# Singh v. District Magistrate/ Collector

- **Citation:** (2010) 3 ILRA 1250
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-10-01
- **Bench:** Sunil Ambwani, Kashi Nath Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/singh-v-district-magistrate-collector-41759
- **Pages:** 6

## Headnote

Sri Satendra Kumar Pandey
S.C.

U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950-Section 279, 280
readwith U.P. Municipality Act 1916,
Section-166 and 173-Recovery of Rent
by Municipal Board-as arrear of land
revenue by evoking power under section
279 and 280 of Zamindari Act- saying
goodby to the method prescribed under
section 166 and 173 of Municipalities
Act-held-without Jurisdiction arrear of
next can not be recovered as arrear of
Land Revenues.

Held: Para 17

We are thus of the opinion, that the
arrears of rent, or the unpaid rent due,
cannot be recovered by the Municipal
Corporation from the petitioners as
arrears of land revenue by adopting a
process of recovery under the UPZA & LR
Act,
1950
and
the
Rules
framed
thereunder.
Case law discussed:
2003 (5) AWC 3479, 1998 (89) R.D. 513, 2006
(9) ADJ 66 (All), 2007 (2) ADJ 143 (DB).

## Text

1250 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

17. Liberty is granted to respondent
no. 5 to recover the aforesaid amount from
the then officer who passed the impugned
order without caring to the question as to
whether
the
proceedings
have
been
conducted in accordance with law, after
making such inquiry as prescribed in law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2010
BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE KASHI NATH PANDEY, J.

Civil Misc. Writ Petition No, 57930 of 2009

Nand Kishor

 ...Petitioner
Versus
Collector, Rampur and others...Respondents

Counsel for the petitioner:
Sri Madhur Prakash

Counsel for the Respondents:
Sri Satendra Kumar Pandey
S.C.

U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950-Section 279, 280
readwith U.P. Municipality Act 1916,
Section-166 and 173-Recovery of Rent
by Municipal Board-as arrear of land
revenue by evoking power under section
279 and 280 of Zamindari Act- saying
goodby to the method prescribed under
section 166 and 173 of Municipalities
Act-held-without Jurisdiction arrear of
next can not be recovered as arrear of
Land Revenues.

Held: Para 17

We are thus of the opinion, that the
arrears of rent, or the unpaid rent due,
cannot be recovered by the Municipal
Corporation from the petitioners as
arrears of land revenue by adopting a
process of recovery under the UPZA & LR
Act,
1950
and
the
Rules
framed
thereunder.
Case law discussed:
2003 (5) AWC 3479, 1998 (89) R.D. 513, 2006
(9) ADJ 66 (All), 2007 (2) ADJ 143 (DB).

(Delivered by Hon'ble Sunil Ambwani, J.)

1. We have heard Shri Madhur
Prakash,
learned
counsel
for
the
petitioner. Learned Standing Counsel
appears for the respondents. Shri Satendra
Kumar Pandey appears for Nagar Palika
Parishad, Rampur.

2. In these writ petitions the
petitioners have challenged the notices
issued on 3.11.2009 and the recovery
proceedings of the rent of the shops
owned by Nagar Palika Parishad and
allotted to the petitioner, as arrears of land
revenue. By an interim order dated
3.11.2009 the recovery proceedings in
view of the judgment of this Court in Titu
Singh Vs. District Magistrate/ Collector,
Mathura & Ors., 2003 (5) AWC 3479
were stayed.

3. The respondents have not filed
counter affidavit. Learned counsel for
Nagar Palika Parishad prays for some
more time to file counter affidavit. Since
the petitioners have not disputed the
amount, which is due from them and have
only challenged the method of recovery of
the amount as arrears of land revenue by
issuing recovery certificate/ citation dated
14.9.2009 (as arrears of land revenue), we
do not propose to adjourn the matter. We
have heard the counsels appearing for the
parties, on legal issues.

4. The Nagar Palika Parishad, Swar,
Distt. Rampur constructed 28 shops and
proposed to allow them by auction.
3 All] Nand Kishore V. Collector, Rampur and others
1251

5. The petitioners were highest
bidders in the auction held on 10.11.1998,
of the respective shops, for allotment on
rent ranging between the maximum
amount of Rs.2150/- to the minimum of
Rs.725/-. The shops were allotted to them,
as tenants on rent w.e.f. July, 1999.

6. The petitioners, thereafter, took a
stand that the amount of bids was very
high, and filed civil suits before entering
into agreement and taking possession of
the shops. The civil suits were dismissed.
The petitioners have not brought on
record the judgments of the civil suits.
The petitioners, thereafter, entered into
agreement
and
affirmed
affidavits
accepting the tenancy and rate of rent
before taking possession, and are paying
rent regularly w.e.f. 17.11.2006. The
matter in issue relates only to the arrears
of rent from July 1999 to 17.11.2006.

7. In the letter of the District
Magistrate dated 8.1.2008 sent to the
Executive Officer, Nagar Palika Parishad,
Swar annexed as Annexure No.3 to the
writ petition it is mentioned that suits
filed by the petitioners in respect of shop
Nos.1, 15 and 16 have been dismissed, in
favour of Nagar Palika Parishad; and that
the representation made by the petitioners
forwarded by the Nagar Palika Board on
19.5.2001, and 12.8.2004, have been
rejected by the State Government. The
rent for the period from July 1999 to
16.11.2006
is
due
and
should
be
recovered from the tenants.

8. On the receipt of the letter of the
District Magistrate dated 8.1.2008, the
Executive Officer, Nagar Palika Parishad,
Swar issued notices of demand to the
petitioners of the agreed amount for each
of the shop. The petitioners were required
to deposit the entire amount in seven
days, failing which their shops will be
locked, and the amount will be recovered
as arrears of land revenue. A citation was,
thereafter, issued by the Tehsidlar, Swar
on 14.9.2009 under Rule 236 of the U.P.
Zamindari Abolition and Land Reforms
Act to recover the amount giving rise to
the writ petition.

Shri
Madhur
Prakash,
learned
counsel for the petitioner has relied upon
the opinion of this Court in the judgment
in Titu Singh Vs. District Magistrate,
2003 (5) AWC 3479 in which it was held
while interpreting the provisions of
Section 173 (A) of U.P. Municipalities
Act, 1916, applicable to the petitioners
that the sums due to the Municipal
Corporation payable a contractor in
pursuance to theka money due under a
contract cannot be recovered under
Section 173-A.

Section 173A is quoted as below:-

"173-A. Recovery of taxes as
arrears of land revenue- (1) Where any
sum is due on account of a tax, other than
[any
tax]
payable
upon
immediate
demand,
from
a
person
to
a
[Municipality], the [Municipality] may
without prejudice to any other mode of
recovery apply to the Collector to recover
such sum together with costs of the
proceedings as if it were an arrear of a
land revenue.

(2) The Collector on being satisfied
that the sum is due shall proceed to
recover it is an arrear of land revenue."

The provisions of Section 173A and
Section 176 came up for consideration of
this Court for recovery of Teh Bazari dues
1252 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
in Ram Bilas Tibriwai Vs. Chairman,
Municipal
Board,
Titri
Bazar,
Siddarthnagar & Ors., 1998 (89) R.D.
513; Mohammad Umar Vs. Collector/
District Magistrate, Moradabad &
Ors., 2006 (9) ADJ 66 (All); and Iliyas
Vs. State of U.P. & Ors., 2007 (2) ADJ
143 (DB). In all these decisions the Court
held that the provisions of Section 173A,
cannot be applied for recovering Teh
Bazari dues as Teh Bazari dues are not
tax, which can be recovered as arrears of
land revenue.

The U.P. Zamindari Abolition and Land
Reforms Act, 1950, provides under Section
279 the procedure for recovery as arrears of
land revenue. The provisions include serving
a writ of demand, arrest and detention of the
persons, attachment and sale of his movable
property including the agricultural produce;
attachment of the holding in respect of which
the arrear is due; attachment and sale of other
immovable property of the defaulter, and
also by appointing a receiver of any property,
movable or immovable, of the defaulter. The
costs of any of the processes mentioned in
sub-section (1) shall be added to and be
recoverable in the same manner as the arrear
of land revenue.

9. Wherever the State has provided
for recovering the amount as arrears of
land revenue, specific provision is made
by the legislature for adopting the
procedure of recovery provided under the
UPZA & LR Act, 1950 and the Rules.

10. In the year 1972 the State of U.P.
enacted U.P. Public Moneys (Recovery of
Dues) Act, 1972 for the following
purposes:-

"An
Act
to
provide,
with
retrospective effect, for the speedy
recovery of certain classes of dues
payable to the State Government or to the
Uttar Pradesh Financial Corporation or
any other Corporation notified by the
State government in that behalf or to any
nationalised or other Scheduled Bank or
to a Government Company, and to
validate certain acts done and proceedings
taken in the past, and to provide for
matters connected therewith."

11. The Act provides for recovering
certain sums as arrears of land revenue.
Section 3 of the Act provides:-

"3. Recovery of certain dues as
arrears of land revenue.(1) Where any
person is party-

(a) to any agreement relating to a
loan, advance or grant given to him or
relating to credit in respect of, or relating
to hire- purchase of goods sold to him by
the State Government or the Corporation,
by way of financial assistance; or

(b) to any agreement relating to a
loan, advance or grant given to him or
relating to credit in respect of, or relating
to hire- purchase of goods sold to him, by
a banking company or a Government
company, as the case may be, under a
State-sponsored scheme; or

(c) to any agreement relating to a
guarantee given by the State Government
or the Corporation in respect of a loan
raised by an industrial concern; or

(d) to any agreement providing that
any money payable thereunder to the
State Government shall be recoverable as
arrears of land revenue; and such person-

(i) makes any default in repayment of
3 All] Nand Kishore V. Collector, Rampur and others
1253
the loan or advance or any instalment
thereof; or

(ii) having become liable under the
conditions of the grant to refund the grant
or any portion thereof, makes any default
in the refund of such grant or portion or
any instalment thereof; or

(iii) otherwise fails to comply with
the terms of the agreement.

Chapter VI of the U.P. Municipalities
Act, 1916 provides for recovery of certain
municipal claims. A bill is required to be
presented under Section 166, where:

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

12. Sub-section (2) of Section 166 of
the U.P. Municipalities Act, 1916 provides
that 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. The contents of bill, on
notice of demand is provided under
Section 167; the notice of demand is
provided under Section 168; issue of
warrant is provided under Section 169 and
forcible entry and manner of executing
warrant is provided under Section 170 and
171 of the Act. Section 172 provides for
sale
of
goods
under
warrant
and
application of proceeds, and Section 173
provides for procedure in case of
execution against property outside the
municipal area.

13. In the present case it is not
denied in the writ petition that the amount
of rent towards shop is due from the
period July 1999 to 16.11.2006. The
question of the rate of rent has also been
concluded by the decisions in the three
suits filed by the petitioners or similarly
situate persons, and their representation
for reducing the arrears of land have been
rejected. The question whether the rent
was payable after agreement and the
possession was given is no longer open to
be
considered
by
the
Court.
The
petitioners have not set up any such case
that the shop was in use by any other
person from the date of allotment to the
date, when the possession was given. The
delay, if any, in taking possession was
wholly
attributable
on
account
of
petitioners, for which the municipal
property was held up for its use. The
petitioners, therefore, cannot escape the
liability to pay the rent for the period from
July 1999 to 16.11.2006.

14. We, however, find substance in
the contention of learned counsel for the
petitioners that the amount of past arrears
of rent cannot be recovered as arrears of
land revenue. There were no provisions
for recovery of municipal tax as arrears of
land revenue, which did not fall due on
immediate demand. Section 173A was
inserted in U.P. Municipalities Act, 1916,
by U.P. Act No.26 of 1964 to recover
municipal tax, other than tax payable on
1254 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
immediate demand, by persons to the
municipality without prejudice to any
other mode of recovery as special
measure for expeditiously recovery of
municipal tax.

15. Learned counsel for the
petitioner submits that the method of
recovery in respect of rent of immovable
property falls under Section 292 under
heading rent and charges. Section 291,
292 and 293 of the U.P. Municipalities
Act, 1916 are quoted as below:-

"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.

293. Fees for use, otherwise than
under a lease of municipal property.-
(1) The [Municipality] may charge fees to
be fixed by bye-law or by public auction
or by agreement, for the use or occupation
(otherwise than 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 or
occupation
whether
by
allowing
a
projection thereon or otherwise.

(2) Such fees may either be levied
along with the fee charged under Section
294
for
the
sanction,
licence
or
permission or may be recovered in the
manner provided by Chapter VI."

16. Section 292 clearly provided that
in case of rent of immovable property, the
recovery shall be made in the manner
prescribed by Chapter VI of the Act.

17. We are thus of the opinion, that
the arrears of rent, or the unpaid rent due,
cannot be recovered by the Municipal
Corporation from the petitioners as
arrears of land revenue by adopting a
process of recovery under the UPZA &
LR Act, 1950 and the Rules framed
thereunder.

18. The writ petitions are allowed
only to the extent that the amount of rent,
which is otherwise due to be paid by the
petitioners from July 1999 to 16.11.2006,
shall not be recovered from them as
arrears of land revenue in accordance with
the procedure prescribed under Section
279 and 280 of the UPZA & LR Act,
1950. The citations dated 14.9.2009
issued
by
the
Tehsildar,
Swar
is
accordingly quashed. This judgment,
however, shall not restrict the authority or
come in the way of the Municipal
Corporation, from realising the arrears of
rent as aforesaid by the method prescribed
from Section 166 and 173 of the
Municipalities Act, 1916 or any other
method, which may be open to it in law.
---------
3 All] Committee of Management V. State of U.P. and others
1255
ORIGINAL JURISDICITON
CIVIL SIDE]
DATED: ALLAHABAD 11.11.2010

BEFORE
THE HON'BLE V.K. SHUKLA, J.

Civil Misc. Writ Petition No. 63201 of 2010

Committee of Management ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Mehta

Counsel for the Respondents:
Sri Sunil Kumar Srivastava
C.S.C.

U.P. Intermediate Education Act 1921Section-7-A-Power
of
committee
management
placing
the
part
time
teachers, Head of Institution under
supervision-institution not within grantin-aid-whether management empowered
to suspend ? Held-"Yes", view taken by
DIOS not proper to this extent-so for
entitlement of salary as per direction of
DIOS-affirmed-direction
to
conclude
disciplinary
proceeding
withtin
time.bound period-issued.

Held: Para 15, 21, and 22.

Once this is accepted position that the
appointment of Hari Prakash Tiwari had
been made after following the procedure
as provided for under the Government
order meant for part time teachers and
part-time instructors, then in such a
situation and in this background, the
protection as is envisaged under Section
16G of U.P. Act No. 2 of 1921 is available
or not, is the core issue.

Legal position on the subject is thus,
clear that even in reference to part-time
teachers, though it is not provided in the
Government Order dated 10.08.2001, as
the Committee of Management is vested
with the authority to take disciplinary
proceedings,
and
during
this
interregnum period till said proceedings
are not finalised, the Committee of
Management in exercise of its authority
vested under Section 16 of the U.P.
General Clauses Act is empowered to
pass order of suspension. The authority
of the Committee of Management of the
institution in reference to part time
teachers to pass order of suspension
cannot be doubted on any score. Hon'ble
Apex Court in the case of L.K. Verma vs.
HMT Ltd., !IR 2006 SC 975, has taken the
view that there are three kinds of
suspension;
(I)
suspension
may
be
passed by way of punishment in terms of
Conduct Rules; (ii) suspension can be
passed in exercise of inherent power, in
the sense that work may not be taken
from the delinquent official, but in that
event salary has to be paid; and (iii)
suspension order can be passed if there
exist provisions in the Rules laying down
that in place of full salary the delinquent
would
be
entitled
to
subsistence
allowance only.

In
such
a
situation
and
in
this
background, once the Committee of
Management of the institution happens
to be the employer qua part time
teachers, then to say and suggest that it
has
got
no
authority
to
place
an
incumbent
under
suspension
or
undertake
disciplinary
proceedings,
cannot be accepted by any stretch of
imagination, as an employer, it has
inherent power to place an employee
under suspension, and in the absence of
Rules providing that in place of full
salary the part time teacher would be
entitled to subsistence allowance. Part
time
teacher
would
be
temporarily
prevented from discharging duty, but
salary would be ensured to him.
Case law discussed:
(1999) 1 UPLBEC 1, 2000 (4) AWC 2767, 2000
(1) UPLBEC 2327, 2000 (4) ESC 2828, 2001
(1) UPLBEC 701, Writ Petition No. 1070 of
2001, 2003 (3) ESC 1388, Writ Petition No.
58230 of 2005,AIR 2006 SC 975