- (1.) R. R. K. Trivedi, J. 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 1st April 1988 to 31st March 1989 took place in which bid of the petitioners for Rs. 1,75,000/- 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/ -. 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 1st September, 1990 on petitioner requiring him to pay Rs. 70,150 and collection charges and to appear before him on 8th September, 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 7th September, 1990 stayed the recovery of the amount on condition that the petitioner deposits an amount of Rs. 10. 000/- with the opposite party No. 1 Zilla Parishad within a period of one month. 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/- 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 7th September, 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 21st December. 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/- 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. 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.
(3.) 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 further submitted that in the Circumstances of the case collector could not have authority to realise the amount as land revenue arrears and this authority cannot he conferred on him by an agreement between the parties. The agreement, if any, is void for all purposes. There is no provision under. The kshetra Samities And Zilla Parishads Adhiniyam, 1961 there- in-after referred to as Act) or Rules framed there under giving authority to Zilla Parishad to realise the amount as arrears of land revenue. It has been submitted that State or its instrumentalities cannot enter into a private contract which is not for a public purpose. If no public purpose is involved the contract will he hit by Article 14 of the Constitution. It has also been submitted that if the amount is realised as land revenue arrears petitioner shall suffer a serious prejudice us there is no machinery to quantify the amount which may be payable by petitioner. Various defences which may he available to petitioner in suit shall not be available to him in the present proceedings. In respect of the second writ petition, it has been submitted by the learned counsel for the petitioner that the amount of Rs. 50,150/- was due to petitioner from Zilla Parishad under a different. and independent contract for constructing the school building. The contract was duly completed and the petitioner had submitted the final bill for payment. The respondent Zilla Parishad however illegally deducted the amount of Rs. 55,156/- and paid only Rs. 26,817. 85 p. which was accepted by petitioner under protest. The, petitioner filed this writ petition to enforce his legal right to receive the amount which was illegally withheld by Zilla Parishad in spite at the interim order dated 7th Sept, 1990 passed in the first writ petition, Learned counsel has placed reliance on the following cases:- (1) Mumtaj Ali, v. Sub-Divisional Magistrate reported in, 1970, All LJ 114, (2), U. P, State Electricity Board v. Official Liquidator Lower Ganges Jamuna Electricity Distributing Company Ltd. , reported in AIR, 1973 SC 2546. (3) Angad Pandey v. Town Area Committed Karora Hamirpur, reported in 1980 All WC 500: (1980 All LJ 1036), (4) M/s. Dwarka Das Marfatia and Sons v. Board of Trustees of the Court of Bombay, reported in AIR 1989 SC 1642 and Mahesh Chandra v. Zilla Panchayat, at, Mainpuri reported in (1996) 3 UPLBEC 1586.;