M.P. Thakkar, J.
1. The petitioner is a person who had obtained a lease in respect of levy of octroi duty from the then Municipality of Sayla constituted under the Bombay District Municipal Act, 1901, (hereinafter referred to as the 'Municipal Act'). The lease was granted in exercise of powers under Section 81-A of the Municipal Act. The said Sayla Municipality was subsequently converted into a Gram Panchayat. The lease was for the period commencing from April 1, 1962 and expiring with March 31, 1963. It was granted by public auction and was sanctioned by a resolution passed by the Municipality on March 28, 1962. Under the said lease a sum of Rs. 30,999/- was to be paid by the petitioner to the Sayla Municipality, in respect of the octroi duty for the aforesaid period. The right to collect the amount payable under the said lease has accrued in favour of the respondent No. 1 (the Sayla Gram Panchayat) in view of the fact that the Sayla Municipality was converted into a Gram Panchayat under the relevant provisions. It is the case of the petitioner that on February 1, 1963 the Sayla Municipality terminated the aforesaid lease. As per the terms and conditions of the lease the amount that was payable was to be paid by equal monthly instalments. And the amount in respect of every instalment was to be paid on or before the 10th of every month. There was also a stipulation in respect of penalty. It was provided that if there was any default in payment of any instalment a penalty at 10 per cent was payable every month. On May 19, 1963 the first respondent Sayla Gram Panchayat served on the petitioner a writ of demand calling upon him to make payment of a sum of Rs. 18,245-95 due on account of non-payment of the instalments payable under the octroi lease for the year 1962-63 inclusive of the penalty payable on account of non-payment of the instalments in respect of which the petitioner was in default. The petitioner was called upon to make payment within 30 days from the service of the writ of demand along with a sum of Re. 1/- being the fee for the issue of the said writ. Intimation was given to the petitioner that upon his failure to show sufficient cause of non-payment to the satisfaction of the Panchayat, a warrant of distress would be issued for the recovery of the said sum with costs. In reply to this notice of demand, the petitioner made an application dated 13th July, 1963 showing cause as to why the amount should not be recovered. It appears that the Collector of Surendranagar passed an order on July 29, 1964 to the effect that the sum of Rs. 15,441.17 was payable on account of octroi lease of Sayla Gram Panchayat and that the said amount was recoverable from the petitioner as arrears of land revenue. A certificate was issued under sub-section (1) of Section 3 of the Revenue Recovery Act and was transmitted to Respondent No. 3, the Collector of Bhavnagar District. It was in pursuance of this certificate that the respondent No. 3 proceeded to take in attachment an immovable property belonging to the petitioner situated in Botad. Thereupon the petitioner has instituted the present petition under Article 226 of the Constitution of India praying that a writ of mandamus or any other appropriate writ be issued prohibiting the respondents, their agents or employees from recovering the aforesaid amount of Rs. 15,441.17 in respect of the octroi lease for the period from April 1, 1962 to March 31, 1963 as arrears of land revenue.
2. It is the case of the petitioner in the petition that Section 192 of the Gujarat Panchayats Act, 1961 (hereafter referred to as the Panchayat Act) under which the recovery is sought to be made is ultra vires the Constitution of India being violative of Articles 14 and 19 of the Constitution. Though this challenge was made in the petition, at the time of the hearing the learned Counsel for the petitioner stated that he did not want to press this contention. In view of this statement it is not necessary to examine the question as regards the vires of Section 192 of the Panchayats Act. On merits the first point made by the learned Counsel for the petitioner was that the proceedings for recovery initiated against the petitioner were bad in law by reason of the fact that the procedure envisaged by Section 192 of the Panchayats Act had not been followed. This contention was built on the circumstance that a bill in respect of the amount claimed from the petitioner had not been rendered on him. It was made in the context of sub-section (1) of Section 192 of the Gujarat Panchayats Act. This argument loses its edge because it overlooks the fact that the recovery sought to be made is not under sub-section (4) of Section 192 at all. The present proceedings have their origin in sub-section (9) of Section 192. For the purposes of this argument the scheme of Section 192 may be examined. If upon rendering of a bill under sub-section (1) of Section 192, and upon the service of a writ of demand under sub-section (2) of Section 192, the sum for which the demand has been made is not paid within 30 days from the date of the service of the writ of demand, the Panchayat may levy such sum by distraint and sale of the moveable property of the defaulter in the prescribed manner. Under sub-section (4) of Section 192, recovery by distraint and sale of the moveable property of the defaulter cannot be made until a bill in respect of the amount is rendered on the person concerned and unless it is followed by a writ of demand as contemplated by sub-section (2) of Section 192. Now in the present case it is established that the recovery is being made by the Collector at the instance of the competent authority acting in exercise of the powers under sub-section (8) of Section 192. This provision is designed to meet the case where a Panchayat fails to recover any tax, fee or any sum due or when such Panchayat neglects to take action under sub-sections (2) and (3) of Section 279 or sub-sections (2) and (4) of Section 192 of the Panchayats Act. In the present case the Collector was moved by the competent authority under sub-section (8) of Section 192 on the ground that the Panchayat had failed to recover the sum due to it. It was in exercise of powers under sub-section (9) of Section 192 that the Collector had started recovery proceedings and issued the certificate of recovery. Such being the case, the fact that a bill was not rendered on the petitioner before commencing the recovery proceedings will not be of any avail to the petitioner for challenging the legality of the recovery proceedings.
3. Coming now to the next challenge to the recovery proceedings, it is founded on an argument calling into question the interpretation of sub-section (1) of Section 192 of the Gujarat Panchayats Act, 1961. The said section reads as under: -
192. (1) When any tax or fee or any other sum has become due, a Panchayat shall with the least practicable delay, cause to be presented to the person liable for the payment thereof a bill for the amount due from him, specifying the date on or before which the amount shall be paid.
4. The argument of the learned Counsel for the petitioner is that the critical expression 'when any tax or fee or any other sum has become due' must be interpreted by reference to the rule of ejusdem generis. It is contended that the expression 'any other sum' must take colour from the preceding words 'tax' or 'fee'. The argument is that 'any other sum' which is in contemplation of the legislature is a sum which is of the nature of a tax or a fee or any rate a sum due under some provision of the Municipal Act. Now if the legislature was making provision only in respect of sums due by way of tax, fee or cess and no more, there was no necessity to employ the words 'any other sum due' which are of very wide import. The Court would be slow to assume that the legislature had used the expression without due deliberation. The legislature could have easily used the expression 'tax, fee or any such sum due under the provisions of this Act'. The expression 'any other sum' gives the clue to the mind of the legislature. There is also another test available for re-assurance on this point. That test lies in posing the question: is there any other sum of a like nature or akin to tax or fee which does not fall within the expression 'tax or fee' and which the legislature had in contemplation? The learned Counsel for the petitioner invited our attention to sub-section (4) of Section 93, sub-section (3) of Section 163, Section 149 and Section 178 of the Gujarat Panchayats Act in this connection. Now sub-section (4) of Section 93 authorises the Panchayat to impose penalty which may extend to 50 rupees and in case of a continuing contravention of breach, an additional five extending to rupees five per day during subsistence of such contravention. It is urged that this is a sum of money which would not be covered by the expression 'tax or fee' and yet would be an amount recoverable under the provisions of the Gujarat Panchayats Act. It is not possible to accede to this argument because Section 279 makes a provision for the recovery of fines imposed under the provisions of the Panchayats Act. Sub-section (2) of Section 279 enables the Panchayat to recover the same by distraint and sale of the defaulter's moveable property. The legislature having already provided for the mode of recovery of fines, it is evident that in using the expression 'any other sum of money due' in Section 192, it was not a sum recoverable by way of fine which was in the contemplation of the legislature.
5. Turning now to sub-section (5) of Section 93 on which reliance has been placed by the learned Counsel for the petitioner, it relates to the recovery of expenses incurred by the Panchayat for carrying out an alteration or demolition by its officers upon the failure of a person to carry out such alteration or demolition or erection or re-erection, notwithstanding a written notice requiring him to do so. The answer to the argument is to be found in the section itself which provides that the amount in this connection shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under Chapter IX which is the Chapter containing Section 192. Sub-section (5) of Section 93 is a self-contained provision which provides the machinery for the recovery of the amount expended in the aforesaid connection. There was, therefore, no need to make any provision in this behalf in Section 192. This argument also, therefore, renders no assistance to the learned Counsel for the petitioner in support of the plea that the words 'any other sum due' must be construed ejusdem generis. A reference was then made to Section 149 of the Panchayats Act. This provision enables the State Government to entrust to the Panchayat the function to recover the land revenue due under the Land Revenue Code. This provision cannot buttress the argument advanced by the learned Counsel. When the Panchayat makes a recovery of land revenue by virtue of the authority delegated to it under Section 149, it does not recover any sum due to the Panchayat. It is only making recovery of a sum due to the State Government as the collecting agency created under Section 149. Section 192 on the other hand deals with tax or fee or any other sum of money which is due 'to' the Panchayat. Lastly our attention has been called to the provision contained in Section 178 of the Panchayats Act. It is provided by this section that subject to any general or special order, it shall be competent to a Panchayat to levy all or any of the taxes and fees enumerated in clauses 1 to 38 of sub-section (1) of Section 178. This provision can render no assistance to the petitioner because on a plain reading of the section, it refers to taxes and fees which would be ex-facie covered by the expression 'tax or fee or any other sum due' employed in Section 192 (1). The learned Counsel for the petitioner has not been able to point out any other provision under which a sum other than a tax or fee could become payable under the Panchayats Act. Since there is no such sum which would become payable, acceptance of the petitioner's interpretation would imply that the legislature had used the expression 'any other sum' without any purpose. It would be unreasonable to take such a view. The word 'any' in a word of expansion indicative of width and amplitude sufficent to bring within the scope and ambit of the words it governs, all that can possibly be included in them as observed in Jagmohandas v. Jamnadas, 6 Guj LR 49 at page 82 = (AIR 1965 Guj 181 at pp. 199-200). The learned Counsel for the petitioner has however placed reliance on the case of Sir Stuart Samuel, Member of Parliament, (1912) 17 Cal WN 735 for contending that notwithstanding the use of the word 'any' the rule of ejusdem generis was applied by the Privy Council in that case. The facts leading to the said case would show that Sir Stuart Samuel, being a Member of the House of Commons, was partner of the firm which made contracts with the Secretary of State for India in Council for borrowing money on short loans and for purchasing silver for the purposes of the Indian currency. Act 22 Geo III c. 45 (1782) declares that it was enacted to preserve the freedom and independence of Parliament; and the mischief guarded against is the sapping of that freedom and independence. It provided that a member having 'directly or indirectly' undertaken a contract with 'the Commissioners of His Majesty's Treasury, or of the Navy or Victualling Office', or 'the Master-General or Board or Ordnance' or 'any other person or persons whatsoever' would incur disqualification. Having regard to the fact that all the persons enumerated in the first section of the Act were holding offices as officers of British Government, the view was taken that in enumerating these several office holders which preceded the material words 'any other person or persons whatsoever', the doctrine of ejusdem generis would apply and that any 'other person' would mean anyone who held an office in the British Government of a similar kind to those enumerated. That decision turns on the interpretation of that particular provision. And having regard to the fact that the purpose of the legislation was to safeguard the freedom and independence of the Parliament and the underlying principle was that the person concerned was disabled from entering into any contract with the officers of the British Government, the aforesaid constructions was accepted. In the present case, however, for the reasons we have already set out the word 'any' must be given full effect. We are of the opinion that the interpretation canvassed by the learned Counsel for the petitioner invoking the doctrine of ejusdem generis cannot, therefore, be accepted.
6. Coming now to the other aspect of the argument based on the interpretation of sub-section (1) of Section 192, it is the submission of the learned Counsel for the petitioner that the expression 'when any tax or fee or any other sum has become due' must be read as 'any tax or fee or any other sum 'found or determined' to be due'. It is contended that a distinction must be drawn between a sum claimed by the Panchayat and a sum which is 'determined or adjudged' to be due to the Panchayat by a competent authority. It is urged that 'any other sum due' must be read as any other sum 'determined, adjudged or found' to be due. Now it will be necessary to add words in sub-section (1) of Section 192 in order to be able to accept the argument of the learned Counsel. In fact, it would become necessary to rewrite the section which is not the function of the Court. There is no compulsion of logic and there is no necessity for adding any such words to effectuate the intention of the legislation. It is, therefore, not possible to accept the argument of the learned Counsel that 'sum due' must be a sum which has been determined or adjudged to be due to the Panchayat.
7. The recovery proceedings have also been challenged on the ground that the sum of money in respect of which the demand has been made is not 'really' or 'in fact' due. It is firstly argued that a sum of money must be ascertained to be due. Reliance has been placed on Re A Claim by Collbran (deceased): (1956) 1 All ER 310. Of Course the sum of money which is claimed must be an ascertained sum not an unliquidated sum such as a claim for damages. This aspect, however, is immaterial for the present purposes because it is not the case of the petitioner that the sum claimed is by way of damages. The sum which has been claimed by the Panchayat is claimed under a contract which provides for periodical payments. This argument, therefore, cannot help the petitioner. It is next contended that the sum of money which is claimed must be not only due but recoverable under law. It is true that in conformity with the principles laid down in the case of Hansraj Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd. and in the case of Malabar Petroleum Co. v. Continental Oil Co., Ltd., Madras : AIR1963Mad307 , the amount in question must be recoverable under law. The contention of the learned Counsel for the petitioner is that in the present case the amount in respect of which the recovery is sought to be made is not legally recoverable inasmuch as the contract under which the lease was given to the petitioner was, in his submission, a void transaction. The question, therefore, is whether the transaction of lease in favour of the petitioner is a void transaction as contended by the petitioner. The challenge in this behalf is incorporated in paragraph 7 (2) of the petition. It is necessary to reproduce the challenge in the very word of the petitioner. It reads thus: -
'7 (2). That the petitioner submits that under Section 40 (6) of the Bombay District Municipal Act as adapted and applied to the Saurashtra area of the Gujarat State, such contract entered into by or on behalf of a Municipality must be in writing and must be signed by a President or Vice-President and two other Councillors and must be sealed with the common seal of the Municipality. It there is no such contract in writing, then there would not be any legal contract between the parties and the Municipality cannot claim any right in absence of any such contract. The petitioner submits that there being no contract as provided in Section 40 of the Bombay District Municipal Act as adapted and applied to the Saurashtra area of the Gujarat State, the Municipality is not entitled to claim anything by way of any amount due under the contract and therefore also the recovery as arrears of land revenue is illegal'.
It is clear that the challenge is grounded on three alleged infirmities. It is alleged (1) that the contract should be in writing, (2) that it must be signed by the President or Vice-President and two other Councillors and (3) that it must bear the common seal. The argument is that in as much as none of these three essential conditions contemplated by sub-section (6) of Section 40 exists in the instant case, the contract is a void contract. It is necessary for the proper appreciation of the point in issue to quote Section 40 (6) of the Municipal Act. This is how it runs:
'40 (6) Every contract entered into, by or on behalf of a Municipality other than a contract to which sub-section (5) applies, shall be in writing, and shall be signed by the president or vice-president and two other councillors, and shall be sealed with the common seal of the Municipality. Every contract to which sub-section (5) applies shall be executed by the chairman of the managing committee, or by the chairman of such other committee, or by such other individual, as is empowered in that behalf in such manner and form as, according to the law for the time being in force, would bind such chairman or individual if such contract were executed by him on his own behalf'.
8. Now the opening words of sub-section (6) of Section 40 make it clear that the requirement regarding the contract being in writing and the requirement that it shall be signed by the President or Vice-President and two other Councillors as also the requirement that it shall be sealed by the common seal of the Municipality is applicable to every contract other than a contract to which sub-section (5) of Section 40 applies. The pertinent question to be asked is whether the present contract is a contract contemplated by sub-section (5) of Section 40 or a contract other than a contract to which sub-section (5) of Section 40 applies. Sub-section (5) of Section 40 is a provision which is applicable to all contracts other than the contracts enlisted in sub-ss.(1) to (4) of Section 40. It is not in dispute that the present contract cannot fall under anyone of the aforesaid four clauses. There is no manner of doubt, therefore, (and this is not disputed by the learned Counsel for the petitioner) that the contract would fall under sub-section (5) of Section 40. It is thereupon obvious that the requirement regarding the contract being in writing, being signed by the President or Vice-President and two other Councillors and as regards bearing the common seal of the Municipality is not essential for such a contract.
9. This being a transaction which is covered by sub-section (5) of Section 40, the requirement which must be fulfilled is that which is embodied in the second part of sub-section (6). It is provided therein that every contract to which sub-section (5) applies shall be executed by the chairman of the managing committee, or by the chairman of such other committee, or by such other individual, as is empowered in that behalf in such manner and form as, according to the law for the time being in force, would bind such chairman or individual if such contract were executed by him on his own behalf. As the challenge was framed by the petitioner in the petition, it was founded on the premise that it was a contract to which the first part of sub-section (6) was applicable. Accordingly there is no averment in the petition that the contract in question is not executed in the manner required by the second part of sub-section (6) of Section 40 to which a reference has been made a moment ago. Even so the learned Counsel for the petitioner has argued that having regard to the language of the aforesaid provision pertaining to the contract to which sub-section (5) applies, in as much as it is essential to establish that it has been executed in such a manner and form as according to the law for the time being in force would bind such chairman or individual, it must be a contract in writing. Importance is emphasized of the expression 'executed' for contending that the contract must be a contract in writing. Now the word 'execute' has been inter alia defined in the Shorter Oxford English Dictionary to mean: to follow out, to carry into effect, to carry out, to perform, to go through the formalities necessary to its validity. It is, therefore, not possible to agree with the submission that the word 'execute' necessarily means that a document in writing is contemplated. 'Execute' would mean 'making' or 'bringing into existence' a contract by going through the formalities necessary to the validity thereof. It does not necessarily mean that whenever a word 'execute' is employed it must refer to a document in writing. We find further support for this view upon an examination of the scheme of Section 40 itself. Sub-clause (1) of Section 40 provides for the contingency of the Municipality wanting to sell or transfer or create a lease in respect of any property belonging to the Municipality. For this important function a provision has been made in the first part of sub-section (6) that the contract shall be in writing, shall be signed by the President or Vice-President and two other Councillors, and shall be sealed with the common seal of the Municipality. Sub-section (2) of Section 40 provides that in every case of lease of immovable property for a term exceeding seven years, and of every sale or other transfer, of any such property the previous sanction of the Commissioner shall be required. Sub-section (3) of Section 40 requires that a lease for a period exceeding one year, or of a sale or other transfer or contract for the purchase of any immovable property and in case of every contract which will involve expenditure, not covered by a budget grant, and of every contract the performance of which cannot be completed within the official year current at the date of the contract, the sanction of the Municipality shall be required. This also makes it evident that a distinction has been drawn between contracts which have farreaching implications and which have a bearing on the property rights of the Municipality and other contract. Special safeguards have been provided by the legislature for the former. Sub-section (4) of Section 40 relates to a contract for the purchase of moveable property, or for the sale of any movable property belonging to a Municipality, in case such purchase would involve expenditure or property to be sold is estimated in the Municipal accounts at a figure exceeding Rs. 1000/. Here again having regard to the importance of the subject-matter of the contract, it is provided that the sanction of the Municipality is required. It is important to realize that sub-section (4) of Section 40 provides that the requirement regarding the sanction will be restricted to the contract where the subject-matter of transfer exceeds Rs. 1000/. For a contract where the subject-matter is less than Rs. 1000/, the case would fall under sub-section (5). And a different provision has been made in regard to such a contract in sub-section (5). So far, the safe-guard that has been provided enjoins that the contract is required to be in writing and that it should bear the signature of the President or Vice-President and two other Councillors and the common seal of the Municipality. All these formalities are dispensed with in regard to the contract which falls within the ambit of sub-section (5) of Section 40. The only requirement that is envisaged by the second part of sub-section (6) which petains thereto is that is must be executed (that is to say made or brought into existence) by the Chairman or by such individual, as is empowered in that behalf in such manner and form as, in law would bind such individual if he were to contract on his own behalf. The expression 'executed by' goes with the words 'in such a manner' as would be required to bind such a Chairman or individual if such contracts were to be executed by them. In other words only such formalities are necessary as the Chairman or such individual would be required to conform to in case he were entering into a contract on his own behalf. Nothing more than this is required having regard to the fact that all the functions which have been considered to be of a serious import have been dealt with by sub-sections (1) to (4) of Section 40 and are covered by the provisions of the first part of sub-section (6) of Section 40. With regard to the contracts which do not fall within the special categories contemplated by sub-sections (1) to (4) of Section 40, the requirement is of a lower order viz., such as would be expected in the case of a transaction by an individual on his own. If the view canvassed by the learned Counsel for the petitioner were accepted, it would mean that even for minor transactions such as purchasing stationery or small items for the office, a contract cannot be entered into otherwise than in writing and without following the formalities enjoined by the first part of sub-section (6). There is no compelling circumstance to induce us to take the view that the second part of Section 6 requires a contract to be in writing. The only requirement that is in contemplation is that it should be 'executed' that is to say 'made or carried out' in such manner as one would expect from an individual transacting his own business. In the present case the lease has been given to the petitioner in exercise of powers contained in Section 81-A of the Municipal Act which makes it lawful for the Municipality to lease the levy of any toll that may be imposed under the Act by 'public auction or private contract'. It cannot be gainsaid that if an individual were to confer such a right by a public auction, it would not be necessary under the law for him to execute a written document. Therefore, reading second part of sub-section (6) of Section 40 with Section 81-A, it cannot be posited that there is any infirmity in the manner in which the contract has been executed. This contention must also, therefore, fail. It may be mentioned that there is no challenge in the petition with an eye on second part of sub-section (6) of Section 40. It is not contended that the contract was not entered into by an official or individual empowered in this behalf under sub-section (6) of Section 40.
10. Lastly it is pointed out that when the contracts were entered into, the Panchayat had not come into existence and that the provisions of the Municipal Act were applicable. The circumstance that subsequently the Municipality has been converted into a Panchayat, it is so argued, will not entitle the Panchayat to take recourse to the machinery of the Panchayat Act for initiating recovery proceedings because the contract giving rise to the claim was entered into at a time when the Municipal Act was applicable. Now a Municipality can be converted into a Panchayat by making a declaration under Section 9 of the Panchayat Act. The effect of this conversion would be, as provided in clause (f) of Section 307 of the Gujarat Panchayats Act that all debts and obligations incurred and all contracts made by or on behalf of the municipality immediately before the said date, and subsisting on the said date, shall be deemed to have been incurred and made by the panchayat in exercise of the powers conferred on it by or under the said Act. The debts and obligations which were previously those of the Municipality, by virtue of this fiction introduced by sub-section (5), become the debts and the obligations of the Municipality (Panchayat?) and the contracts entered into by the Municipality become the contracts made on behalf of the Panchayat. The amount which was due under the contract to the Municipality would, therefore, be an amount now due to and recoverable by the Panchayat as the successor of the Municipality. Upon reaching this conclusion, it is clear that the provisions of Section 192 for the recovery of the sums due to the Panchayat would come into force and the amount would be recoverable as provided in the said section. In this view of the matter, we are unable to upheld that contention of the learned Counsel for the petitioner. Before parting with the matter it may be mentioned for the sake of record that a point was made in the petition that the order passed by the Collector was vitiated by reason of the fact that he had called for the report of the Mamlatdar and had acted on the basis of that report. The contention was that the Collector himself should have heard the parties and made the inquiries. At the time of the hearing, however, the learned Counsel for the petitioner did not press this contention.
11. No other point has been argued. This petition must, therefore, fail and will stand rejected with costs. Rule discharged. Interim orders will stand vacated.
12. Petition dismissed.