(By Justice Ferdino Inacio Rebello) M/s. Richa Telecom, a propriety firm of the petitioner, entered into an agreement with M/s. ICICI Prudential Life Insurance Company Limited (hereinafter referred to as the 'ICICI Company') for providing telecom services. Pursuant to that, according to the petitioner, he took a number of telephone connections from various telecom companies, including Bharat Sanchar Nigam Limited (BSNL), which were installed at various offices of the ICICI Company. There arose some disputes and differences between the petitioner and the ICICI Company in respect of payment of bills, which have been referred to an Arbitrator.
2. According to the petitioner, the telecom companies including BSNL - respondent no.3, raised several bills for various telephone connections taken by the petitioner at various locations across the Uttar Pradesh and Uttaranchal, and on 21.06.2010, respondent no.3 sent a recovery certificate to the Collector, Lucknow for recovery of a sum of Rs. 1,65,699/- towards arrears of telephone bills as arrears of land revenue. According to the petitioner, respondent no.3 is a Company incorporated under the Companies Act, and dues of its telephone bills cannot be recovered as arrears of land revenue, as it has no authority to issue recovery certificate to the Collector, Lucknow for recovery of the amount as arrears of land revenue and, as such, the recovery certificate issued is null and void. The petitioner is also aggrieved by recovery citation dated 06.09.2010 issued by the Tehsildar, Lucknow, for a sum of Rs. 1,65,699/-,in pursuance of the said recovery certificate.
3. The principal contention urged on behalf of the petitioner is that neither the respondent no.3 could have issued the recovery certificate nor could respondents 1 and 2 issue the citation for recovery of dues of respondent no.3, as the agreement entered into between the petitioner's firm and respondent no.3 is purely a contractual agreement. The recovery certificate purported to have been issued by respondent no.3 is under the provisions of the Revenue Recovery Act, 1890 (hereinafter referred to as the 'Act 1890'). Section 3 of the Act 1890 sets out that where an arrear of land revenue or a sum recoverable as an arrear of land revenue, is payable to a 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 other district a certificate in the form as nearly as may be of the Schedule, setting out various particulars as set out therein. It would, thus, be clear that insofar as the provisions of the Act 1890 are concerned, the amount sought to be recovered must be an arrear of land revenue or a sum recoverable as an arrear of land revenue and payable to a Collector by a defaulter.
4. Appearance has been put on behalf of respondent no.3, though no reply has been filed. On being asked by the Court to show as to under which provision, the recovery certificate was sent by respondent no.3 to respondents 1 and 2 for recovery of the amount, learned counsel for the respondent no.3 fairly concedes that there is no provision under which the said amount could be recovered as arrears of land revenue.
5. There is another provision, namely, the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 (in short 'Act 1972'), wherein 'Corporation' has been defined under Section 2(a). The petitioner is not a Corporation as per Section 2(a) of the Act 1972. It may be a Government Company in terms of Section 2 (c) of the Act 1972. The relevant portion of Section 3 of the Act 1972 reads as under:-
"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 give 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."
It would, thus, be clear that for the purpose of recovery of dues as arrears of land revenue, there must be an agreement relating to a loan, advance or grant and if there be a default of payment of any instaltment thereof, then said amount defaulted can be recovered as arrears of land revenue. In the instant case, respondent no.3 has not given any loan, advance or grant to the petitioner, nor is related to credit in respect of, or relating to hire-purchase of goods sold by a Banking Company or a Government Company under the State-sponsored scheme. Thus, it will be clear that the recovery certificate issued by respondent no.3 for recovery of the amount in terms of the Act 1890 is clearly without jurisdiction and without authority of law and, consequently, respondents 1 and 2 could not have acted on the same. The recovery citation, therefore, issued by respondent no.2 is without jurisdiction.
6. In the light of that, the petition deserves to be allowed and is, accordingly, allowed in terms of prayers Clauses (A) and (B), which read as under:-
"(A) A writ, order or direction in the nature of certiorari may kindly be issued quashing the recovery certificate dated 21.06.2010 issued by the respondent no.3 and recovery citation dated 06.09.2010 issued by the respondent no.2, copies whereof have been filed herewith as Annexure No. 1 and 2 respectively.
(B) A writ, order or direction in the nature of mandamus may kindly be issued commanding the respondents not to proceed to recover any amount from the petitioner as arrears of land revenue in pursuance of the recovery certificate dated 21.06.2010 issued by the respondent no.3 and recovery citation dated 06.09.2010 issued by the respondent no.2, copies whereof have been filed herewith as Annexure No.1 and 2 respectively."
7. In the circumstances of the case, there shall be no order as to cost.