JUDGMENT R.P. Misra and Shishir Kumar, JJ.
1. The present writ petition has been filed for quashing the entire proceedings of recovery citation contained as Annexures 1 and 2 to the writ petition.
2. The facts arising out of the present writ petition are that on 12.1.2006, the respondent No. 1 has issued a show cause notice to the petitioner and an allegation to that effect was made against the petitioner that the petitioner being a President of Nagar Panchayat appointed respondent No. 7 as Safai Karmachari and was paid salary amounting to Rs. 2,49,864.00 by the Nagar Panchayat since June 1999 to July, 2003. The petitioner after receiving the aforesaid show cause notice has submitted an application that the petitioner is not having any relevant document in his possession, therefore, he is not able to submit proper reply and further time may be granted but in spite of the aforesaid fact, a recovery citation has been issued to the petitioner for recovery of an amount of Rs. 2,74,850.00 plus other expenses dated 20.7.2006
3. The petitioner was elected as President on 27.11.1995 and continued till 25.11.2000 The respondent No. 7 was appointed as Safai Karmachari by the then Executive Officer, respondent No. 6 who is an appointing authority under the Rules An enquiry against respondent No. 3 was conducted by the Director Local Bodies and subsequently concluded the enquiry finally and he was punished for withholding three increments. An entry to that effect was also made in his service record. As the responsibility has been fixed upon the respondent No. 6 Executive Officer, therefore, any liability of recovery of the amount can only be fixed upon the respondent No. 6 and no responsibility can be fixed upon the petitioner.
4. Treating the show cause notice as notice under Section 81 of the Uttar Pradesh Municipality Act 1916 the respondent has directed the recovery of the amount from the petitioner as arrears of land revenue. It has been submitted on behalf of the petitioner that treating it as tax a recovery certificate has been issued against the petitioner. The amount in question cannot be recovered from the petitioner under the Public Money (Recovery of Dues) Act 1972. The money can only be recovered as arrears of land revenue if it has been advanced on the basis of some State Sponsored Scheme. The petitioner in no way is responsible for appointment of the respondent No. 7. The recovery citation issued against the petitioner is liable to be quashed.
5. The reliance has been placed by the petitioner upon the various judgments of this Court that no recovery can be made against the petitioner as arrears of land revenue. Aggrieved by the aforesaid order, the petitioner has filed the present writ petition.
6. The writ petition was entertained and an interim order was granted and the respondents were granted time to file counter affidavit.
7. In the counter affidavit it has been stated that as he was Adhyaksh of the Appointment Committee, therefore, it is the responsibility of the petitioner to pay the said amount, as such, the recovery certificate has rightly been issued against the petitioner. The Executive Officer has already been punished according to Rules and three increments have been withheld as well as an adverse entry has also been awarded. The petitioner being a Chairman of the Nagar Panchayat Lal Gopalganj is liable for the work done at that time and the Executive Officer was working under the petitioner. The Executive Officer being government employee has been punished according to the departmental Rules, hence the proceedings for recovery against the petitioner is just and proper.
8. Reliance has been placed by the petitioner upon a judgment of this Court in 2006 (3) ALJ 561 Mohd. Umar v. Collector Moradabad and Ors. and on the basis of the aforesaid judgment it has been submitted by the petitioner that while interpreting the U.P. Act whether the amount of thekha or contract of Tehbajari dues granted by the Nagar Palika can be recovered as arrears of land revenue or under Section 173 (A) of the Municipality Act. The Division Bench of this Court has clearly held that "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." The Division Bench has further held that "Under the provisions of the U.P. Zamindan 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 U.P. Municipalities Act and Section 21 of the U.P. Town Area Act. "
9. Another judgment relied upon by the petitioner in Titu Singh v. District Magistrate/Collector, Mathura and Ors. reported in (2003) 2 UPLBEC 1283 The reliance has been placed upon Paras 6 and 7 of the said judgment. The same is being reproduced below:
6. From perusal of the aforesaid provisions of the Municipalities Act and Town Area Act, it is clear that the contention of the learned Counsel for the petitioner is well founded. Under Section 173-A of the Municipalities Act, it is provided that any sum due on account of tax, other than octroi or toll or any similar tax payable upon immediate demand, from a person to a hoard, the hoard may, recover as arrears of land revenue. In the instance case the amount in question became due from the petitioner as a result of default in payment of Thehka money between the parties. Similarly Section 21 of the Town Areas Act provides that arrears of any tax imposed under this Act may he recovered and no other amount. Therefore, the provisions of Section 173-A of the Municipalities Act, and Section 21 of the Town Areas Act are not attracted. The amount in question is not a tax imposed under the aforesaid two Act and as such the amount due from the petitioner could not he recovered as arrears of land revenue. Besides the aforesaid decisions, there are two recent decisions also in Bisheshwar Singh @ Kalloo v. District Magistrate Collector, Shahjahanpur and Ors. 2001 (4) AWC 2556 and Rakesh Shukla v. District Magistrate Sub-Divisional Magistrate, Phoolpur, Allahabad and Anr. 2002 (3) AWC 2397. In these decisions also the Division Bench found that the Theka money could not he recovered as arrears of land revenue, However, the Bench did not interfere on the ground that the equity was not in favour of the petitioner.
7. Therefore, in view of the decisions of the Division Benches, clearly holding that only taxed imposed under the Municipalities Act, and Town Areas Act can he recovered as arrears of land revenue, we are of the opinion that the amount in question cannot be recovered as arrears of land revenue and the recovery certificate as well as the citation are liable to be quashed.
10. We have considered the submission made on behalf of the parties and have perused the record.
11. There is no dispute to this effect that the petitioner being a President for certain period, if any appointment was made and the salary has been paid unless and until a responsibility to that effect was fixed, no recovery can be made against the petitioner. Even in view of the well settled principle of law if it is presumed that there is any responsibility of the petitioner the same cannot be recovered as arrears of land revenue as held by the two judgments of the Division Benches of this Court.
12. In view of the aforesaid fact, the citation dated 20.7 2006 and 17.6.2006 (Annexures 1 and 2 to the writ petition) are hereby quashed. The writ petition is allowed.
13. There shall be no order as to costs.