Allahabad High Court
Ram Bilas Tibriwal vs Chairman, Municipal Board, Titri Bazar ... on 25 March, 1998
Equivalent citations: 1998(2)AWC1468, 1998 ALL. L. J. 2496, 1999 A I H C 1301, 1999 ALL CJ 1 237, (1998) 2 ALL WC 1468, (1998) REVDEC 513
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT D.S. Sinha, J.
1. Heard Sri Himanshu Tiwari. holding brief of Sri Mool Behari Saxena, learned counsel appearing for the petitioner, and Sri Vinay Malviya, learned standing counsel representing the respondent Nos. 2 and 3. Nobody appears for the respondent No. 1 despite service of notice upon it.
2. A sum of Rs. 37,296 is sought to be recovered from the petitioner as arrears of land revenue. The money is alleged to be due in respect of a contract for realisation of Tahbazari settled in favour of the petitioner. By a communication dated 17th February, 1989, a copy whereof is Annexure-6 to the petition, the Chairman of the Town Area, Titri Bazar. Tahsil Naugarh in the district of Sidharth Nagar called upon the petitioner to pay the sum of Rs. 37,296 within a week and warned him that in case of default steps for realisation of the amount as arrears of land revenue under Section 173A of U.P. Municipalities Act, 1916, (hereinafter called the "Municipalities Act") and Section 21 of the U. P. Town Area Act. 1914 (hereinafter called the "Town Area Act") would be taken.
3. It appears that the petitioner did not pay the sum as demanded. Therefore, a citation dated 18th May, 1989, under the provisions of U. P. Zamindari Abolition and Land Reforms Act. 1950, a photocopy whereof is Annexure-7 to the writ petition, was issued to the petitioner by the respondent Nos. 2 and 3. The prayer of the petitioner is that recovery proceedings in pursuance of the communication dated 17th February, 1989 and citation dated 18th May. 1989 aforesaid, be quashed.
4. Learned counsel for the petitioner contends that under the provisions of Section 173A of the Municipalities Act and Section 21 of the Town Area Act, the respondent No. 1 can realise as arrears of land revenue only such money which is due on account of a tax. The amount alleged to be due from the petitioner not being a tax cannot be realised as arrears of land revenue.
5. Section 173A of the Municipalities Act reads as under :
"173A. Recovery of taxes as arrears to land revenue.--(1) Where any sum is due on account of a tax, other than octroi or toll or any similar tax i payable upon immediate demand, from a person to a board, the board 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 land revenue.
(2) The Collector on being satisfied that the sum is due shall proceed to recover it as an arrear of land revenue."
Section 21 of the Town Area Act is as below :
"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 the attachment and sale of any movable (or immovable) property belonging to such defaulter and within limits of such Magistrate's jurisdiction."
6. A bare perusal of the two provisions, extracted above, reveals that the contention of the learned counsel of the petitioner is well-founded. The aforesaid two provisions make recoverable as arrears of land revenue only such sum which is due on account of a tax. Admittedly, the amount alleged to be due from the petitioner is not due on account of a tax. Indeed, it Js due on account of the contract of realisation of Tahbazari settled in favour of the petitioner. Therefore, for recovery of this due, the provisions of Section 173A of Municipalities Act and Section 21 of Town Area Act cannot be resorted to. Under the provisions of U.P. Zamindari Abolition and Land Reforms Act. 1950, only such sum can be recovered which is due as arrears of land revenue. It cannot be gainsaid that the amount in question is not due on account of a land revenue. Under the provisions of U.P. Zamindari Abolition and Land Reforms Act, an amount other than land revenue can be realised as arrears of land revenue only if it is made recoverable as arrears of land revenue under any statutory provision or any agreement in that regard. If the money due is not a land revenue or is not made recoverable as arrears of land revenue in the manner aforesaid, it can be recovered only by filing a civil suit. The respondent No. 1 may, if so advised, institute a civil suit against the petitioner for recovery of the alleged dues but the amount cannot be realised through the impugned recovery proceedings. The impugned proceeding is totally without jurisdiction and deserves to be quashed.
7. In the result, the petition succeeds and is allowed. The impugned communication dated 17th February, 1989, a copy whereof is appended to the petition as Annexure-6, and citation dated 18th May, 1989, a photocopy whereof is Annexure-7 to the petition, and other proceedings in pursuance thereof, shall stand quashed.
8. There is no order as to costs.