Saroj Bala, J.@mdashAll these bunch cases involving common question of law are being decided together.
2. The facts of each writ petition are as hereunder:
1. Writ Petition No. 31782 of 1992
3. The order impugned in the writ petition is the citation dated 31.8.1992 (Annexure-2 to the writ petition). A contract for realisation of Tehbazari dues for the financial year 1990-91 was granted to the petitioner the highest bidder for Rs. 2,85,000/-. The petitioner entered into an agreement. The petitioner claims to have deposited a sum of Rs. 2,00,000/-. Admittedly, a sum of Rs. 85,000/- remained outstanding towards the contract in question which is sought to be recovered as arrears of land revenue. The contention of the petitioner is that the provisions of Section 291 of the U.P. Municipalities Act are not applicable. According to the petitioner the contract money cannot be recovered as arrears of land revenue,
4. No counter affidavit has been filed on behalf of the respondents.
2. Writ Petition No. 807 of 1993
5. The orders impugned are dated 30.4.1990 and 22.5.1990 (Annexure-2 to the writ petition) whereby directing the recovery of remaining amount of the contract for realisation of Tehbazari due as arrears of land revenue. In a public auction held on 24.4.1989 for the contract of realization of tax/fee from operators of motors, trucks stage carriage, tampo, taxi and other vehicles stopping at Shah stoppage at Tehsil Fatehpur district Fatehpur, the petitioner''s bid of Rs. 1,50,000/- being the highest, the contract for the year 1989-90 was granted to him. The operators of the tampo, taxi, stage carriage etc. filed Writ Petition No. 1048 of 1989-Fatehpur Tampo Taxi Samiti v. Zila Parishad and Anr. and vide order dated 2.8.1989 passed therein the Zila Parishad and another were restrained from realizing any fee for picking up and getting down the passengers from national highway. The petitioner has alleged that due to the stay order of this Court he was deprived of realizing the fee from the operators of the bus, mini trucks, tampo, taxi etc. The petitioner deposited a sum of Rs. 1,00,000/- out of the bid amount of Rs. 1,50,000/- The petitioner having failed to deposit remaining amount despite demand, the impugned recovery certificate for realisation of the amount as arrears of land revenue was issued.
6. The respondent Nos. 3 and 4 have filed counter affidavit denying that the assertions of the petitioner that he could not realise the fee or tax under the contract. According to them the number of receipt books issued to the petitioner increased three times after the grant of stay order by this Court.
3. Writ Petition No. 9630 of 1994
7. The petitioner seeks writ, order or direction in the nature of certiorari for quashing the recovery certificate dated 31.1.1994 (Annexure-3 to the writ petition) issued by the respondent No. 2. The contention of the petitioner is that in a public auction held on 27.2.1986 for the contract of disposal of dead animals in Block Moradabad, the petitioner''s bid for Rs. 01,07,000/- being the highest, the contract for the year 1986-87 was granted to him. The petitioner deposited a sum of Rs. 50,000/-. The remaining amount was not deposited as the Zila Parishad did not issue work order. The petitioner''s prayer for the refund of Rs. 50,000/- was also turned down and recovery certificate for realisation of remaining amount of auction bid as arrears of land revenue was issued. The contention of the petitioner is that the said amount cannot be recovered as arrears of land revenue.
8. The respondents in their counter affidavit have admitted the grant of contract to the petitioner. According to the respondents the petitioner having committed default in the payment of remaining amount of contract, the recovery certificate was issued. The respondents have stated that the petitioner carried out the work under the licence during the entire period of licence.
4. Writ Petition No. 22665 of 1995
9. By means of this writ petition the recovery certificate dated 5.5.1995 (Annexure-7 to the writ petition) issued by the respondent No. 3 for realisation of remaining amount of auction bid has been challenged. The contention of the petitioner is that the contract for realisation of Tehbazari dues from 1.4.1992 to 31.12.1992 was granted to Haji Kallu whereas the contract for the period 1.3.1992 to 31.3.1993 was granted to the petitioner for a sum of Rs. 3,79,250/-. On 4.11.1993 a letter was issued by the President, Town Area Committee, demanding a sum of Rs. 98,938/- and calling upon the petitioner to execute the agreement. On 24.3.1992 a notice was issued to Haji Kallu to deposit a sum of Rs. 1,00,192-50 paise, the amount of instalments due for the contact of Tahbazari. The recovery certificate issued against Haji Kallu was challenged in the Writ Petition No. 26243 of 1994 filed before this Court and the operation of the order was stayed. On 21.2.1995 the respondent No. 2 sent a letter to the Collector, Amroha for the recovery of the amount due as arrears of land revenue. The contention of the petitioner is that the amount cannot be recovered as arrears of land revenue. The petitioner states that the agreement having not been entered into between the parties no enforceable contract came into existence.
10. The respondents have not filed any counter-affidavit.
5. Writ Petition No. 2060 of 1997:
11. The impugned recovery certificate dated 2.12.1996 (Annexure-3 to the writ petition) issued by the respondent No. 2 is the bone of contention in the instant writ petition. In public auctions held on 28.5.1986 and 1.12.1986 for the contract of disposal of dead animals for the financial year 1986-87, in Block Baniya Khera, and Block Sahjoi, Moradabad, the petitioner was highest bidder. The petitioner deposited a sum of Rs. 90,000/- as auction money for Block Baniya Khera and Rs. 35,000/- for Block Bahjoi. It is alleged that the petitioner could not work for the entire contract period in Block Bahjoi as the licence was granted on 1.12.1986. It is alleged that the agreement was executed between the parties but the copy thereof was not delivered to the petitioner. The petitioner states that due to the stay order passed by this Court at the behest of some persons, the work of disposal of dead animals could not be carried out. The petitioner made a request for the refund of the auction money which annoyed the respondents and the respondent No. 2 sent the recovery certificate to the respondent No. 3 for the recovery of a sum of Rs. 1,11,105/- as arrears of land revenue (Annexures- 1, 2 and 3 to the writ petition). The contention of the petitioner is that the recovery of auction money as arrears of land revenue is illegal and without jurisdiction.
12. On behalf of the respondent No. 3 counter affidavit of Sri Bhavesh Misra, Upper Mukhya Adhikari, Moradabad, has been filed. The respondent has admitted the grant of contract for the disposal of the dead animals. According to the respondent the petitioner carried out the work under the contract in accordance with the terms and conditions of the agreement without making payment of the remaining amount of auction bid, compelling the respondent to issue recovery certificate.
6. Writ Petition No. 27876 of 1999:
13. The demand notice dated 26.6.1999 issued by the respondent No. 4 (Annexure-8 to the writ petition) u/s 282 of the U.P. Z.A. and L.R. Act is under challenge in this writ petition. A licence for realisation of Tehbazari dues for the period 1.4.1998 to 31.3.1999 was granted to the petitioner in public auction held on 17.3.1998. The petitioner''s highest bid of Rs. 5,01,000/- was approved by the respondent No. 3. The petitioner deposited a sum of Rs. 1,25,250/- on 1.4.1998 and started realisation of Tehbazari dues from Town Area Tendwari. It is alleged that in the months of May, June and July 1998 due to breakage of Semari Bridge and a general strike of the truck and bus owners no business under the contract could be transacted. On 25.1.1999 the town area Tendwari passed a resolution extending the period of contract for a further period of two months. The resolution was sent to the District Magistrate, Banda for approval. The petitioner states that instead of taking any action on the resolution a fresh advertisement for auction for the period 1.4.1999 to 31.3.2000 was published. The petitioner prayed for cancellation of the fresh advertisement for auction and for extension of the period of his contract. The petitioner filed Writ Petition No. 12343 of 1999 before this Court which was disposed of by an order dated 26.3.1999 directing the petitioner to make representation before the authority concerned for the refund of proportionate amount of contract money during which he could not perform the work. In compliance of this Court''s order the petitioner made a representation before the respondent No. 2. It is alleged that the respondent No. 2 instead of deciding the representation has issued recovery certificate to the District Magistrate, Banda for realisation of a sum of Rs. 2,27,700/- as arrears of land revenue (Annexure-8 to the writ petition). According to the petitioner the contract money cannot be recovered as arrears of land revenue and the recovery as such is illegal and without jurisdiction.
14. On behalf of the respondents Sri Anand Swaroop Nigam, Executive Officer, Nagar Panchayat Tendwari, district Banda has filed his counter affidavit. The contention of the respondents is that flow of traffic was affected due to the breakage of the bridge in the month of May, 1998. The respondents have stated that a metallic road was constructed by the side of the bridge prior to the breakage and the bridge was also reconstructed within a short period. According to the respondents there is no stipulation in the agreement to grant exemption from depositing the contract money in case of any such happening. The respondents have contended that the petitioner having failed to deposit 1 /4th of the amount of auction bid despite demand and repeated reminders and notices, a recovery certificate was issued.
15. The petitioner in his rejoinder affidavit has stated that the petitioner having deposited 3/4 amount of auction bid and this Court having passed an order directing the authority concerned to consider the representation for the refund of proportionate amount of contract money for the period during which the petitioner could not operate, the petitioner is not liable to pay the remaining amount of contract. The petitioner states that the respondents are bound to obey the order of this Court dated 26.3.1999.
7. Writ Petition Nos. 39837 and 51061 of 1999
16. The petitioner challenges the recovery order dated 19.8.1999 passed by the respondent No. 3 (Annexure-1 to the writ petition) by way of present writ petition. In the year 1996-97 auction for realisation of Tehbazari dues was held and highest offer was for Rs. 75,100/-. The highest bidder having failed to deposit 1/4 of the auction money the security amount of Rs. 2500/- was forfeited and a fresh auction was held. In the fresh auction the highest bid being for Rs. 10,500/- the auction was held again on 31.4.1997 in which the respondent No. 4 offered the highest bid for Rs. 51,100/-. The respondent No. 4 deposited 1/4 of auction money amounting to Rs. 12,775/-. The respondent No. 4 having failed to deposit the remaining contract money a notice was served upon it. The respondent No. 4 made an application praying for exemption from payment which was considered in the meeting of the Land Management Committee and a decision to waive the rest of the contract money was taken by a majority of 11 members out of 12 members. A sum of Rs. 51,662-50 is sought to be realised from the petitioner the Village Pradhan of Gram Panchayat Bargarh in pursuance of the order dated 13.8.1999 of the District Magistrate, Chitrakoot for the auctions held in the year 1996-97.
17. The respondents have not filed any counter affidavit.
8. Writ Petition No. 53443 of 1999
18. The petitioner has challenged the recovery certificate dated 20.9.1999. A contract for the disposal of the dead animals was granted to the Mental Pashu Shavachchadan and Charm Shodhan Society in the public auction held on 19.3.1998 the bid of the society for Rs. 4,66,849/- was the highest. The society deposited a sum of Rs. 30,000/- on 31.3.1998 and Rs. 70,000/- on 20.3.1998. The Committee of Management/ Board of Directors of the petitioner society was suspended vide order dated 4.4.1998 of Mukhya Karyapalak Adhikari Khadi Gramudyog, Lucknow. On 30.3.1998 the Executive Officer of Zila Parishad, Ghaziabad intimated to the President of the Society about the grant of contract for the financial year 1998-99 for Rs. 4,66,849/-. A sum of Rs. 1,00,000/- was deposited whereas under the terms and conditions of the contract the society had to deposit half of the amount. On 11.4.1998 the President sent an application to the respondent No. 3 that the committee of management having been suspended the society had decided not to take the contract. According to the petitioner half of the amount having not been deposited the contract granted to the society stood cancelled and the society was not permitted to perform the work under the said contract. The petitioners have denied having taken the contract from the respondent No. 3 for the disposal of the dead animals. According to the petitioners the impugned recovery certificate dated 20.9.1999 is illegal.
19. On behalf of the respondent No. 3 counter affidavit of Dev Veer Singh, Administrative Officer, Zila Parishad, Ghaziabad has been filed. The respondent has admitted having granted contract to the society. The contention of the respondent is that the contract was granted for a consideration of Rs. 4,66,849/-. It is denied that the society expressed its inability to carry out the work in pursuance of the terms and conditions of the agreement. According to the respondent the documents (Annexures-6 and 7 to the writ petition) are fabricated documents. The respondent has stated that the petitioners and other members of the society having carried out work as per the terms and conditions of the licence, they are jointly and severelly liable to make payment of the balance amount. The respondents have stated that the contract was not to come to an end automatically. According to the respondent the recovery of balance amount as arrears of land revenue can be made under the provisions of Section 147 of the U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961. The respondent has stated that the amount due being licence fee can be recovered as arrears of land revenue.
9. Writ Petition No. 15014 of 2000
20. By means of the present writ petition the petitioner seeks a writ, order or direction in the nature of certiorari quashing the citation dated 29.2.2000 (Annexure-6 to the writ petition). A contract for realisation of parking fee from the vehicles, buses etc. was granted to the petitioner for the financial year 1998-99. The petitioner participated in the auction held for the financial year 1998-99 but he having not deposited the required earnest money or entered into an agreement with the respondent No. 1, no concluded contract came into existence between the parties. According to him the contract was granted to Fakhre Alam and he carried out the work of realisation of parking fee under the contract. The petitioner states that no contract having been granted to him, he is not liable to make payment of contract money. The petitioner made several representations to the Vice President, Nagar Palika Parishad, Budaun and District Magistrate, Budaun but instead of deciding the representations, the recovery certificate has been issued. The contention of the petitioner is that the respondents have no jurisdiction to proceed under the provisions of Section 3 of U.P. Money Recovery Act.
21. On behalf of respondent No. 3 counter affidavit of Sri Umesh Chandra Upadhaya, Tahsildr Bisauli, district Budaun has been filed stating that the petitioner and Fakhre Alam had jointly participated in the auction and jointly deposited Rs. 25,000/- as earnest money. On 6.6.1992 the petitioner and Fakhre Alam jointly moved an application stating therein that they were not in a position to deposit such a huge amount at once. He petitioner and Fakhre Alam having not deposited the balance amount of Rs. 3,71,000/- the impugned recovery certificate had to be issued. The petitioner and Fakhre Alam instituted Suit No. 17 of 2000 against the Nagar Palika Parishad, Budaun in the court of the Civil Judge, Budaun for permanent injunction for restraining the Nagar Palika Parishad from realizing the contract money in question. The contention of the respondent is that the petitioner and Fakhre Alam having failed to deposit the amount the action taken for the recovery of the said amount as arrears of land revenue cannot be said to be illegal.
10. Writ Petition No. 19517 of 2001
22. By way of a writ, order or direction in the nature of certiorari the petitioner seeks quashing of the citation dated 20.1.1999 (Annexure-3 to the writ petition). In the year 1995-96 the petitioner was granted contract for realisation of Tehbazari dues for Rs. 1,38,000/- to operate within the market situate in Town Area Lal Gopal Ganj. It is alleged that on 31.3.1996 the respondent No. 4 sent a notice to the petitioner to accept the contract of Tehbazari of Sabzi Mandi loading and unloading at 20% increase in the auction money. The petitioner accepted the offer and contract for the year 1996-97 was granted. The petitioner''s contract for realisation of Tehbazari received a set back due to the removal of gumti and hut of the vendors by the respondent No. 4 on 17.7.1996. The petitioner made a complaint to the Chairman, Nagar Panchayat seeking exemption from depositing the increased amount of contract money at the rate of 20%. The Chairman, Nagar Panohayat instead of considering the prayer of the petitioner issued recovery certificate to the Collector for realisation of the amount of R.66,110/- as arrears of land revenue. The petitioner claims having deposited a sum of Rs. 1,38,000/-, The contention of the petitioner is that the contract money cannot be recovered as arrears of land revenue.
23. On behalf of the respondent No. 4 Sri Ashok Kumar Tiwari, Clerk, Nagar Panchayat Lal Gopal Ganj has filed counter affidavit stating that the petitioner having failed to deposit the contract money despite demand the recovery certificate was issued (Annexure-3 to the writ petition).
24. The petitioner in his rejoinder affidavit has stated that there is no agreement for recovery as arrears of land revenue.
11. Writ Petition No. 27692 of 2001
25. The recovery certificate dated 31.5.2001 has been challenged by the petitioner to whom contract to collect Tehbazari from the cattle market was granted for the financial year 2000-01. The petitioner offered the highest bid of Rs. 1,55,300/- in the auction and deposited Rs. 50,000/- as security money. It is alleged that no place for cattle market having been assigned the petitioner made an application for refund of the amount. A notice of demand of Rs. 73,300/-, the balance amount of the auction bid was received by the petitioner in July 2001. The Amin came for realisation of the said amount as arrears of land revenue. According to the petitioner there was no contract for realisation of the amount as arrears of land revenue. The contention of the petitioner is that he having not collected any Tehbazari dues he is not liable to make payment of the contract money.
26. On behalf of the respondent Nos. 3 and 4 counter affidavit of Sri Krishna Kumar Gupta, Clerk in Nagar Mahapalika Parishad, Shikarpur has been filed. The respondents have denied that the place for cattle market was not assigned to the petitioner. According to the respondents the document Annexure-3 is a forged and fabricated document. The respondents have stated that the petitioner carried out the work of realisation of Tahbazari under the contract during the contract period without making payment of the entire auction money. The petitioner deposited a sum of Rs. 1,00,000/-. The petitioner having failed to deposit the remaining amount of Rs. 73,300/- the recovery certificate was issued to the Collector, Bulandshahar, respondent No. 1 for realisation of the said amount as arrears of land revenue.
9. Writ Petition No. 37339 of 2001
27. The recovery certificate dated 20.10.2001 (Annexure-1 to the writ petition) for recovery of Rs. 3,52,000/- as arrears of land revenue has been assailed in the present writ petition. A public auction was held for the grant of contract of realisation of Tehbazari dues from the taxi stand for the year 1999-2000. The petitioner offered highest bid for Rs. 8,20,000/- which was approved by the respondent No. 4 vide letter dated 16.3.1999. The petitioner deposited Rs. 5,00,000/- as auction money by way instalments. It is alleged that due to interference of unsocial elements Tehbazari dues realisation was obstructed. The petitioner made a complaint to the respondent No. 4 on 16.7.1999 about the suspension of the collection work. The District Magistrate directed the petitioner to collect Tehbazari dues under the contract. It is alleged that the petitioner again started collecting Tehbazari dues from 10.8.1999 but he was prevented by the policemen. Ultimately, the petitioner made a request to the respondent No. 4 to terminate the contract. On 19.11.1999 the District Magistrate wrote a letter to the Superintendent of Police to take action against those causing interference in the realisation of Tehbazari dues. The petitioner resumed the work of realisation of Tehbazari dues from 19.11.1999 and continued uptill 31.3.2000. The collection of Tehbazari dues having remained suspended for a period of 4 1/2 months for the reasons beyond the control of the petitioner he requested the respondent No. 4 to reduce the amount of contract proportionately. The petitioner also made a representation to the respondent No. 2 which was rejected vide order dated 30.6.2000 the petitioner filed Writ Petition No. 35947 of 2000 against the order dated 30.6.2000. It is said that the respondent No. 4 has issued a recovery certificate to the Collector for the recovery of Rs. 3,50,000/- as arrears of land revenue. According to the petitioner the contract money cannot be recovered as arrears of land revenue.
28. On behalf of the respondent No. 4 counter affidavit of Ghulam Mustafa, Clerk in the Nagar Panchayat, Phulpur, Allahabad has been filed stating that on 9.8.1999 the Sub Divisional Magistrate sent a letter to the respondent No. 4 stating that the contractor is collecting the Tehbazari dues at higher rates. The District Magistrate issued directions to the police to regulate the realisation. On 4.11.1999 notice was issued to the petitioner to deposit the entire contract money. According to the terms and conditions of the agreement the auction money is to be deposited by September 1999. The petitioner having failed to deposit the contract money the recovery certificate for realisation of the remaining auction amount as arrears of land revenue was issued.
29. The petitioner in his rejoinder affidavit has stated that the report of the L.I.O. was not based on his personal enquiry nor any enquiry was conducted by the Sub Divisional Magistrate Phulpur in relation to the report submitted by the L.I.O. According to him the order dated 4.11.1999 passed by the District Magistrate was challenged by filing the Writ Petition No. 35947 of 2000.
13. Writ Petition No. 27692 of 2001
30. The recovery certificate dated 31.5.2001 has been challenged by the petitioner to whom contract for collection of Tehbazari dues from the cattle market was granted for the financial year 2000-01. The petitioner offered highest bid of Rs. 1,55,300/- in the said auction and deposited Rs. 50,000/- as security money. It is alleged that no place for cattle market having been assigned the petitioner made an application for refund of the amount. On 3.2.2001 a notice of demand of Rs. 73,300/-, the balance amount of auction bid, was received. The Amin came to realise the said amount as arrears of land revenue. According to the petitioner there is no term or condition in the contract for realisation of the amount as arrears of land revenue. The contention of the petitioner is that he having not collected any Tehbazari dues, he is not liable to make payment of the contract money.
31. On behalf of the respondent Nos. 3 and 4 counter affidavit of Sri Krishna Kumar Gupta, Clerk in Nagar Mahapalika Parishad, Shikarpur has been filed. The respondents have denied that the place for cattle market was not assigned to the petitioner. According to the respondents the document (Annexure-3) is forged and fabricated document. The respondents have stated that the petitioner carried out the work of realisation of Tehbazari dues under the contract during the contract period without making payment of the entire auction money. The petitioner deposited a sum of Rs. 1,00,000/-. The petitioner having failed to deposit the remaining amount of Rs. 73,300/- the recovery certificate was issued to the Collector, Bulandshahar, respondent No. 1 for realisation of the said amount as arrears of land revenue.
14. Writ Petition No. 37339 of 2001
32. The recovery certificate dated 20.10.2001 (Annexure-1 to the writ petition) for recovery of Rs. 3,52,000/- as arrears of land revenue has been assailed in the present writ petition. A public auction was held for the grant of contract of realisation of Tehbazari dues from the taxi stand for the year 1999-2000. The petitioner offered highest bid for Rs. 8,20,000/- which was approved by the respondent No. 4 vide letter dated 16.3.1999. The petitioner deposited Rs. 5,00,000/- as contract money by way instalments. It is alleged that due to interference of unsocial elements Tehbazari realisation was obstructed. The petitioner made a complaint to the respondent No. 4 on 16.7.1999 about the suspension of the collection work. The District Magistrate directed the petitioner to collect Tehbazari dues under the contract. It is alleged that the petitioner again started collecting Tehbazari from 10.8.1999 but he was prevented by the policemen. Ultimately, the petitioner made a request to the respondent No. 4 to terminate the contract. On 19.11.1999 the District Magistrate wrote a letter to the Superintendent of Police to take action against the persons obstructing realisation of Tehbazari. The petitioner resumed work of realisation of Tehbazari from 19.11.1999 and carried on uptill 31.3.2000. The collection of Tehbazari dues having remained suspended for a period of 4 1/2 months for the reasons beyond the control of the petitioner he requested the respondent No. 4 to reduce the amount of contract proportionately. The petitioner also made a representation to the respondent No. 2 which was rejected vide order dated 30.6.2000 the petitioner filed Writ Petition No. 35947 of 2000 against the order dated 30.6.2000. The respondent No. 4 issued the impugned recovery certificate to the Collector. According to the petitioner the contract money cannot be recovered as arrears of land revenue.
33. On behalf of the respondent No. 4 counter affidavit of Ghulam Mustafa, Clerk, Nagar Panchayat, Phoolpur, Allahabad has been filed stating that on 9.8.1999 the Sub Divisional Magistrate sent a letter to the respondent No. 4 stating that the contractor is collecting Tehbazari at higher rates. The District Magistrate issued directions to the police to regulate the recovery. On 4.11.1999 notice was issued to the petitioner to deposit the entire contract money. According to the terms and conditions of the agreement the auction money is to be deposited by September 1999. The petitioner having failed to deposit the contract money the recovery certificate for realisation of the amount as arrears of land revenue was issued.
34. The petitioner in his rejoinder affidavit has stated that the report of the L.I.O. was not based on his personal enquiry nor any enquiry was conducted by the Sub Divisional Magistrate Phoolpur in relation to the report submitted by the L.I.O.
15. Writ Petition No. 27816 of 2002
35. The petitioner seeks a writ, order or direction in the nature of pertiorari for quashing the recovery certificate dated 1.7.2002 (Annexure-6 to the writ petition). The petitioner being highest bidder for Rs. 7,05,500/- was granted contract by the Zila Parishad, Moradabad for realisation of Tahbazari dues for the year 2001-02. Out of the said amount a sum of Rs. 75,707/- having remained outstanding the recovery certificate was issued against the petitioner. The contention of the petitioner is that the amount of Rs. 75,707/- cannot be recovered as arrears of land revenue.
36. The respondents have not filed any counter affidavit.
16. Writ Petition No. 42194 of 2002
37. Quashing of recovery certificate dated 19.6.2002 issued by the respondent No. 3(Annexure-6 to the writ petition) has been sought by the petitioner to whom contract of realisation of Tehbazari dues for the year 2001-02 from the canteen and cycle stand situate in the premises of Tehsil Sadar, district Agra was granted in a public auction. The highest auction bid of the petitioner was for Rs. 1,52,000/- out of which Rs. 38,000/- was deposited at the fall of hammer. The agreement could not be executed due to non-cooperation of the respondent No. 4. On 16.8.2002 the petitioner made a representation to the District Magistrate for the refund of Rs. 38,000/- but instead of refunding the mount a recovery certificate was issued on 19.6.2002 for the recovery of Rs. 1,14,000/- as arrears of land revenue.
38. On behalf of the respondent Nos. 1 to 4 counter affidavit of Tahsildar (Judicial) Tehsil Sadar, district Agra has been filed. It is alleged that the petitioner having not deposited the remaining amount of instalments for the months of June, September and December 2001 notices were issued to him. According to the respondents the petitioner neither deposited the remaining instalments of contract money nor got the agreement executed. On 31.3.2002 the canteen articles of the petitioner were seized for pressuring him to deposit the remaining instalments of contract money and ultimately the impugned recovery certificate was issued.
17. Writ Petition No. 55296 of 2002
39. In the instant writ petition the recovery certificate dated 20.9.2002 has been sought to be quashed. The Tehbazari licence for the realisation of dues in Ranipur Qasha for the financial year 1999-2000 was granted to the petitioner for a consideration of Rs. 1,66,000/-. The petitioner deposited a sum of Rs. 65,000/-. It is alleged that the Chairman, Nagar Panchayat chancelled the contract on 20.10.1999 and directed the employees to realise the Tehbazari dues. On 5.10.1999 a notice was issued by the Chairman, Nagar Panchayat Ranipur demanding a sum of Rs. 81,5000/-. Thereafter another notice was issued by the Executive Officer, Nagar Panchayat Ranipur calling upon the petitioner to deposit a sum of Rs. 1,11,000/- the balance amount of contract for the entire period. On 20.9.2002 a recovery certificate was sent by the Executive Officer Nagar Panchayat Ranipur to the Collector, Jhansi for realisation of Tehbazari dues as arrears of land revenue. The contention of the petitioner is that the recovery for the period during which he did not realise the Tehbazari dues is illegal and without jurisdiction. According to the petitioner the amount cannot be realized as arrears of land revenue.
40. No counter affidavit has been filed on behalf of the respondents.
18. Writ Petition Nos. 21642 of 2003 and 15139 of 2004.
41. The petitioner has challenged the order of recovery dated 21.4.2003 and citation dated 11.6.2003 (Annexure-5 and Annexure-6 to the writ petition) and has prayed for quashing the impugned order. The petitioner being the highest bidder in a public auction held on 14.3.2002 was granted contract for realisation of Tehbazari dues from the cattle market at Kamla Road District Saharanpur for the financial year 2002-03. The conditions of the cattle market not being congenial for the customers and the owners of the cattle the petitioner wrote a letter to the Chairman, Nagar Palika Parishad, Saharanpur on 16.3.2002 with a request to provide basic amenities of drinking water, sheds etc. but no action was taken and the work under the Tehbazari contract could not commence. Under these circumstances the petitioner could not deposit the general stamp for agreement nor deposited l/4th amount of the bid. On 30.3.2002 the petitioner wrote a letter to the Chairman, Nagar Palika Parishad for cancellation of the contract and refund of earnest money of Rs. 50,000/-. The respondents instead of taking any action on the letters issue a notice of demand of Rs. 8,89,790/-. Besides this a notice dated 21.2.2003 was also issued by the Commissioner, Stamp demanding stamp duty on Rs. 17,55,000/-, the contract money. According to the petitioner in the case of contract agreement no stamp duty is payable. The contention of the petitioner is that he having not furnished general stamp the agreement was not executed and no enforceable contract came into being, therefore, the demand in pursuance of the impugned citation is illegal and arbitrary. The petitioner states that no re-auction having held in relation to the contract in question, the citation dated 21.4.2003 is illegal.
42. On behalf of the respondents counter affidavit of Mohammad Iliyas Arshadi, pairokar has been filed. The respondents have challenged the maintainability of the writ petition on the ground that the subject matter of controversy is a contract entered into between the parties. The contention of the respondents is that the highest bid of the petitioner for Rs. 17,55,000/- was accepted on 14.3.2002 and the petitioner was required to deposit 25% of the amount i.e. Rs. 4,38,750/- immediately as per the terms and conditions of auction. On 1.4.2002 the petitioner made payment of Rs. 2,00,000/- out of Rs. 4,38,750/-. The petitioner prayed for fifteen days time for depositing the remaining amount of Rs. 2.,38,750/-. The petitioner deposited a sum of Rs. 65,000/-. The amount of Rs. 1,73,750/- being due towards the earnest money notices were issued on 18.4.2002, 1.5.2002 and 5.6.2002. In pursuance of the notices the petitioner further deposited Rs. 70,000/-. The balance amount of Rs. 70,750/- towards earnest money remaining unpaid a notice was issued on 14.6.2002 for the recovery of the said amount as arrears of land revenue. It is alleged that the petitioner carried out the work of realisation of Tehbazari dues in pursuance of the contract. On 4.12.2002 the contract was cancelled and advertisement for re-auction was made but due to non availability of bidders the auction could not be materialised. The petitioner with muscle power continued to recover the Tehbazari dues from the vendors even after the cancellation of the contract. The petitioner did not permit the employees of Nagar Palika Parishad to realise the Tehbazari dues after cancellation of his contract. According to the respondents the petitioner having caused financial loss to the Nagar Palika Parishad by committing breach of contract, he is liable to pay the damages. It is denied that the petitioner requested for the cancellation of the contract and refund of earnest money. The contention of the respondents is that the petitioner paid a sum of Rs. 8,65,210/- out of the contract amount of Rs. 17,55,000/-. The remaining amount of Rs. 8,89,790/- remained outstanding for which recovery certificate was issued.
19. Writ Petition No. 48074 of 2004
43. The impugned recovery certificate in the instant writ petition is dated 8.10.2004 (Annexure-1 to the writ petition). A contract for realisation of Tahbazari dues was granted to the petitioner for a consideration of Rs. 9,55,414.99 paise. The petitioner deposited 1/4th amount i.e., Rs. 2,40,000/-. On 1.5.2001 the A.D.M. (Administration) sent a letter to the Chairman, Nagar Panchayat Phoolpur stating that the realisation of parking fee being in contravention of Government Order No. 769/9-9-2000-291 Ba/87 TC dated 6.9.2000 be stopped. The petitioner requested for the refund of the amount of Rs. 2,50,000/-. The respondents instead of refunding the amount have sent recovery certificate (Annexure-7 to the writ petition) for recovery of amount as arrears of land revenue.
44. On behalf of the respondent No. 6 counter affidavit of Sri Prabhat Narain Gupta has been filed stating that the petitioner carried out the work of realisation of Tehbazari dues under the contract and deposited Rs. 5,40,500/- upto 9.12.2003. The petitioner having failed to deposit the remaining contract money amounting to Rs. 4,14,914/- recovery certificate was issued. The contention of the respondents is that the contract of the petitioner being for the financial year 2002-03 the letter dated 1.5.2002 has no relevance. According to the respondents the petitioner having failed to deposit the remaining contract money despite repeated reminders, the impugned recovery citation had to be issued.
20. Writ Petition No. 43276 of 2005
45. The petitioner has challenged the recovery certificate dated 19.7.2004 (Annexure-1 to the writ petition). Under the impugned citation the recovery of a sum of Rs. 57,496/- is to be made as arrears of land revenue. The petitioner was granted a contract for realisation of Tehbazari dues within the area of Nagar Panchayat Manjhanpur, district Kaushambi for a sum of Rs. 1,85.000/-. The petitioner deposited a sum of Rs. l,27,504/-. It is alleged that due to heavy losses the remaining amount under the contract could not be deposited. The contention of the petitioner is that Section 173-A of the U.P. Municipalities Act does not empower the respondents to realise the outstanding amount of Tehbazari contract as arrears of land revenue.
46. No counter affidavit has been filed on behalf of the respondents.
21. Writ Petition No. 43888 of 2005
47. The order impugned in this writ petition is the recovery certificate dated 3.5.2005 and recovery order dated 13.4.2005 (Annexures-2 and 3 to the writ petition).The contention of the petitioner is that in a public auction held by Nagar Nigam, Jhansi, respondent No. 2, for the disposal of dead animals, for the financial year 2004-05, the petitioner being the highest bidder the contract was granted to him. The petitioner deposited a sum of Rs. 2,78,000/- as security money. It is alleged that the erstwhile contractor namely Sri Allahuddin and Nizamuddin of Baragaon and Bina Blocks in collusion with the respondent No. 2 created obstruction in the work under contract. It is alleged that the petitioner could not work for three months, i.e., June, July and August 2004. On a complaint being made the petitioner was permitted by the respondent No. 2 vide letter dated 28.8.2004 to work in the specified area. According to the petitioner he suffered loss during the period of three months in which he was not allowed to work. The petitioner states that the respondents ought to have extended the contract for a further period of three months or should have taken contract money for nine months only but instead of doing so they have initiated proceeding for recovery of remaining contract money as arrears of land revenue.
48. The respondents have not filed any counter affidavit.
22. Writ Petition No. 45947 of 2005
49. The order impugned in the present writ petition is the demand notice dated 20.2.2004 and recovery certificate dated 5.5.2005 (Annexures-2 and 3 to the writ petition). A contract for disposal of the dead animals for the financial year 1997-98 was granted to the petitioner for a consideration of Rs. 51,000/-. The petitioner deposited the security money amount of Rs. 35,000/- and requested the respondent No. 2 vide applications dated 24.1.1997 and 21.5.1999 to grant contract. It is alleged that despite repeated reminders and representations work order was not issued by the respondent No. 2. The petitioner instituted civil suit which was registered as Original Suit No. 1279 of 1997. The suit was dismissed in default. The respondent No. 2 getting annoyed by the institution of the suit issued a demand notice dated 20.2.2004 on the basis of which recovery certificate dated 5.5.2005 directing the petitioner to deposit the amount of Rs. 43,998/- and in default to recover the said amount as arrears of land revenue, has been issued by the respondent No. 4.
50. On behalf of the respondent No. 2 counter affidavit of Sri K.K. Singh, Upper Mukhya Adhikari, Jhansi has been filed. The contention of the respondents is that u/s 239(1) of the U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961, the Zila Parishad, Jhansi has framed byelaws published in the U.P. Gazette on 19.2.1972 and Clause 10 of the byelaws provides that the licence fee can be recovered in accordance with the provisions of Chapter VIII of the Adhiniyam, 1961 (Annexure-CA-1). The contention of the respondent is that the licence fee was increased by 10% in view of Government Order No. 858 dated 30.3.1996. The contention of the respondents is that the petitioner offered a bid of Rs. 51,000/- through letter dated 24.1.1997 in the auction held on the said date. The offered bid of the petitioner being much less than the amount calculated in accordance with the guidelines contained in the government order dated 30.3.1996 the licence could not be granted to him. Subsequently, another date, i.e. 13.3.1997 was fixed for auction in which the bid of Rs. 55,000/- offered by the petitioner was the highest. The offer of the petitioner not being in accordance with government order 30.3.1996, it was not accepted and 23.4.1997 was fixed for auction after wide publicity. On 21.5.1997 the petitioner moved an application expressing his willingness to take contract for the year 1997-98 for removal and disposal of dead animals within the local limit of Block Chirgaon district Jhansi after an increase of 10% in previous year''s annual income, the contract was granted to him. The petitioner deposited Rs. 35,000/- on 24.1.1997 and Rs. 20,000/- on 17.5.1997 and the balance amount was to be deposited within six months. The offer of the petitioner was accepted by the Chairman, Zila Parishad, Jhansi vide order dated 24.6.1997 and the petitioner started carrying out the work under the contract. The petitioner having failed to deposit the remaining contract money despite service of notice of demand, impugned recovery certificate was issued. The contention of the respondent is that the licence fee due to Zila Parishad can be recovered as arrears of land revenue.
23. Writ Petition No. 60095 of 2005
51. The petitioner challenges the recovery citation dated 25.7.2005 and has prayed for its quashing by issuing a writ, order or direction in the nature of certiorari. The petitioner was granted a contract for disposal of dead animals for the year 2004-05 in pursuance of the order dated 19.3.2004 passed by this Court in Writ Petition No. 11340 of 2004. The petitioner deposited a sum of Rs. 1,00,000/- on 5.4.2004. The petitioner having not deposited the remaining contract money a notice was issued on 7.6.2004 calling upon him to deposit the balance amount. The petitioner submitted reply to the notice. The Nagar Palika Parishad again issued notice on 11.6.2004 stating therein that a public auction would be held on 18.6.2004. In pursuance to the said notice no auction took place on 18.6.2004. The petitioner deposited a sum of Rs. 1,05,000/- more totalling Rs. 2,05,000/- but no work order was issued by the respondents. The petitioner moved an application on 24.3.2005 with the prayer to refund the amount of Rs. 2,05.000/- with interest or grant licence for the year 2005-06. The respondents instead of refunding the amount have issued the impugned citation for recovery of the amount of contract as arrears of land revenue.
24. Writ Petition No. 65462 of 2005
52. The petitioner seeks a writ, order or direction in the nature of certiorari for quashing the impugned citation dated 26.9.2005 issued by the respondent No. 2 (Annexure-1 to the writ petition). A contract for realisation of Tehbazari dues from vegetable and fruit selling vendors was granted to the petitioner by the respondent No. 3 for the financial year 2005-06 vide order dated 27.6.2005. The petitioner by letter dated 4.7.2005 expressed his unwillingness to enter into an agreement after a lapse of a period of three months. It is alleged that the employees of the respondent No. 3 continued realizing Tehbazari dues from the shop keepers since April 2005. The contention of the petitioner is that he having not collected the Tehbazari dues as there was no concluded contract, the recovery proceedings in pursuance of the citation dated 26.9.2005 are illegal and without jurisdiction.
53. On behalf of the respondent No. 3 counter affidavit of Sri Satya Dev Singh, Executive Officer of Nagar Panchayat has been filed. The contention of the respondents is that the petitioner''s offer was sent to the District Magistrate for approval vide letter dated 30.3.2005. The offer of the petitioner for Rs. 1,51,000/- of the petitioner was accepted but the petitioner did not turn up to execute the agreement though he was realizing the Tehbazari dues since April 2005. The petitioner having not deposited the contractual amount of Rs. 1,51,000/- the impugned citation had to be issued.
25. Writ Petition No. 70962 of 2005
54. The order impugned in the present writ petition is the recovery certificate dated 11.7.2005 issued by the respondent No. 2 for recovery of Rs. 1,64,061 as arrears of land revenue. A contract for realisation of Tehbazari due was granted to the petitioner by Nagar Panchayat Gawan in a public auction. The highest bid of the petitioner was for Rs. 4,50,000/-. The petitioner deposited a sum of Rs. 70,000/- towards the bid amount. On 1.8.2000 a notice was served upon the petitioner communicating him that the contract would be cancelled for want of character certificate. The petitioner sought time for the filing of desired certificate which was disallowed and the contract was cancelled. The petitioner being aggrieved by the order of cancellation instituted Suit No. 259 of 2001 for permanent injunction against recovery of contract money. After the institution of the suit the respondents issued recovery certificate. The contention of the petitioner is that the contract having been cancelled, he is not liable to make payment of the auction bid money. According to him the Tehbazari dues cannot be recovered as arrears of land revenue u/s 173-A of the Municipalities Act.
26. Writ Petition No. 40131 of 1997
55. The petitioner seeks a writ, order or direction in the nature of certiorari for quashing the order dated 1.3.1997 and the recovery certificte (Annexures-16 and 18 to the writ petition)
56. The petitioner was highest bidder for Rs. 2,65,000/- in the auction held by Nagar Panchayat Kabrai, respondent No. 1, for collection of Tehbazari dues within the area of Nagar Panchayat for the period from 1.9.1996 to 3.3.1997. The agreement dated 3.8.1996 (Annexure-1 to the writ petition) was executed between the parties. The petitioner deposited sum of Rs. 10,000/- as security and l/4th of the auction money Rs. 66,250/-. According to the petitioner the rest of the amount was required to be deposited in monthly instalments of Rs. 50,679/- on 1.10.1996, 1.11.1996, 1.12.1996 and 1.1.1997. It is alleged that the respondent No. 5 at the behest of the petitioner''s rivals caused interference in the working of the realisation of Tehbazari and arrested the petitioner and his employees deputed to collect Tehbazari and lodged first information report on 12.9.1996 under Sections 387/504 I.P.C., the petitioner and his employees were remanded to jail and were enlarged on bail on 25.9.1996. The petitioner made a complaint to the respondent Nos. 1, 2 and 3 that he is not being allowed to collect Tehbazari dues. The respondent No. 2 wrote a letter on 1.11.1996 to the Collector, Mahoba making a request to direct the respondent No. 5 not to cause any interference in the collection of Tehbazari dues. The respondent No. 3 and the Sub Divisional Magistrate, Mahoba issued orders to the respondent No. 5 not to cause hindrance in the collection of Tehbazari dues. It is alleged that despite the orders of the respondent No. 3 and the Sub Divisional Magistrate, Mahoba, the respondent No. 5 did not allow the petitioner to collect Tehbazari dues from the trucks, tractors etc. loaded with stones, gitti etc. On 30.12.1996 the petitioner gave an application to the Secretary, Nagar Vikas, Lucknow making a request to direct the respondent No. 1 to increase the rent of the contract as the petitioner was not allowed to operate due to the interference by the police. According to the petitioner due to constant interference by the respondent No. 5 he could not realise the Tehbazari dues, though he had deposited a total sum of Rs. l,50,250/- against Rs. 2,65,000/-. The contention of the petitioner is that vide letter dated 1.3.1997 (Annexure-16 to the writ petition) the contract for realisation of Tehbazari dues was cancelled and the security and instalment money deposited by him was forfeited. The petitioner filed objections against the said order on 10.3.1997 (Annexure-17 to the writ petition) which were kept pending by the respondent Nos. 1, 2 and 3 and a recovery (Annexure-18 to the writ petition) demanding a sum of Rs. 1,91,000/- was issued by the respondents for recovery of the said amount as arrears of land revenue. According to the petitioner the respondents having collected Tahbazari dues for the month of March 1997 the petitioner is not liable to pay Rs. 37,857-14 paise, i.e. l/7th amount of auction bid. According to the petitioner after deducting Rs. 37,857-14 paise from Rs. 2,65,000/- the remaining amount comes to Rs. 2,27,143/- out of which the petitioner has already deposited Rs. 1,50,250/- and only a sum of Rs. 76,893/- remains outstanding. The petitioner claims that he is entitled to be compensated for the loss of Rs. 75,000/-.
57. No counter affidavit has been filed on behalf of the respondents.
58. We have heard Sri Haider Husain and Sri W.H. Khan, learned Counsel appearing on behalf of the petitioners and Sri C.K. Parekh, learned Counsel appearing on behalf of the Nagar Palika Parishad, Sri Krishna Mohan, learned Counsel appearing on behalf of Zila Panchayats and Upper Mukhya Nagar Adhikari and the learned Standing Counsel.
59. The learned Counsel for the petitioners submitted that under Sections 158 and 159 of U.P. Kshettra Panchyats and Zila Panchayats Adhiniyam, 1961, the Zila Panchayat can recover the arrears of tax on circumstances and property or rent due from a person in respect of the land vested in Zila Panchayat as arrears of land revenue. The submission of the learned Counsel for the petitioners is that the contract money for realisation of Tehbazari dues cannot be recovered as arrears of land revenue. The learned Counsel urged that the legal position is well settled that the contract money cannot be recovered as arrears of land revenue. The learned Counsel in support of his arguments relied on the decisions in the cases of Mahesh Chandra v. Zila Panchayat, Mainpuri (1996) 3 UPLBEC 1586 Sumer Singh v. Collector cum District Magistrate 1984 UPLBEC 1100
60. In other writ petitions relating to the contract of realisation of Tehbazari dues granted by the Nagar Palika Parishad and Nagar Panchayat the learned Counsel for the petitioners submitted that the agreements having not been executed no contract enforceable under the law came into existence. The learned Counsel for the petitioner submitted that u/s 173-A of the U.P. Municipalities Act, 1916 recovery of tax as arrears of land revenue alone can be made. The learned Counsel urged that Section 293 of the U.P. Municipalities Act falls under the heading rent and charges and empowers the municipality to charge fee to be fixed by bye-laws or by public auction or by agreement for the use and occupation (otherwise than under a lease) in respect of any immovable property vested in or entrusted to the management of the municipality including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise. The submission of the learned Counsel for the petitioner was that such a fee can be levied alongwith the fee charged u/s 294 for sanction, licence or permission. The learned Counsel for the petitioners argued that under the provisions of Section 173-A of the U.P. Municipalities Act and Section 21 of the Town Area Act, the respondents can realise as arrears of land revenue only such money which is due on account of a tax and the amount due from the petitioners not being a tax it cannot be realised as arrears of land revenue.
61. The learned Counsel for the petitioners in support of his contentions placed reliance on the decisions in the case of Mumtaz Ali v. Sub Divisional Magistrate and Ors. 1970 AWC 6 Chiranji Lal v. Collector and Ors. 1973 AWR 124 Raj Bahadur Singh v. Collector Etawah cum District Magistrate, Etawah and Ors. 1985 UPLBEC 680
62. The learned Counsel appearing on behalf of Nagar Palika Parishad argued that the petitioners having participated in the public auction and having offered highest bids, a concluded contract came into existence at the fall of hammer and acceptance of highest bid. The learned Counsel in support of his contention relied upon the decision in
63. The learned Standing Counsel submitted that the provisions of Section 161 of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam 1961 have not been taken into consideration in the decisions relied on behalf of the petitioners. The learned Standing Counsel argued that the amended provisions of Section 173-A and Section 293 of the U.P. Municipalities Act 1916 and the provisions of Section 225 of the Zamindari Abolition and Land Reforms Act were not considered in the decisions relied on behalf of the petitioners.
64. Sri Krishna Mohan, learned Counsel appearing on behalf of the Zila Panchayats argued that the petitioners enjoyed the whole term of the licence period and did not execute the agreements and awarded payment of balance amount of the licence fee. The learned Counsel submitted that under the provisions of Section 142(2) of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (hereinafter referred to as the Act) the fee may either be levied along with the fee charged u/s 143 of the Act and it may be recovered in the manner prescribed in Chapter VIII. According to the learned Counsel the amount due under Sections 144 and 145 of the Act may also be recovered in the manner prescribed in Chapter VIII as provided u/s 146 of the Act. The submission of the. learned Counsel for the respondents was that the sum due under Sections 158, 159 and 161 of the Act may be recovered as arrears of the land revenue. The learned Counsel urged that in the case of
65. We have given our thoughtful consideration to the submission advanced on behalf of the parties.
66. The first question which poses consideration is whether in the absence of execution of agreement an enforceable contract between the parties came into existence. The petitioners participated in the public auction for the Collection of Tehbazari dues and were highest bidders. In a public auction the bidders offer their bids and at the moment of fall of hammer on highest bid, that highest bid is taken to be accepted. In a public auction the fall of hammer concludes the contract. The auction proceedings, the list of bidders is the only evidence of the contract indicating that out of various offers the highest bid was accepted. Section 97 of the U.P. Municipalities Act relates to the execution of the contracts and provides that every contract made by or on behalf of a municipality whereof the value or the amount exceeds Rs. 250/- shall be in writing provided that unless the contract has been duly executed in writing, no work including collection of materials in connection with the said contract shall be commenced or undertaken. Every such contract shall be signed by the President or the Vice President or by Executive Officer or Secretary or by any person or persons empowered under Sub-section (2) or Sub-section (3) of previous section to sanction the contract if further and in the like manner empowered in this behalf by the Municipality. The auctions of Tehbazari contract were held in which the petitioners offered highest bids and made part payment of auction money. The petitioners having accepted the conditions of auction sale and having made payment in part performance of the contract a binding contract came into existence a between the petitioners and the respondents. In a public auction on the acceptance of the highest bid of the tenderer a concluded contract between the parties enforceable at law comes into existence. The highest bids of the petitioners at various auctions were in the nature of an offer which were accepted by the petitioners who were highest bidders and the petitioners deposited the amount in a part performance of the condition of auction sales, therefore, a valid and legally enforceable contract came into being. Reliance in this regard may be placed on the decision in
67. Now the question is whether the amount due on account of nonpayment of bid amount of auction sale can be recovered under Sections 225, 279, 280, 281, 282, 283 and 286 of the U.P. Zamindari Abolition and Land Reforms Act. The ''Kshettra Panchayat'' established under the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 ( hereinafter referred to as the Adhiniyam 1961) as defined u/s 2(6) of the Adhiniyam 1961 means any Kshettra Panchayat (incorporated) u/s 5 and shall include any committee, member, officer or servant of the Kshettra Panchayat authorized or required under this Act to exercise any power or perform any duty or function of the Kshettra Panchayat under this Act and " Kshettra Panchayat" shall mean a Kshettra Panchayat established under this Act as it stood before its amendment by the Uttar Pradesh Panchayat Laws (amendment) Act, 1994, Section 5(1) of the Adhiniyam 1961 relates to the constitution and incorporation of Kshettra Panchayats and provides that there shall be a Kshettra Panchayat in every khand bearing the name of that khand and constituted as hereinafter provided. u/s 2(11) of the Adhiniyam 1961 Zila Panchayat means a Zila Panchayat incorporated u/s 17 and shall include any committee and any member, officer or servant of the Zila Panchayat, authorized or required under this Act to exercise any power or perform any duty or function of the Zila Panchayat under this Act, and " Zila Panchayat" shall mean a Zila Panchayat established under this Act, as it stood before its amendment by the Uttar Pradesh Panchayat Laws (Amendment) Act, 1994. Section 17(1) of the Adhiniyam 1961 relates to the establishment and incorporation of Zila Panchayats and provides that there shall be a panchayat for each district bearing the name of the district and constituted as hereinafter provided.
68. In Writ Petition Nos. 9630 of 1994, 807 of 1993, 22665 of 1995, 2060 of 1997, 27876 of 1999, 39837 of 1999, 51061 of 1999, 53443 of 1999 and 45447 of 2005 the auction sales for realisation of Tehbazari dues having been held by Zila Panchayat the provisions of U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam 1961 are applicable. Section 120(3) provides that the recovery of arrears of tax on circumstances and property may be made under Chapter VIII as arrears of land revenue in the discretion of Zila Panchayat, Section 121 empowers the Zila Panchayat to impose a tax on circumstances and property subject to certain conditions and restrictions. Section 123 confers powers on Zila Panchayat to impose taxes by special resolution. Section 142 to 145 of Chapter VII deal with the levy of fees and tolls. Section 146 provides that any unpaid fees and tolls referred to in Sections 144 and 145 a may be recovered in the manner prescribed in Chapter VIII. The provisions of Chapter VIII have been made applicable for the recovery of the amount in respect of the arrears of taxes on circumstances and property and recovery of rent on land. It has been specifically provided u/s 120(3), 158(2) and 159 of the Adhiniyam 1961 that it may be recovered as arrears of land revenue. Section 146 does not provide that any unpaid fees and toll referred to in Sections 144 and 145 may be recovered as arrears of land revenue. It only provides that unpaid fees and tolls may be recovered in the manner prescribed in Chapter VIII. Section 146 does not empower the Zila Panchayat to recover unpaid fees and tolls as arrears of land revenue. Sections 151 to 157 prescribe the procedure for issuance of warrant of distress and sale of moveable and Immovable properties of the defaulters and the manner of execution of the warrant. Sections 158 to 161 prescribe other methods of recovery. Section 158(1) provides that instead of proceeding by distress and sale or in case of failure to realise thereby the whole or any part of the demand, the Zila Panchayat may sue the person liable to pay the same in any court of competent jurisdiction. Section 158(2) embodies that in the case of an arrear of tax on circumstances and property the Zila Panchayat may in addition to the power to take 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. Section 159 provides that where any sum is due on account of rent from a person to a Zila Panchayat in respect of the land vested in or entrusted to the management of the Zila Panchayat, the Zila Panchayat subject to and in accordance with rules made in this behalf may recover any such arrears as arrears of land revenue. Under Sections 158 and 159 of the Adhiniyam 1961 the recovery of arrears of tax on circumstances and property and sum due on account of rent of land the recovery can be made as arrears of land revenue. Section 160 of the Adhiniyam 1961 provides that any arrears due on account of rent from a person to the Zila Panchayat in respect of a Immovable property other than land vested in or entrusted to the management of the Zila Panchayat shall be recovered in the manner provided in Section 148. Specific provisions for recovery of arrears of circumstances and property tax and rent of land as arrears of land revenue have been made in Sections 158 and 159 falling under Chapter VIII of the Adhiniyam 1961.
69. A plain reading of Sections 120(3), 146, 158(2) and 159 of the a Adhiniyam 1961 brings out that the amount in respect of the unpaid a Theka money cannot be recovered by the Zila Panchayat as arrears of land revenue. The Division Benches of this Court in the cases of
70. The decisions in the cases of Mahesh Chand (supra) and Surendra Kumar Rai (supra) have been distinguished and held to be per incuriam in the case of
71. In Civil Misc. Writ Petition Nos. 31782 of 1992, 15014 of 2000, 19517 of 2001, 27692 of 2001, 37339 of 2001, 27816 of 2002, 42194 of 2002, 55296 of 2002, 21642 of 2003, 15139 of 2004, 48074 of 2004, 43276 of 2005, 43888 of 2005, 60095 of 2005, 65462 of 2005, 70962 of 2005, 40131 of 1997 and 19817 of 2001 the contract for realisation of Tehbayri(sic) dues was granted to the petitioners who were highest bidders in auction sales held by Nagar Palika Parishad, Nagar Panchayat, Nagar Nigam and Town Area, The remaining amount of auction sale is sought to be recovered from the petitioners as arrears of land revenue. The contention of the petitioners is that the contract money cannot be recovered under the provisions of Sections 173-A and 293 of the U.P. Municipalities Act which envisage recovery of tax, rent, fee and charges. The contention of the petitioners is that under the provisions of Sections 173-A and 293 of the U.P. Municipalities Act and Section 21 of the Town Area Act, the respondents can realise the amount which is due on account of tax, fee and rent as arrears of land revenue. On the other hand, the contention of the respondent is that after the amendment of Section 173-A the words ''other than octroi or toll or any similar tax'' have been deleted and substituted with the words other than any tax.'' the impact of which is that the recovery of Theka money as arrears of land revenue can be made under this provision. In order to appreciate the rival contentions raised on behalf of both the parties, it would be appropriate to reproduce Section 173-A of the U.P. Municipalities Act and Section 21 of the Town Area Act.
Section 172-A. Recovery of taxes as arrears of land revenue- (1) Where any such is due on account of tax, other than (arty tax) payable upon immediate demand, from a person to a (Municipality) the (municipality) may without prejudice to any other mode of recovery apply to the Collector to recover such sum together with costs of the proceedings as if it were an arrear of a land revenue. (2) The Collector on being satisfied that the sum is due shall proceed to recover it as an arrear of land revenue.
21. Recovery of arrears- Arrears of any tax imposed under this Act may be recovered on the expiry of three weeks from the date of the issue of writ of demand, on application to a Magistrate having jurisdiction within the limits of the Town Area or in any other place within (Uttar Pradesh) where the defaulter may for the time being reside, by attachment and sale of any movable ( or immovable ) property belonging to such defaulter and within limit of such Magistrate''s jurisdiction.
72. Section 173-A of the U.P. Municipalities Act empowers the recovery of any sum due on account of tax, other than any tax payable upon immediate demand as arrears of land revenue. Section 21 of the Town Area Act provides for recovery of an arrear of tax imposed under the Act. The amount due against the petitioners is not a tax but a premium for right to collect Tehbazari dues. The amount due to the petitioners being a consideration for contract given to them by the respondents it cannot be characterised as arrears of tax. Likewise, the amount due to the petitioners cannot be recovered as arrears of land revenue u/s 21 of the U.P. Town Area Act. The amendment of Section 173-A of the U.P. Municipalities Act has not made any difference, as the amount due against the petitioners is not a tax. Under the provisions of the U.P. Zamindari Abolition and Land Reforms Act an amount other than land revenue can be recovered as arrears of land revenue only if it is made recoverable as such under any statutory provision. In case, the amount due is not land revenue or is not made recoverable as arrears of land revenue under the statutory provisions, the said amount cannot be recovered as arrears of land revenue. The amount due from the petitioners not being an amount of arrears of tax, the recovery of the said amount cannot be made as arrears of land revenue by invoking the provisions of Section 173-A of the (Municipalities Act and Section 21 of the U.P. Town Area Act. Section 293 of the U.P. Municipalities Act provides that the municipality may charge fee to be fixed by bye-law or public auction or by agreement for the use or occupation otherwise than under a lease of any immovable property vested in or entrusted to the management of the Municipality including any public street or place of which it allows the use and occupation whether by allowing a projection thereon or otherwise. The petitioners were required to pay a fixed sum under the contracts. The contracted amount is not Tehbazari. Tehbazari dues were payable by the shopkeepers for the use of land, therefore, the Tehbazari dues cannot be equated with rent, sayer or other dues in respect of the property vested in a local authority recoverable as arrears of land revenue under the provisions of Section 225 of the U.P. Zamindari Abolition and Land Reforms Act. u/s 293 of the U.P. Municipalities Act the municipality may charge fees for use otherwise than under a lease of municipal property. The amount due is not fees but contract money, therefore, cannot be recovered under the provisions of Section 293 of the Act. Moreover, the recovery of fee for use as contemplated u/s 293 of the at cannot be made as arrears of land revenue. The recovery of the arrears of fee under the said provision is to be made under Chapter VI of Act by distress or sale of movable property.
73. The question whether the amount due towards the contract for realisation of Tehbazari dues can be recovered as arrears of land revenue came up for consideration before this Court in the cases of Mumtaz Ali v. Sub Divisional Magistrate and Ors. 1970 AWC 6 Chiranji Lal v. Collector and Ors. 1973 AWR 124 Raj Bahadur Singh v. Collector Etawah cum District Magistrate, Etawah and Ors. 1985 UPLBEC 680
74. In the result, all the writ petitions succeed and are allowed and the impugned recovery certificates/citations issued by the respondents in each of the writ petition is quashed. It is made clear that the respondents shall be at liberty to recover the amount in question from the petitioners in accordance with law. There will be no orders as to costs.
