JUDGMENT Mukteshwar Prasad, J.
1. We have heard Sri Ashok Srivastava, holding brief of Sri M.K. Rajvanshi, learned Counsel for the petitioner and Sri Vivek Mishra, and Sri C.P. Mishra learned Standing Counsel appearing for the respondents.
2. By means of this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the recovery certificate/citation dated 12.5.1997, issued by respondent No. 3(Anncxure 6 to the writ petition) and for a direction to the respondents No. 1 and 2 not to proceed against the person and property of the petitioner on the basis of recovery certificate/citation dated 12.5.1997. The petitioner participated in an auction for collecting parking fee conducted by Nagar Panchayat Raya, District Mathura, for the year 1996-97 and Sri Titu Singh (the petitioner) was the higher bidder, the bid being Rs. 20,06,000/-. An agreement was executed between the parties. The petitioner deposited a sum of Rs. 10,37,000/- upto 15th October, 1996. The respondent No. 3 sent a notice dated 18.12.1996 asking the petitioner to deposit a sum of Rs. 9,69,000/- The petitioner made a representation to the respondent No. 3 and prayed for permission to complete the tenure of the Theka and in due course of time promised to deposit the balance of Theka money. However, the respondents cancelled the contract on 31.12.1996, without giving an opportunity of hearing to him. The respondent re-auctioned collection of parking fee and petitioner was directed to deposit a sum of Rs. 6,59,000/- within a week. Ultimately, the respondent No. 3, issued a recovery certificate/citation to respondent No. 1, to realise the aforesaid amount as arrears of land revenue.
3. A counter-affidavit was filed by respondents No. 3 and 4. The learned Counsel for the petitioner has urged that the balance of the Theka money and the loss suffered by respondent No. 3 to the tune of Rs. 6,59,000/- is not a tax as mentioned in Section 173-A of the U.P. Municipalities Act, 1916, and as such the same is not recoverable as arrears of land revenue. Therefore, the respondent No. 3 was not justified in sending the recovery certificate/citation to respondent No. 1 for recovery of aforesaid amount as arrears of land revenue. Reliance was placed by the learned Counsel for the petitioner on two Division Bench decisions of this Court in Ram Bilas Tibriwal v. Chairman, Municipal Board, Titri Bazar and Ors., 1998 (2) A.W.C. 1468; Rai Bahadur Singh v. Collector, Etawah-cum-District Magistrate, Etawah and Anr., 1986 All LJ 956 and on a decision in Mumtaz Ali v. Sub-Divisional Magistrate and Anr., 1970 R.D. 83.
4. Section 173-A of the Municipalities Act reads as under :
"173-A. 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 payable upon immediate demand, from a person to a board, the board may, without prejudice to any other mode of recover, 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 arrears of land revenue."
5. Section 21 of the Town Areas Act is an as below on the subject:
"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. 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 octrol or toll or any similar tax payable upon immediate demand, from a person to a board, the board 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 Theka money between the parties. Similarly Section 21 of the Town Areas Act provides that arrears of any tax imposed under this Act may be 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 be 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 be 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 taxes imposed under the Municipalities Act, and Town Area Act can be 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.
8. In the result this petition succeeds and is allowed and the recovery certificate/citation dated 12.5.1997 issued by respondent No. 3(Annexure 6 to the writ petition) is hereby quashed. It is made clear that the respondents No. 3 and 4 shall be at liberty to recover the amount in question from the petitioner in accordance with law. No order is made as to costs.