IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3643 of 2008 Date of Decision : December 18, 2008 Parkash Chand .....Petitioner Versus Municipal Corporation, Faridabad and others .....Respondents CORAM : HON’BLE MR JUSTICE T.P.S. MANN Present : Mr. Bikram Chaudhary, Advocate for the petitioner. Mr. Mohnish Sharma, Advocate for respondents No. 1 and 2. T.P.S. MANN, J. The plaintiff has filed the present revision against the order passed by the trial Court whereby his application under Order XXXIX Rules 1 and 2 C.P.C. for staying the recovery of Rs. 12,23,447/- was dismissed by the trial Court and the appeal preferred against the same, thereafter dismissed by the lower appellate Court. The case of the plaintiff, as set up by him in the suit, was that a parking stand contract was given to him 24.4.1998. His bid of Rs. 7,50,000/- was accepted. An amount of Rs. 1,87,500/-, i.e., 1/4th of Civil Revision No. 3643 of 2007 -2- the auction money was deposited at the spot, while the remaining amount of Rs. 5,62,500/- was to be deposited in monthly installments. However, the Municipal Corporation, Faridabad unilaterally changed the terms of allotment by requiring him to pay the balance auction money within seven days of the acceptance of the auction. He had earlier filed a suit for permanent injunction, wherein the defendants filed their written statement. However, later on, the defendants stopped effecting recovery. Accordingly, the plaintiff withdrew his suit. As defendants No. 1 and 2 again threatened to recover the remaining auction money in lump sum, he filed the present suit for permanent injunction. In their written statement, the defendants pleaded that the plaintiff was required to deposit the remaining auction money within seven days and this was the condition initially and never changed. It was also submitted that the plaintiff had operated the cycle stand for 11 months and, therefore, the defendants were effecting recovery of the remaining auction money. It is apparent that after depositing only 1/4th of the auction money at the spot, the plaintiff-petitioner started running the business of parking. He ran it for the entire term of the contract. Instead of paying the remaining auction money within seven days, as required under the contract, the plaintiff filed a suit and obtained an order of stay and, therefore, did not allow the recovery to be effected. Later on, without Civil Revision No. 3643 of 2007 -3- giving any reason, he withdrew the same. By that time a period of five years had already expired. He then filed the present suit in the year 2008 so as to oppose the recovery by claiming that it could not be effected after the expiry of three years. No material has been shown by the plaintiff that the terms and conditions of the contract had been changed. In fact, the plaintiff did not place on record the terms and conditions of the contract under which he was required to pay the balance auction money in monthly installments. In the absence of the same, the plaintiff was not justified to aver or allege that the remaining auction money was to be deposited in monthly installments and not within seven days of the auction. Learned counsel for the petitioner submitted that under Section 81 of the Punjab Municipal Act, 1911 ( for short '1911 Act') any arrears of tax, water rate, rent, fee or any other money claimable by the Committee under the Act may be recovered on an application to an Executive Magistrate having jurisdiction within limits of the Municipality by the distress and sale of any movable property of the person from whom the money is claimable. There is no provision in the Act to recover the remaining amount of the auction money. The remaining amount of auction money could not be termed as tax, rent or fee which could be claimed by the Committee. In this regard, he has placed reliance on Mana Ram V. Emperor, AIR 1926 Lahore 518, wherein it was held that Civil Revision No. 3643 of 2007 -4- money due to the Committee under a lease or a contract could not be recovered by proceeding under Section 81 and such a money could be realized by action in civil Courts. In Guranditta Mal v. Emperor, AIR 1938 Lahore 29, it was held that mere use of word 'rent' applied to a sum recoverable by the Committee would not of necessity make that some recoverable as the rent “claimable by Committee under the Act”. In New Snow View Transport Company Limited, Pathankot and others v. Secretary, Municipal Committee, Palampur, 1960 Punjab Law Reporter 928, even the sums due for occupation of booking sheds by transport companies were held to be neither 'rent' nor 'fee' which could be said to be claimable by the Municipal Committee under any of the provisions of the Punjab Municipal Act. In Municipality, Rampura Phul v. Hardev Singh @ Bhola, 1993 (2) RRR 99, where certain sheds were leased out by Municipal Committee and the lessees were in arrears of rent, it was held that even the rent could not be recovered by the Municipality through the Magistrate, as Municipal Committee was unable to point out any provision in the Act under which sheds were leased out by the Committee. The aforementioned judgments cited by learned counsel for the petitioner revolve around the powers of the Municipal Committee to make an application for effecting recovery of arrears of any tax, water rate, rent, fee or any other money claimable under the Act by the distress and sale of any movable property of the person from whom the money Civil Revision No. 3643 of 2007 -5- was claimable. It was on a plain reading of the provisions of Section 81 of the 1911 Act that it was held that unless and until the recovery was to be of any tax, water rate, rent, fee or any other money claimable by a Committee that it could file an application to Executive Magistrate for recovering the money by the distress and sale of any movable property of the person from whom the money was claimable. However, in the case in hand, it is the Haryana Municipal Corporation Act, 1994 (hereinafter referred to as the '1994 Act'), under which the respondents sought to recover the balance of the auction money from the petitioner as arrears of the land revenue. Section 130 of the 1994 Act, entitles the Municipal Corporation to recover any sum due on account of the tax or fee payable under this Act by adopting any of the following processes :- (i) as arrears of land revenue; (ii) by distraint and sale of a defaulter's movable property ; (iii) by the attachment and sale of a defaulter's immovable property; (iv) in the case of octroi and toll, by the seizure and sale of goods and vehicles; (v) in the case of taxes on lands and buildings, by the attachment of rent due in Civil Revision No. 3643 of 2007 -6- respect of the property; and (vi) by a suit. A bare look at the provision of Section 130 of the 1994 Act would show that they are pari materia with those of Section 81 of the 1911 Act. However, Section 374 of the 1994 Act provides for recovery of certain dues, which have not been expressly provided for in the said Act or any bye-law made thereunder by prescribing that any such charges, costs, expenses, fees, rates or rent or any other amount under the 1994 Act or any such bye-law may be recoverable from any person from whom such sum is due as arrears of tax under the Act. There is no provision, corresponding to Section 374 of the 1994 Act in the 1911 Act. Section 374 of 1994 Act, thus, entitles the Municipal Corporation to recover any amount due to the Corporation even if the same was not expressly provided in the Act or any bye-law made thereunder from the person from whom such sum is due as arrears of tax under the Act. Once Section 374 of the 1994 Act allows the Municipal Corporation to effect recovery of any sum due which was not expressly provided for in the Act or any bye- law made thereunder, it cannot be said that the Municipal Corporation was not competent to recover those amounts which could not be claimed under the 1974 Act. As per the terms of the contract under which the plaintiff was allowed to run the parking stand, he was required to deposit 1/4th of the auction money at the spot and the remaining within seven days of the Civil Revision No. 3643 of 2007 -7- acceptance of auction. After depositing 1/4th of the auction money, the plaintiff obtained the contract and ran the parking stand for the entire term of the contract by charging from the public for parking. As he was required to pay the remaining auction money by depositing the same within seven days of the auction, which he did not do, a notice was, accordingly, issued by the defendants to the plaintiff under Section 128 of the 1994 Act to deposit the remaining auction money, but the plaintiff did not deposit any such amount. Under these circumstances, the Municipal Corporation was left with no other option but to proceed under the 1994 Act to recover the remaining amount of the auction money. Resultantly, there is no merit in the revision, which is hereby dismissed. No costs. ( T.P.S. MANN ) December 18, 2008 JUDGE satish Whether referred to the Reporters : YES / NO