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Iliyas v. State Of U.P. And Others - WRIT - C No. 65859 of 2006  RD-AH 990 (16 January 2007)
Civil Misc.Writ Petition No.65859 of 2006
State of U.P. and others
Hon.Shishir Kumar, J.
The present writ petition has been filed for quashing the recovery certificate dated 10.5.2004 (Annexure 5 to the writ petition). Further issuing a writ in the nature of mandamus directing the respondents not to recover any amount in pursuance of the Recovery Certificate dated 10.5.2004.
On 4.12.2006 on the request of the learned counsel for the petitioner, the case was ordered to be listed in the next Cause list to enable the petitioner to withdraw the suit which was pending before the Civil Judge (Senior Division) Bulandshahar. Now a certified copy of the order has been produced before this Court showing that the suit has been withdrawn on 8.1.2007.
The contention raised on behalf of the petitioner is that the amount of Tehbazari cannot be recovered as arrears of land revenue. In an auction proceeding, which was held on 19.5.2003, the petitioner was the highest bidder accordingly, the tender was released in favour of the petitioner and the same was confirmed by the District Magistrate vide its order dated 1.6.2003. According to Clause 14 of the terms and condition, it was prescribed that in case of default in making the payment of installments for two months by highest bidder, the auction made in his favour will be cancelled and rest of the amount will be recovered in accordance with Nagar Palika Act and bidder will not be able to collect the Tehbasari. Petitioner submits that there was some default in payment of installments, as such, the contract was cancelled. Now a recovery certificate has been issued for recovery of the amount as arrears of land revenue. Petitioner further submits that according to the terms and condition it is clear that there is no condition, which says that the bid amount is recoverable as arrears of land revenue. It is only mentioned that remaining amount will be recovered as per provisions of the Municipalities Act. The petitioner has brought to the notice of this Court that how the amount can be recovered and what are the provisions. The petitioner has brought to the notice Section 173-A of the U.P. Municipalities Act 1916 and Section 176 which empowers the municipality to bring suit in the Court of competent jurisdiction. Sections 173-A and 176 are being reproduced below:-
"173-A. Recovery of taxes as arrears of land revenue:-
(1) Where any sum is due on account of a tax, other than any 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.
176- Alternative power of bringing suit-
Instead of proceeding by distress and sale. Or in case of failure to realize thereby the whole or any part of the demand, the (municipality) may sue the person liable to pay the same in any court of competent jurisdiction."
In view of the aforesaid provisions the learned counsel for the petitioner submits that it is clear that only taxes, which are due to the municipalities can be recovered as arrears of land revenue and no other sum can be recovered as arrears of land revenue.
The petitioner has placed reliance upon a Division Bench judgment of this Court reported in 2006(3) UPLBEC, 2643 Mohammad Umar Vs. Collector/District Magistrate, Moradabad and others and reliance has been placed upon paras 10, 12 to 14 and paras 15 and 17 of the said judgment and has submitted that the Division Bench of this Court has held that amount due towards the contract for realization of Tehbazari cannot be recovered as arrears of land revenue and there is no provision under the Municipalities Act or U.P. Town Area Act authorizing the respondents to realize theka money as arrears of land revenue, as such, the said amount cannot be recovered in the said manner and has held that in view of the aforesaid fact, the respondents have no authority to recover the amount due to the petitioner as arrears of land revenue.
We have considered the submission made on behalf of the petitioner and the respondents. We are in full agreement with the judgment relied upon by the counsel for the petitioner. As there is no factual dispute in the present writ petition, the only question was to be decided whether the amount due against the petitioner can be recovered as arrears of land revenue or not. As in view of the Division Bench judgment of this Court, which is fully applicable to the present case, the Tehbazari amount due against the petitioner cannot be recovered as arrears of land revenue, as such, without inviting the counter affidavit, with the consent of the parties, the writ petition is being disposed of.
In view of the aforesaid fact, the recovery certificate dated 10.5.2004 (Annexure 5 to the writ petition issued by the respondents is hereby quashed. The writ petition is allowed. It is, however, open to the respondents to recover the amount from the petitioner in accordance with law.
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