Advocates:
['HEMANT KUMAR', '', 'RAGHVENDRA PRATAP RAJAN', 'C S C', '', 'DEVESH KUMAR SHUKLA', 'DEVENDRA KUMAR']

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Court No. - 40

Case :- WRIT - C No. - 35856 of 2014

Petitioner :- Ravendra Kumar

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Hemant Kumar,Raghvendra Pratap Rajan

Counsel for Respondent :- C.S.C.,Devendra Kumar,Devesh Kumar

Shukla

Hon'ble Manoj Misra,J.

Hon'ble Dinesh Pathak,J.

1.

Heard Sri R. P. Rajan, learned counsel for the petitioner; the

learned Standing Counsel for the respondent nos.1, 2 and 3; and Sri

Devendra Kumar, learned counsel for respondent nos. 4 and 5.

2.

The petitioner was awarded a Theka (contract) by the Nagar

Palika Parishad, Atrauli, Aligarh (4th respondent) for realising

parking fee. To realise of the Theka dues a notice was issued to the

petitioner. Upon failure of the petitioner to deposit the demanded

amount, a recovery certificate, purportedly, under Section 173-A of

the U.P. Municipalities Act, 1916 was sent to the Collector, Aligarh to

recover the Theka dues as arrears of land revenue. Initially, the

petition was for a mandamus to command the respondent no.5 to

accept the dues in easy instalments, but the said prayer was given up

and, by amendment, the recovery certificate dated 05.04.2014 was

challenged on the ground that Theka dues could not be recovered as

arrears of land revenue by taking recourse to the provisions of Section

173-A of the U.P. Municipalities Act.

3.

The contention of the learned counsel for the petitioner is that

under Section 173-A of the U.P. Municipalities Act, the sum due on

account of a tax from a person to a municipality, without prejudice to

any other mode of recovery, may be recovered as arrears of land

revenue. It has been urged that Theka dues are not tax but contractual

dues and, therefore, recourse to the provisions of Section 173-A of the

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U.P. Municipalities Act, cannot be had. In support of the above

submissions, the learned counsel for the petitioner has placed reliance

on two division bench decisions of this Court, namely, (a) Titu Singh

Vs. District Magistrate/Collector, 2003 (5) AWC 3479 = 2003 (2)

UPLBEC 1283 = 2003 LawSuit (All) 248; and (b) Mohd. Idris and

another Vs. State of U.P. and another, 2011 (4) AWC 3711.

4.

The learned counsel for the respondents have neither been able

to cite any decision or authority to the contrary nor could cite any

provision under the U.P. Municipalities Act, 1916 to demonstrate that

Theka dues are to be treated as Tax. The respondent counsel,

however, submits that since the petitioner has not, initially, disputed

the liability, the petition should not be entertained.

5.

We have considered the rival submissions. Section 173-A of the

U.P. Municipalities Act, 1916 reads as under:-

"173-A.-Recovery of taxes as arrears of land

revenue.- (1) Where any sum is due on account of a

tax, other than any tax payable upon immediate

demand, from a person to a board, the board may,

without prejudice to any other mode of recovery apply

to the Collector to recover such sum together with costs

of the proceedings as if it were an arrear of a land

revenue.

(2) The Collector on being satisfied that the sum is due

shall proceed to recover it as an arrear of land

revenue.”

6.

In Titu Singh (Supra) Theka dues were sought to be recovered

as arrears of land revenue. While holding that the Theka money was

not recoverable as arrears of land revenue under Section 173-A of the

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U.P. Municipalities Act, the Division Bench observed as follows:-

"(6). From perusal of the aforesaid provisions of the

Municipalities Act and Town Area Act, it is clear that

the contention of the learned Counsel for the petitioner

is well founded. Under Section 173-A of the

Municipalities Act, it is provided that any sum due on

account of tax, other than octrol or toll or any similar

tax payable upon immediate demand, from a person to

a board, the board may recover as arrears of land

revenue. In the instance case the amount in question

became due from the petitioner as a result of defaul