- (1.) TARUN Agarwala, J. Heard Shri Sudhir Kumar, learned Counsel holding the brief of Shri Vivek Kumar, the learned Counsel for the petitioner and Shri D.S. Patni, the learned Counsel for the Municipal Board Parishad, Nainital.
(2.) THE facts, leading to the filing of the writ petition, is that a contract for entry of vehicles in Nainital was awarded to the petitioner on a license fee of Rs. 1,85,40,000/-, for the period 1st April, 2009 to 31st March, 2010. A contract was executed and under Clause 11 thereof, 50 per cent of the license fee was required to be paid by the petitioner at the time of the execution of the contract. The remaining 50 per cent of the license fee was required to be paid in two equal installments, i.e. 25 per cent in July 2009, and the balance 25 per cent in September 2009, which was extendable till 15th October. It was stated in Clause 11 that failure to deposit the amount on the due dates would lead to the automatic cancellation of the contract, and the balance amount would be recovered as arrears of land revenue. Similar provision for recovery of the amount as arrears of land revenue was provided in Clause 18. Clause 21 of the contract provided for invoking the arbitration in case of any dispute. Soon after the expiry of the contract period, the petitioner raised a dispute and approached the High Court under the Arbitration and Conciliation Act, 1996. The Court, by an order of 23.4.2010, appointed the District Magistrate, Nainital as the Arbitrator. It is alleged that arbitration proceedings are still pending before the Arbitrator. It transpires that the license fee was not fully paid by the petitioner, and consequently, a recovery certificate dated 18.5.2010 was issued for the recovery of Rs. 14,88,500/-. The petitioner protested and filed an application under Section 9 of the Arbitration and Conciliation Act for stay of the recovery, which application was rejected by the Court concerned by an order of 15.2.2011. The petitioner preferred an appeal, which was also rejected by an order of 22.2.2011. The petitioner, being aggrieved by the issuance of the recovery certificate, has filed the present writ petition.
(3.) THE learned Counsel for the petitioner submitted that no recovery certificate could be issued for the recovery of the amount payable under a contract. The learned Counsel submitted that unless there was a law or a statute, which provide recovery of such amount under a contract as arrears of land revenue, only then a recovery certificate could be issued, otherwise, merely because the contract mentions that such amount would be recovered as arrears of land revenue, would by itself be insufficient to issue a recovery certificate. The learned Counsel submitted that mere mention of recovery as arrears of land revenue in the contract was by itself insufficient. The learned Counsel submitted that there was no such provision under the Municipalities Act for recovery of an amount under the contract as arrears of land revenue. In support of his submission, the learned Counsel placed reliance upon the decision of a Division Bench of the Allahabad High Court in Chirganji Lal v. The Collector and Others, 1973 RD 422; Mumtaz Ali v. Sub-Divisional Magistrate and Anr. 1970 ALJ 114; Gaon Panchayat Kulpahar and Anr. v. Munna Lal, 1975 ALJ 40, and Titu Singh v. District Magistrate/Collector, Mathura and Others, (2003) 2 UPLBEC 1283, wherein, in similar circumstances, a Theka for Tehbazari, parking fee etc. was issued, and when the Theka money or parking fee was not given, the contract was cancelled and the balance amount was sought to be recovered as arrears of land revenue. The High Court held that such recovery as arrears of land revenue for the balance amount under the contract could not be recovered, and that the same could be recovered under the civil law. The learned Counsel, accordingly, submitted that the recovery certificate is liable to be quashed.;