Court No. - 32
Case :- WRIT - C No. - 46450 of 2012 Petitioner :- Indrajeet Mishra Respondent :- State Of U.P. Thru Secy. And Others Counsel for Petitioner :- Anil Kumar Mishra Counsel for Respondent :- C.S.C.,Akhilesh Kumar Mishra,Brijesh Kumar
Hon'ble Shashi Kant Gupta,J. Hon'ble Ajit Kumar,J.
This writ petition has been filed for the following reliefs:-
"(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned recovery citation dated 18.04.2012 issued by the respondent no.3 (Annexure No.-2 to the writ petition) as well as consequential proceedings of auction dated 21.07.2012 (Annexure No.4 to the writ petition)."
The brief facts of the case are that the tender was invited from the office of respondent no.4 on 16.03.2011 for tender of realizatioin of parking fee for the financial year of 2011-2012. Pursuant to the aforesaid tender dated 16.03.2011, the petitioner including other participants have submitted their tenders and ultimately, the petitioner was declared successful and his tender was accepted by the respondent no.4. The bid of the aforesaid tender of the petitioner was Rs.61,62,639/-. After accepting the tender, an agreement was executed between the petitioner and respondents on the stamp in which the mode of payment of premium for right to collect Theka tahbazari was fixed in 8 equal installments.
From perusal of the record it appears that in default of payment of Theka tahbazari with regard to parking fee, respondent no.4 has sent a recovery certificate to the respondent no.2 for recovery of the amount as per the agreement of Theka Tahbazari from the petitioner as arrears of land revenue.
Feeling aggrieved by the said recovery, the present writ petition has been filed.
Learned counsel for the respondent no.4- Executive Officer, Nagar Palika Parishad Robertsganj, does not want to file counter affidavit and the State also has not filed counter affidavit.
In the circumstance, we are proceeding with the matter in the absence of any counter affidavit.
Learned counsel for the petitioner submitted that recovery of the amount of Theka tehbazari cannot be recovered from the petitioner as arrears of land revenue. In support of his contention, learned counsel for the petitioner placed reliance upon the judgment of Division Bench of this Court in the case of Mohammad Umar v. Collector/ District Magistrate, Moradabad and others; 2006 (3) AWC 2413.
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 others, 1970 AWC 6; Chiranji Lal v. Collector and others, 1973 AWR 124; Raj Bahadur Singh v. Collector, Etawa cum District Magistrate, Etawah and others, 1985 UPLBEC 680; Ram Bilas Tibriwal v. Chairman, Municipal Board Titri Bazar and others, 1998 (2) AWC 1468 and Titu Singh v. District Magistrate/ Collector, Mathura and others, 2003 (5) AWC 3479 and it was held that there is no provision under the Act or U.P. Town Area Act authorising the respondents to realize theka as arrears of land revenue, as such the said amount cannot be recovered in the said manner. In view of these facts, the respondents have no authority to recover the amount of theka due against the petitioner as arrears of land revenue.
We are also fortified by the decision of this Court in the case of Mohammad Umar (supra) where it has been inter alia held that amount due against the petitioner is not a tax but a premium for right to collect tehbazari dues. The amount due to the petitioner being a consideration for contract given to him by the respondents, it cannot be characterised as arrears of tax.
In view of the aforesaid discussion, we are of the opinion that dues cannot be recovered from the petitioner as arrears of land revenues.
In the result, the writ petition succeeds and is allowed.
Accordingly, the impugned recovery citation dated 18.04.2012 issued by the respondent no.3 (Annexure -2 to the writ petition) as well as consequential proceedings of auction dated 21.07.2012 (Annexure-4 to the writ petition) is hereby quashed.
However, it is made clear that the respondents shall be at liberty to recover the amount in question from the petitioner in accordance with law.
Order Date :- 27.7.2018 Atmesh