ORDER R.R.K. Trivedi, J.
1. Both the aforesaid writ petitions have been filed by same petitioner against Zilla Parishad, Jhansi and most of questins of fact and law involved are common.Thus both writ petitions can be decided by a common order against which parties have also to objection.Civil Misc. Writ Petition No.23803 of 1990 shall be the leading case.
2. The fact, in brief, giving rise to Writ Petition No. 23803 of 1990 are that auction for grant of licence to realise and collect fee and tolls on vehicles entering Zilla Parishad territory and using Bus Adda for the period 1st April, 1988 to 31st March, 1989 took place in which, bid of petitioners for Rs. 1,75,000/- being highest was accepted.In pursuance of which the licence was issued in favour of petitioner which is Annexure-1 to the writ petition.Out of the total bid money, petitioner paid Rs. 1,05,000/- However, he failed to pay the remaining amount of Rs. 70,000.In spite of the several demands the amount was not paid, a recovery certificate was sent to the Collector. Jhansi served a citation dated 1st September. 1990 on petitioner requiring him to pay Rs. 70,150 and collection charges and to appear before him on 8th September, 1990. Aggrieved by this demand made through the citation, petitioner has filed this writ petition challenging the recovery of the amount and for quashing of the citation. In this writ petition, counter and rejoinder affidavits have been exchanged. This Court by interim order dated 7th September. 1990 stayed the recovery of the amount on condition that the petitioner deposits an amount of Rs. 10,000/- with the opposite parry No. 1 Zilla Parishad within a period of one month.
3. The facts stated in Civil Misc.Writ Petition No. 22366 of 1992 are that the petitioner is a registered contractor. He got a contract to construct the Government Girls High School in village Rasoli. Block Babina, district Jhansi.The final account of this construction which was approved by the respondents was for Rs. 1,10,923.85 p. After certain deductions petitioner was entitled to get an amount of Rs. 81,967.85p. Respondent Zilla Parishad deducted Rs. 55,150/- from this amount towards the payment of the balance of the licence fee under the agreement in question in first writ petition and paid him only Rupees 26,81.85 p. Petitioner filed this writ petition for a direction to the respondent No. 2 to comply with the interim order dated 7th September, 1990 and to pay him immediately the remaining amount of Rupees 55,150/- recovered from the final payment of the contract work.In this writ petition a Division Bench of this Court on 21st December. 1992 passed an order to the following effect:-
List this question along with writ petition No. 23803 of 90 on 18-1-93.
In the mean time, we direct the respondent No. 1 Zilla parished to pay a sum of Rs. 55,150/- to the petitioner which it has unlawfully deducted from payment despite the order of this Court dated 7.09.90 in Writ Petition No. 23803 of 90."
It is not disputed that under the aforesaid interim order the amount has been paid to the petitioner.
4. We have heard Senior counsel Shri R.K. Jain and Shri Arun prakash for petitioner and Shri K.N. Saxena and learned standing counsel for respondents.
5. Shri Jain has submitted that the contract for realisation of the toll and fee from the vehicles was void as its object was not lawful.The Zilla Parishad had no authority under law ful.The Zilla Parishad had no authority under law to realise the to realise the toll tax from petitioner as the contract was void. Reliance has been place for this submission on Sections 10, 14 and 16 of the Contract Act. learned counsel has further submitted that in any case the unpaid amount of the contract money cannot be realised as land revenue arrears.The amount due from petitioner was neither the amount of tax nor fee but it was a premium on contract and in respect of which recovery certificate cannot be issued.It has been further submitted that in the circumstances of the case Collector could not have authority to realise the amount as land revenue arrears and this authority cannot be conferred on him by an agreement between the parties.The agreement, it any, is void for all purposes.There is no provision under The Kshetra Samities And Zilla Parishads Adhiniyam. 1961 (here-in-after referred to as Act) or Rules framed thereunder giving authority to Zilla Parishad to realise the amount as arrear of land revenue.It has been submitted that State or its instrumentalities cannot enter into a private contract which is not for a public purpose.If no public purpose is involved the contract will be hit by Article 14 of the Constitution.It has also been submitted that if the amount is realised as land revenue arrears petitioner shall suffer a serious prejudice as there is no machinery to quantify the amount which may be payable by petitioner.Various defence which may be available to petitioner in suit shall not be available to him in the present proceedings.
6. In respect of the second writ petition, it has been submitted by the learned counsel for the petitioner that the amount of Rs.50.150/- was due to petitioner from Zila Parishad under a different, and indepdent contract for constructing the school building.The contract was duly completed and the petitioner had submitted the final bill for payment.The respondent Zilla a Parishad however illegally deducted the amount of Rs.55,156/- and paid only Rs.26,817.85 p. which was accepted by petitioner under protest.The petitioner filed this writ petition to enforce his legal right to received the amount which was illegally withheld by Zilla Parishad in spite of the interim order dated 7th Sept. 1990 passed in the first writ petition. Learned counsel has placed reliance on the following cases:- (1) Muntaj Ali v.Sub-Divisional Magistrate reported in. 1970 All LJ 114.(2).U.P. State Electricity Board v.Official Liquidator lower Ganges Jamuna Electricity Distributing Company Ltd., reported in AIR 1973 SC 2546. (3) Angad Pandy v. Town Area Committee Karora Hamirpur, reported in 1980 ALL WC 500: (1980 ALL LJ 1039=6, (4) M/s. Dwarka Das Marfatia and Sons v. Board of Trustees of the Court of Bombay, reported in AIR 1989 SC 1642 and Mahesh Chandra v.Zilla Panchayat, at , Mainpuri reported in (1996) 3 UPLBEC 1586.
7. Shir K.N. Saxena, learned counsel appearing for the respondents has submitted that the petitioner participated in the open auction and his bid of Rs. 1,75,000/- was accepted being highest.There was no question of any fraud, coercion or undue influence involved in such open auction now was it in any was inequitable.The petitioner worked under the contract for the enter period of 1st April, 1988 to 31 March, 1989 and realised the amount from vehicles on behalf of Zilla Parishad. However he has not paid balance amount.Learned counsel has further submitted that Zilla parishad has authority under law to issue the recovery certificate for realisation of such amount as arrears of land revenue.He has submitted that under Section 146 of the Act any amount of unpaid fee and toll could be recovered in the manner prescribed in Chapter VIII of the Act.It has been submit that Section 159(2) and Section 158 falling in Chapter VIII of the Act contained provision for realisation of the amount due to Zilla Parishad as arrears of land revenue.The action on the part of the Zilla Parishad and the Collector was thus well within the authority of law.It has also been submitted that the cases relied on by the petitioner were inrespect of amount due to town area which are clearly distinguishable from the facts of the present case. It has been further submitted that besides the aforesaid legal provisions, petitioners filed an affidavit on 29 March, 1988 before the Additional Mukhya Adhikari of district Jhansi to the effect that if any amount payable under the condition No.1 of the agreement is not paid by him, the the amount can be realised from him as arrears of land revenue through Collector.It has been submitted by the learned counsel that in view of the affidavit filed by petitioner there was no illegality involved in realising the amount as arrears of land revenue for which he expressly agreed.On signing of this affidavit licence was issued and petitioner was permitted to start realisation of the amount of fee and toll without paying the full money.In view of the aforesaid promise made by him, it is not open to him to go back from it.In fact he gave consent on oath for particular mode of recovery on his failure to pay the amount and he is estopped under law from challenging the same. It has also been submitted that the amount realised by the petitioner was fee or toll from the various vehicles on behalf of Zilla Parishad.It was not his personal money and he cannot be allowed to retain this money which is public money.Shri Saxena has also submitted that if the amount is realised from petitioner as arrears of land revenue, there is no question of suffering any prejudice by him as submitted.no quantification of the amount is involved.At no stage petitioner challenged the liability to pay the amount except in the present writ petition before this Court.The amount was already fixed under the contract and for apportionment or any remission of the contract money, onthe allegations made in the writ petition, he so should have filed a suit and such disputed question cannot be resolved in the writ petition. Learned counsel for the respondents has placed reliance in case of.Sia Ram v.Collector/D.M.(Finance and Revenue)Agra reported in 1996 All CJ 495:(1996 Al LJ 1545).
8. With regard to second writ petition, it has been submitted that two works no doubt were different and under different agreement but as Zilla Parishad was entitled to recover the amount from petitioner, it would be deducted from the amount payable to petitioner by Zilla Parishad, against such a mode of recovery, there is no prohibition in law.There was nothing wrong if such adjustment is made.It is well within the within the authority of Zilla Parishad to adjust the amount and the order of the Hon'ble Court dated 7th Sept.. 1990 was not violated in any manner under which only recovery of the amount as arrears of of land revenue was prohibited.The adjustment of the amount was towards the fulfilment of the statutory obligation of Zilla Parishad to realise the public money from petitioner which was being illegally realised and was not paid to the respondent. It has also been submit that under the interim order to this Court dated 21st December, 1992 respondent Zilla Parishad was compelled to pay the amount to petitioner but petitioner has not yet paid the amount due from him to Zilla Parishad though more than 7 years have passed. He illegally retained the amount and got enormous benefit out of the same. The conduct of the petitioner does not satisfy the principles of equity and fair play in any way Zilla Parishad it entitled in law to get back the amount from petitioner and Zilla Parishad in the special facts and circumstances of the case is entitled for protection of this court.
9. We have thoroughly considered the rival submissions made by the learned counsel for the parties. On the submissions made before us in the aforesaid two writ petitions, in our opinion, the following questions are involved:-
(1) Whether the agreement between petitioner and respondent Zilla Parisaid under which the right was granted to petitioner to realise fee and toll from vehicles was for unlaw ful object and the agreement was void?
(2) Whether in case agreement was found to be void petitioner in not liable to pay the amount which he has already realised from public during the period for which licences was granted to him.?
(3) Whether this amount can be recovered from petitioner as arrears of land revenue under the provisions of the Act and the Rules framed thereunder?
(4) Whether the petitioner is bound by his affidavit dated 29.3.1988 and it is not open to him to question the mode of recovery?
(5) Whether the recovery of the amount of Rs. 55,150/- by Zilla Parishad due from petitioner toward the payment of the balance of licence fee by deduction from the amount payable in respect of subsequent contract for construction of the school building,was permissible under the law? and:
(6) To what relief petitioner is entitled in the facts and circumstances of the present case?
10. For resolving question 1 and 2, it has to be seen as to whether the parties entered into any agreement which was not for lawful purpose and it was void and further its effect on the recovery of the amount from petitioner.Learned counsel for the petitioner has placed reliance on Sections 10, 14 and 16 of the Act. Section provides that all agreements are contracts if they are made by free consent of parties competent to contract, for a lawful consideration and with a lawful object and which have not been expressly declared to be void. Under Section 14 of the Contract Act free consent has been defined and it is provided that the consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresenenation and mistake.Section 16 of the Contract Act defines undue influence.We have considered that aforesaid provisions of the Contract Act in the facts and circumstances of the present case.However, in our opinion, there is nothing on record on which basis it may be said that the petitioner was acting under any undue influence and the consent given by him was not free.He participated in the open auction and voluntarily made the bid with open eyes and thereafter deposited the money and worked for the whole of the period.There is also nothing on record to show that the object of the agreement was in any why unlawful, except the bare allegations made in the write petition which have been reiterate during arguments.There is no material before us that Zilla parishad had no authority to realise fee and to 11 from the vehicle entering Zilla Parishad area during the relevant period.Contrary to it Zilla Parishad have been conferred specific authority in this respect under Sectuib 144 and 145 of the Act. Petitioner did not raise any objection during whole of the period that the realisation made by him on behalf of Zilla Parishad would be illegal.All these objections have been raised for the first time before the this Court.From the licence filed as Annexure-1 to the first writ petition, it appears that some.Bus Adda was being maintained by Zilla Parishad and the fess or rent was being realised for using the same from vehicles.This Adda has also been referred to in the petitioner's affidavit dated 29th March, 1988 which reads as under:-
1 ;g fd fHku iFkdRkkZ ;gyQ c;ku djrk gwW fd LVkEi dfe'uj }kjk ;k ftyk ifj"kn >kalh ds }kjk crkbZ xbZ LVkEi deh tks tc Hkh eq>ls dgk tk;sxk eSa tek dj nwaxk rFkk tek djus dk iw.kZ mRrjnkf;Ro esjk gksxk A 2 ;g fd eSa mDr lEcU/k esa izlkfjr cSfj;j dh uhykeh dh 'krs cl vM~Ms dh mi fof/k esa nh xbZ 'krks dks iq.kZ :i ls ikyu d:axk A fdlh Hkh fu;e dk mYya?ku ugha d:axk rFkk vuqcU/k ds rgr lHkh fu;eksa vkfn ikyu d:axk A 3 ;g fd eSa e jkuhiqj jksM >kalh fLFkr cSjf;j Bsds dk 'ksi /ku bdjkjukek dh 'krZ laLFkk A ds vuqlkj nh fdLrksa esa ,d eqder twu 88 esa o vkf[kj fdLr flrEcj 88 esa tek d:xk vxj mDr ekgks esa fdLr tek u dj lds rks ftyk ifj"kn >kalh ds ij eq[; vf/kdkjh dks iw.kZ vf/kdkj gksxk fd mDr vc'ks"k fdLrks dk /ku ftykf/kdkjh egksn; ds ek?;e ls jktLo dh Hkkafr djk ldrs gaSa A
11.From perusal of the affidavit it appears that there was sone Bus Adda maintained by Zilla Parihad. Bye laws were also in existence for realisation of fee and toll and were in force during the relevant period.From reading of the aforesaid two document it is difficult to accept contention of the learned counsel for the petitioner that the agreement was for any unlawful object.The submission cannot be also accepted for the reason that the petitioner entered into the agreement and worked under the same for whole of the stipulated period and realised the amount from the public now it is not open for him to say that he will not pay the amount which he has already realised. Even assuinig for sake of argument that the agreement was viold, petitioner was party to it and he has received benefit under the same by realising the amount.The doctrine of PARI DELICTO enshrined in Section 65 of the Contract Act is fully applicable, Section 65 reads as under:-
"When an agreement is discovered to be void, or when a contract becomes void, any person who has receive any advantage under such agreement or contract is bound to restore it, or to make compensation for it,to the person from whom he received it."
12. It cannot be denied that but for the contract, which is now alleged to be void, petitioner could not have relasised the amount from public on beheld of Zilla Parishad and petitioner is now under obligation to pay it back.He cannot justify the refusal of the payment of the amount on the alleged ground the that object was not lawful. The amount is an advantage in hands of the petitioner which is public money and cannot be allowed to be retinaned by him.He is bound to restore it to the Zilla Parishad which is a public body and the custodian of the public funds.In our opinion, the submission of the learned counsel for the petitioner cannot be accepted.
13. The second submission of the learned counsel for the petitioner is that the amount in question could not be realised as arrears of land revenue.
14. The learned counsel for the respondents, on the other hand, has seriously disputed this submission.
15. The second submission of the learned counsel for the petitioner and it s reply made by the learned counsel for the respondents relate to questins 3 and 4 formualteed earlier and it is to be seen whether balance amount not paid by the petitioner can be recovered as arrears of the land revenue. Chapter VII of the Act contains provisions for imposition of the taxes and levy of fees and tolls.Section 120(3) provides that the the recovery of any arrears of the tax on circumstances and Property may be made under Chapter VII, or as arrears of land revenue in the discretion of the Zilla Parishad.Section 121 confers power on Zilla Parishad to imposed a tax on Circumstances and property subject to certain conditions and restrictions.Section 123 confers powers on Zilla Parishad to impose taxes by special resolution.The tax, being one of the taxes described in Section 119 which it desires to impose.Sections 142 to 145 of Chapter VII deal with the levy of fees and tolls. Section provides that any unpaid fees and tolls referred to in Sections 144 and 145 may be recovered in the manner prescribed in Chapter VIII.Thus there is a material difference in the language used in Section 120 (3) and Section 146 falling in Chapter VII.Under both section provisions of Chapter VIII have been made applicable for recovery of the amount but in respect of arrears of taxes on Circumstances and Property with reference to Chapter VIII it has been made specific that it amy be recovered as arrears of land revenue in the discretion of the Zilla Parishad under Section 120(3). However in Section 146 language used is different.It does not say hat any unpaid fes and tolls refered to may be recovered as arrears of land revenue.It only provides that unpaid fees and tolls may be recovered in the in the manner prescribed in Chapter VIII. Thus the legislative intent is very clear that so far as the amount of arrears of taxes are concerned, it has been provided that they may be recovered as arrears of land reveune.However in respect of unpaid fees and tolls only the mannter provided in Chapter VIII forrecovery of the amount has been made applicable. Section 146 does not confer authorityon Zilla Parishgad to recover the amount as arrears of land revenue.The legislative intent in this regard is further clear from the language used in Section 158(2) and 159.Section 158(2) provides that in the case of an arrear of tax on Circumstances and Property as Zilla Parishad may in addition to the power to take the recourse to the provisions of Section 148 or sub-section(1) of this section, but subject to and in accordance with rules made in this behalf recover them as arrears of land revenue.Similarly Section 159 provides that where any sum is due on account of rent from a person to a Zilla Parishad in respect of land vested in our entrusted to the management of the Zilla Parishad, the Zilla Parishad subject to and in accordance with rules made in this behalf may recover andy such arrear as arrear of land revenue.Thus under both the aforesaid sections the recovery of the arrears of tax on Circumstances and Property and the sum due to account affront of land recovery is permissable as arrears of land revenue subject to rules made in this behalf.Under the aforesaid section Governor of Uttar Pradesh has also made the Rules known as Uttar Pradesh Zilla Paridhads (Recovery of Arrears of Tax and Rent on Land)Rules, 1975.These Rules contained elaborate procedure as to how amount referred to in Sections 158(2) and 159 shall be recover as arreas of land revenue. These rules have no appliation so far as unpaid fees and tolls are concerned. Thus on reading of Sections 120(3), 146, 158(2) and 159 together with the Rules of 1975 referred to above, the legal position ois very clear that theamounts in respect of unpaid fees and tools cannot be recovered by Zilla Parishad as arrears of land revenue.This legal position could not be altered by agreeement of parties or on basis of the promise made or undertaking givenunder theaffidvait dated 29th March, 1988.A Division Bench of this Court in case of Mahesh Chandra v.Zilla Panchayat at Minipuri reported in (1996) 3 UP LB EC 1586 has taken thesame view after examining the leal provisions in detail.We are in respectufl agreement with the view expressed by the aforesaid Division Bench.This view also finds support byanother Division Bench judgment or this Court in case of Angad Pandey v.Town area Committee.Karoral Hamirpur, reported in 1980 All WC 500: (1980 All LJ 1036). The Division Bench in the aforesaid case was considering thindenticla question though in respect of dues under U.P. Town Areas Act, 1940.The identical view was taken in two judgments given bu learned Single Judge in cases of Mumtaj Ali vs.Sub-Divional Magistrate reported in 1970 All LJ 11 and Munna Lal Garg v.Collector, Hamirpur, reported in 1974 All LJ 777.
16. Learned counsel for the respondents Zilla Parishad, however placed strong reliance on a Division Bench judgment in case of Sia Ram v. Collector/A.D.M. (Finance and Revenue) Agra reported in 1996 All CJ 495:(1996 LJ 1545). we have thoroughl yexaimed the judgment.However, we find that Uttar Pradesh Zilla Parishads Recoverry of Arrears of Tax and Rent on Land) Rules, 1975 examinedd by us and by the Division Bench in case of Mahesh.Chandra (1996 (3) UPLBEC 1586) (supra)have not been noticed in the judgment.It appears that the Division Bench mainluy decidede that case on the finding that theequity is against petitioner.In out opinion, in the facts and circumstances of the case as the amount due from petitiooner cannot be realised as arrears of land revenue, this judgment does not help respondens in view of the clear legal position noticed above.
17.The next question for consideration is as to whether Zilla Parishad can recover the balance amount due from petitioner by way of deduction from the amount payable to him in respect of the subseqent contract for constructiono fthe scholl building.In this regard certain provisions are necessary to be looked into.For convenience Section 144, 145, 146 falling in Chapter VII of the Act and Section 148 and 153 falling in Chapter VII are being reproduced below:-
"144. With the previous sanctin of the State Government, a Zilla Parishad or a Kshettra Samiti may fix and levy school fees fee for the use of libraries and Sarais and paraos, fes for the use of, or benefits dervied from, any of the works or institutions constructed and maintanned by the Zilla parishad or the Kshettra Samiti originally undertaken as famine preventive or relief works fees for theservice of bulls and stallions, and for registration of animals, and fees at fairs, markets, agricultural shows, and industrial exhibitions held under ist sauthority or otherwise, for which the public is allowed access and at which the public is allowed access and at which the Zilla Parishad or the Kshettra Samiti provide santary and other facilities for thepublic and tolls for the us eof bridges constructed, repaired for maintanied by the Zilla Parishad or the Kshettra Samiti:
Provided that a Zilla Parishad or Kshettra Samilti shall not fix or levy fees for the use of paraos whichare not vested in it.
145. Subject to any rule made by the State Government in this behalf,a Zilla Parishad or a Kshettra Samiti may impose in any market established maintained or managed by it any one or more of the following fees or tolls:
(a) licence fees on brokers, commissions agent, weighmen or measures practising their calling within such market;
(b) toll on vehicles, pack animals or porters bringing goods for sale into such a market.
(c) market fees for the right to expose goods for sale in such market or for the use of any building or structure therein;
(d) fees on the registration of animals sold in market.
146. Any unpaid fees and tolls referred to in Sections 144 and 145 may be recovered in the manner prescribed in Chapter VIII.
148.(1) As soon as person becomes liable for the payment of-
(a) any sum on account of a tax impposed by the Zilla Parishad; or
(b) any other sum declared by or under this Act or by any rule or bye-law made under the Northern India Ferries Act, 1878, to be recoverable in the manner provided by this Chapter.
the Zilla Parishad shall with all convenient speed, cause a, bill to be presented to the person so liable.
(2) Unless otherwise provided by rule, a peson shall be deemed to become liable to the payment of every tax and licence fee upon the commencement of the period in respect of which such tax or fees is payable.
153. (1) It shall also be lawful for the officer mentioned in Section 152 to distrain, wherever it may be foudn within the rural area, any movable property of the defaulter, subject to provisions of sub-section(2).
(2) The following property shall not be distrained-
(a) the necessary wearing apparel and bedding of the defaulter, his wife and children, and his necessary cooking utensils.
(b)the tools of artisans,
(c) books of account,
(d) when the defaulter is an agriculturist, his implements of hubnandry, seed grain, and such cattle as may be ncessary to enable him to earn his livelihood.
(3) The distress shall be excessive, that is to say the property distrained shall be as nearly as possible equal in value the amount recoverable under thewarant, and if any articles have been distrined which, in the opinion of a person authorised by or under sub-section (2) of Section (2) of Section 158 to sign a warrant, should not have been so distrained they shall all fort with be returned.
(4) The officer shall, on seizing the property, forthwith an inventory thereof, and shall, before removing the same give to the person in possession thereof at the time of seizur ea copy of the inventory signed by him and a written notice is such form as the parishad may, by regulation, prescribed that the said property will be sold as spefified in such notice."
From perusal of the aforesaid sections, it is clear that Section 144 provides that with the previous sanctionof the State Government, Zilla Parishad may levy various kinds of fes including that of sarias and paroos. Under Section 145(b) Zilla Parishad may levy fess or tolls on vehicles, pack animals or porters bringing goods for sale in such market.Section 146 provides that any unpaid fees and tools referred to in Sections 144 and 145 may be recovered in the manner prescribed in Chapter VIII.Section 148 provides that as soon as a Person becomes liable for apyment of any sum on account of a tax imposed by the Zilla Parishad or any other sum declared by or under this Act or by any rule or bye-law made under the Northern India Ferries Act. 1878 to be recoverable in the manner provided by this Chapter , the Zilla Parishad shall, with all convenient speed, cause a bill to be presented to the person so liable.Sub-section(2) of Section 148 provides that unless otherwise provided by rule, a person shall be deemed to become liable for the payment of every tax and licence fee upon the commencement of the period in respect of which such tax or fee is payable. Section 153 provides that it shall be lawful for the officer mentioned in Section 152 to distrain. wherever it may be found within the rural area, any movable property of the defaulter, subject to the provisions of sub-section of (2).Sub-section(2) of Section 153 excludes certainmovable properties from being distrained.Sub-section (3) provides that the district shall not be excessive, that is to say the property distrained shall be as nearly as possible equal in value to the amount recoverable.Thus if Section 46 and 48 are read together any other sum declared under the Act to be recoverable in the manner provided under Chapter VIII may be recovered by Zilla Parishad.Sub-section (2) of Section 148 also makes Chapter VIII appliecble with regard to licene fee.Thus the amount in hands of petitioner, which can be termed only unpaid licence fee for giving right to petitioner to collect the fees and tolls, can be legitimately recovereed from him under the procedure provided under Chapter VIII.The Zilla PZrishad, instead of employing its own machinery for purposes of realising fees and tolls, authorised petitioner to recover the sum and further agreed to accept the accumulated amount and part with some of the amount of fees and tolls as bnenefit to the petitioner inlieu of of the service rendered by him but it cannot be said that the amount in hands of the petitioner changed this nature. It continued to be as fees or tolls realised by him.It was not his personal money.It continued to be a public money in hands of petitioner.Money has been realised from various person as fes and tolls and petitioner cannot shirk his liability to pay it. In fact the Court cannot permit such unjust enrichment in favour of petitioner.Thus the amount can be recovered under Section 148.The balance amount can be recovered from petitoner under Chapter VIII of the Act.Section 153 clearly provides for distrain of any movable property of petitioner found within the rural area for which Zilla Parishad has authority or jurisdiction.The office of the Zilla Parishad where the amount was payable to petitioner can be safely deemed tobe an area within the authority or jurisdiction of Zilla Parishad though office may be situated outside rural area or situated in rural area.The only limitation contained in sub-section (3) of Section 153 against distrees, which menas legal seizure of goods to enforce payment is that it should not be ecessive and it shold be as nearly as possibel equal invalue to the amount recoverable from petitioner.The Zilla Parishad only witheld or distrined the amount due from petitioner. It is also not disputed that demand notices were served on petitioner and he was given sufficient time to pay the amount but he failed in discharging his legal obligation.In out opinion, Zilla Parishad acted within its authority in withholding the amount of Rs.55,150/- which was by way of recovery of the amount payable by hm and in this procedss it could be legitimately recovered also by adjustment of the amount.We have not been pointed out any bar or prohibition against such mode of recovery, rather such mode of recovery appears implied in the provisions contained in Chapter VIII.Learned counsel for the petitioner , however, submitted that the amount cannot be recovered from petitioner in the manner adopted by Zila Parishad and for this purpose reliance was placed on the judgment in case of U.P. State Electricity Board v.Official Liquidator Lower Ganges jamuna Electricity Distributing Company Ltd. AIR 1973 SC p. 2546.However, in our opinion, this case does not help petitioner in any way. It was a case of recovery of the amount towards the development reserve.The Court name to conclusion that Development Reserve was already paid in shape of asses and the amount cannot be allowed to realise twice over.Hon.Court has not disputed the right or mode of reocvery of the amount from the right or mode of recovery of the amount from the purchase money lying in hands of the Board, but it was disapproved as the amount had already been paid in shape of assets. The relevant part of the finding is being reproduced below:-
..... The demand of the Board really amounts to saying that it must be paid twice over, once in the form of the assets granted out of the Deveopment Reeserve, which it has already has, and again the same Deveopment Resrve in cash as though it is still available in cash.There is no justification either in law or in equity for such a demand."
Thus in the aforesaid and circumstances, the Hon'ble Court did not allow the reduction of the amount from the purchase money. We have not been pointed out any such circumstacnes in the present case in whichAilla Parishad could not be legally entiled to recover the amount from petitioner onthe contrary petitioner was under obligation to pay the amount. From material on record, it is clear that he wored for the entire period and realised the amount of fee and tolls under the agreement.The action on the part of the Zilla Parishad in recalsing the amount from petitioner thus wa neither against law or against equity.
18. The last submission in this connection was that the amount could not be recovered in view of the interim order dated 7th September. 1990 granted by this Court in Civil Misc.Writ Petition No.23803 of 1990. However, we are not impressed by this submission also. In Writ Petition No. 23803 of 1990 the challenge was against the recovery of the amount as arrears of land revenue. The interim order passed by the Division Bench was in the following terms:-
"The impugned recovery shall be remain stayed subject to the condiction that the petitioner deposits and amount of Rs. 10,000/- (Ten thousand) with oppsite party No.1. Zila Parishad, Jansi within a period of one month from today."
In Writ Petition No. 23803 of 1990 the challenge was against the mode of recovery.The challenge is clear from the relifs claimed in the writ petition which are as under:-
(1) to issue a writ, order or direction in the nature of certaioari quashing the citation contained in Annexure-4 to the writ petiton.
(2)to issue a writ,order or directioncommanding threspondents not to recover the amount of Rs. 70,150/- plus collection charges as arrears of land revenue.
(3)to issue any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstance of the case:and (4)to award cost of the petition to the petitioner.
Thus from the reliefs calimed in the writ petition and from the averments made in the writ petition, it is manifest tht the challenge in the writ petition was against the mode of recovery though incidentially it was also said that the petitioner was not liable to pay the whole of the amount as there was strike by truck owners and he could not realise the amount for the full period onaccount of the strike of the truck owners which continued for 45 days which has been denied by pespondent Zila Parishad and it has been contnded that the petitioner realilsed fees and tolls during whole of the period and even after expiry of the period in respect of which separate demand was made from him. Thus it awas a disputed questionof fact and no relief in this regard can be rightly claimed.Thus the interm order dated 7-9-90 was against recovery as arrears of land revenue and the amount realised by Zila Parishad was in no way invilation of the interim order granted by this Court. Thus in our view ,the Zila Parishad was well withinin its authority to recover the amount from petitioner by way of adjustment or by reductionof the amount payable to petitioner in respect of the subsequent contract and the action of the Zila Parishad was neither against law or equity nor against the interim order dated 7-9-90.
19. It not disputed that in pursuance of the interim mandamus dated 21st December , 1992 granted in Writ Petition No. 22362 of 1992 Zila Parishad was compelled to pay Rs. 55, 150/- to petitioner which, for the reasons recorded above should be have been paid to petitioner .But for the interim mandamsus dated 21st December 1992, petitioner could have received this amount.Thus the change in position of the parties which has been brought about by the interim order dated 21st December, 1992 requires to be recitified. In the facts of this cases its now duty of the Court to see that the parties are restored to the positinwhich was prevailing before theinterim order dated 21st December, 1992.The legal maxim `Actus Oriae Neminem Grarsabit', that the act of the Court should not prejudice any one is fully applicable in thefacts of the present case.The amount thus received by petitioner under the interim order is held by him in trust and he is under legal obligation to pay it back to the respondent Zilla Parishad.
20. For the reasons stated above and in the ends of justice, we dispose of both petitions finally with the following directions to the parties:-
(1) Petitioner shall pay to respondent Zilla Parishad an amount of Rs.55,151/- within a period of three months from the date of this judgment.
(2) If the amount is paid by the petitioner as directed above, the recovery proceedings for recovery of the amount of Rs.70,150/- as arrears of land revenue and the citation dated 1-9-90, Annexure-1 to the Writ Petition No. 23803 of 1990 shall stand quashed.
(3)However, in case the amount is not paid by petitioner, as directed above,the recovery procedings shall becontinue dagainst petitioner under this order for the amount referred to in the citation and he shallbe further at the rate of 15% on amount of Rs. 55,150/- from the date he received this amount under interim order dated 21-12-92 from Zila Parishad till the acutal recovery of the amount.
(4) The amount of Rs.10,000/- deposited by petitioner with Zila Parishad respondent No. 1 under the order dated 7-9-90 shall be given due adjustmentin recovery of the amount under the order of this Court.
(5) However, in special facts and circumstances of the case, the parties shall bear their own costs.
20. Order accodingly.