- (1.) Heard Sri A.K. Sachan, learned counsel for the petitioner and the learned Standing Counsel for the respondent nos. 2, 3 and 4. A counter affidavit has been filed on behalf of the respondent no. 1 to which a rejoinder affidavit has been filed by the learned counsel for the petitioner.
(2.) The challenge raised in this writ petition is to the realization of the amount of contract which the petitioner has defaulted to deposit as arrears of Teh Bazari on the ground that Teh Bazari not being a tax, the same cannot be recovered as arrears of land revenue. Learned counsel submits that Section 173-A of the U.P. Municipalities Act, 1916 read with Section 293 thereof, does not authorize the respondents to proceed to make any such recovery as arrears of land revenue, inasmuch as, the amount of money which was part of the auction bid in favour of the petitioner, is contract money, and is not tax or any other such sum which can be realized as arrears of land revenue. For this heavy reliance has been placed by the learned counsel for the petitioner on the Division Bench judgment in the case of Mohammad Umar v. Collector and others reported in 2006 Volume 3 AWC Pg 2412 .
(3.) Learned counsel submits that in the absence of any such statutory authorization, as held in that case, the respondent Nagar Palika Parishad and the state authorities cannot proceed with the impugned recovery and, accordingly, the Division Bench that had entertained the writ petition had rightly restrained the taking of any coercive steps for such realization by the interim order dated 1st August, 2006. It is further urged that in view of the ratio of the other Division Bench judgments referred to in the case of Mohammad Umar (supra) any such realization of contract money on principles has been found to be not relatable to arrears of land revenue and, consequently, the process adopted being contrary to law, the impugned recovery proceedings deserves to be set aside.;