A.N. Varma, J. - (1.) THIS petition is directed against the disposal of the petitioner's objection by the Kanpur Development Authority rejecting the claim of the petitioners that the amount sought to be recovered from the petitioners could not be realised under Section 40 of the U.P. Urban Planning and Development Act, 1973. The relevant facts necessary for the decision of this petition lie within a narrow compass and incidentally those facts are not in dispute. The petitioners took a loan from Kanpur Development Board in 1955 for construction of a house. The loan was secured by a Deed of Mortgage executed by the petitioners with respect to a piece of land over which the house was to be constructed. Clause 10 of the Mortgage Deed provides that in default of payment of the loan it will be open to the mortgagee to realise the amount due by sale of the mortgaged property. By Act No. 11 of 1959 Kanpur Development Board was replaced by Kanpur Nagar Mahapalika. The Act came into force on 2nd February, 1960. Under this Act all the liabilities and assets of Kanpur Development Board came to be vested in Kanpur Nagar Mahapalika. In 1973 Uttar Pradesh Urban Planning and Development. Act came into force making provision for creation of various Development Authorities throughout the State. In due course Kanpur Development Authority was established under this Act.
(2.) RELYING on Section 40 of the U.P. Urban Planning and Development Act, Kanpur Development Authority proceeded to recover the loan of the petitioners. The petitioners filed an objection asserting that Section 40 of the Act has no application to the present case and that Kanpur Development Authority could not, therefore, proceed to recover the loan under that provision. The objection was negatived by the Additional District Magistrate, Kanpur by an order dated 18 -4 -1978 which is under challenge in this petition. It is urged by the learned counsel for the petitioners that the loan advanced to the petitioners did not fall within the purview of Section 40 of the Act inasmuch as it was neither fees or charges nor an amount due on account of disposal of land, building or other properties. In the alternative, it is urged that in any case Sub -section (2) of Section 4 of the U.P. Moneys (Recovery of Dues) Act, 1972, clearly enjoins that where a public loan is secured by mortgage or charge or other encumbrance on immovable property such property shall be proceeded against first before the Collector proceeds to recover the dues in any other manner prescribed by law.
(3.) HAVING heard learned counsel for the parties we are clearly of the opinion that both these contentions are correct. Section 40 as stood at the relevant time reads as follows: 40. Mode of recovery of moneys due to Authority - -Any money certified by the Authority as due to it on account of fees or charges, or from the disposal of lands, buildings or other properties, movable or immovable or by way of rents and profits may, if the recovery thereof is not expressly provided for in any other provision of this Act, be recovered by the Authority as arrears of land revenue, and no suit shall lie in the civil court for recovery of such money.;