Allahabad High Court
Arvind Kumar Agarwal vs State Of U.P. And 5 Ors. on 4 August, 2017
Bench: Amreshwar Pratap Sahi, Rajiv Lochan Mehrotra
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 37
Case :- WRIT - C No. - 34157 of 2016
Petitioner :- Arvind Kumar Agarwal
Respondent :- State Of U.P. And 5 Ors.
Counsel for Petitioner :- Pramod Jain
Counsel for Respondent :- C.S.C.
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajiv Lochan Mehrotra,J.
1. Heard Shri Pramod Jain, learned counsel for the petitioner and the learned Standing Counsel for the respondents No. 1 to 5.
2. The petitioner has challenged the recovery certificate dated 4th June 2016 and the consequential citation dated 18th June, 2016 whereby a sum of Rs. 10 lacs(Ten Lacs) is sought to be realised from the petitioner as arrears of land revenue treating it to be an amount due and recoverable under Section 34 of the U.P. Entertainment and Betting Tax Act, 1979. The argument of the learned counsel for the petitioner is that the provisions of Section 34 are not attracted inasmuch as the arrears which are sought to be recovered are not of tax and therefore, Section 34 has been wrongly invoked to realise it as arrears of land revenue.
3. The contention therefore appears to be that the provision which has been invoked, is a wrong provision to realise the sum of Rs. 10 lacs (ten lacs) which are damages as contemplated under the Government Order dated 20th May, 2011. The argument is that damages cannot be realised as arrears of land revenue by invoking the provisions as referred to in the impugned certificate.
4. We have heard learned counsel for the petitioner and the learned Standing Counsel and have perused the record. The Government Order dated 20th May, 2011 made a provision for the rejuvenation of the cinema business through re-modelling and upgrading of cinema halls for exhibiting films, and for such incentive, gave a gestation period of five years. However, a rider was put therein that in the event, the cinema hall owner stops exhibiting films within the said period of five years, the department would be entitled to recover a sum of Rs. 10 lacs (Ten lacs) as damages. Clause 5 of the said Government Order is extracted herein below:
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5. The petitioner taking advantage of the said Government Order entered into an agreement and was also granted licence. The agreement dated 25th August, 2014 is Annexure 5 to the writ petition. The agreement specifically incorporates the aforesaid provision of the Government Order and in Clause 2 and 3 of the agreement, it is provided that the sum of Rs. 10 lacs (ten lacs) would be recoverable by the District Magistrate for which he is empowered. Clause 3 categorically states that this can be recovered as arrears of land revenue. The said clause 2 and 3 are extracted herein under:
2& ftyk eftLVsªV fuEufyf[kr vf/kdkj dk iz;ksx dj ldrs gS%&
1- iquZlajfpr flusekxzg esa izFke fQYe izn'kZu dh frfFk ls 05 o"kZ rd fQYe izn'kZu u fd;s tkus vFkok fQYe izn'kZuksa esa deh fd;s tkus ij flusek [email protected]) O;fDr ds fo:) :0 10]00 yk[k dh {kfriwfrZ olwy fd;s tkus gsrq Nfox`g Lokeh dks vknsf'kr djukA
3& ftyk eftLVsªV] bl foys[k ds v/khu vkc) O;fDr }kjk ns;@vf/kjksfir /kujkf'k dks Hkw&jktLo ds cdk;k dh HkkWfr olwy djukA
6. The petitioner, therefore, appears to have acted upon the offer made in the said Government Order and entered into a conscious agreement with the respondents.
7. Learned counsel for the petitioner contends that it was on account of disruption of electricity supply that the petitioner had to stop exhibiting films and taking advantage of this situation, the recovery certificate was issued that too under a wrong provision of law. The writ petition was entertained and the following interim order was passed on 27th July, 2016:
"Recovery of Rs.10 lacs is being sought to be recovered as arrears of land revenue in violation of clause 5 of the Government Order dated 20th May, 2011. This recovery is being made under Section 34 of the U.P. Entertainment and Betting Tax Act, 1979. The recovery of Rs.10 lacs for violation of clause 5 of the Government Order dated 20th May, 2011 is towards damages, whereas only arrears of tax could be recovered as arrears of land revenue under Section 34 of the Act.
Prima facie, recovery of Rs.10 lacs towards damages is not a tax under Section 34 of the Act.
Let a counter affidavit be filed by the respondents within three weeks.
List for admission thereafter.
Until further orders, the recovery certificate dated 4th June, 2016 for recovery of Rs.10 lacs shall remain stayed."
8. Time was granted to the learned Standing Counsel to file counter affidavit and a counter affidavit giving para-wise reply has been filed.
9. The said counter affidavit relies on the terms of the Government Order referred to herein above as well as the agreement and it is averred therein that as per the provisions of the 1979 Act and the Rules framed thereunder the word 'tax' means entertainment tax, betting tax or the totalizer tax, as the case may be and includes surcharge, cess, penalty or any other charge levied under this Act.
10. Shri Jain submits that the aforesaid definition is not inclusive of damages.
11. We are of the considered opinion that the word 'damage' may not be included within the definition of tax as understood under Section 34 but at the same time the mentioning of a wrong Section relating to tax in the recovery certificate does not denude the authority for proceeding to recover the amount as arrears of land revenue in view of the specific agreement between the parties and the clauses extracted herein above.
12. It is trite law that wrong mentioning of a Section does not invalidate any action if the action can otherwise be sustained in law. In our considered opinion, the agreement entered into between the parties clearly stipulates realisation of the damages as arrears of land revenue and therefore, it can not be said that the proceeding for recovering the said amount as arrears of land revenue is vitiated.
13. Apart from this, the contention of the learned counsel for the petitioner that it was on account of disruption of electricity supply that the petitioner had to face this difficulty and this closure therefore cannot be attributed so as to invoke clauses of the agreement referred to herein above, is also not acceptable inasmuch as the petitioner had taken advantage of the Government Order for the purposes of running the cinema hall and it was for the petitioner to have made arrangements to continue the electricity supply of the cinema hall alternately, if there was any disruption thereof. Such a grievance therefore cannot be made the basis for avoiding the contract and agreement in terms of the Government Order, the conditions whereof were never challenged by the petitioner. In the circumstances aforesaid, no ground is made out for interfering with the recovery proceedings.
14. The writ petition is dismissed and the interim order granted earlier is discharged.
Order Date :- 4.8.2017
BKM/-
