. The amount cannot be recovered from the petitioner as arrears of land revenue under the provisions of the Act and the Rules framed thereunder. 4. The petitioner is bound by his affidavit dated 29-3-1988 and it is not open to him to question the mode of recovery. 5. The recovery of the amount of Rs. 55,150.00 by Zilla Parishad due from the petitioner towards the payment of the balance of license fee by deduction from the amount payable in respect of a subsequent contract for the construction of a school building was permissible under the law.
Issues: 1. Whether the agreement between the petitioner and Zilla Parishad was void for unlawful object? 2. Whether in case the agreement was found to be void, the petitioner is not liable to pay the amount which he has already realized from the public during the period for which the license was granted to him? 3. Whether this amount can be recovered from the petitioner as arrears of land revenue under the provisions of the Act and the Rules framed thereunder? 4. Whether the petitioner is bound by his affidavit dated 29-3-1988 and it is not open to him to question the mode of recovery? 5. Whether the recovery of the amount of Rs. 55,150.00 by Zilla Parishad due from the petitioner towards the payment of the balance of license fee by deduction from the amount payable in respect of a subsequent contract for the construction of the school building was permissible under the law?
Ratio Decidendi: 1. The agreement was not void as it was entered into voluntarily and there was no evidence of undue influence, fraud, misrepresentation, or mistake. 2. The petitioner is liable to pay the amount realized from the public as he received a benefit under the agreement and is bound to restore it to Zilla Parishad. 3. The amount cannot be recovered as arrears of land revenue as the provisions of the Act and the Rules framed thereunder do not confer such authority on Zilla Parishad. 4. The petitioner is bound by his affidavit dated 29-3-1988 in which he agreed to the mode of recovery. 5. The recovery of the amount of Rs. 55,150.00 by Zilla Parishad due from the petitioner towards the payment of the balance of license fee by deduction from the amount payable in respect of a subsequent contract for the construction of the school building was permissible under the law as Zilla Parishad had the authority to recover the amount under Chapter VIII of the Act.
Final Decision: The writ petitions were disposed of finally with the following directions: 1. The petitioner shall pay to respondent Zilla Parishad an amount of Rs. 55,150.00 within a period of three months from the date of the judgment. 2. If the amount is paid by the petitioner as directed above, the recovery proceedings for recovery of the amount of Rs. 70,150.00 as arrears of land revenue and the citation dated 1-9-90 shall stand quashed. 3. However, in case the amount is not paid by the petitioner, as directed above, the recovery proceedings shall be continued against the petitioner under this order for the amount referred to in the citation and he shall be further liable in the same proceedings to pay the interest at the rate of 15% on the amount of Rs. 55,150.00 from the date he received this amount under the interim order dated 21-12-92 from Zilla Parishad till the actual recovery of the amount. 4. The amount of Rs. 10,000.00 deposited by the petitioner with Zilla Parishad respondent No. 1 under the order dated 7-9-90 shall be given due adjustment in the recovery of the amount under the order of this Court. 5. However, in special facts and circumstances of the case, the parties shall bear their own costs.
( 1 ) BOTH the aforesaid writ petitions have been filed by same petitioner against Zilla Parishad Jhansi and most of questions of fact and 1aw involved are common. Thus both writ petitions can be decided by a common order against which parties have also to objection. Civil Misc. Writ Petition No. 23803 of 1991 shall be the leading case.
( 2 ) THE facts, in brief giving rise to Writ Petition No. 23803 of 1990 are that auction for grant of licence to realise and collect fee ad tolls on vehicles entering Zilla Parishad territory and using Bus Adda for the period 1/04/1988 to 31/03/1989 took place in which bid of the petitioners for Rs. 1,75,000. 00 being highest was accepted In pursuance of which the licence was issued in favour of petitioner which is Annexure1 to the writ petition. Out of the total bid money petitioner paid Rs. 1,05,000. 00. However he failed to pay the remaining amount of Rs. 70,000 In spite of the several demands the amount was not paid a recovery certificate was sent to the Collector, Jhansi to realise the amount as arrears of land revenue from petitioner requiring him to No. 3 Tahsildar, Jhansi served a citation dated 1/09/1990 on petitioner requiring him to pay Rs. 70,150 and collection charges and to appear before him on 8/09/1990 Aggrieved by this demand made through the citation petitioner had filed this writ petition challenging the recovery of the amount and for quashing of the citation. , In this writ petition, counter and rejoinder affidavits have been exchanged. This Court by interim order dated 7/09/1990 stayed the recovery of the amount on condition that the petitioner deposits an amount of Rs. 10. 000. 00 with the opposite party No. 1 Zilla Parishad within a period of one month.
( 3 ) THE facts stated in Civil Misc. Writ Petition No. 22366 of 1992 are that the petitioner is a registered contractor. He got a contract to construct the Government Girl High School in villages Rasoli, Block Babina, district Jhansi. The final account of this construction which was approved by the respondents was for Rs. 1,10,923. 85 p. After certain deductions petitioner was entitled to get an amount of Rs. 81. 967. 85p. Respondent Zilla Parishad deducted Rs. 55,150. 00 from this amount towards the payment of the balance of the licence fee under the agreement in question in first writ petition and paid him only Rupees 26. 817. 85 p. Petitioner filed this writ petition for a direction to the respondent No. 2 to comply with the interim order dated 7/09/1990 and to pay him immediately the remaining amount of Rupees 55. 150/- recovered from the final payment of the contract work. In this wirt petition a Division Bench of this Court on 21/12/1992 passed an order to the following effect:-LIST this petition along with writ petition No. 238903 of 90 on 18-1-93. In the mean time, we direct the respondent No. 1 Zilla parishad to pay a sum of Rs. 55,150. 00 to the petitioner which it has unlaw fully deducted from payment despite the order of this Court dated 7. 09. 90 in Writ Petition No. 23803 of 90. "it is not disputed that under the aforesaid interim order the amount has been paid to the petitioner.
( 4 ) WE have heard Senior counsel Shri R. K. Jain and Shri Arun Prakash for petitioner and Shri K. N. Saxena and learned Standing counsel for respondents.
( 5 ) SHRI Jain has submitted that the contract for realisation of the toll and fee from the vehicles was void as its object was, not lawful. The Zilla Parishad had no authority, under law to realise the toll tax from petitioner as the contract was void. Reliance has been place for this submission on Section; 10,14 and 16 of the Contract Act. learned counsel has further submitted that in any case the unpaid amount of the contract money cannot be realised as land revenue arrears. The amount due from petitioner was neither the amount of tax nor fee but it was a premium on contract and in respect of which recovery certificate cannot be issued. It has been furthe
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