Ashutosh Kumar Gupta vs Nagar Palika and Others

U.P. Singh and B.S. Chauhan, JJ.—The admitted position in this case is that the Petitioner was given a contract through public auction by the Nagar Palika, Samthar, Jhansi. to realise the weighment dues for a period of one year which was effective from 1.4.1986 to 31.3.1987, on payment of Rs. 77,100 as premium. There are, the said amount was payable by the Petitioner in "installments. Accordingly, the Petitioner paid first installment of Rs. 19,275. It appears that the written agreement was also entered into between the Respondent Nos. 1 and 2, the prescribed authority on one hand and the Petitioner on the other hand, wherein, certain terms and conditions were imposed. As per agreement neither exact amount of installment was fixed nor was exact date for payment of instalment fixed. It was not provided that non-payment of the said contract money would be recovered as arrears of the land revenue and further, it was stipulated that in case of any dispute between the parties, the matter would be referred to the arbitrator. The Petitioner had paid an amount of Rs. 38,550 by August, 1986. On or about October, 1986, he received a notice, and in pursuance of the same he appeared personally before the Respondent Nos. 1 and 2 with all the payment receipts. In November, 1986 he received another notice terminating the contract on the ground of non-payment of second installment. The Petitioner then made a representation for consideration of his recovery certificate, which was issued to him. The Tehsildar issued a notice in June, 1990 asking the Petitioner to pay a sum of Rs. 21,870 plus collection charges or to face his arrest and attachment of his properties (Annexure 5 to the writ petition). The Petitioner has challenged the same by this writ petition and has raised a contention that the contract money was not recoverable as arrears of land revenue and, therefore, the notice was without jurisdiction. In support of the contention, he placed reliance on a judgment of this Court referred to in the case of Mumtaz All v. Sub Divisional Magistrate 1970 AIJ 114.

In view of the said judgment, the Petitioner himself was not liable to pay any Tahbazari tax. In fact, he had undertaken a contract to collect that tax and to pay to the Municipality. This sum was not the amount of the Tahbazari tax. It was a premium for the right to collect that tax. It was the consideration for the contract given to the Petitioner by the Municipality. The amount in question, therefore, could not be characterised as arrears of tax. Therefore, Section 21 of the Town Areas Act, 1914 would hence not apply to its recovery. On the same ground, Section 173A of the U.P. Municipalities Act, 1916 will also be inapplicable. Such claims for damages for breach of contract cannot be realised as arrears of the land revenue and the remedy to the Respondents lies by way of filing a suit in an ordinary course.

The petition is accordingly allowed, but no order as to costs.