MUMTAZ ALI Vs. SUB-DIVISIONAL MAGISTRATE AND ANOTHER

JUDGEMENT

(1.) THE Town Area Committee of Bharwari, district Allahabad, had imposed the Tahbazari tax. Its practice was to auction the right to realise the Tahbazari dues from the various portions of the town. For the year 1968 -69, the requisite auction was held on 1st April, 1968. The Petitioner's bid of Rs. 13,500/ - being the highest was accepted. The Petitioner deposited half the auction money, namely, Rs. 6,750/ -, at that time and promised to pay the balance later on. He did not pay the balance. He has some grievance of his own. On 6 -1 -1969, the Sub -Divisional Magistrate cancelled the Petitioner's contract and directed the re -auction of the right to realise the Tahbazari dues. But, for want of bidders, the auction did not materialise. The Town Area Committee issued a notice of demand to the Petitioner to pay the balance half of the auction money, but the Petitioner did not pay. On 10 -7 -1969, the Petitioner received a notice requiring him to pay Rs. 6,750/ - within a fortnight, failing which the said sum would be realised by attachment of his properties, The Petitioner challenges the validity of this notice.

(2.) THE Respondents rely upon two provisions: Section 21 of the Town Areas Act, 1914 and Section 173 -A of the UP Municipalities Act as extended to the Town Areas. Section 21 authorises the realization of arrears of any tax imposed under the Act as an arrear of land revenue. Similarly, Section 173 -A entitles the Town Area Committee to recover as an arrear of land revenue "any sum due on account of a tax other than octroi or toll or any similar tax payable on immediate demand". Section 21 provides for the recovery of an arrear of tax imposed under the Act. The Tahbazari tax is one of the taxes contemplated by Section 14 of the Act. But, 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 the Town Area Committee a fixed sum of Rs. 13,500 -. 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 him by the Town Area Committee. This sum, therefore, could not be characterised as an arrear of tax. Section 21 would hence not apply to its recovery. On the same ground, Section 173 -A also will be inapplicable.

(3.) THE petition, therefore, succeeds and is allowed. The impugned notice is quashed. The Respondents are directed not to realise the aforesaid claim for damages as an arrear of land revenue. The Petitioner Will be entitled to his costs from Respondent No. 2.