JAGAT UPADHYAYA Vs. SECRETARY MAHKUMA PARISHAD

JUDGEMENT

(1.) ALL these Civil Rules are directed against the attempts to realise the arrears which according to respondent No. 1 had accrued on account of settlement taken by the petitioners of Daily Bazars for the year 1968-69. The facts in Civil Rule No. 495/73 alone may be noted which would throw light on the nature of the controversy.

(2.) WHAT happened was that the petitioner in this case submitted tender from Bijni Hat for the year mentioned above. There is a specific averment in the petition that in the tender it was stated that tolls will stand increased and tenders should be submitted keeping in view that aspect of the matter. Accordingly this petitioner submitted tender of Rs. 17,666/-. His further case is that he could not realise tolls at the enhanced rate as the shopkeepers refused to pay the same. This fact was brought to the notice of Mahakuma Parishad who took some steps which proved abortive. The petitioner however paid first two kists but failed to pay the 3rd and 4th kists due on 16-2-1969 and 16-5-1969 amounting to Rupees 8,833.00. He requested the authority for remission, though assurance was given nothing materialised. Ultimately Secretary of the Parishad (respondent No. 1) requested the S.D.O. to realise the unpaid kists money as arrears of land revenue. A Bakijai case was accordingly started in which it was prayed to strike off the case on the ground that the petitioner could not collect tolls for various reasons. This prayer was not accepted by respondent No. 3 and so the petitioner has approached this Court.

(3.) IT may be stated that a similar provision finds place in R.28(7) of the Assam Panchayati Raj (Administration) Rules, 1973. These provisions clearly show that once a lease becomes liable for determination, the fact in question has to be resold without undue delay by public auction. If the price fetched in the resale does not cover the balance of the rent the amount of the loss can be realised as arrears of land revenue. It is nobody's case that the fact in question was resold and what is attempted to be realised through the Bakijai case is the loss sustained on resale. Learned Govt. Advocate appearing in the case has however submitted by relying on the records submitted by the Mahkuma Parishad that this petitioner had continued the possession of the market till end of the period; and there sale was not undertaken on the assurance given by the petitioners that he would pay the entire kist money along with the 4th kist which was due on 16-5-1969. As such, according to learned Govt. Advocate, it was this assurance of the petitioner which had stood in the way of resale. Really there is no affidavit on behalf of Mahkuma Parishad making this averment. Nonetheless even if what is stated by the learned Advocate is accepted to be the factual position, the legal hurdle remains to be crossed by the Mahkuma Parishad. As has already been noted, Rule 65A(5)(a) (supra) in term permits realisation of the loss sustained on resale as arrears of land revenue, and not the kist money as such. Had a plea of estoppel been taker by filing counter affidavit, this point would have merited further scrutiny, but in the absence of the same, I do not propose to enter into this controversy.