1. The brief facts leading to this second appeal by the plaintiff Phula Singh, according to the plaint are as follows:--
The plaintiff had taken as lease for removing the dead animals from the streets of the village from the defendant No. 1 Gram Panchayat of village Sheron for the year 1962-63 for Rs.3,800/-. He had paid that amount to the Panchayat. However, defendant No. 1 sent a report to the Block Development Officer giving wrong facts and thereupon a warrant was issued in the name of the plaintiff for the recovery of the above amount of arrears of land revenue. This amount is not recoverable as arrears of land revenue as it does not fall within the definition of Section 12 of the Punjab Village Common Lands (Regulation) Act and S. 82 of the Punjab Gram Panchayat Act, 1952 (hereinafter called the Act).
2. Upon the above facts the plaintiff prayed for an injunction restraining the defendants from recovering the above amount from him as arrears of land revenue.
3. The defendants contested the suit and pleaded that the contract for removing the dead bodies of the animals was made with the plaintiff for the year 1962-63 for Rupees 6,300/-, out of which he had paid Rs.3,100/- leaving a balance of Rs.3,200/-. Rs.600/- are due from the plaintiff as balance of the contract money for the year 1961-62 and thus Rs.3,800/- are due from the plaintiff and this amount can be recovered as arrears of land revenue.
4. Upon the pleadings of the parties, the trial Court framed the following issues:--
1. Whether the plaintiff had the contract of removing dead animals for Rs.3,800/- for the year 1962-63.
2.Whether the plaintiff had taken contract of removing the dead animals for Rs.5,000/- for the year 1961-62 and for Rs.6,300/- for the year 1962-63.
3. If issue No. 2 is proved whether the plaintiff had made the payment of the entire contract for the year 1961-62 and 1962-63 and if not how much sum is due from the plaintiff to the Panchayat-defendant?
4. Whether the sum of Rs.3,800/- is not recoverable as arrears of land revenue?
5. Issue No. 1 was decided against the plaintiff as he did not lead any evidence. Under issue No. 2 the learned trial Court held that the plaintiff had taken contract for removing dead animals for Rs.5,000/- for the year 1961-62 and for Rs.6,300/- for the year 1962-63. Under issue No. 3 it was held that the contract money for the year 1961-62 has been fully paid by the plaintiff and Rs.3,200/- are due from him as a balance of the contract money for the year 1962-63. Under issue No. 4 it was held that the amount of Rs.3,200/- was recoverable from the plaintiff as arrears of land revenue. Consequently, the plaintiff's suit was dismissed but it was remarked that defendant Gram Panchayat was entitled to recover only Rs.3,200/- as arrears of land revenue through the Block Development Officer.
6. The plaintiff filed an appeal which was heard by the Senior Sub Judge (with enhanced appellate powers), Sangrur. He dismissed the appeal. Feeling aggrieved the plaintiff has come to this Court in second appeal.
7. The only point that was argued before me was whether the defendant-respondent Gram Panchayat was entitled to recover the balance of contract money amounting to Rs.3,200/- from the plaintiff as arrears of land revenue or not. Both the Courts below had dismissed the suit of the plaintiff on the ground that under S. 82(2) of the Act, the Gram Panchayat is empowered to levy fee in respect of the items enumerated under that sub-section and the contract money which is sought to be realised from the plaintiff falls under item No. (ii) of the said sub-section. Relevant portion of sub-section (2) of S. 82 of the Act reads as follows:--
82(2). The following fees may be levied by a Gram Panchayat-
xxx xxx (ii) service fee including fee on cleaning of streets and lighting of streets and sanitation: xxx xxx
8. I am of the view that both the Courts below have fallen in error in holding that the amount sought to be realised from the plaintiff amounts to fee levied by the Gram Panchayat in the discharge of its duties for the cleaning and sanitation of the streets. Both the parties are referring to the amount as contract money. It is not the case of the Panchayat that it imposed this fee upon the plaintiff for cleaning the streets or sanitation of the village. Otherwise also by no stretch of imagination this amount can be said to be a fee levied under S. 82(2) of the Act by the Gram Panchayat upon the plaintiff.
9. The learned counsel for the plaintiff has invited my attention to the provisions of Section 81(1)(f) of the Act. The relevant portion of this section reads:--
'81 (1). The following moneys shall be credited to the Gram Fund--
xxx xxx (f) the sale proceeds of all dust, dirt, dung or refuse collected by the servants of the Panchayats and dead bodies of animals not claimed by any person in accordance with any custom or usage and the trees and other produce of the land vested in the Gram Panchayat. xxx xxx
10. A reading of this provision clearly indicates that the Gram Panchayat is entitled to the sale proceeds of the dead bodies of the animals which are not claimed by any person in accordance with any custom or usage. Thus the contract given to the plaintiff for removal of the dead bodies of the animals from the village amounts to selling of the dead bodies of the animals to the plaintiff. Instead of selling dead body of an animal of and when one dies, the Gram Panchayat sold to the plaintiff against lump sum the dead bodies of the animals which might die during a year. Therefore, the above amount sought to be recovered from the plaintiff is on the basis of a contract entered into by the Gram Panchayat under Section 81 of the Act with the plaintiff.
11. Section 85 of the Act empowers the Collector to recover any sum due under the Act as if they were arrears of land revenue. The question that arises is whether the present amount due from the plaintiff is due under the Act. I am of the opinion that this amount cannot be said to be due under the Act. I may quote here Maya Das v. Municipal Committee, Chiniot, AIR 1927 Lah 161. The facts of that case are that the Municipal Committee, Chiniot, had provided a stand for tumtums within the municipal limits. Every tumtum owner had to pay a certain sum by way of rent or toll for the use of the aforesaid stand. The collection of this toll or rent was leased by the Municipal Committee to Bhagwan Das and Maya Das who were petitioners in that case, for the year 1923-24 in lieu of Rs.904/-. An agreement by the lessees was duly executed. Some amount remained due from the lessees. The Municipal Committee resolved that the Secretary should apply to the District Magistrate under S. 81 of the Punjab Municipal Act for recovery of the arrears due by the lessees. The Secretary of the Committee gave the necessary application and the Magistrate ordered issue of a warrant for realization of the amount and in execution of it some moveable property of the lessees was attached. The lessees filed a revision before the Sessions Judge who referred the case to the High Court. The relevant portion of the reference reads as follows:__
'On the merits I am of opinion that the action of the Magistrate was ultra vires. Under S. 83 of the Punjab Municipal Act, 3 of 1911, it is open to a Municipal Committee to farm out the collection of any octroi, toll or terminal tax for a period not exceeding one year. However, the amount due by the farmers is not amount due under the Act. It is an amount due under a simple lease or contract and only recoverable by law suit.'
12. The High Court held that the views taken by the Sessions Judge was correct. The above observations clearly apply to the present case.
13. The learned counsel for the respondent Gram Panchayat argued that the suit for injunction is not maintainable. In support of his contention he has cited Punjab State v. Kirpal Singh, 1978 Punj LJ 109. In that case a certain sum was sought to be recovered from the plaintiff as the balance of the sum payable by him for running a canteen. The Collector had initiated proceedings for the recovery of the outstanding amount as arrears of land revenue. The plaintiff filed a suit for declaration and injunction. The trial Court dismissed the suit but the appellate Court accepted the appeal and decreed the suit. The State of Punjab filed second appeal in this Court which was heard by C. S. Tiwana, J. who observed as follows:--
'The lower appellate Court went in error when it tried to discard the provision of Section 78 of the Punjab Land Revenue Act merely on the ground of a defective notice. It was incumbent on the plaintiff to make the payment under protest and then to institute a suit for the recovery of the amount paid. He could not simply sue for obtaining this kind of injunction against the State that it should be restrained from making any recovery. The appeal is consequently accepted.
14. The above ruling does not apply to the present case. In that case rent due in respect of the leased public premises was being recovered as arrears of land revenue. The Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1969, vide Section 10-D has specially provided that if any person refuses to pay the arrears of rent within the time, if any, specified therefor, in the order relating thereto, the Collector shall proceed to recover the amount due as arrears of land revenue. There is no provision in the Act that contract money can be recovered as arrears of land revenue. Section 85 of the Act empowers the Collector to recover any sum due under the Act as arrears of land revenue. If the same is not due under the Act then it cannot be recovered as arrears of land revenue and consequently S. 78 of Punjab Land Revenue Act will have no application.
15. I may also quote here the Custodian General of Evacuee Property, New Delhi v. S. Harnam Singh, (1956) 58 Pun LR 490 : (AIR 1957 Punj 58). The facts of that case are that towards the end of 1947, the Custodian of Evacuee Property invited tenders for the annual lease of floor mill owned by a Muslim evacuee. One Harnam Singh gave a tender and it was accepted by the Custodian and the possession was delivered to the lessee. However, in view of certain instructions which were later on received from the higher authorities, the tender was rejected subsequently and the mill was sealed by the officers of the Rehabilitation Department. The Assistant Collector, Ambala issued a writ of demand under S. 68 of the Land Revenue Act requiring the lessee to pay a certain sum on account of arrears of rent of the factory in question. The lessee appealed and the Additional Custodian held that although the petitioner was not a lessee of the premises and was not liable to pay rent there for yet he was liable to pay compensation for use and occupation of the property as he had actually worked the factory. He also fixed a certain amount, after report, as due from the lessee for use and occupation. The lessee filed the revision petition to the Custodian General which was dismissed. Thereupon the lessee filed a writ under Article 226 of the Constitution of India. The writ was accepted. Letters Patent Appeal was preferred and one of the arguments on behalf of the State raised was that if the petitioner questioned his liability to pay the amount demanded of him, he should follow the procedure prescribed by S. 78 of the Land Revenue Act and make payment under protest and later bring a suit in a Civil Court for the recovery of the amount so paid. The Division Bench who heard the Letters Patent Appeal observed as under (at pp. 59, 60 of AIR) :--
'There can be no doubt in regard to the correctness of the submission put forward by the petitioner. It is a fundamental principle of law that every person who receives an injury is entitled to claim the protection of the Courts. Broadly speaking, the Courts alone have the power to decide justiciable controversies both on question of fact as well as of law; they alone can protect the rights and interests of individual citizens and they alone have power to hear, determine and to enforce. Indeed S. 9 of Civil P. C. provides that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits in which their cognizance is either expressly or impliedly barred. The Administration of Evacuee Property Act does not appear to bar the jurisdiction of ordinary Courts or to transfer the determination of right and liabilities from ordinary Courts to executive officer. It is not a fiscal measure like the Income-tax Act or the Land Revenue Act in which the Income-tax Officer or the Revenue Officer is charged with the duty of producing revenue for the State. It was designed primarily to provide for the preservation, management and control of evacuee property. The Legislature, could never have intended under a general enactment like the present, to deprive the Courts of the jurisdiction which they possess in such cases and to empower the Custodian to adjudicate on the controversies which arise between him and the members of the public on disputed questions about the amount of compensation which should be recovered for use and occupation of property. The Custodian has no power to determine disputed questions of title (M. B. Namazi v. Dy. Custodian of Evacuee Property) AIR 1951 Mad 930) or to determine whether a debt is barred by time or not (F. Sahib Dayal Bakshi Ram v. Asstt. Custodian of Evacuee Property, Amritsar) (AIR 1952 Punj 389) or to recover any debt under S. 48 when the debtor, declares that the debt is barred by time (Firm Pariteshah v. Assistant Custodian of Evacuee Property, Amritsar) (AIR 1953 Punj 21).
As the amount which is being demanded from the petitioner has not been admitted or proved to be due from him and as the amount is not due under the provisions of the Act, I am of the opinion that it was not within the power of the Custodian to direct the Assistant Collector, Ambala, to issue a writ of demand.'
16. I have already held above that the amount is not due from the plaintiff under the Act and, therefore, it cannot be recovered as arrears of land revenue and the suit for injunction is not barred by S. 78 of the Punjab Land Revenue Act.
17. Consequently, I accept the present appeal and set aside the judgments and decree of the Courts below and decree the suit for the plaintiff for permanent injunction, as prayed for. The Gram Panchayat however will be at liberty to recover the amount by due process of law. The plaintiff-appellant will be entitled to the costs throughout from the defendant--respondent No. 1 Gram Panchayat..
18. Appeal allowed.