BABULAL TULSIDAS Vs. SAYLA GRAM PANCHAYAT DIST SURENDRANAGAR

JUDGEMENT

(1.) The petitioner is a person who had obtained a lease in respect of levy of octroi duty from the then Municipality of Sayla constituted under the Bombay District Municipal Act, 1901, (hereinafter referred to as the 'Municipal Act'). The lease was granted in exercise of powers under Section 81-A of the Municipal Act. The said Sayla Municipality was subsequently converted into a Gram Panchayat. The lease was for the period commencing from April 1, 1962 and expiring with March 31, 1963. It was granted by public auction and was sanctioned by a resolution passed by the Municipality on March 28, 1962. Under the said lease a sum of Rs. 30,999/was to be paid by the petitioner to the Sayla Municipality, in respect of the octroi duty for the aforesaid period. The right to collect the amount payable under the said lease has accrued in favour of the respondent No. 1 (the Sayla Gram Panchayat) in view of the fact that the Sayla Municipality was converted into a Gram Panchayat under the relevant provisions. It is the case of the petitioner that on February 1, 1963 the Sayla Municipality terminated the aforesaid lease. As per the terms and conditions of the lease the amount that was payable was to be paid by equal monthly instalments. And the amount in respect of every instalment was to be paid on or before the 10th of every month. There was also a stipulation in respect of penalty. It was provided that if there was any default in payment of any instalment a penalty at 10 per cent was payable every month. On May 19, 1963 the first respondent Sayla Gram Panchayat served on the petitioner a writ of demand calling upon him to make payment of a sum of Rs. 18,245-95 due on account of non-payment of the instalments payable under the octroi lease for the year 1962-63 inclusive of the penalty payable on account of non-payment of the instalments in respect of which the petitioner was in default. The petitioner was called upon to make payment within 30 days from the service of the writ of demand along with a sum of Re. 1/- being the fee for the issue of the said writ. Intimation was given to the petitioner that upon his failure to show sufficient cause of non-payment to the satisfaction of the Panchayat, a warrant of distress would be issued for the recovery of the said sum with costs. In reply to this notice of demand, the petitioner made an application dated 13th July, 1963 showing cause as to why the amount should not be recovered. It appears that the Collector of Surendranagar passed an order on July 29, 1964 to the effect that the sum of Rs. 15,441.17 was payable on account of octroi lease of Sayla Gram Panchayat and that the said amount was recoverable from the petitioner as arrears of land revenue. A certificate was issued under sub-section (1) of Section 3 of the Revenue Recovery Act and was transmitted to Respondent No. 3, the Collector of Bhavnagar District. It was in pursuance of this certificate that the respondent No. 3 proceeded to take in attachment an immovable property belonging to the petitioner situated in Botad. Thereupon the petitioner has instituted the present petition under Article 226 of the Constitution of India praying that a writ of mandamus or any other appropriate writ be issued prohibiting the respondents, their agents or employees from recovering the aforesaid amount of Rs. 15,441.17 in respect of the octroi lease for the period from April 1, 1962 to March 31, 1963 as arrears of land revenue.

(2.) It is the case of the petitioner in the petition that Section 192 of the Gujarat Panchayats Act, 1961 (hereafter referred to as the Panchayat Act) under which the recovery is sought to be made is ultra vires the Constitution of India being violative of Articles 14 and 19 of the Constitution. Though this challenge was made in the petition, at the time of the hearing the learned Counsel for the petitioner stated that he did not want to press this contention. In view of this statement it is not necessary to examine the question as regards the vires of Section 192 of the Panchayats Act. On merits the first point made by the learned Counsel for the petitioner was that the proceedings for recovery initiated against the petitioner were bad in law by reason of the fact that the procedure envisaged by Section 192 of the Panchayats Act had not been followed. This contention was built on the circumstance that a bill in respect of the amount claimed from the petitioner had not been rendered on him. It was made in the context of sub-section (1) of Section 192 of the Gujarat Panchayats Act. This argument loses its edge because it overlooks the fact that the recovery sought to be made is not under sub-section (4) of Section 192 at all. The present proceedings have their origin in sub-section (9) of Section 192. For the purposes of this argument the scheme of Section 192 may be examined. If upon rendering of a bill under sub-section (1) of Section 192, and upon the service of a writ of demand under sub-section (2) of Section 192, the sum for which the demand has been made is not paid within 30 days from the date of the service of the writ of demand, the Panchayat may levy such sum by distraint and sale of the moveable property of the defaulter in the prescribed manner. Under sub-section (4) of Section 192, recovery by distraint and sale of the moveable property of the defaulter cannot be made until a bill in respect of the amount is rendered on the person concerned and unless it is followed by a writ of demand as contemplated by sub-section (2) of Section 192. Now in the present case it is established that the recovery is being made by the Collector at the instance of the competent authority acting in exercise of the powers under subsection (8) of Section 192. This provision is designed to meet the case where a Panchayat fails to recover any tax, fee or any sum due or when such Panchayat neglects to take action under sub-sections (2) and (3) of Section 279 or subsections (2) and (4) of Section 192 of the Panchayats Act. In the present case the Collector was moved by the competent authority under sub-section (8) of Section 192 on the ground that the Panchayat had failed to recover the sum due to it. It was in exercise of powers under sub-section (9) of Section 192 that the Collector had started recovery proceedings and issued the certificate of recovery. Such being the case, the fact that a bill was not rendered on the petitioner before commencing the recovery proceedings will not be of any avail to the petitioner for challenging the legality of the recovery proceedings.

(3.) Coming now to the next challenge to the recovery proceedings, it is founded on an argument calling into question the interpretation of sub-section (1) of Section 192 of the Gujarat Panchayats Act, 1961. The said section reads as under: - 192. (1) When any tax or fee or any other sum has become due, a Panchayat shall with the least practicable delay, cause to be presented to the person liable for the payment thereof a bill for the amount due from him, specifying the date on or before which the amount shall be paid.