Hon. Kashi Nath Pandey, J.
We have heard Shri Madhur Prakash, learned counsel for the petitioner. Learned Standing Counsel appears for the respondents. Shri Satendra Kumar Pandey appears for Nagar Palika Parishad, Rampur.
In these writ petitions the petitioners have challenged the notices issued on 3.11.2009 and the recovery proceedings of the rent of the shops owned by Nagar Palika Parishad and allotted to the petitioner, as arrears of land revenue. By an interim order dated 3.11.2009 the recovery proceedings in view of the judgment of this Court in Titu Singh Vs. District Magistrate/ Collector, Mathura & Ors., 2003 (5) AWC 3479 were stayed.
The respondents have not filed counter affidavit. Learned counsel for Nagar Palika Parishad prays for some more time to file counter affidavit. Since the petitioners have not disputed the amount, which is due from them and have only challenged the method of recovery of the amount as arrears of land revenue by issuing recovery certificate/ citation dated 14.9.2009 (as arrears of land revenue), we do not propose to adjourn the matter. We have heard the counsels appearing for the parties, on legal issues.
The Nagar Palika Parishad, Swar, Distt. Rampur constructed 28 shops and proposed to allow them by auction. The petitioners were highest bidders in the auction held on 10.11.1998, of the respective shops, for allotment on rent ranging between the maximum amount of Rs.2150/- to the minimum of Rs.725/-. The shops were allotted to them, as tenants on rent w.e.f. July, 1999.
The petitioners, thereafter, took a stand that the amount of bids was very high, and filed civil suits before entering into agreement and taking possession of the shops. The civil suits were dismissed. The petitioners have not brought on record the judgments of the civil suits. The petitioners, thereafter, entered into agreement and affirmed affidavits accepting the tenancy and rate of rent before taking possession, and are paying rent regularly w.e.f. 17.11.2006. The matter in issue relates only to the arrears of rent from July 1999 to 17.11.2006.
In the letter of the District Magistrate dated 8.1.2008 sent to the Executive Officer, Nagar Palika Parishad, Swar annexed as Annexure No.3 to the writ petition it is mentioned that suits filed by the petitioners in respect of shop Nos.1, 15 and 16 have been dismissed, in favour of Nagar Palika Parishad; and that the representation made by the petitioners forwarded by the Nagar Palika Board on 19.5.2001, and 12.8.2004, have been rejected by the State Government. The rent for the period from July 1999 to 16.11.2006 is due and should be recovered from the tenants.
On the receipt of the letter of the District Magistrate dated 8.1.2008, the Executive Officer, Nagar Palika Parishad, Swar issued notices of demand to the petitioners of the agreed amount for each of the shop. The petitioners were required to deposit the entire amount in seven days, failing which their shops will be locked, and the amount will be recovered as arrears of land revenue. A citation was, thereafter, issued by the Tehsidlar, Swar on 14.9.2009 under Rule 236 of the U.P. Zamindari Abolition and Land Reforms Act to recover the amount giving rise to the writ petition.
Shri Madhur Prakash, learned counsel for the petitioner has relied upon the opinion of this Court in the judgment in Titu Singh Vs. District Magistrate, 2003 (5) AWC 3479 in which it was held while interpreting the provisions of Section 173 (A) of U.P. Municipalities Act, 1916, applicable to the petitioners that the sums due to the Municipal Corporation payable a contractor in pursuance to theka money due under a contract cannot be recovered under Section 173-A.
Section 173A is quoted as 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 is an arrear of land revenue."
The provisions of Section 173A and Section 176 came up for consideration of this Court for recovery of Teh Bazari dues in Ram Bilas Tibriwai Vs. Chairman, Municipal Board, Titri Bazar, Siddarthnagar & Ors., 1998 (89) R.D. 513; Mohammad Umar Vs. Collector/ District Magistrate, Moradabad & Ors., 2006 (9) ADJ 66 (All); and Iliyas Vs. State of U.P. & Ors., 2007 (2) ADJ 143 (DB). In all these decisions the Court held that the provisions of Section 173A, cannot be applied for recovering Teh Bazari dues as Teh Bazari dues are not tax, which can be recovered as arrears of land revenue.
The U.P. Zamindari Abolition and Land Reforms Act, 1950, provides under Section 279 the procedure for recovery as arrears of land revenue. The provisions include serving a writ of demand, arrest and detention of the persons, attachment and sale of his movable property including the agricultural produce; attachment of the holding in respect of which the arrear is due; attachment and sale of other immovable property of the defaulter, and also by appointing a receiver of any property, movable or immovable, of the defaulter. The costs of any of the processes mentioned in sub-section (1) shall be added to and be recoverable in the same manner as the arrear of land revenue.
Wherever the State has provided for recovering the amount as arrears of land revenue, specific provision is made by the legislature for adopting the procedure of recovery provided under the UPZA & LR Act, 1950 and the Rules.
In the year 1972 the State of U.P. enacted U.P. Public Moneys (Recovery of Dues) Act, 1972 for the following purposes:-
"An Act to provide, with retrospective effect, for the speedy recovery of certain classes of dues payable to the State Government or to the Uttar Pradesh Financial Corporation or any other Corporation notified by the State government in that behalf or to any nationalised or other Scheduled Bank or to a Government Company, and to validate certain acts done and proceedings taken in the past, and to provide for matters connected therewith."
The Act provides for recovering certain sums as arrears of land revenue. Section 3 of the Act provides:-
"3. Recovery of certain dues as arrears of land revenue.(1) Where any person is party-
(a) to any agreement relating to a loan, advance or grant given to him or relating to credit in respect of, or relating to hire- purchase of goods sold to him by the State Government or the Corporation, by way of financial assistance; or
(b) to any agreement relating to a loan, advance or grant given to him or relating to credit in respect of, or relating to hire- purchase of goods sold to him, by a banking company or a Government company, as the case may be, under a State-sponsored scheme; or
(c) to any agreement relating to a guarantee given by the State Government or the Corporation in respect of a loan raised by an industrial concern; or
(d) to any agreement providing that any money payable thereunder to the State Government shall be recoverable as arrears of land revenue; and such person-
(i) makes any default in repayment of the loan or advance or any instalment thereof; or
(ii) having become liable under the conditions of the grant to refund the grant or any portion thereof, makes any default in the refund of such grant or portion or any instalment thereof; or
(iii) otherwise fails to comply with the terms of the agreement.
Chapter VI of the U.P. Municipalities Act, 1916 provides for recovery of certain municipal claims. A bill is required to be presented under Section 166, where:
(a) any sum on account of tax, other than [any tax] payable upon immediate demand, or
(b) any sum payable under clause (c) of Section 196 or Section 229 or Section 230 in respect of the supply of water, or payable in respect of any other municipal service or undertaking, or
(c) any other sum declared by this Act or by rule (or bye-law) to be recoverable in the manner provided by the chapter, the [Municipality] shall, with all convenient speed cause a bill to be prescribed to the persons so liable.
Sub-section (2) of Section 166 of the U.P. Municipalities Act, 1916 provides that a person shall be deemed to become liable for the payment of every tax and licence fee upon the commencement of the period in respect of which such tax or fee is payable. The contents of bill, on notice of demand is provided under Section 167; the notice of demand is provided under Section 168; issue of warrant is provided under Section 169 and forcible entry and manner of executing warrant is provided under Section 170 and 171 of the Act. Section 172 provides for sale of goods under warrant and application of proceeds, and Section 173 provides for procedure in case of execution against property outside the municipal area.
In the present case it is not denied in the writ petition that the amount of rent towards shop is due from the period July 1999 to 16.11.2006. The question of the rate of rent has also been concluded by the decisions in the three suits filed by the petitioners or similarly situate persons, and their representation for reducing the arrears of land have been rejected. The question whether the rent was payable after agreement and the possession was given is no longer open to be considered by the Court. The petitioners have not set up any such case that the shop was in use by any other person from the date of allotment to the date, when the possession was given. The delay, if any, in taking possession was wholly attributable on account of petitioners, for which the municipal property was held up for its use. The petitioners, therefore, cannot escape the liability to pay the rent for the period from July 1999 to 16.11.2006.
We, however, find substance in the contention of learned counsel for the petitioners that the amount of past arrears of rent cannot be recovered as arrears of land revenue. There were no provisions for recovery of municipal tax as arrears of land revenue, which did not fall due on immediate demand. Section 173A was inserted in U.P. Municipalities Act, 1916, by U.P. Act No.26 of 1964 to recover municipal tax, other than tax payable on immediate demand, by persons to the municipality without prejudice to any other mode of recovery as special measure for expeditiously recovery of municipal tax.
Learned counsel for the petitioner submits that the method of recovery in respect of rent of immovable property falls under Section 292 under heading rent and charges. Section 291, 292 and 293 of the U.P. Municipalities Act, 1916 are quoted as below:-
"291. Recovery of rent on land- (1) Where any sum is due on account of rent from a person to a [Municipality] in respect of land vested in, or entrusted to the management of the [Municipality], the [Municipality] may apply to the Collector to recover any arrear of such rent 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.
292. Recovery of rent of other immovable property- Any arrears due on account of rent from a person to the [Municipality] in respect of immovable property other than land vested in or entrusted to the management of the [Municipality] shall be recovered in the manner prescribed by Chapter VI.
293. Fees for use, otherwise than under a lease of municipal property.- (1) The [Municipality] may charge fees to be fixed by bye-law or by 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 or occupation whether by allowing a projection thereon or otherwise.
(2) Such fees may either be levied along with the fee charged under Section 294 for the sanction, licence or permission or may be recovered in the manner provided by Chapter VI."
Section 292 clearly provided that in case of rent of immovable property, the recovery shall be made in the manner prescribed by Chapter VI of the Act.
We are thus of the opinion, that the arrears of rent, or the unpaid rent due, cannot be recovered by the Municipal Corporation from the petitioners as arrears of land revenue by adopting a process of recovery under the UPZA & LR Act, 1950 and the Rules framed thereunder.
The writ petitions are allowed only to the extent that the amount of rent, which is otherwise due to be paid by the petitioners from July 1999 to 16.11.2006, shall not be recovered from them as arrears of land revenue in accordance with the procedure prescribed under Section 279 and 280 of the UPZA & LR Act, 1950. The citations dated 14.9.2009 issued by the Tehsildar, Swar is accordingly quashed. This judgment, however, shall not restrict the authority or come in the way of the Municipal Corporation, from realising the arrears of rent as aforesaid by the method prescribed from Section 166 and 173 of the Municipalities Act, 1916 or any other method, which may be open to it in law.
Dt.01.10.2010 SP/