SUBHASH GOGIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Petitioner entered into an agreement with respondent no. 3 dated 15-02-1985. For the consideration of Rs. 12,62.376/-, the Petitioner was granted licence to use and occupy four sheds bearing nos. 904, 905, 918 and 919 at Gujarat industrial Development Corporation, gundlav Industrial Estate situated at Valsad. Petitioner had to pay sum of Rs. 3,15,594/- as earnest money and the balance consideration was payable in terms of the agreement. It is the case of the Petitioner that after he was put in possession, it was found that there was total lack of basic amenities and consequently he could not use the same and suffered losses. As a consequence, petitioner was constrained to surrender four sheds to Respondent No. 3. The Petitioner was therefore, surprised to receive an order dated 05-05-1998 from respondent No. 3 wherein it was alleged that a sum of Rs. 4,48,026/- was required to be paid by the Petitioner towards the interest, penalty, service charges etc. and that the sum of rs. 3,35,594/- paid by the Petitioner is deducted against the said recovery and the remaining amount of Rs. 1,12,432/- is to be recovered from the Petitioner. The Petitioner was called upon to forward demand draft for the said amount failing which it was to be got recovered as arrears of land revenue. The petitioner's case is that the said demand is unlawful as no facilities were given for smooth functioning of business of the petitioner. In fact on account of failure by respondent No. 3 to provide proper amenities and facilities, the petitioner had demanded refund of the amount and had also served legal demand notice through his lawyer. The respondent No. 3 in making a demand has done so without following the principles of natural justice and fair play. It is then pointed out that Officer of Respondent No. 3 addressed a letter dated 12-08-1996 to respondent No. 2 enclosing a certificate certifying that the sum of Rs. 1,12,432/- is payable by the Petitioner towards the outstanding. The Petitioner's contention is that by his letter of 01-09-1998 he requested the respondent No. 2 to furnish proof of the alleged outstanding and further informed that he was not liable to pay the amount. It is the case of the Petitioner that the recovery officer of Respondent No. 2 instead of producing proof, by notice dated 08-09-1998 called upon the Petitioner to produce documents relating to the subject. It is contended that the issue as contained in the letter dated 05-05-1998 is invalid as nothing is payable by the Petitioner to any of the respondents. In view of this illegal demand, the petitioner filed the petition and prayed for interim relief as set out therein. This court was pleased to issue rule on 07-01-2002.

(2.) At the hearing of this petition, on behalf of the Petitioner their learned counsel made a submission that even if any amount is due and payable by the Petitioner to Respondent No. 3, the same could not have been recovered by Respondent No. 2 based on the recovery certificate issued by officer of Respondent No. 3 as only Governmental dues would be recovered and dues of respondent No. 3 are not Governmental dues, though Respondent No. 3 may be a corporation fully owned by the State of gujarat. It is therefore, submitted that the demand is unlawful and consequently the petitioner is entitled to the reliefs as prayed for. On behalf of Respondent No. 3, their learned counsel submits that their demand is based on the provisions of Gujarat Industrial development Act, 1962, hereinafter referred to as the Development Act, read with provisions of the Revenue Recovery Act, 1890. As the Petitioner was defaulter, it was open to Respondent No. 3 to recover the amount as arrears of land revenue under section 41 of the Development Act and under the provisions of the Revenue Recovery Act, 1890, hereinafter referred to as "recovery act".

(3.) We have heard the learned counsel. The only contention as urged on behalf of the Petitioner may now dealt with. The submission is that the demand made under the provisions of Development Act is not a public revenue or revenue of the government and as such cannot be recovered under the provisions of the Recovery Act. Learned counsel has placed strong reliance on the judgment of the Single Judge of Kerala high Court in the case of Dat Pethe and another Vs. District Collector, ernakulam and Others, AIR 1976 Kerala 37. The issue before the learned Single Judge of Kerala High Court was whether the amount sought to be recovered as arrears of land revenue based on the certificate can be said to be one due to the Government. The learned Judge held that it was only governmental dues which can be recovered under the provisions of the Recovery Act and consequently allowed the petition. Learned counsel submits that the scheme of the development Act has as its primary objective of the development of industries. Respondent no. 3 though a undertaking of the State of gujarat is not a department of the State of gujarat. In these circumstances, the amounts due and payable to respondent No. 3 could not have been recovered as arrears of land revenue under the Recovery Act even though they can be recovered as arrears of Land revenue under the Development Act. For that purpose we may consider some of the provisions of the Development Act. Section 28 (b) sets out that the rents and damages on account of occupation of premises of respondent No. 3 can be recovered as arrears of land revenue. Similarly, Section 41 sets out that all sums payable by any person to the corporation or recoverable by if by or under the Act and all charges or expenses incurred in connection therewith shall, without prejudice to any other mode of recovery, be recoverable as an arrears of land revenue on the application of the Corporation. We then come to the provisions of the Recovery Act. Section 3 provides that recovery of land revenue or sum recoverable as arrears of land revenue is payable to the Collector by a defaulter being or having property in a district other than that in which the arrears accrued or the sum is payable, the Collector may send to the collector of that other district a certificate in the form as nearly as may be in terms of the schedule. Under Section 5, if any sum is recoverable as an arrears of land revenue by any public officer other than a Collector or by any local authority, the Collector of the district in which the office of that officer or authority is situate shall, on the request of the officer or authority, proceed to recover the sum as if it were an arrears of land revenue which had accrued in his own district, and may send a certificate of the amount to be recovered to the Collector of another district under the foregoing provisions of this Act, as if the sum were payable to himself. There are no averments nor a charge based on the certificate sent to respondent no. 2 for recovery of the amount, that the officer of Respondent No. 3 who issued the certificate had no authority in law. We therefore, proceed on the footing that there is valid certificate issued to respondent No. 2 to recover the amount as set out in the certificate.