JUDGMENT

N.D. Ojha, J. - 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 recov