# Paras Nath Singh v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 486
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-15
- **Case number:** Writ C No. 40523 of 2019
- **Bench:** Shashi Kant Gupta, Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/paras-nath-singh-v-state-of-u-p-ors-45602
- **Pages:** 9

## Headnote

A. Civil Law-UP Kshettra Panchayat and
Zila Panchayat Act, 1961 - Recovery of
contractual amount - Arrears of land revenue -
Contractual amount cannot be recovered as
arrears of land revenue, in the absence of any
provisions contained under UP Kshetra Samiti
and Zila Panchayat Adhiniyam, 1961 -The
action taken by the respondents by way of
issuing the recovery citation is not legally
justified. (Para 21)

Writ Petition allowed. (E-1)

List of cases cited :-

## Text

486 INDIAN LAW REPORTS ALLAHABAD SERIES
weighments by virtue of his holding the
office of the Chairman of the Cane
Development Council, Daraula, Meerut.

16. In view of the above, no legal
right of the petitioner has been infringed
even if authorisation granted earlier by the
Cane Commissioner has been withdrawn.

17. It has lastly been submitted that a
fresh enquiry ought to be conducted in the
matter after giving notice and opportunity
to the petitioner.

18. The material on record, in
particular,
the
communication
dated
15.10.2019 (Annexure-15) of the writ
petition indicates that the petitioner was
given an opportunity during the course of
the enquiry. However, if the petitioner still
has some grievance, it would be open to
him to approach the authority concerned.

19. This Court is of the view that
since no legal rights of the petitioner have
been infringed there is no ground for
interference in the matter.

20. The writ petition thus fails and is
dismissed subject to the observations made
above.
----------
(2020)02ILR A486

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2020

BEFORE
THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE PIYUSH AGRAWAL, J.

Writ C No. 40523 of 2019

Paras Nath Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri W.H. Khan, Sri Javed Hussain Khan, Sri
Gulrez Khan

Counsel for the Respondents:
C.S.C., Sri Vinod Kumar Chandel

A. Civil Law-UP Kshettra Panchayat and
Zila Panchayat Act, 1961 - Recovery of
contractual amount - Arrears of land revenue -
Contractual amount cannot be recovered as
arrears of land revenue, in the absence of any
provisions contained under UP Kshetra Samiti
and Zila Panchayat Adhiniyam, 1961 -The
action taken by the respondents by way of
issuing the recovery citation is not legally
justified. (Para 21)

Writ Petition allowed. (E-1)

List of cases cited :-

1. Writ C No. 12575 of 2013 (Subhas Tiwari Vs.
State of UP) decided on 17.10.2014

2. Subhash Chand Vs. Collector, Etawah and
others, 1999 (1) AWC, 582

3.
Titu
Singh
Mathura
Vs.
District
Magistrate/Collector, Mathura and others, 2003
(5) AWC 3479

4. Iliyas Vs. State of UP and others, 2007 (2)
ADJ, 143 (D.B.)

5. Mohd. Umar Vs. Collector / D.M. Moradabad
and others, 2006 (9) ADJ 66 (All) (DB)

6. Sanjay Kumar Gupta Vs. State of UP and
others, 2013 (5) ADJ 506 (DB).

(Delivered by Hon'ble Piyush Agrawal, J.)

1. Heard Sri W.H. Khan,
learned Senior Advocate assisted by
Sri Javed Hasain Khan, for the
petitioner, learned Standing Counsel
for State-respondents and Sri Vinod
Kumar Chandel, for respondent nos.
2
and
3.
2 All. Paras Nath Singh Vs. State of U.P. & Ors.
487

2. By means of the present writ
petition, the petitioner is challenging the
recovery certificate dated 24.8.2019 issued
by
Upper
Mukha
Adhikari,
Zila
Panchayat, Sonebhadra as well as recovery
citation dated 0.1.2019 issued by Tehsildar
Chunar, District Mirzapur, on the ground
that there is no provision under UP
Kshetra
Samiti
and
Zila
Panchayat
Adhiniyam,
1961,
to
recover
the
contractual amount as arrears of land
revenue.

3. Brief facts of the case is that in
pursuance of the Advertisement dated
4.7.2015 issued by Adhyaksh and Upper
Mukhya
Adhikari,
Zila
Panchayat
Sonebhadra and published in daily ''Aaj'
dated 7.7.2015 for awarding contract of
realizing Parivahan Shulk for the year
2015-16, the petitioner submitted his
tender and was a successful bidder of the
price of Rs. 8 crores. In pursuance thereof
an agreement was executed on 20.7.2015
between the petitioner and Zila Panchayat,
Sonebhadra.

4. It has been averred that neither
at the time of advertisement dated
4.7.2015/7.7.2015 nor at the time of
entering
into
the
contract
dated
20.7.2015, the respondents informed
the petitioner that validity of the bylaws of Zila Panchayat, Sonebhadra
was
under
challenged
by
several
persons whereby the realization of
Pariwahan Shulka was stayed. In view
of the pendency of litigation at various
stages i.e. before this Court as well as
before the Apex Court, the company as
well as the firms did not pay the
prescribed Pariwahan Shulka to the
petitioner and therefore, the petitioner
could not realize the same.

5. It is further averred that
somehow, the petitioner deposited the
first instalment of Rs. 01 crore and
security deposit of Rs. 25 lakh, which
was
to
be
adjusted
in
the
last
instalment. Thereafter another two
instalments, firstly on 30.9.2015, the
petitioner deposited Rs. 3.50 crore
along with tax of Rs. 7 lakhs and
additional tax of Rs. 14,000/- and the
other on 31.12.2015, deposited Rs.
3.25 crores along with tax of Rs. 07
lakhs and additional tax of Rs. 14,000/-
.

6. Learned counsel for the
petitioner
submitted
that
on
26.12.2015, Upper Mukhaya Adhikari
wrote a letter to the petitioner for
deposit
of
remaining
amount
of
Parivahan Shulk within three days and
in case of default the loss caused to the
Zila Panchayat would be realized from
the petitioner. In response thereto, the
petitioner sent a reply dated 5.1.2016
to the Upper Mukha Adhikari in which
it has been submitted that the petitioner
was not informed by Zila Panchayat
about the pending litigation, therefore,
different companies are neither paying
the tax nor cooperating with the
petitioner as such the petitioner could
not collect the prescribed fee.

7. He further submitted that when the
coercive action was taken against the
petitioner by terminating the agreement by
order dated 18.1.2016, a Writ Petition No.
3954 of 2016 was filed before this Court in
which the pleadings have been exchanged
but the same is still pending. In the
meantime, the impugned recovery notice
has been issued for realization of Rs.
3,26,21,116/- including 10 % collection
charges as arrears of land revenue.
488 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The counsel for the petitioner
submitted that admittedly in pursuance of
advertisement dated 7.7.2015 published in
daily ''Aaj' , the petitioner applied for
contract of Pariwahan Shulk for the period
2015-16 and the petitioner was successful
bidder, thus the contract was executed in
favour of the petitioner on 20.7.2015. But
neither at the time of advertisement nor at
the time of execution of contract, Zila
Parishad had intimated the petitioner that
litigation in respect of validity of by-laws
of Zila Parishad is pending as such the
Parivahan Shulk cannot be realized. It is
further submitted that in view of pending
litigation, the Parivahan Shulk could not
be realized and the same was duly
intimated to the respondents but instead of
co-operating with the petitioner, the
respondents choose to terminate the
contract of the petitioner and also issued
impugned recovery certificate to recover
the contractual amount as the arrears of
land revenue.

9. He further submitted that under UP
Kshetra
Samiti
and
Zila
Panchayat
Adhiniyam, 1961, there is no provision for
recovery of contractual amount as an arrears of
land revenue.

10. In support of his contention, learned
counsel for the petitioner has relied upon the
judgement and order passed by this Court in
Writ C No. 12575 of 2013 (Subhas Tiwari
Vs. State of UP) decided on 17.10.2014;
relevant part of the judgement is extracted
below :-

"Sri W.H. Khan, learned Senior
Counsel appearing for the petitioner has
contended before us that the amount which are
claimed under the recovery certificate are the
sums which the Zila Panchayat alleges to be
payable under the contract aforementioned and
which cannot be recovered as arrears of land
revenue in the light of various Division Bench
judgments of this Court. In support of his
submission Sri Khan has placed reliance on the
judgment rendered by this Court in Mohd.
Umar Vs. Collector / District Magistrate,
Moradabad and others 2006 (3) AWC
2412; Sanjay Kumar Gupta Vs. State of
U.P. and others 2013 (5) ADJ 506; Abrar
Hussain Vs. District Magistrate / Collector
and others in Writ Petition No. 40319 of 2006
decided on 26.11.2013. The counsel for the
Zila Panchayat does not dispute the legal
proposition and principles laid down in the
aforementioned judgements and is also not
able to dispute the position in law as noticed
and declared in the aforesaid judgments.

For the view taken by the Division
Benches of this Court, we find it just and
proper to conclude that the impugned recovery
certificate, seeking to enforce the recovery as
arrears of land revenue, cannot be sustained."

11. The counsel for the petitioner
further contended that in the absence of
any provision under UP Kshetra Samiti
and Zila Panchayat Adhiniyam, 1961, no
recovery of contractual amount can be
made as arrears of land revenue and in
view of the judgement passed by this
Court in case of Subhash Tiwari (supra),
the impugned recovery citation is liable to
be set aside.

12.

Learned
counsel
for
the
respondents did not dispute the aforesaid
contention made by the learned counsel for
the petitioner.

13.

We have
considered
the
arguments of the learned counsel for the
parties and perused the material on record.

14. There is no factual dispute in the
matter. The only contention raised by the
2 All. Paras Nath Singh Vs. State of U.P. & Ors.
489
counsel for the petitioner for consideration
of this Court is that the contractual amount
cannot be recovered as arrears of land
revenue as U.P. Kshetra Samiti and Zila
Panchayat Adhiniyam, 1961 does not
empower the respondents to do so,
therefore
the
impugned
recovery
certificate is liable to be set aside.

15. The respondents could not place
any material before this Court to show any
provision which empowers
the Zila
Panchayat to recover the contractual
amount as arrears of land revenue.

16. This Court in the case of
Subhash Chand Vs. Collector, Etawah
and others, 1999 (1) AWC, 582 held as
follows:

22. In our view the Theka money
due is on account of Tehbazari fee payable
to the Zila Parishad. The Zila Parishad in
order to managing itself realisation of the
Tehbazari fee has given it on Theka of the
petitioner. It has passed its headache or
burden to the Thekedar. The loss and
profits are his responsibility. The Theka
money flows from Tehbazari fee therefore
how could it be taken away from the scope
and ambit of the Act. In our view it has a
direct nexus with the Tehbazari fee. We
have to consider the substance and not the
form while interpreting the document.

23. The Legislature has used the
phraseology "any sum due" in Section 161
of U. P. Kshettra Panchayats and Zila
Panchayats Adhiniyam, 1961. Similarly,
the Legislature has used the phraseology
"any sum due" in Section 159 also of the
said Act. Thus, a combined reading of
both
these
statutory
provisions,
i.e.
Sections 159 and 161 of the said Act
makes it crystal clear that the phraseology
"any sum due" has been used by the
Legislature in such a comprehensive sense
that it covers in its widest amplitude any
sum due under the Act or under any
rule/bye-law
framed
thereunder
and
therefore, any such sura would be
recoverable as arrears of land revenue, i.e.
in the manner as provided under Chapter
VIII of the said Act. Accordingly we are
of the considered view that the term 'any
sum due' in the facts and circumstances of
present case, would Include the Theka
money, i.e. the amount due from the
Thekedar towards the Tehbazari fee or
licence fee. This is the harmonious
construction of the two provisions. The
Legislature has used the term 'mutatis
mutandis' in Section 161 of the Act which
means in the given context that the
provisions of Chapter VIII would apply to
deal the recovery of taxes and certain other
claims. The Legislature has purposely used
the terms 'certain other claims' which
includes any sum due. The mode of
recovery provided by the Legislature is to
recover as arrears of land revenue is a
speedy and expeditious mode of recovery
and we cannot question the wisdom of the
Legislature in providing such a speedy and
effective mode of recovery. It is very
interesting aspect of the matter to note in
the instant
case. that
the recovery
certificate issued by the Atirikt Mukhya
Adhikari, the respondent No. 3 to
Collector Etawah attached as Annexure-1
to the writ petition has been challenged by
means of this writ petition. A bare perusal
of Annexure-1 shows that the amount of
Rs. 2,75,000 which was sought to be
recovered was shown as the amount due to
the Zila Parishad. The relevant portion of
Annexure-1 reads as under :

^egksn;] Jh lqHkk"k pUnz iq= Jh uRFkw flag
fuoklh laokjiqj ijxok bVkok ftlds laca/k esa ;g
कवश्वाि fd;k tkrk gS fd ;g vkids ftys esa LFkku
laokjiqj ijxuk bVkok esa fuokl djrk gS mldh
490 INDIAN LAW REPORTS ALLAHABAD SERIES
lEifr xzke laokjiqj ijxuk bVkok esa vkids ftys esa
gSs--------rgcktkjh osniqjk o"kZ 86&87 ds cdk;s enns
2]75]000-00 1⁄4nks yk[k ipgÙkj gtkj :- ek=1⁄2 dh
/kujkf'k 'ks"k gSsA

jsosU;w fjdojh ,DV &1989 ds mica/kksa ds
v/khu jgrs gq;s /kujkf'k vkids ftys esa izfrHkwfr gqbZ
eky xqtkjh cdk;s ds :i esa vki }kjk olwy dh tk
ldus okyh gS vkSj vkils vuqjks/k fd;k tkrk gS fd
vki mls olwy djokus dk d"V djsa rFkk ftyk
ifj"kn bVkok dks ftyk fuf/k] ftyk&ifj"kn ,dkmUV
esa tek djkus dk d"V djsa A bl cdk;k dh olwyh
gsrq ftykf/kdkjh@v/;{k us ogSfl;r ifj"kn LohÑfr
iznku dj nh gS A
Hkonh;]
g-
3-10-86
vfrfjä eq[; vf/kdkjh

24. After hearing the learned
counsel for the parties we are of the view
that the amount in question can be
recovered as arrears of land revenue and it
is unfortunate that public money is not
being paid by the petitioner. We are also
of the view that the submissions raised by
Mr. Agarwal that it cannot be recovered as
arrears of land revenue are of no substance
and we are also of the view that the
petitioner introduced some pleas of the
writ petition filed by one Sri Ali Hasan
which is of no relevance in this petition as
the land was different and the scope of that
writ petition was different. It was
regarding validity of fee.

25. We have considered the
aforementioned judgments referred by the
learned counsel for the petitioner first in
Surendra Kumar Rai (supra)--the question
of Section 161 was never discussed in this
case. Similarly in Raj Bahadur Singh
(supra)--it deals with U. P. Town Area
Act. Bhagwati Prasad (supra)--it also
deals with U. P. Town Area Act (Sections
20 and 21} Angad Pandey (supra)--it also
deals with U. P. Town Area Committee
and
money
dues
which
cannot
be
recovered as arrears of land revenue and it
was held that any amount due to the
Thekedar in view of the contractual term
cannot be recovered as arrears of tax.
Similarly in Umesh Chandra (supra)--it
was observed that amount of Rs. 5,500 can
be recovered under Section 158 of the Act
as it is due to a Contractor and cannot be
recovered under U. P. Moneys Recoveries
of Dues Act as it is not tax or rent.

26. In other words the consistent
view was that it is a contractual amount
between the Contractor and Zila Panchayat
and has no link with the fee. On the
aforesaid facts we do not accept the ration
as
Section
161
did
not
fall
for
consideration in those judgments.

27. We are of the considered
view that the plea raised by the petitioner
that the money due cannot be recovered as
arrears of land revenue and should not be
ordinarily entertained in writ proceedings.
We refuse to exercise, in the facts and
circumstances, our discretion under Article
226 of the Constitution of India.

17. Similar view has been taken by
this Court in the case of Titu Singh
Mathura
Vs.
District
Magistrate/Collector,
Mathura
and
others, 2003 (5) AWC 3479. Relevant
part of the judgement is extracted 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 thanoctroi 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
2 All. Paras Nath Singh Vs. State of U.P. & Ors.
491
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. MANU/UP/0433/2001 and Rakesh
Shukla
v.
District
Magistrate/SubDivisional
Magistrate,
Phoolpur,
Allahabad
and
Anr.
MANU/UP/0554/2002. 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.

18. In the case of Iliyas Vs. State of
UP and others, 2007 (2) ADJ, 143 (D.B.)
this Court has held as follows:

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 judgment
of
this
Court
reported
in
2006(3)
UPLBEC, 2643 Mohammad Umar Vs.
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 judgment 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 judgment 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 judgment 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.

7. In view of the aforesaid fact,
the recovery certificate dated 10.5.2004
492 INDIAN LAW REPORTS ALLAHABAD SERIES
(Annexure 5 to the writ petition issued by
the respondents is hereby quashed. The
writ petition is allowed. It is, however,
open to the respondents to recover the
amount from the petitioner in accordance
with law.

19. This Court in the case of Mohd.
Umar Vs. Collector / D.M. Moradabad
and others, 2006 (9) ADJ 66 (All) (DB)
has held herein below:

65. The first question which
poses consideration is whether in the
absence of execution of agreement an
enforceable contract between the parties
came into existence. The petitioners
participated in the public auction for the
collection of Tehbazari dues and were
highest bidders. In a public auction the
bidders offer their bids and the moment of
fall of hammer on highest bid, that highest
bid is taken to be accepted. In a public
auction the fall of hammer concludes the
contract. The auction proceedings, the list
of bidders is the only evidence of the
contract indicating that out of various
offers the highest bid was accepted.
Section 97 of the U.P. Municipalities Act
relates to the execution of the contracts
and provides that every contract made by
or on behalf of a Municipality whereof the
value or the amount exceeding to Rs.250/-
shall be in writing provided that unless the
contract has been duly executed in writing,
no work including collection of materials
in connection with the said contract shall
be commenced or undertaken. Every such
contract shall be signed by the President or
the Vice President or by Executive Officer
or Secretary or by any person or persons
empowered under sub section (2) of subsection (3) of previous section to sanction
the contract if further and in the like
manner empowered in this behalf by the
Municipality. The auctions of Tehbazari
contract were held in which the petitioners
offered highest bids and made part
payment of auction money. The petitioners
having accepted the conditions of auction
sale and having made payment in part
performance of the contract a binding
contract came into existence between the
petitioners and the respondents. In a public
auction on the acceptance of the highest
bid of the tenderer a concluded contract
between the parties enforceable at law
came into existence. The highest bids of
the petitioners at various auctions were in
the nature of an offer which were accepted
by the petitioners who were highest
bidders and the petitioners deposited the
amount in part a performance of the
conditions of auction sales, therefore, a
valid and legally enforceable contract
came into being. Reliance in this regard
may be placed on the decision in B.C.
Mohendra
Versus
Municipal
Board,
Saharanpur AIR 1970 SC 729. Section 10
of the Indian Contract Act provides that all
agreements are contracts if they are made
by free consent of the parties competent to
contract, for a lawful consideration and
with a lawful object and are not expressly
declared to be void. In all these cases the
petitioners participated in an auction sale
and being highest bidder made part
payment under the terms and conditions of
auction sales and carried out the work of
collection
of
Tehbazari
dues.
The
petitioners cannot wriggle out of the
contract on the ground of non-execution of
agreements. A concluded contract at
auction sales came into being between the
parties on the fall of hammer and
acceptance of higher bid.

....

69. The decisions in the cases of
Mahesh Chand (supra) and Surendra
Kumar
Rai
(supra)
have
been
2 All. Paras Nath Singh Vs. State of U.P. & Ors.
493
distinguished and held to be per incuriam
in the case of Subhash Chand Versus
Collector Etawah and others 1999 (1)
AWC 582 as the provisions of section 161
of the Adhiniyam 1961 did not fall for
consideration in those judgments. Section
161 of the Adhiniyam 1961 provides that
any sum due to Kshetra Panchayat under
this Act or under any rule or under any
bye-law made therein and declared by this
Act or such rule or bye-law to be
recovered in the manner provided by this
Chapter
shall
mutatis
mutandis
be
recoverable as provided in this Chapter.
Section 161 deals with the recovery of
dues of Kshettra Panchayat which is a
distinct and separate body from a Zila
Panchayat. The provisions exclusively
relating to Kshettra Panchayat are not
applicable to Zila Panchayats. Moreover,
for the applicability of the provisions of
section 161 any sum must be due to a
Kshettra Panchayat and it must have been
declared to be recoverable in the manner
provided in Chapter VIII. In these writ
petitions the Theka money is not due to
Kshettra Panchayat under this Act or under
any rule or any bye-laws made thereunder.
The auction money is due to Zila
Panchayats which are distinct and separate
body. The amount being due to Zila
Panchayats, the facts of the case of
Subhash
Chandra
(supra)
are
distinguishable. In view of these facts, the
unpaid amount of auction sale held by the
Zila Panchayat cannot be recovered as
arrears of land revenue.

20. Similar view has been taken
by this Court in the case of Sanjay
Kumar Gupta Vs. State of UP and
others, 2013 (5) ADJ 506 (DB).
Relevant part of the judgement is
extracted below :-

9.
Admittedly,
the
contract
between the petitioner and Nagar Palika
Parishad, Mawana was for realisation of
entry fees/parking fees from the vehicles
which enter the territory of Nagar Palika
Parishad, Mawana, Meerut. It is thus in the
nature of 'toll' and not 'tax'. Under Section
173(A) of the Municipalities Act, 1916,
the Municipal Board can only recover a
sum due on account of tax as arrears of
land revenue. The section itself carves out
an exception, by laying down that the
Board will have no power to recover
arrears of octroi or toll as arrears of land
revenue.
Interpreting
the
aforesaid
provision of law, a Division Bench of this
Court
in
Titu
Singh
v.
District
Magistrate/Collector, Mathura, 2003 (5)
AWC 3479, has held that the arrears of
theka money (parking fees) cannot be
realised as arrears of land revenue. The
said decision has been followed in [Iliyas
v. State of U.P. and others, ].

10.
We
are
in
respectful
agreement with the view taken in the
aforesaid decisions. Accordingly, it is held
that the impugned citation for recovery of
balance theka money, as arrears of land
revenue is without jurisdiction.

11. Before parting, it may be
stated
that
the
contention
of
the
respondents that since it is public money
and therefore, the petitioner may be
directed to pay the said amount, does not
desist us from granting aforesaid relief to
the petitioner as even in case it is public
money, it has to be recovered only in
accordance with the procedure prescribed
by law.

12. The Apex Court in its
judgment in Iqbal Naseer Usmani v.
Central Bank of India and others, 2006 (2)
SCC 241, repelled similar contention and
held as under:
494 INDIAN LAW REPORTS ALLAHABAD SERIES

According to the High Court
"the money of the Bank and financial
institutions is public money, which should
be in circulation, otherwise the Bank and
depositors will suffer." We are afraid that
while this may be very good sentiment, it
cannot apply in the face of Section 3 of the
Act for the reason that Section 3 does not
envisage the provisions of the Act being
utilised for recovery of every loan taken.
Section 3(1)(b) permits this to be done
only in respect of loans taken under a
"State-sponsored
scheme",
which
expression has been defined in Section
2(g) of the Act. Since it is admitted that the
loan taken by the appellant was not under
or in relation to a "State-sponsored
Scheme" within the meaning of Section
2(g), whatever else it may be, it would not
be recoverable by recourse to the
machinery under Section 3 of the Act.

13. Following the law laid down
by the Apex Court, we have no hesitation
in
granting
the
relief
prayed
for.
Accordingly, the impugned citation dated
1.12.2009
issued
by
the
Tehsildar,
Mawana,
District
Meerut
is
hereby
quashed.

21. In view of the legal proposition
enumerative
above
as
well
as
the
principles laid down by this Court in the
aforesaid judgements, it is very clear that
contractual amount cannot be recovered as
arrears of land revenue, in the absence of
any
provisions
contained
under
UP
Kshetra
Samiti
and
Zila
Panchayat
Adhiniyam, 1961. Therefore, the action
taken by the respondents by way of issuing
the recovery citation is not legally
justified.

22. The counsel for the respondents
also could not bring any material or law
contrary to the aforesaid judgements,
before this Court, therefore, the action
taken by the respondents in issuing
recovery citation for recovery of the
contractual amount as arrears of land
revenue, is illegal.

23. In the facts of the case, we find
just and proper to conclude that the
impugned
recovery
certificate
dated
24.8.2019 issued by Upper Mukhya
Adhikari, Zila Panchayat, Sonebhadra and
recovery citation dated 1.11.2019 issued
by Tehsildar Chunar, Distt. Mirzapur,
seeking to enforce the recovery of
contractual amount as arrears of land
revenue, cannot be sustained and are
hereby quashed.

24. The writ petition is allowed. No
order as to costs.
----------
(2020)02ILR A494

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2019

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ C No. 40656 of 2019

Mufeed Ali ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Alok Kumar Singh, Sri Vikas Budhwar,
Sri Shashi Nandan

Counsel for the Respondents:
C.S.C., Sri Atul Tej Kulsrestha

A. Prevention of Cruelty to Animals Act,
1960 - Section 38 - Prevention of Cruelty to
Animals in Animal Market Rules, 2018 - Rule 3