# Manjeet Singh & Ors v. State of U.P. & Ors. 662 INDIAN LAW REPORTS ALLAHABAD SERIES - **Citation:** (2023) 7 ILRA 661 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2023-05-25 - **Case number:** Writ-C No. 5284 of 2009 - **Bench:** Salil Kumar Rai, Arun Kumar Singh Deshwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manjeet-singh-ors-v-state-of-u-p-ors-662-indian-law-reports-allahabad-series-50579 - **Pages:** 4 ## Headnote A. Recovery Law - UP Municipalities Act, 1916 - Sections 167, 168, 173-A, 291 & 292 - Shop was allotted by the Municipality - Arrear of rent sought to be recovered as arrear of land - Permissibility - Power of Municipality explained - Held, rent is not a tax and, therefore, it cannot be recovered as arrears of land revenue u/s 173-A of the Act, 1916 - There is no provision in the Act, 1916 which empowers the Municipality to recover arrears of rent for a shop as arrears of land revenue through a recovery citation issued by the Collector - High Court quashed the impugned recovery certificates and citations holding it without jurisdiction. (Para 6, 8, 9 and 10) Writ petition allowed. (E-1) ## Text 7 All. Manjeet Singh & Ors. Vs. State of U.P. & Ors. 661 favour and the authority concerned is not under all circumstances bound to accept the highest tender or bid, is fairly well-settled. It is open to to the authority, if there exist good sufficient reasons, not to conclude the auction proceedings in favour of the successful bidder. 29. In the instant case, the reasons which have been put forward by the respondentauthorities, not to conclude the auction proceedings being in larger public interest with a view to create sustainable and long term productive assets by increasing the availability of water which is one of the most valuable natural resources, cannot be held to be an insufficient reason which had persuaded the respondent-authorities not to conclude the auction proceedings in favour of the petitioner. 30. The concept of a welfare State is a facet of Article 38 of the Constitution of India and it is the objective of the State to see that the welfare of the people is appositely promoted. Salus populi est suprema lex is a maxim found in Cicero's De Legibus9, and it means the welfare of the public shall be the supreme law and in case of any conflict, an individual interest must yield to the community interest. The State and its instrumentalties must serve the society as a whole keeping the public interest as primary and any other interest as secondary. The greatest good of the greatest number and the benefit and happiness of all is to be avowed is object of a democratic polity and the authorities of the State are to act in furtherance of the same. 31. Counsel for the petitioner has not been able to dispute the aforestated factual and legal position. 32. Learned counsel for the petitioner has also not been able to dispute that the development of the pond in question which is proposed as part of a scheme of national interest would be in the larger public good. 33. Accordingly, learned counsel states that the petitioner does not wish to pursue the matter any further. 34. It would be open to the petitioner to seek refund of the bid amount by responding to the notices issued earlier in regard to the same. 35. The petition stands disposed of accordingly. ---------- (2023) 7 ILRA 661 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 25.05.2023 BEFORE THE HON'BLE SALIL KUMAR RAI, J. THE HON'BLE ARUN KUMAR SINGH DESHWAL, J. Writ-C No. 5284 of 2009 With Writ-C No. 44108 of 2010 With Writ-C No. 56439 of 2010 With Writ-C No. 7015 of 2011 With Writ-C No. 41284 of 2011 With Writ-C No. 42531 of 2011 With Writ-C No. 42669 of 2011 With Writ-C No. 44245 of 2011 With Writ-C No. 51960 of 2011 With Writ-C No. 913 of 2012 With Writ-C No. 48816 of 2012 With Writ-C No. 34847 of 2013 Manjeet Singh & Ors. ...Petitioners Versus State of U.P. & Ors. ...Respondents 662 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for the Petitioners: Sri Rameshwar Nath, Sri Ashish Jaiswal, Sri Randhir Jain Counsel for the Respondents: C.S.C., Sri Manu Saxena, Sri S.K. Srivastava A. Recovery Law - UP Municipalities Act, 1916 - Sections 167, 168, 173-A, 291 & 292 - Shop was allotted by the Municipality - Arrear of rent sought to be recovered as arrear of land - Permissibility - Power of Municipality explained - Held, rent is not a tax and, therefore, it cannot be recovered as arrears of land revenue u/s 173-A of the Act, 1916 - There is no provision in the Act, 1916 which empowers the Municipality to recover arrears of rent for a shop as arrears of land revenue through a recovery citation issued by the Collector - High Court quashed the impugned recovery certificates and citations holding it without jurisdiction. (Para 6, 8, 9 and 10) Writ petition allowed. (E-1) (Delivered by Hon'ble Salil Kumar Rai, J. & Hon'ble Arun Kumar Singh Deshwal, J.) 1. The bunch of petitions challenge the recovery certificates sent by the Executive Officer of Nagar Palika Parishad, Baheri, District Bareilly to the Collector/Additional District Magistrate (Finance and Revenue), District Bareilly to recover the arrears of rent, allegedly due on the petitioners. In Writ-C Nos. 48816 of 2012, 51960 of 2011, 913 of 2012, 42531 of 2011, 42669 of 2011 and 44245 of 2011 consequential recovery citations have also been issued by the Collector u/s 173-A of the U.P. Municipalities Act, 1916 (hereinafter referred to as "Act, 1916"). 2. It has been argued by learned counsel for the petitioners that the arrears of rent, allegedly due on any shopkeeper in possession of a shop allotted to him by the Municipality can be recovered only u/s 292 of the Act, 1916 in the manner prescribed in Chapter-VI of Act, 1916. It was argued that as the rent is not due on the land and the rent allegedly payable by the petitioners, is not a tax, therefore, any alleged arrears cannot be recovered as arrears of land revenue under Section 173A or Section 291 of the Act, 1916. It was argued that under Chapter-VI of the Act, 1916, it was incumbent on the municipality to first raise a bill fulfilling the requirement of Section 167 of the Act, 1916 and on failure of the petitioners to satisfy the said bill, a demand notice was to be issued u/s 168 of the Act, 1916. In case the petitioners failed to pay as specified in the demand notice, the arrears can be recovered only by a warrant issued u/s 169 of the Act, 1916 and signed either by the President of the Municipality or any officer authorized for the said purpose or by the Executive Officer. The warrant can be executed only in the manner prescribed u/s 170, 171 and 172 of the Act, 1916 by sale of the movable property of the alleged defaulter. In their petitions, the petitioners have pleaded that no bills or any notice of demand as required u/s 167 and 168 of the Act, 1916 was served on the petitioners. No counter affidavit has been filed, rebutting the aforesaid averments. It was argued that in view of the aforesaid recovery certificates issued by the Executive Officer to the Collector/Additional District Magistrate (Finance and Revenue), District Bareilly and the consequential recovery citations challenged in the Writ-C Nos. 48816 of 2012, 51960 of 2011, 913 of 2012, 42531 of 2011, 42669 of 2011 and 44245 of 2011 are without jurisdiction and liable to be quashed. 3. Rebutting the argument of the counsel for the petitioners, the counsel for 7 All. Manjeet Singh & Ors. Vs. State of U.P. & Ors. 663 the Nagar Palika Parishad has argued that the recovery certificates and also the consequential recovery citations are according to law and the petitions are liable to be dismissed. 4. We have considered the submision of the counsel for the parties. 5. Sections 291 and 292 of the Act, 1916 read as under:- "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." 6. Reading of Section 292 of the Act, 1916 indicates that any arrears of rent for a shop from a person in possession of the shop after the same having been allotted to him by the Municipality, can be recovered only in the manner prescribed in Chapter-VI. Rent is not a tax and, therefore, it cannot be recovered as arrears of land revenue u/s 173-A of the Act, 1916. 7. Sections 167 and 168 of the Act, 1916 provide that for any arrears due on a person, Municipality shall raise a bill specifying the period for which and property in respect of which the same is claimed, the liability or penalty enforceable in default of payment and time within which an appeal may be preferred as provided u/s 161. In case the alleged defaulter fails to satisfy the bill raised by the Municipality within 15 days from its presentation, the Municipality shall serve a demand notice on the defaulter in the form set forth in Schedule-IV of the Act, 1916. 8. A perusal of Schedule-IV indicates that 15 days is to be provided to the defaulter for payment of the alleged dues. In case the defaulter fails to satisfy the demand notice a warrant, signed by the President/Executive Officer or any other person on whom such power has been delegated by the Municipality is to be issued by the Municipality in Form as prescribed in Schedule-V for recovery of the dues by distress and sale of the movable properties of the defaulter. The manner of executing warrant is provided u/s 170, 171, 172 of the Act, 1916. There is no provision in the Act, 1916 which empowers the Municipality to recover arrears of rent for a shop as arrears of land revenue through a recovery citation issued by the Collector. 9. Apparently the recovery certificates and the citations challenged in the present petitions are without jurisdiction. 10. For the aforesaid reasons, the petitions are allowed. The recovery certificates issued by the Executive Officer to the Collector/Additional District Magistrate (Finance and Revenue) and the consequential recovery citations, if any, issued by the Collector are hereby quashed. 11. However, the Nagar Palika Parishad, Baheri, District Bareilly shall be 664 INDIAN LAW REPORTS ALLAHABAD SERIES at liberty to recover any rent due against the petitioners in accordance with law as observed above. ---------- (2023) 7 ILRA 664 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 29.05.2023 BEFORE THE HON'BLE SALIL KUMAR RAI, J. THE HON'BLE ARUN KUMAR SINGH DESHWAL, J. Writ-C No. 67047 of 2006 Pawan Kumar & Ors. ...Petitioners Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioners: Sri A.D. Saunders, Sri Akhilesh Tripathi, Sri Anoop Trivedi Counsel for the Respondents: C.S.C., Sri Akhileshwar Singh, Sri Anuj Srivastava, Sri Varad Nath, Sri Amit Saxena (Sr. Adv.), Sri H.N. Singh (Sr. Adv.) A. Land Acquisition Law - Land Acquisition Act, 1894 - Sections 4(1), 17(1) & 48 - In pursuance of the notification u/s 4, possession of the land was taken by the St. on 08.07.1976 and on the same date, the same was handed over to U.P.S.I.D.C. to develop the industrial plot - Possession certificate also produced - Effect - Prayer for denotifying the land u/s 48 was sought - Permissibility - Scope of S. 48 explained - Held, once the award has been passed on taking possession u/s 16 of Act, 1894 the land vests in the St. and there is no divesting the same - S. 48 of Act, 1894 itself does not give any right to original tenure holder to compel the St. to withdraw from acquisition. This Section only enabling provision which enable the St. to withdraw from acquisition when the acquired land was not taking into possession but in the present case, the St. as well as respondent no. 3 clearly St.d that possession of the land was taken. (Para 12, 14, 19 and 20) Writ petition dismissed. (E-1) List of Cases cited: 1. Sawaran Lata & ors. Vs St. of Har. & ors.; 2010(4) SCC 532 2. Swaika Properties Pvt. Ltd. & ors. Vs St. of Raj. & ors.; MANU/SC/0795/2008 3. Kamal Singh & ors. Vs St. of U.P. & ors.; MANU /UP/1457/2020 4. Dinesh Kumar & ors. Vs St. of U.P. & ors.; 2018 (5) ADJ 297 5. A.P. Industrial Infrastructure Corp. Ltd. Vs Chinthamaneni Narasimha Rao & ors; AIR 2011 SC 3558 6. Aflatoon & ors. Vs Lt. Governor of Delhi & ors.; AIR 1974 SC 2077 7. Mahaveer Vs St. of U.P. & ors.; 2018(6) ADJ 529 8. Land and Building Department through Secretary & ors. Vs Attro Devi & ors.; Manu/SC/0621/2023 9. Indore Development Authority Vs Manohar Lal & ors.; 2020(8) SCC 129 10. Banda Development Authority, Banda Vs Moti Lal Agarwal; 2011 AIR SCW 2835 11. Balwant Narayan Bhagde Vs M.D., Bhagwat; 1976(1) SCC 700 (Delivered by Hon'ble Arun Kumar Singh Deshwal, J.) 1. Heard Sri Akhilesh Tripathi, learned counsel for the petitioners, learned Standing Counsel representing the State- respondent, Sri H.N. Singh, learned Senior