ASHUTOSH KUMAR GUPTA Vs. NAGAR PALIKA SAMTHAR JHANSI

JUDGEMENT

(1.) 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. THErefore, the said amount was payable by the petitioner in instalments. Accordingly, the petitioner paid first instalment of Rs. 19,275. It appears that the written agreement was also entered into between the respondents No. 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 instalment was fixed nor exact date for payment of instalment was 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, ho received a notice, and in pursuance of the same he appeared personally before the respondents 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 instalment. THE petitioner then made a representa tion for consideration of his recovery certificate, which was issued to him. THE Tahsiidar issued a notice in June, 1990 asking the petitioner to pay a sum of Rs. 31,870 plus collection charges or to face his arrest and attach ment 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 of arrears of land revenue and, therefore, the notice was without jurisdiction. In support of the contention, be placed reliance on a judgment of this Court referred to in the case of Mumtaz All v. Sub-Divisional Magistrate, 1970 ALJ 114.

(2.) 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 Munici pality. The amount in question, therefore, could not be characterised as an arrear of tax. Therefore, Section 21 of the Town Areas Act, 1914 would hence not apply to its recovery. On the same ground, Section 173-A 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. Petition allowed. .