Allahabad High Court
Govinda vs State Of U.P. And 2 Others on 28 July, 2017
Bench: Amreshwar Pratap Sahi, Rajiv Lochan Mehrotra
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 37
Case :- WRIT - C No. - 35169 of 2016
Petitioner :- Govinda
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Sushil Kumar Pandey
Counsel for Respondent :- C.S.C.,Saurabh Tiwari
With
Case :- WRIT - C No. - 35165 of 2016
Petitioner :- Mahesh
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Sushil Kumar Pandey
Counsel for Respondent :- C.S.C.,Saurabh Tiwari
And
Case :- WRIT - C No. - 38859 of 2016
Petitioner :- Har Prasad
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Sushil Kumar Pandey
Counsel for Respondent :- C.S.C.,Saurabh Tiwari
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajiv Lochan Mehrotra,J.
These three writ petitions have been filed assailing the notice issued in terms of Section 173-A of the U.P. Municipalities Act, 1916 seeking to recover the amount allegedly due against the petitioners in respect of their occupation of agricultural land of the sewerage farm within the Municipality of Mathura.
It is stated by the petitioners that they were occupying the land in terms of an agreement and consequently, they would be governed by the terms of the agreement and any amount allegedly due cannot be recovered in terms of Section 173-A of the 1916 Act. Learned counsel for the petitioners Sri S.K. Pandey relies on a Division Bench judgment in the case of Abrar Hussain vs. District Magistrate/Collector & others, Writ-C No.40319 of 2006 (decided on 26.11.2013) to substantiate his submission.
A counter affidavit has been filed on behalf of the respondent Municipal Corporation and Sri Saurabh Tiwari learned counsel submits that such issues can also be dealt with by the Chairman of the Nagar Palika Parishad keeping in view the terminology used in the agreement, copy whereof has been filed as Annexure-1 to the writ petition. He has invited the attention of the Court to clause (8) of the agreement read with the penultimate clause relating to the forum for resolution of any dispute concerning the effect of the contract. The same are extracted hereunder:-
"8. In case of breach of any condition or in case of default of payment of any instalment the Landlord will have the right to re-entry and of stopping the supply of water and distraining the produce."
.............."any dispute concerning the meaning or effect of these presents or the performances by either of the parties hereto if the convenants by either of them herein before-contained shall be referred to the chairman Municipal Board, Muttra, whose decision shall be final."
Sri Tiwari further submits that the dues can be realised and since the petitioners are disputing the amount of recovery as well, a petition for the said cause would not be maintainable.
We have gone through the pleadings as well as the judgment relied upon by the learned counsel for the petitioners as well as the provisions of U.P. Municipalities Act, 1916.
We may put on record that the property undisputedly is vested in the said Municipality which is empowered to maintain it in terms of Section 116 of the U.P. Municipalities Act, 1916. The power to manage and control such property is entrusted to the Municipality under Section 118 thereof. In order to further facilitate such management in the event, if there is no provision under the Act, a residuary clause is contained in Section 127 of the Act where the management or any governance shall be regulated by rules made by the State Government under Section 296 of the Act.
Section 292 of the U.P. Municipalities Act, 1916 provides for recovery of rent of other immovable property and it categorically states that 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. Chapter VI of the 1916 Act entails the entire procedure which also includes Section 173-A whereby recovery can be made as arrears of land revenue.
In the instant case, Section 173-A has been invoked by the respondent Municipality. From a perusal of the aforesaid provisions it is clear that realization of any such amount in relation to immovable property cannot be made as arrears of land revenue as the same stands excluded in terms of Section 292 of the 1916 Act.
The view taken by the Division bench in the case of Abrar Hussain (supra) also excludes the realisation of such arrears by invoking Section 173-A of the Act. Consequently, the notice issued to the petitioners in terms thereof cannot be legally sustained.
No other Rules relating to any power vested in the Municipality to recover such amount as arrears of land revenue have been brought to our notice by the respondent.
The Municipal Corporation is, therefore, hereby restrained to take any action pursuant to the recovery certificate dated 21.6.2016 issued against the petitioners to realise the alleged dues as arrears of land revenue.
We have been informed of the two Division Bench decisions in the case of Vijay vs. State of UP & 3 others, Writ-C No.57677 of 2015 and in the case of Timman Singh vs. Stae of UP & 3 others, Writ-C No.56923 of 2015 (both decided on 23.12.2015). The aforesaid two decisions, according to the learned counsel for the respondent Municipality, are in relation to similar plots that have been occupied, with regard to which directions were issued to approach the Chairman for resolution of the said dispute after making certain deposits. The dues, if any, against the petitioners will have to be realised as per the agreement. The case of the petitioners stands on the same footing.
We are of the considered opinion in the present case as well that the petitioners will have to approach the Chairman of the Nagar Palika Parishad, Mathura who shall thereupon proceed to determine the dispute keeping in view the allegations and counter allegations with regard to occupancy of the land and take a decision in accordance with law thereupon, if possible, within three months from the date of the production of a certified copy of this order.
The writ petitions stand disposed of with the said directions.
Order Date :- 28.7.2017
SP
