# Chandan Lal v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 752
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-05
- **Case number:** Writ A No. 19263 of 2021
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandan-lal-v-state-of-u-p-ors-48157
- **Pages:** 10

## Headnote

(A) Civil Law - Recovery of rent - Uttar
Pradesh Municipalities Act, 1916, S. 292 -
Rent due to municipality from a tenant of
its demised shop can be recovered by
issuance of recovery certificate & be
recovered as arrears of land revenue

(B) Uttar Pradesh Municipalities Act, 1916,
S. 292 - U/s 292 rent in respect of
properties such as demised shop can be
recovered by the Nagar Palika either by
directly levying distress, attaching and
selling movable property of the defaulter
under Chapter VI or issuing a recovery
certificate u/s 292 read with Section 173A to the Collector - all the provisions of
chapter VI apply to recovery of rent due to
the
Nagar
Palika
relating
to
the
immovable property in view of Section
166 (1) (c) of the Act, that say any other
sum, declared by the Act of 1916 or by
Rules or Bye Laws to be recoverable in the
manner provided under Chapter VI, can
also be recovered (Para 19, 20, 21)

Father of the tenant-petitioner, allotted Shop,
owned by the Nagar Palika Parishad, on the basis
of an auction for a period of 99 years - Nagar
Palika Parishad issued recovery certificate, on
account of outstanding unpaid rent - Petitioner
pleaded that Nagar Palika Parishad have no legal
right to issue a recovery certificate vis-a-vis
defaulted rent due for demised shop & to recover
it as arrears of land revenue - Petitioner
contended u/s 173-A only taxes due can be
recovered as arrears of land revenue but not
rent, that is contractual in nature - Held - Nagar
Palika well within their rights in issuing a recovery
certificate to the Collector for the realization of
arrears of rent due in respect of the shop that the
petitioner holds on lease against payment of rent
(Para 21)

Writ Petition dismissed. (E-5)

List of cases cited :-

## Text

752 INDIAN LAW REPORTS ALLAHABAD SERIES
Johal and Others, 2019 (2) T.A.C. 705
(S.C.), the appellant nos.1 and 2 shall be
entitled to the rate of interest as 7.5% per
annum from the date of filing the claim
petition.

15. In view of the above, the
appeal is partly allowed. Judgment and
award passed by the Tribunal shall stand
modified to the aforesaid extent. The
respondent-Insurance
Company
shall
deposit the amount within a period of 08
weeks from today with interest at the rate
of 7.5% from the date of filing of the claim
petition till the amount is deposited. The
amount already deposited be deducted from
the amount to be deposited.
----------
(2022)02ILR A752
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 19263 of 2021
connected with
Writ A Nos. 19265 of 2021 and 19267 of 2021

Chandan Lal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Jeevanjee Srivastava

(A) Civil Law - Recovery of rent - Uttar
Pradesh Municipalities Act, 1916, S. 292 -
Rent due to municipality from a tenant of
its demised shop can be recovered by
issuance of recovery certificate & be
recovered as arrears of land revenue

(B) Uttar Pradesh Municipalities Act, 1916,
S. 292 - U/s 292 rent in respect of
properties such as demised shop can be
recovered by the Nagar Palika either by
directly levying distress, attaching and
selling movable property of the defaulter
under Chapter VI or issuing a recovery
certificate u/s 292 read with Section 173A to the Collector - all the provisions of
chapter VI apply to recovery of rent due to
the
Nagar
Palika
relating
to
the
immovable property in view of Section
166 (1) (c) of the Act, that say any other
sum, declared by the Act of 1916 or by
Rules or Bye Laws to be recoverable in the
manner provided under Chapter VI, can
also be recovered (Para 19, 20, 21)

Father of the tenant-petitioner, allotted Shop,
owned by the Nagar Palika Parishad, on the basis
of an auction for a period of 99 years - Nagar
Palika Parishad issued recovery certificate, on
account of outstanding unpaid rent - Petitioner
pleaded that Nagar Palika Parishad have no legal
right to issue a recovery certificate vis-a-vis
defaulted rent due for demised shop & to recover
it as arrears of land revenue - Petitioner
contended u/s 173-A only taxes due can be
recovered as arrears of land revenue but not
rent, that is contractual in nature - Held - Nagar
Palika well within their rights in issuing a recovery
certificate to the Collector for the realization of
arrears of rent due in respect of the shop that the
petitioner holds on lease against payment of rent
(Para 21)

Writ Petition dismissed. (E-5)

List of cases cited :-

1. Ram Bilas Tibriwal Vs Chairman, Municial
Board, Titri Bazar, Siddarthnagar & ors., 1998
(89) RD 514

2. Mohd. Umar Vs Collector/D.M, Moradabad &
ors., 2006 (9) ADJ 66 (All) (DB)

3. Iliyas Vs St. of U.P. & ors., 2007 (2) ADJ 143
(DB).

(Delivered by Hon'ble J.J. Munir, J.)
2 All. Chandan Lal Vs. State of U.P. & Ors.
753

This judgment and order shall dispose
of the present writ petition and connected
Writ-A Nos. 19265 of 2021 and 19267 of
2021, all of which involve identical
questions of fact and law. Writ-A No.
19263 of 2021 is being treated as the
leading case.

2. Heard Mr. Ashok Kumar Singh,
learned counsel for the petitioner, Mr.
Jeevanjee
Srivastava,
learned
counsel
appearing on behalf of respondent no. 3
and Mr. V.K. Nagaich, learned Standing
Counsel appearing on behalf of the State.

3. The brief facts of the leading case
are that the Late Kamla Prasad, father of
the tenant-petitioner, Chandan Lal was
allotted Shop No. 6 on the basis of an
auction dated 29.08.1990, for a period of
99 years. The shop is owned by the Nagar
Palika
Parishad,
Gopi
Ganj,
District
Bhadohi and the Nagar Palika, represented
by the Executive Officer, is the landlord of
the said shop. The rent of Rs. 250/- per
month was settled, besides a premium of
Rs. 30,000/-. The case of the petitioner is
that he has been regularly paying rent to the
Nagar
Palika
Parishad,
but
without
determining his tenancy, the Nagar Palika
Parishad have issued a recovery certificate
dated 05.11.2019 for a sum of Rs. 93,508/-
claimed to be outstanding against the
petitioner on account of unpaid rent.

4. The petitioner challenged the order
dated 05.11.2019 before this Court vide
Writ-C No. 37670 of 2019 on the ground
that the petitioner's lease has not been
determined, yet a recovery citation has
been issued. Substantially, the recovery
citation was objected to on the ground that
the petitioner is not in default of payment
of monthly rent and further, that he has
already deposited all outstanding rent under
Section 30 of the U.P. Act No. 13 of 1972.
It was contented, therefore, on behalf of the
petitioner,
in
the
writ
petition
last
mentioned, that the petitioner cannot be
said to have committed default in payment
of rent. The writ petition was contested by
the respondent-Nagar Palika Parishad on
the ground that the provisions of U.P. Act
No. 13 of 1972 do not apply to the Nagar
Palika Parishad owned buildings, in view
of the provisions of Section 2(1)(a) of the
said Act. Therefore, deposit of rent in Court
under Section 30 of the Act under reference
would not enure to the petitioner's benefit.
A further objection raised on behalf of the
Nagar Palika Parishad was that the
petitioner was not at all a tenant and the
lease, pleaded by the petitioner, was
denied.

5. The writ petition under reference
came up for determination before a
Division Bench of this Court and their
Lordships were of opinion, considering the
stand of the Nagar Palika Parishad, denying
the petitioner's tenancy, that disputed
questions of fact were involved, which
cannot be decided in a writ petition. So far
as the fact that the Nagar Palika Parishad
being exempt from the operation of U.P.
Act No. 13 of 1972 under Section 2(1)(a)
thereof, no deposit under Section 30 could
be made is concerned, this Court held that
the Act would not apply to a Nagar Palika
Parishad. It was also remarked by the
Division Bench that the question, whether a
sum of money due to the Nagar Palika as
rent can be recovered as arrears of land
revenue, is also a disputed question of fact,
that cannot be gone into.

6. In view of the findings, the
Division Bench directed the District
Magistrate, Bhadohi to decide the matter in
accordance with law, after hearing the
754 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner as well as the Nagar Palika,
subject to the condition that the petitioner
deposits half of the sum of money due
under the impugned recovery certificate,
within fifteen days of the date of that order
with the respondent-Nagar Palika Parishad.
It was further directed that the petitioner
would deposit the rent/damages at the rate
of Rs. 1000/- per month, in future. It was
provided that subject to compliance with
these directions, status quo with regard to
possession, nature and character of the
property in question would be maintained.
The District Magistrate, Bhadohi was
directed to decide the dispute preferably
within a period of three months of the date
of the order, under reference. The petitioner
was granted liberty to adduce evidence in
support of his case. The order further
provided that in case the petitioner commits
default, either in depositing half of what
was shown recoverable under the impugned
recovery certificate or in the matter of
deposit of current rent/damages at the rate
indicated and within time, the benefit of the
order dated 22.11.2019, passed by this
Court, would not be available to the
petitioner.

7. Now, the District Magistrate has
proceeded to pass the order impugned
dated
07.10.2021,
purportedly
under
Section 24(2) of U.P. Act No. 13 of 1972,
whereby he has rejected the petitioner's
application submitted in compliance with
the orders of this Court dated 22.11.2019,
passed in Writ-A No. 37670 of 2019. An
objection to the said application was filed
before the District Magistrate by the Nagar
Palika,
being
an
objection
dated
24.02.2020.

8. A perusal of the application
submitted to the District Magistrate on
behalf of the petitioner shows that he has
asserted the fact clearly that he was granted
lease of the demised shop for a period of 99
years, consequent to an auction by the
Nagar Palika on the monthly rent of Rs.
250/- In order to establish the factum of his
lease, the petitioner has brought on record
the order of the Additional Commissioner
(Stamp), Sant Ravidas Nagar, Bhadohi
dated 28.03.2007, passed in Case No. 303
of 2006-07, under Section 33 of the Indian
Stamps
Act,
1899,
adjudicating
a
deficiency of stamp duty paid on the
instrument to the tune of Rs. 7,250/-,
besides imposing a penalty in the sum of
Rs. 100/-. A copy of that order was filed
before the District Magistrate and also
before this Court. In addition, it was
pleaded that the petitioner has been a
regular pay master and not a defaulter. As
such, no case for recovery of arrears of rent
is made out. It was urged that there being
no default in the payment of rent, no
recovery certificate could have been issued
by the respondent-Nagar Palika Parishad. It
was also pleaded that the Nagar Palika
Parishad have no legal right to issue a
recovery certificate vis-a-vis the rent they
claim to be due from the petitioner for the
demised shop.

9. It appears from a perusal of the
impugned order passed by the Collector
that so far as the issue about the petitioner
being a tenant in the demised shop is
concerned, the stand of the Nagar Palika
Parishad
is
utterly
confounded
and
contradictory, which the Collector has
made worst confounded. The Nagar Palika
has almost disowned the fact that any lease
deed was ever executed, relating to the
demised shop, in favour of the petitioner,
but acknowledged the fact that the
petitioner's predecessor, Kamla Prasad,
along with a number of other shop-keepers
were allotted shops, including the demised
2 All. Chandan Lal Vs. State of U.P. & Ors.
755
shop on rent, through a document called a
"Shartnama" (a memorandum of terms).
Since the petitioner as well as the other
allottee shop-keepers committed default in
payment of rent, an order was passed,
asking them to vacate shop and pay the
outstanding rent. The stand of the Nagar
Palika further is that no lease deed for a
period of 99 years was executed. The
Collector has recorded the fact that the
demised
shop
was
allotted
to
the
petitioner's father, Kamla Prasad, who was
asked to get the allotment renewed through
a notice dated 15.06.2015. The original
allottee, Kamla Prasad's successor, that is
to say the petitioner, Chandan Lal, instead
of contacting the Office of the Nagar
Palika, approached this Court, which is a
violation of Clause 12 and 13 of the
Shartnama. The Collector has also taken
note of the Nagar Palika's case that the
impugned notice has been issued to recover
arrears of rent from the petitioner, as the
heir
and
successor-in-interest
of
the
original allottee, Kamla Prasad and to
ensure vacation of the demised shop, the
same being required for expansion of office
premises of the Nagar Palika. The Collector
has also recorded that notices dated
17.05.2011, 11.07.2018 and 16.10.2018
have been issued by the Nagar Palika,
asking the petitioner to vacate the demised
shop.

10. After setting out the case of the
petitioner and the other similarly situate
allottees of shops, the Collector has
recorded his findings in a short paragraph,
that says that the petitioner, being an
allottee of the shop along with other
similarly situate tenants, bears the moral
responsibility of paying rent, which he has
not. There is also a remark that the
shopkeepers do not have the right to make
any kind of alteration in the shops allotted,
but the petitioner and the other shopkeepers have not complied with the terms
of allotment and the Shartnama. The
petitioner has been found in default.
Therefore, the Nagar Palika has a right to
recover the rent that is in default and take
steps to dispossess the petitioners.

11. Now, before this Court, the
learned counsel for the petitioner has
primarily questioned the right of the Nagar
Palika Parishad to recover the defaulted
rent as arrears of land revenue. It is
submitted that the Nagar Palika Parishad
has no jurisdiction to recover the rent due
as arrears of land revenue and, therefore,
the impugned recovery certificate, that has
been approved by the order impugned, are
both without jurisdiction. He has relied on
the provisions of Section 173-A of the
Uttar Pradesh Municipalities Act, 1916 (for
short, ''the Act of 1916') to submit that only
taxes due to the Nagar Palika from a person
can be recovered as arrears of land revenue
but not rent, that is contractual in nature. In
support of his contention aforesaid, Mr.
Ashok Kumar Singh has placed reliance
upon Division Bench decisions of this
Court
in
Ram
Bilas
Tibriwal
vs.
Chairman, Municial Board, Titri Bazar,
Siddarthnagar and others, 1998 (89) RD
514; Mohd. Umar vs. Collector/D.M,
Moradabad and others, 2006 (9) ADJ 66
(All) (DB); and, Iliyas vs. State of U.P.
and others, 2007 (2) ADJ 143 (DB).

12. Refuting the contention of the
learned counsel for the petitioner, Mr.
Jeevanjee Srivastava, learned counsel for
the Nagar Palika Parishad and Mr. V.K.
Nagaich,
learned
Standing
Counsel
appearing on behalf of the State submit that
the law relating to realization of Tehbazari
is different from realization of rent due to
the Nagar Palika Parishad. Mr. Jeevanjee
756 INDIAN LAW REPORTS ALLAHABAD SERIES
Srivastava, in particular, has drawn the
attention of this Court to Section 292 of the
Act of 1916 to submit that the arrears of
rent due from a person to the municipality,
relating to immovable property, can be
recovered as arrears of land revenue.

13. This Court has considered the
rival submissions canvassed on behalf of
the parties.

14. In Ram Bilas Tibriwal (supra),
the question before this Court was, whether
a sum of money due from the petitioner
under
a
contract
for
realization
of
Tehbazari, settled in his favour by the
municipality, could be recovered as arrears
of land revenue. The further question that
was involved appears to be - Whether the
said sum of money could be recovered
under Section 21 of the Town Areas Act,
1914 (for short, "the Act of 1914"). Their
Lordships of the Division Bench, after
referring to the provisions of Section 173-A
of the Act of 1916 and Section 21 of the
Act of 1914 held:

5. ...A bare perusal of the two
provisions, extracted above, reveals that
the contention of the learned counsel of
the petitioner is well founded. The
aforesaid
two
provisions
make
recoverable as arrears of land revenue
only such sum which is due on account of
a tax. Admittedly, the amount alleged to
be due from the petitioner is not due on
account of a tax. Indeed, it is due on
account of the contract of realisation of
Tah-bazari settled in favour of the
petitioner. Therefore, for recovery of this
due, the provisions of Section 173-A of
Municipalities Act and Section 21 of
Town Area Act cannot be resorted to.
Under the provisions of U.P. Zamindari
Abolition and Land Reforms Act 1950
only such sum can be recovered which is
due as arrears of land revenue. It cannot
be gainsaid that the amount in question is
not due on account of a land revenue.
Under the provisions of U.P. Zamindari
Abolition and Land Reforms Act, an
amount other than land revenue can be
realised as arrears of land revenue only if
it is made recoverable as arrears of land
revenue under any statutory provision or
any agreement in that regard. If the
money due is not a land revenue or is not
made recoverable as arrears of land
revenue in the manner aforesaid, it can be
recovered only by filing a Civil Suit. The
respondent No. 1 may, if so advised,
institute a Civil Suit against the petitioner
for recovery of the alleged dues but the
amount cannot be realised through the
impugned recovery proceedings. The
impugned proceeding is totally without
jurisdiction and deserves to be quashed.

15. Likewise, in Mohd. Umar
(supra)
the
question
that
fell
for
consideration before the Division Bench
was - Whether contractual dues on account
of settlement of Tehbazari rights in one set
of cases could be recovered as arrears by
the Zila Panchayat under the U.P. Kshettra
Panchayat and Zila Panchayat Adhiniyam,
1961 and in another set, similar Tehbazari
dues under a contract for realization could
be recovered by the Nagar Palika Parishad
and the Nagar Panchayat under the Act of
1916. The group of cases considered
pertaining to the Act of 1916 in Mohd.
Umar are more relevant to the issue here.
Their Lordships held that contractual dues
outstanding against a person granted rights
to collect Tehbazari cannot be recovered as
arrears of Land Revenue under the Act of
1916 or under the Act of 1914, as both the
statutes do not invest the municipality with
that authority. It was held by the Division
2 All. Chandan Lal Vs. State of U.P. & Ors.
757
Bench in Mohd. Umar in the following
terms:

71. Section 173-A of the U.P.
Municipalities Act empowers the recovery
of any sum due on account of tax, other
than any tax payable upon immediate
demand as arrears of land revenue. Section
21 of the Town Area Act provides for
recovery of an arrear of tax imposed under
the Act. The amount due against the
petitioners is not a tax but a premium for
right to collect Tehbazari dues. The amount
due to the petitioners being a consideration
for contract given to them by the
respondents it cannot be characterised as
arrears of tax. Likewise, the amount due to
the petitioners cannot be recovered as
arrears of land revenue under Section 21 of
the U.P. Town Area Act. The amendment
of Section 173-A of the U.P. Municipalities
Act has not made any difference, as the
mount due against the petitioners is not a
tax. Under the provisions of the U.P.
Zamindari 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 provisional 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 173A of the U.P. Municipalities Act and
Section 21 of the U.P. Town Area Act.
Section 293 of the Municipalities Act
provides that the municipality may charge
fee to be fixed by bye-law or public auction
or by agreement for the use or occupation
otherwise that 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 and occupation
whether by allowing a projection thereon or
otherwise. The petitioners were required to
pay a fixed sum under the contracts. The
contracted
amount
is
not
Tehbazari.
Tehbazari dues were payable by the
shopkeepers for the use of land, therefore,
the Tehbazari dues cannot be equated with
rent, sayer or other dues in respect of the
property vested in a local authority
recoverable as arrears of land revenue
under the provisions of Section 225 of the
U.P.
Zamindari
Abolition
and
Land
Reforms Act. Under Section 293 of the
U.P. Municipalities Act the municipality
may charge fees for use otherwise than
under a lease of municipal property. The
amount due is not fees but contract money,
therefore, cannot be recovered under the
provisions of Section 293 of the Act.
Moreover the recovery of fee for use as
contemplated under Section 293 of the Act
cannot be made as arrears of land revenue.
The recovery of the arrears of fee under the
said provision is to be made under Chapter
VI of Act by distress or sale of movable
property.

72. 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
case
of
Mumtaz
Ali
v.
Divisional
Magistrate and others, 1970 AWC 6 ;
Chiranji Lal v. Collector and others, 1973
AWR 124 ; Raj Bahadur Singh v. Collector
Etawah-cum-District Magistrate Etawah
and others, 1985 UPLBEC 680, Ram Bilas
Tibriwal v. Chairman, Municipal Board
Titri Bazar and others, 1998 (2) AWC 1468
; Titu Singh v. District Magistrate/
Collector, Mathura and others, 2003 (5)
758 INDIAN LAW REPORTS ALLAHABAD SERIES
AWC 3479 and it was held that there is no
provision under the U.P. Municipalities Act
or U.P. Town Area Act authorizing the
respondents to realise Theka money 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 money due against the
petitioners as arrears of land revenue.

16. In Iliyas (supra) the question that
fell for consideration again was - Whether a
sum of money due to the Nagar Palika
Parishad from a person under a contract for
realization of Tehbazari can be realized as
arrears of land revenue, under Section 173A of the Act of 1916? Answering the
question in the negative in Iliyas, it was
held by their Lordships, thus:

4. 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.

5. The petitioner has placed
reliance upon a Division Bench judgement
of this Court reported in 2006 (9) ADJ 66
(All)
Mohammad
Umar
v.
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 judgement 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.

6. We have considered the
submission made on behalf of the petitioner
and the respondents. We are in full
agreement with the judgement 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 judgement 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.

17. Section 291 and 292 of the Act of
1916 find place under Chapter VIII of the
Act of 1916, entitled, "Other Powers and
Penalties". Section 291 to 294 are placed
under the heading "Rent and Charges".
These read :

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.
2 All. Chandan Lal Vs. State of U.P. & Ors.
759

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.

18. Chapter VI of the Act of 1916 is
entitled "Recovery of Certain Municipal
Claims". A perusal of Sections 166 to 177
generally shows that the chapter contains
machinery provisions for the enforcement
of certain claims of the Nagar Palika, due
from third parties. These claims mentioned
in Section 166 relate to ''taxes or charges' in
respect of water supply or license fee etc.
that are mentioned therein. The Nagar
Palika is invested with the authority to
issue distress warrant, attach movable
property of the defaulter and sell it off by a
public auction to realize its dues. Section
173-A is a later addition to Chapter VI,
brought in by amendment, empowering the
Nagar Palika to issue a recovery certificate
to the Collector to recover any sum of
money due from a person to the Nagar
Palika on account of tax, other than a tax
payable upon immediate demand, as arrears
of land revenue. Thus, Chapter VI carries
provisions
setting
up
two
different
mechanisms for recovery of the specified
dues of the Nagar Palika; one by distress
laid by the Nagar Palika itself through its
agencies, limited to attachment and sale of
movables of the defaulters, and the other,
under Section 173-A by issue of a recovery
certificate to the Collector to recover the
specified dues as arrears of land revenue.

19. Generally speaking, Section 173A or Chapter VI, do not authorize the
recovery of dues of the municipality on
account of rent, either by distress or by the
issue of a recovery certificate to the
Collector. However, the provisions of
Section 166(1)(c) show that any other sum,
declared by the Act or by Rules or Bye
Laws to be recoverable in the manner
provided under Chapter VI, can also be
recovered. Section 166 is extracted below:

166. Presentation of bill.- (1) As
soon as a person becomes liable for the
payment of,-

(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 this chapter, the
Municipality shall, with all convenient
speed cause a bill to be prescribed to the
persons so liable.

(2) Unless otherwise provided by
rule, 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.

20. A perusal of Section 291 and 292,
on the other hand, shows that recovery of a
sum of money due to the Nagar Palika from
a person, on account of rent relating to land
vested in the Nagar Palika, or entrusted to
its management, can be recovered by the
Nagar Palika asking the Collector to
recover it as arrears of land revenue.
760 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 291 thus applies in case of rent due
to the Nagar Palika from a person, relating
to land vested in it or entrusted to its
management. The Nagar Palika has been
empowered, under the provision itself, to
issue a recovery certificate to the Collector
for the recovery of rent due in respect of
land, by virtue of Section 291 and without
the aid of Chapter VI. However, in case of
property other than land, like the one
involved here, which is a shop let out to the
petitioner, it is provided that rent due to the
municipality from a tenant, in respect of a
property of this kind (that is other than land
vested in or entrusted to the management of
the Nagar Palika) shall be recovered in the
manner prescribed by Chapter VI. Thus, for
the recovery of rent due to the Nagar Palika
from a tenant in respect of property other
than land, the entire provisions of Chapter
VI apply. Rent in respect of properties such
as the demised shop can, therefore, be
recovered by the Nagar Palika either by
directly levying distress, attaching and
selling movable property of the defaulter
under Chapter VI or issuing a recovery
certificate under Section 292 read with
Section 173-A to the Collector. The legal
position that Chapter VI would apply
validly to recovery of rent due to the Nagar
Palika relating to the immovable property,
other than land vested in or entrusted to the
said local body, is placed beyond any cavil
by the terms of Section 166 (1) (c) of the
Act, that say, "that any other sum
declared by this Act", would be the
subject matter of presentation of a bill
under Section 166 and its recovery under
Chapter VI.

21. What Section 292, therefore, does
is to apply all the provisions of Chapter VI
to the recovery of dues on account of rent
owed to the Nagar Palika by a tenant in
respect of immovable property, other than
land vested or entrusted to the management
of the Nagar Palika. The property, in
respect of which rent is sought to be
recovered from the petitioner, is a shop
claimed by the tenant to be rented out to
him, and not forthrightly denied by the
Nagar Palika too. Thus, what the Nagar
Palika seeks to recover by issuing the
impugned recovery certificate to the
Collector is rent in respect of the Nagar
Palika property, other than land vested in
them or entrusted to their management. The
Nagar Palika are well within their rights in
issuing a recovery certificate to the
Collector for the realization of arrears of
rent due in respect of the shop that the
petitioner holds on lease against payment
of rent. The decisions of this Court in
Ram Bilas Tibriwal, Mohd. Umar and
Iliyas are not at all applicable on principle,
inasmuch as what is laid down there is that
contractual dues of the Nagar Palika, due
under a Tehbazari contract, cannot be
recovered as land revenue. Thus, those
authorities do not, at all, relate to rent due
to the Nagar Palika for a property other
than land.

22. In this view of the matter, none of
the authorities relied upon by the learned
counsel for the petitioner, would come to
his
rescue.
The
impugned
recovery,
therefore, cannot be faulted or questioned
on the ground of lack of jurisdiction,
Whether, in fact, there are any dues or not
outstanding against the petitioner is beyond
the province of this Court to adjudicate in
exercise of our powers under Article 226 of
the Constitution.

23. It must, however, be remarked
that so far as the order of the Collector says
that since the petitioners are defaulters in
the payment of rent it can be recovered and
they can be evicted, that remark may not be
2 All. M/s Panchsheel Buildtech Pvt. Ltd. Vs. State of U.P. & Ors.
761
without its own fallacies. Recovery of
possession from a tenant in default, or for
whatever reason can be made by a landlord,
even if it is the Nagar Palika or the State, in
accordance with the procedure established
by law and not by employing the
administrative authority or the force of
State available at their command. Also, the
remarks of the Collector that there is
nothing to show that the petitioner holds a
99 years' lease, may not be a well
considered finding at all, because it is
ultimately
acknowledged
that
the
petitioner's predecessor, and thereafter, the
petitioner in the leading case, and the
petitioners in the other cases as well are
tenants who owe rent to the Nagar Palika. It
is for the said reason that the respondentNagar Palika seeks to recover rent from the
petitioners. Thus, this Court thinks that so
far as recovery of possession from the
petitioner is concerned, the Nagar Palika
would be free to take steps in accordance
with law, by approaching a forum of
competent jurisdiction, and so far as the
petitioner is concerned, he would have
liberty to establish his case of tenancy on
whatever terms he pleads, also in a suit
instituted before a Court of competent
jurisdiction. It is not for this Court to go
into those questions, as these involve
disputed questions of fact about the terms
of the lease/ tenancy, the right to recovery
of possession etc. Thus, these questions are
left open to be examined in a suit that may
be instituted by one party or the other, for
the purpose of relief, to which the
concerned
party
thinks
himself/itself
entitled.

24. So far as the recovery certificate
that has led to this writ petition is
concerned, and the impugned order made
by the Collector, insofar as it relates to
recovery, though for reasons very different
than those that have weighed with the
Collector, must be upheld. As such, subject
to the liberty given above to both parties,
these petitions fail and are dismissed.

25. No costs.
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(2022)02ILR A761
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2020

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE JAYANT BANERJI, J.

Writ C No. 34 of 2020
with other cases

M/s Panchsheel Buildtech Pvt. Ltd.
 ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar Mishra, Sri Nikhil Agarwal

Counsel for the Respondents:
C.S.C., Sri Mahesh Chandra Chaturvedi
(Senior Adv.), Sri Mahesh Narain Singh, Sri
Ravi Prakash Pandey

A. Civil Law - UP Urban Planning and
Development Act, 1973 - Ch. VI - Sections
15 and 18 - Imposition of infrastructure
surcharge
and
corner
charge
by
Development
Authority
-
Validity
challenged - Provision for 10% additional
infrastructure charge as envisaged in the
First Government Order does not find
place in the Second Government Order -
Benefit claimed - First Government Order
stood amended and degraded/devolved to
the
extent
provided
by
the
Second
Government Order - Held, intention of the
Second Government Order is clear that it
seeks to modify and degrade the First
Government Order in terms explicit in the
Second Government Order - Waiver of