- (1.) M. C. Agarwal, J. By this petition under Article 226 of the Constitution of India the petitioner Mahesh Chandra Challenges a recovery certificate issued against him for the recovery of Rs. 51,000/ -. A copy of the recovery certificate has been annexed to the writ petition as Annexure '4' which mentions that the money may be recovered under the provisions of Revenue Recovery Act.
(2.) THE petitioner participated in an auction by Zila Panchayat, Mainpuri for settling a right to remove and dispose of dead animals within the limits of block kurawali in district panchayat Mainpuri. THE petitioner's bid at Rs. 1,51,000/was highest and was accepted. He deposited a sum of Rs. 20,000/- on the date of auction i. e. 221-1995, Rs. 20,000/- on 7-3-1995, Rs. 35,000/- on 21-3-1995 and Rs. 25,000/- on 22-7-1995. THE period of licence was to be for one year from 1-41995 to 31-3-1996. THE petitioner's case is that in spite of the petitioner's bid having been accepted and he having paid a sum of Rs. 1,00,000/- out of the total bid amount of Rs. 1,51,000/- no licence in the prescribed form was actually issued to him and, therefore, he could not collect and dispose of the dead animals. According to him this work was got done by Zila Panchayat through its own employees. He is aggrieved by the steps taken by Zila Panchayat for the recovery of the balance of Rs. 51,000/- and claims that since the Zila Panchayat did not issue the licence it is not entitled to recover the balance and should in law refund the money paid by the petitioner. According to him the recovery of the balance of the bid money as arrears of land revenue is illegal. In its counter affidavit the Zila Panchayat has contended that on his request the petitioner was allowed to pay the bid money in instalments and that the formal licence in the prescribed form was not issued because the entire bid money was not paid but the petitioner was in fact permitted to carry out the job of collection and disposal of dead animals. It has filed a copy of the letter written by its president to the petitioner, copy whereof endorsed to the station House Officer, Police Station Kurawali permitting the petitioner to carry out the aforesaid job. Its case is that the petitioner actually availed all the rights granted under the licence for which auction was held and is bound to pay the balance of the licence fee i. e. Rs. 51,000/ -. It has annexed with the counter affidavit a copy of auction notice which requires the licensee to execute a written duly stamped contract and further says that any arrears may be recovered by the attachment and sale of the movable and immovable properties of the defaulter as arrears of land revenue. Since counter and rejoinder affidavits have been exchanged between the parties we heard the writ petition finally on merits at the admission stage itself. Sri B. D. Maurya, Advocate represented the petitioner while the respondent was represented by Sri Bengali Yadav, Advocate.
(3.) AS stated above, there is dispute between the parties as to whether the petitioner actually availed of the right to collect and dispose of dead animals for which his highest bid was accepted by the respondent and for which the petitioner paid a total sum of Rs. 1,00,000/- as mentioned above. This is a dispute question of fact and, therefore, in exercise of jurisdiction under Article 226 of the Constitution of India it is not feasible to determine this dispute which is of pure fact and depends for its determination on oral and documentary evidence which can appropriately be decided only in other judicial proceedings like a suit. We, therefore, decline to go into this aspect of the matter leaving the parties to agitate it imappropriate forum. The only other point agitated between the parties was whether the dues in respect of the licence fee can be recovered as arrears of land revenue. Zila Panchayats have been established under the U. P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. The Act contains provision for recovery of taxes and other claims in Chapter VIII. Section 147 provides that taxes and other dues, referred to in Section 148 may be recovered by the Zila Panchayat by distraint, and sale of a defaulter's movable property in the manner hereinafter prescribed. Section 148 requires a bill to be presented to the person so liable in respect of a tax imposed by the Zila Panchayat or any other sum declared under this Act or by any rule or bye-law made under the Northern India Ferries Act, 1878, to be recoverable in the manner provided by this Chapter. Section 150 then says that where a bill remains unpaid a notice of demand shall be served. Then Sections 151 to 157 prescribe the procedure for the issue of a warrant of distress and sale of the movable and immovable properties of defaulter and in the manner of the execution of the warrant. Section 153 prescribes what properties shall be exempt from distraint Sections 158 to 160 then prescribes other methods of recovery. These sections stand as under:- "158. Alternative power of bringing suit or recovering as arrears of land revenue -- (1) Instead of proceeding by distress and sale or in case of failure to realize thereby the whole or any part of the demand, the Zila Panchayat may sue the person liable to pay the same in any Court of competent jurisdiction. (2) In the case of an arrear of tax on Circumstances and Property, a Zila Panchayat may in addition to the power to take recourse to the provisions of Section 148 or subsection (1) of this Section, but subject to and in accordance with rules made in this behalf recover them as arrears of land revenue. " "159. Recovery of rent of land-- Where any sum is due on account of rent from a person to a Zila Panchayat in respect of land vested in or entrusted to the management of the Zila Panchayat, the Zila Panchayat subject to and in accordance with rules made in this behalf may recover any such arrear as arrear of land revenue. " "160. Recovery of rent for other immovable property-- Any arrears due on account of rent from a person to the Zila Panchayat in respect of immovable property, other than land vested in or entrusted to the management of the Zila Panchayat, shall be recovered in the manner provided in Section 148".;