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

- **Citation:** WRIT-C No. 40523 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-07
- **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-46242
- **Pages:** 9

## Headnote

A. Civil Law-U.P. Kshettra Panchayat and
Zila Panchayat Act, 1961 - Contractual
amount - Recovery as arrear of land revenue -
Legality - There is no provision in the Act, which
empower the Zila Panchayat to recover the
contractual amount as arrears of land revenue -
Contractual amount cannot be recovered as
arrears of land revenue in the absence of any
provisions
-
The
action
taken
by
the
respondents by way of issuing the recovery
citation held legally not justified. (Para 15 and
21)
Writ Petition allowed (E-1)
Cases relied on :-

## Text

3-5 All. Paras Nath Singh Vs. State of U.P. & Ors.
1885
Magistrate provided he is directed by the
State Government to perform the said
powers under the Securitisation Act in
accordance with sub-section 2 of Section
20 of the Code or if he succeeds District
Magistrate temporarily for discharge of the
executive, administration of the District
Magistrate in accordance with sub-section
3 of Section 20 of the Code.

40. In view of the above, we find no
force in the challenge made to the
impugned order and in the argument raised
on behalf of the petitioners.

41. The writ petition is accordingly
dismissed with no order as to costs.
----------
(2020)03-05ILR A1885
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-U.P. Kshettra Panchayat and
Zila Panchayat Act, 1961 - Contractual
amount - Recovery as arrear of land revenue -
Legality - There is no provision in the Act, which
empower the Zila Panchayat to recover the
contractual amount as arrears of land revenue -
Contractual amount cannot be recovered as
arrears of land revenue in the absence of any
provisions
-
The
action
taken
by
the
respondents by way of issuing the recovery
citation held legally not justified. (Para 15 and
21)
Writ Petition allowed (E-1)
Cases relied on :-
1. Writ C No. 12575 of 2013; Subhas Tiwari Vs.
St. of U.P. decided on 17.10.2014
2. Subhash Chand Vs. Collector, Etawah & ors.,
(1999) 1 AWC, 582
3. Titu Singh Mathura Vs. D.M./Collector,
Mathura & ors., (2003) 5 AWC 3479
4. Iliyas Vs. St. of U.P. & ors., 2007 (2) ADJ,
143 (D.B.)
5. Mohd. Umar Vs. Collector / D.M. Moradabad
& ors., 2006 (9) ADJ 66 (All) (DB)
6. Sanjay Kumar Gupta Vs. St. of U.P. & ors.,
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. 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
1886 INDIAN LAW REPORTS ALLAHABAD SERIES
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 by-laws 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.

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
3-5 All. Paras Nath Singh Vs. State of U.P. & Ors.
1887
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
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
1888 INDIAN LAW REPORTS ALLAHABAD SERIES
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 लवश्वाश fd;k tkrk gS fd ;g vkids
ftys esa LFkku laokjiqj ijxuk bVkok esa fuokl
djrk gS mldh 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
3-5 All. Paras Nath Singh Vs. State of U.P. & Ors.
1889
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 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
1890 INDIAN LAW REPORTS ALLAHABAD SERIES
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
(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
3-5 All. Paras Nath Singh Vs. State of U.P. & Ors.
1891
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 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
1892 INDIAN LAW REPORTS ALLAHABAD SERIES
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:

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 "Statesponsored 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
3-5 All. Baboo Ram Vs. The Commissioner, Basti Division, Basti & Ors.
1893
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)03-05ILR A1893
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SIDDHARTHA VARMA, J.

WRIT-C No. 41708 of 2001

Baboo Ram & Anr. ...Petitioners
Versus
The Commissioner, Basti Division, Basti &
Ors. ...Respondents

Counsel for the Petitioners:
Sri P.P. Chaudhary, Sri A.K. Singh
Counsel for the Respondents:
C.S.C., Sri Dharm Raj Chaudhary, Sri P.N.
Pandey, Sri Rama Nand Pandey

A. Civil Law-U.P. Zamindari Abolition and
Land Reform Act, 1950 - Section 122-B
(5-F) and 132 - Pasture Land - Significance -
Preservation of Environment - Village Economy
- The Pasture Land in a Village area is lifeline of
the village people as they need a ground for
grazing by their cattles. Every agricultural
activity in the village is dependent upon the
Cattles which are used for ploughing the fields
and other related activities by the agriculturist -
The Village economy is largely dependent upon
the
agricultural
activities
and
even
for
Vegetarian
urban
population,
agricultural
produces are coming from the Villages - Over
the period of years, with the increase in
population,
public
spaces
are
being
compromised which has resulted in ecological
disasters. We cannot be oblivious of the
imminent need to preserve our environment by
restoring and maintaining public spaces both in
rural and urban areas. (Para 15 and 26)

B. Civil law-U.P.Z.A.&L.R. Act, 1950 -
Section 132 - Public Utility Land - Claim of
Bhumidhari rights - Scope - In rural areas,
public spaces such as ponds, pasture lands,
lands in river bed and the lands used for casual
or occasional cultivation described under Section
132 have to be preserved and protected by the
Revenue Authorities who have been conferred
with the ample powers to undo the wrong - No
Bhumidhari rights could be granted in the Public
Utility land kept aside for 'Charagah' (Pasture
Land) - It cannot be settled in favour of an
agricultural labour even belonging to Scheduled
Caste or Scheduled Tribes by taking recourse to
the proceedings under Section 122-B (4-F) of
the Act. (Para 24, 26 and 31)
C. Public Utility Land - Illegal Encroachment
- Duty of State and Revenue authorities - It is
the duty of the State and the appropriate Local
authority to take necessary measures at the
grassroot level. The Revenue Authorities are
required to keep a strict vigil in the area of their
jurisdiction so as to ensure that the public
spaces are not illegally occupied or encroached
by the Villagers or outsiders - Appropriate