B.N. Sapru, J. - (1.) IN this writ petition affidavits have been exchanged between the parties. We have heard the learned Counsel for the parties and are deciding this writ petition at the admission stage.
(2.) THE facts in brief are that the Town Area, Bidhuna held an auction on 31 -3 -1978 to settle the right to collect Tahbazari for the year 1978 -79. The Petitioner was highest bidder his bid being Rs. 41,000/ -. The Petitioner's bid was accepted. According to the Petitioner he did not deposit 1/4th of the auction amount on fall of the hammer at the auction. The Petitioner's case is that he resiled from the contract. In the supplementary counter affidavit it has stated that he realized Tahbazari for the year 1978 -79 though it is admitted that he did not execute the agreement which he was required to execute. A copy of the proposed agreement has been filed as Annexure -1. According to the contesting Respondent the Petitioner deposited a sum of Rs. 7455/ - towards Thefca amount . The case of the Respondents is that they were entitled to recover arrears of any tax under Section 21 of the Town Area Act and the action to recover the Theka amount was justified under Section 21 of the Town Area Act. Section 21 of the Town Area Act runs as follows: Arrears of any tax imposed under Act may be recovered, on the expiry of three weeks from the date of the issue or writ of demand, on application to a Magistrate having jurisdiction within the limits of the town area or in any other place within (Uttar Pradesh) where the defaulter may for the time being reside, by the attachment and sale of any movable (or immovable) property belonging to such defaulter and within the limits of such Magistrate's jurisdiction.
(3.) AS is evident it is only arrears of tax which can be realized under Section 21 of the Act. We agree with the view taken in a decision by Justice Satish Chandra (as he then was) in the case of Mumtaz Ali v. Sub -Divisional Magistrate, 1970 AWR 6. In that case it was held that if the successful bidder on auction of Tahbazari rights does not pay Tahbazari to the Town Area he commits a breach of contract. It was further held in this case that if the successful bidder makes a default in payment of the auction amount, proceedings under Section 21 of the Town Area Act cannot be taken against him. Shri N.S. Chaudhary appearing on behalf of the Town Area has strongly relied upon paragraph 2 of the proforma of the agreement which the Petitioner was required to execute though he admits that it was not executed by him. Clause 2 of the agreement runs as follows: 2 -Yah ki theka ki dhanrashi varsh ke ant me wasuli ko shes rah jati hai to pratham paksh dwitiya paksh se shes/arrear ka paisa Town Area Act ki dhara 21 ke antargat jo ki tax ki dhara hai, ke antargat wasuli hetu karyawahi karegi. Isme dwitiya paksh ko koi aapatti na liogi.;