N.D. Ojha, J. - (1.) An auction took place on 28th July. 1969, in regard to conferment of right for recovery of tahbazari dues recoverable of the Gaon Panchayat, respondent No. 3. The petitioner was the highest bidder for a sum of Rs. 9,999/- He has paid a sum of Rs. 6,666/- . For the balance of Rs. 3,333/- proceedings were initiated for its recovery as arrears of land, revenue. The petitioner there upon instituted the present writ petition with a prayer to quash those proceedings.
(2.) In the writ petition the recovery proceedings have been challenged mainly on two grounds. (i) that there was no provision either in the Panchayat Raj Act or other which entitled the recovery of dues of this nature as arrears of land revenue, and (2) that the Gaon Panchayat had not properly levied the tahbazari, which was in the nature of a tax and consequently the petitioner was not bound to pay anything to the Gaon Panchayat towards the Sum of Rs. 9.999/- which became payable in virtue of the auction held on 28th July, 1969. In regard to the first submission learned counsel took me through the various provisions of the Panchayat. Act and the rules as also the U. P. Public Moneys (Recovery of Due:,) Act, 1972. According to learned counsel, none of the provisions contained in either of these two Acts authorised recovery of dues of the present nature as arrears of land revenue. Learned counsel for the Gaon Sabha did not seriously challenge the proposition that the recovery could not he made under the provisions of the Public Money (Recovery of Dues) Act, 1972. He, however, urged that the sum recoverable as arrears of land revenue in terms of the various provisions contained in the Panchayat Raj Act and the U.P. Gaon Samaj Manual. In this connection he invited my attention to sub-clause (d) of Section 28-B(1) of the U. P. Panchayat Raj Act. It provides that the Bhumi Prabandhak Samiti shall, for and on behalf of the Gaon Panchayat establishing it be charged with the general management, preservation and control of all property referred to in Section 28-A, including the management of hats, bazars, and melas. The aforesaid provision only enumerates one of the functions of the Bhumi Prabandhak Samiti and in my opinion it in no way assists the submission made by learned counsel for the Gaon Sabha to the effect that the sum outstanding against the petitioner can be realised as arrears of land revenue. Learned counsel for the Gaon Sabha then brought to my notice Section 37-B of the aforesaid Act. It provides that all dues on account of the taxes imposed an other sums payable to a Gaon Sabha tinder this Act shall be recovered as arrears of land revenue if the Gaon Panchayat concerned passes a resolution to that effect within three months from the date of assessment, provided that where a Gaon Panchayat fails to pass. such a resolution within the said period of three months the prescribed authority shall authorise the recovery of the arrears of taxes as arrears of land revenue. This again does not in any way advance the case of the Gaon Panchayat. The provision relates to taxes and dues payable to a Gaon Sabha under this Act. It may be that the tahbazari dugs sought to be recovered from the persons who were liable to pay it directly to the Gaon Sabha could be said to be a tax imposed and payable to a Gaon Sabha under this Act. In the instant case, however, the sum sought to be recovered is not from the tax payers but from the petitioner who had entered into a contract for realising the tahbazari subject to payment of the contract money in the sum of Rs. 9,999/- . The amount aforesaid was payable to the Gaon Sabha by the petitioner not in pursuance of any provision of the U. P. Panchayat Raj Act but under the contract entered into between the parties. It has not been brought to my notice that the contract which was entered into between the parties contained any stipulation that if any amount payable under it was not paid by the petitioner it could be recovered as arrears of land revenue. Learned counsel for the Gaon Sabha then referred to para-graph 61 of the Gaon Samaj Manual. The relevant clause of the aforesaid paragraph authorises the Land Management Committee to give a contract to some individual for a period to he specified by it for the management of hat, bazar or mela on payment of such premium and annual rent as it may fix. This provision only confers a right upon the land Management Committee to enter into a contract with some individual for the purposes referred to therein. Once .a contract has been entered into in the exercise of the power referred to above and any sum fell due which one of the parties to the contract is liable to pay under the contract, it is clearly a case of enforcement of the contract and not of enforcement of any liability under paragraph 61 of the Gaon Samaj Manual.
(3.) Lastly. learned counsel for the Gaon Sabha relied upon Rale 220-A of the U. P. Panchayat Raj Rules. The said rule is to the effect that the Gaon Panchayat shall realise its taxes, rates or fees either through one of its members of through a tax collector, appointed either on monthly salary or on commission basis as the prescribed authority may decide. Such members or tax collector shall be required to furnish such security for the performance of the duties as may be fixed by the prescribed authority. Here again it is important to note that only such a person can be said to be a tax collector who has been appointed either on a monthly salary or on commission basis. The petitioner comes under neither of these two categories. He was a bidder at an auction and a contract to realise tahbazari was entered into with him in virtue of his being the highest bidder. The petitioner under the contract was to pay a fixed sum irrespective of the fact whether he was able to recover a sum more than the amount which he was to pay or less than the said amount. In Mumtaz Ali v. Sub-Divisional Magistrate, 1970 A.L.J. 114 it was held that the tahbazari is one of the U.P. Town Areas Act, but the petitioner himself not liable to pay any tahbazari tax. In fact he had undertaken a contract to collect the tax, and to pay the town Area Committee a fixed sum of Rs. 13500/-. This sum was not the amount of the tahbazari tax. It was a premium for the right to collect this 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 of the U.P. Municipalities Act also will be inapplicable. There is no other provision entitling the Town Area Committee to realise its claims or demands as an arrear of land revenue.;