- (1.) BY this petition under Article 226 of the Constitution the five petitioners pray that notices (Annexures I, II and II-A to the petition) issued under the provisions of Section 279 and Section 281 of the U. P. Zamindari Abo lition and Land Reforms Act, for recover ing certain amount alleged to be due against them, be quashed.
(2.) THE petitioners claim that they were hereditary tenants of certain plots lying in villages Sarwar Khera, Kudia-wala and Gangapur in Kashipur Tahsil, District Nainital. On 27-5-1971, the Amin of Tehsil Kashipur issued demand notices requiring them to pay various amounts alleged to be due from them on account of arrears of rent for the period upto 1378. It is not disputed that in due course the State of U. P. acquired proprietary rights in respect of various plots in Kashi pur Tehsil in the year 1949 and there after the petitioners who were the here ditary tenants of such plots, continued to pay rent in respect thereof to the Colo nisation Department of the State of U. P. upto the year 1360 Fasli. Since, the peti tioners were not recorded- as hereditary tenants in the revenue papers, the Colo nisation Department treated them as tres passers and declined to accept rent from them. Ultimately the dispute regarding petitioners' right in various plots was re solved under the orders dated 24-9-1970 passed by the Comrniesioner Kumaon Division, who held that originally the petitioners were hereditary tenants oi those plots and after U. P. Zamindari Abolition and Land Reforms Act became applicable to the area in question with effect from 26-1-1970, they, as provided in Section 18 of the Act, became Bhumi-dhars of those plots. Thereafter, when the rent was again demanded from the petitioners, they offered to pay only such rent which had fallen due within a period of three years. They contended that the rent prior to that period had become bar red by limitation and the respondents had no right to recover the same. The res pondents, however, did not accept part payment of rent and initiated proceedings under Sections 279 and 281 of the U. P. Zamindari Abolition and Land Reforms Act, for recovering the entire arrears of rent for the period 1360 Fasli to 1378 Fasli, by serving upon the petitioners the impugned notices dated 27th May, 1971. After filing the present peti tion, learned counsel for the petitioner moved an application dated 7th July, 1971, praying that the respondents be restrained from realising the amount claimed by them as arrears of land reve nue by use of coercive process. This court, by an order dated 3rd August, 1971, directed that recovery of dues as arrears of land revenue shali remain stayed pro vided the petitioners deposit with the Naib Tehsildar a sum of Rs. 500 by the 7th of each month. The first deposit was to be made by the 7th September, 1971. The petitioners claim that ever since then they have been regularly depositing the amount as directed by this Court.
(3.) LEARNED counsel for the peti tioners submitted that their liability to pay rent accrued under the U. P. Ten ancy Act. Section 148 of the Act laid down that except as provided by that Act, arrear of rent could be recovered either by a suit or by serving upon the petitioners notices through the Tahsildar in accordance with the provisions of the Act. According to Item No. 2 of the IV Schedule, a suit for recovery of arrears could be filed before the Assistant Col lector 1st Class and the period of limita tion for such a suit was three years. The procedure for recovery of arrears of rent through the Tehsildar, has been laid down in Section 163 of the Act, according to which such arrears as do not exceed three years alone could be recovered on an application being made to the Tehsildar Collection. Accordingly, under the provi sions of the U. P. Tenancy .Act, arrears of rent beyond a period of three years have not been made recoverable and the respondents had no jurisdiction to de mand from the petitioners rent for a period prior to 1375 Faeli. Further, apart from the two procedures mentioned above, the U. P. Tenancy Act did not contemplate any other mode for recovery of arrears of rent. The respondents were, therefore, not entitled to recover the same in the manner provided for recovery of arrears of land revenue.;