Bainami vs Adhishashi Adhikari Nagar ...
2022 Latest Caselaw 7873 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 10
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2997 of 2018
 

 
Appellant :- Bainami
 
Respondent :- Adhishashi Adhikari Nagar Panchayat Barsana And Another
 
Counsel for Appellant :- Anshu Chaudhary
 
Counsel for Respondent :- Rama Goel Bansal
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Anshu Chaudhary, learned counsel for the appellant and Ms. Rama Goel Bansal, learned counsel for respondents.

2. This first appeal from order filed under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") has been filed against order dated 28.5.2018 passed by Civil Judge (Senior Division) Mathura rejecting application being Paper No.7-C of the plaintiff-appellant for grant of temporary injunction in Original Suit No.77 of 2018.

3. The plaintiff-appellant filed original Suit No.77 of 2018 before Civil Judge (Senior Division) Mathura against defendants-respondents claiming relief of permanent injunction restraining the defendants from recovering the auction amount for the year 2016-17 and further direction that the defendants be restrained from executing agreement. Along with the said suit, an application under Order 39 Rule 1 C.P.C. was moved for temporary injunction. The defendant-respondent contested the aforesaid suit and an objection was filed to the temporary injunction application moved by the plaintiff. By the order impugned dated 28.05.2018, application 7-C moved by the appellant was rejected.

4. The case, in nutshell, is that for financial year 2016-17, the defendants- respondents conducted an auction proceedings on 28.03.2016 for the collection of parking fee. The period for collection of parking fee was between 01.04.2016 to 31.03.2017. The plaintiff-appellant being the highest bidder was given the contract for collection of parking fee, as his bid was the highest being at Rs.36,75,000/-. The appellant had deposited an amount of Rs.4,80,000/-, however, he did not deposit balance amount. According to the Sharayatnama, before starting collecting the parking fee, the plaintiff was required to deposit half of the auction amount. He only deposited Rs.4,80,000/- and did not deposit the balance amount of Rs.13,57,500/-. It was pursuant to the deposit of half of the amount that an agreement was to be executed between the parties. According to the defendant, a notice was sent on 29.07.2016 to the plaintiff but he failed to deposit the same amount. Again a notice was sent on 19.11.2016 but the plaintiff failed to deposit the amount and get the agreement executed. The defendant-respondent on 25.01.2018 had sent a letter to the District Magistrate, Mathura for issuance of recovery certificate pursuant to which the recovery certificate has been issued against the plaintiff-appellant.

5. The plaintiff had filed a suit claiming relief that the defendants be injuncted from recovering the amount pursuant to the auction held on 28.3.2016 for the year 2016-17 and further sought relief of declaration for returning the amount, which the defendant had taken from the plaintiff. In the objections filed by the defendants to the temporary injunction application, a specific plea has been taken that the suit was not maintainable against the recovery proceedings initiated by the Collector against the plaintiff and also in view of Order 39 Rule 2(2) of U.P. Amendment in the C.P.C.. The Court below had rejected the application for temporary injunction on 28.5.2018 on the ground that the suit filed by the plaintiff-appellant is barred under Section 3(5) of the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 (hereinafter referred to as "Act of 1972") and Order 39 Rule 2(2) C.P.C. (U.P. Amendment).

6. Sri Anshu Chaudhary learned counsel appearing for the plaintiff-appellant submitted that the defendants did not permit the plaintiff to carry on the collection of parking fee and as there was loss in collection of fee, the agreement was not executed and the plaintiff had not carried out in terms of the auction proceedings. He further contended that the Court below was not correct in rejecting application for grant of temporary injunction and relied upon Division Bench judgment of this Court in Mohammad Umar vs. Collector/District Magistrate, Moradabad and others 2006 (3) AWC 2412 wherein the Court had held that the Collector did not have the power under Section 173A of U.P. Municipalities Act and U.P. Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961 to proceed and recover the amount of auction sale/bid as arrears of land revenue.

7. Ms. Rama Goel "Bansal", learned counsel appearing for the defendant-respondent submitted that the suit filed by the appellant is not only barred under the provisions of the Act of 1972 but also under the provisions of Order 39 Rule 2(2) C.P.C. (UP Amendment). She submitted that the recovery proceedings has already been launched against the plaintiff-appellant and recovery certificate has been issued, which cannot be challenged in proceedings before the Court below.

8. I have heard counsel for the parties and perused the material on record.

9. Before adverting to decide the issue raised before this Court, a cursory glance of Order 39 Rule 2(2) C.P.C. (UP Amendment) and provisions of Section 3 of Act of 1972 are necessary for the better appreciation of the case, which read as under :

"(2) The Court may be Order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.

"Provided that no such injunction shall be granted-

(a) where no perpetual injunction could be granted in view of the provisions of section 38 and section 41 of the Specific Relief Act, 1963 (47 of 1963), or

(b) to stay the operation of an Order for transfer, suspension, reduction in rank, compulsory retirement, dismissal, removal or otherwise termination of service of, or taking charge from, any employee including any employee of the Government, or

(c) to stay any disciplinary proceeding pending or intended, or, the effect of any adverse entry, against any employee of the Government, or

(d) to affect the internal management or affairs of any educational institution including a University, or a Society, or

(e) to restrain any election, or

(f) to restrain, any auction intended to be made or, the effect of any auction made, by the Government unless adequate security is furnished, or

(g) to stay the proceedings of the recovery of any dues recoverable as land revenue unless adequate security is furnished, or

(h) in any matter where a reference can be made to the Chancellor of a University under any enactment for the time being in force;

and any Order for injunction granted in contravention of these provisions shall be void".

"3. Recovery of certain dues as arrears of land revenue.- (1) Where any person is party,--

(a) to any agreement relating to a loan, advance or grant given to him or relating to credit in respect of, or relating to hire-purchase of goods, sold to him by the State Government or the Corporation, by way of financial assistance; or

(b) to any agreement relating to a loan, advance or grant given to him or relating to credit in respect of, or relating to hire-purchase of goods sold to him, by a banking company or a Government Company, as the case may be, under a State sponsored scheme; or

(c) to any agreement relating to a guarantee given by the State Government or the Corporation in respect of a loan raised by an industrial concern; or

(d) to any agreement providing that any money payable thereunder to the State Government or the Corporation shall be recoverable as arrears of land revenue; and such person?

(i) makes any default in repayment of the loan or advance or any instalment thereof; or

(ii) having become liable under the conditions of the grant to refund the grant or any portion thereof, makes any default in the refund of such grant or portion or any instalment thereof; or

(iii) otherwise fails to comply with the terms of the agreement;

then, in the case of the State Government, such officer as may be authorised in that behalf by the State Government by notification in the Official Gazette, and in the case of the Corporation or a Government Company the Managing Director or where there is no Managing Director then the Chairman of the Corporation, by whatever name called] [or such officer of the Corporation or Government Company as may be authorised in that behalf by the Managing Director or the Chairman thereof, and in the case of a banking company, the local agent, thereof, by whatever name called, may send a certificate to the Collector, mentioning the sum due from such person and requesting that such sum together with costs of the proceedings be recovered as if it were an arrear of land revenue.

(2) The Collector on receiving the certificates shall proceed to recover the amount stated therein as an arrear of land revenue.

(3) No suit for the recovery of any sum due as aforesaid shall lie in the civil court against any person referred to in sub-section (1).

(4) In the case of any agreement referred to in sub-section (1) between any person referred to in that sub-section and the State Government or the Corporation, no arbitration proceedings shall lie at the instance of either party either for recovery of any sum claimed to be due under the said sub-section or for disputing the correctness of such claim:

Provided that whenever proceedings are taken against any person for the recovery of any such sum he may pay the amount claimed under protest to the officer taking such proceedings, and upon such payment the proceedings shall be stayed and the person against whom such proceedings were taken may make a reference under or otherwise enforce an arbitration agreement in respect of the amount so paid, and the provisions of Section 183 of the Uttar Pradesh Land Revenue Act, 1901, or Section 287-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as the case may be, shall mutatis mutandis apply in relation to such reference or enforcement as they apply in relation to any suit in the civil court.

(5) Save as otherwise expressly provided in the proviso to sub-section (4) of this section or in Section 183 of the U.P. Land Revenue Act, 1901 or Section 287-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 every certificate sent to the Collector under sub-section (1) shall be final and shall not be called in question in any original suit, application (including any application under the Arbitration Act, 1940) or in any reference to arbitration and no injunction shall be granted by any court or other authority in respect of any action taken or intended to be taken in pursuance of any power conferred by or under this Act."

10. From perusal of the U.P. Amendment of Order 39 sub-rule (2)(g) of Rule 2 C.P.C., it is clear that no injunction can be granted to stay proceedings for the recovery of any dues recoverable as land land revenue unless adequate security is furnished. Similarly, Section 3(5) of Act of 1972 clearly provides that no injunction shall be granted by any Court or other authority in respect of any action taken or intended to be taken in pursuance of any power conferred by or under this Act.

11. Both the provisions of Order 39 sub-rule (2)(g) of Rule 2 C.P.C. and Section 3(5) of Act of 1972 clearly restrains the Court from granting any injunction or any authority from granting any injunction where recovery is being made as arrears of land revenue.

12. The appellant has filed Suit No.77 of 2018 for permanent injunction for injuncting the defendants from recovering amount. It was during the pendency of the suit that the Collector had issued the recovery certificate. The Court below had rightly refused to grant temporary injunction and rejected the application 7-C as it was not maintainable in view of the provisions of Order 39 sub-rule (2)(g) of C.P.C. (UP Amendment) and Section 3(5) of Act of 1972.

13. Moreover, reliance placed by counsel for the appellant upon Division Bench judgment of this Court in Mohammad Umar (supra) is of no help to the appellant at this stage as the recovery proceedings was challenged in a writ proceedings before this Court and not in any suit filed by the parties before the Court below. In the present case the appellant has filed original suit before the Court below, to which objection has been taken by the defendants regarding its maintainability. The Court below has also refused to grant temporary injunction on the ground of non maintainability of the said application for grant of temporary injunction.

14. This Court finds that as the application 7-C was not maintainable in view of provisions of law quoted above. The Court below had rightly rejected the application, which calls for no interference by this Court at this stage.

15. The appeal fails and is hereby dismissed.

Order Date :- 25.7.2022

Kushal