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Mailindra Singh and ors. Vs. Naib-tehsildar Recovery and Collector, Kashipur and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 4146 of 1971
Judge
Reported inAIR1974All456
ActsUttar Pradesh Zamindari Abolition and Land Reforms Act, 1947 - Sections 279, 281 and 288; Uttar Pradesh Tenancy Act - Sections 148 and 153
AppellantMailindra Singh and ors.
RespondentNaib-tehsildar Recovery and Collector, Kashipur and ors.
Appellant AdvocateS.B. Chaudhary, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
tenancy - arrears of land revenue - sections 279, 281 and 288 of u.p. zamindari abolition and land reforms act, 1947 - arrears of rent of plot acquired by government - limitation of three years expired - u.p. tenancy act repealed - recovery challenged on basis of limitation - arrears to be recovered as arrears of land revenue under u.p. zamindari abolition and land reforms act, 1947. - - learned counsel for the petitioner has failed to show to me any provision whereby the period of limitation mentioned under section 148 applied to the dues which could be recovered under the provisions of section 152 of the u. he has, therefore, failed to substantiate that the demand made by the respondents in respect of arrears of rent for any part of the period between the years 1360 fasli and 1378..........praying that the respondents be restrained from realising the amount claimed by them as arrears of land revenue by use of coercive process. this court, by an order dated 3rd august, 1971, directed that recovery of dues as arrears of land revenue shall remain stayed provided the petitioners deposit with the naib tehsildar a sum of rs. 500 by the 7th of each month. the first deposit was to be made by the 7th september, 1971. the petitioners claim that ever since then they have been regularly depositing the amount as directed by this court.4. learned counsel for the petitioners submitted that their liability to pay rent accrued under the u.p. tenancy act. section 148 of the act laid down that except as provided by that act, arreer of rent could be recovered either by a suit or by serving.....
Judgment:
ORDER

H.N. Seth, J.

1. By this petition under Article 226 of the Constitution the five petitioners pray that notices (Annexures I, II and II-A to the petition) issued under the provisions of Section 279 and Section 281 of the U.P. Zamindari Abolition and Land Reforms Act, for recovering certain amount alleged to be due against them, be quashed.

2. The petitioners claim that they were hereditary tenants of certain plots lying in villages Sarwar Khera, Kudiawala and Gangapur in Kashipur Tahsil, District Nainital. On 27-5-1971, the Amin of Tehsil Kashipur issued demand notices requiring them to pay various amounts alleged to be due from them on account of arrears of rent for the period upto 1378. It is not disputed that in due course the State of U.P. acquired proprietary rights in respect of various plots in Kashipur Tehsil in the year 1949, and thereafter the petitioners who were the hereditary tenants of sueh plots, continued to Day rent in respect thereof to the Colonisation Department of the State of U.P. upto the year 1360 Fasli. Since, the petitioners were not recorded as hereditary tenants in the revenue papers, the Colonisation Department treated them as trespassers and declined to accept rent from them. Ultimately the dispute regarding petitioners' right in various plots was resolved under the orders dated 24-9-1970 passed by the Commissioner Kumaon Division, who held that originally the petitioners were hereditary tenants of those plots and after U.P. Zamindari Abolition and Land Reforms Act became applicable to the area in question with effect from 26-1-1970, they, as provided in Section 18 of the Act, became Bhumidhars of those plots. Thereafter, when the rent was again demanded from the petitioners, they offered to pay only such rent which had fallen due within a period of three years. They contended that the rent prior to that period had become barred by limitation and the respondents had no right to recover the same. The respondents, however, did not accept part payment of rent and initiated proceedings under Sections 279 and 281 of the U.P. Zamindari Abolition and Land Reforms Act, for recovering the entire arrears of rent for the period 1360 Fasli to 1378 Fasli, by serving upon the petitioners the impugned notices dated 27th May, 1971.

3. After filing the present petition, learned counsel for the petitioner moved an application dated 7th July, 1971, praying that the respondents be restrained from realising the amount claimed by them as arrears of land revenue by use of coercive process. This court, by an order dated 3rd August, 1971, directed that recovery of dues as arrears of land revenue shall remain stayed provided the petitioners deposit with the Naib Tehsildar a sum of Rs. 500 by the 7th of each month. The first deposit was to be made by the 7th September, 1971. The petitioners claim that ever since then they have been regularly depositing the amount as directed by this Court.

4. Learned counsel for the petitioners submitted that their liability to pay rent accrued under the U.P. Tenancy Act. Section 148 of the Act laid down that except as provided by that Act, arreer of rent could be recovered either by a suit or by serving upon the petitioners notices through the Tahsildar in accordance with the provisions of the Act. According to Item No. 2 of the IV Schedule, a suit for recovery of arrears could be filed before the Assistant Collector 1st Class and the period of limitation for such a suit was three years. The procedure for recovery of arrears of rent through the Tehsildar, has been laid down in Section 163 of the Act, according to which such arrears as do not exceed three years alone could be recovered on an application being made to the Tehsildar Collection. Accordingly, under the provisions of the U.P. Tenancy Act, arrears of rent beyond a period of three years have not been made recoverable and the respondents had no jurisdiction to demand from the petitioners rent for a period prior to 1375 Fasli. Further, apart from the two procedures mentioned above, the U.P. Tenancy Act did not contemplate any other mode for recovery of arrears of rent. The respondents were, therefore, not entitled to recover the same in the manner provided for recovery of arrears of land revenue.

5. Section 148 of the U.P. Tenancy Act is a general provision providing for recovery of rent. The section opens with the words, except as otherwise provided, i.e. if there is any other provision in the U.P. Tenancy Act which deals with the subject of rent, that provision would not be affected by what is contained in this section. I find that Section 153 of the U.P. Tenancy Act provides that arrears of rent due in respect of the Crown property or that in respect of an estate attached under the provisions of Section 150 of the United Provinces Land Revenue Act 1901, may be recovered in accordance with the provisions of Sections 39 to 42 of the United Provinces Court of Wards Act 1912, as if they were dues in respect of the property under the charge of Court of Wards. It is not disputed that after the plots, in respect of which the arrears are claimed, were acquired by the State Government in the year 1949, they became Crown property. Accordingly, arrears of rent of such a property could be recovered under Section 153 of the U.P. Tenancy Act. The limitation contained in arid the method of recovery provided in Section 148 did not in any way affect the provision of Section 153 of the Act, providing for recovery of such arrears in the manner provided for recovery of dues in Sections 39 to 42 of the United Provinces Court of Wards Act. According to those sections the dues mentioned therein were to be recovered as if they were arrears of land revenue. It follows that before the repeal of the U.P. Tenancy Act, by the U.P. Zamindari Abolition and Land Reforms Act in respect of areas lying in Kashipur Tehsil, the arrear of rent could be recovered as if it was an arrear of land revenue. According to Section 288 of the U.P. Zamindari Abolition and Land Reforms Act, the provisions of the Act with regard to recovery of arrears of land revenue were to apply to all arrears of revenue and sums of money recoverable as arrears of land revenue at the commencement of that Act. It is thus clear that notwithstanding repeal of U.P. Tenancy Act, the amount claimed by the respondents was recoverable as arrears of land revenue, under Sections 279 to 281 of that Act. Learned counsel for the petitioner has failed to show to me any provision whereby the period of limitation mentioned under Section 148 applied to the dues which could be recovered under the provisions of Section 152 of the U.P.Tenancy Act read with Section 39 of theU.P. Court of Wards Act. He has, therefore, failed to substantiate that the demand made by the respondents in respect of arrears of rent for any part of the period between the years 1360 Fasli and 1378 Fasli was barred by limitation.

6. Learned counsel for the petitioner then contended that after the U.P. Zamindari Abolition and Land Reforms Act was brought into force in the area in question with effect from 26th January, 1970, the petitioner became a Bhumidhar of the concerned plots and thereafter he was liable to pay merely land revenue and not rent. Accordingly demand of rent for a period subsequent to 26th January, 1970 was invalid. Learned counsel for the respondents, however, contends that the notice of demand does not include any amount which is payable by the petitioner after 26th January, 1970 and if by some mistake any such amount has been included therein, the notice of demand would be suitably modified and if any excess amount has been recovered by them, they would refund the same to the petitioner. In this view of the matter it is not necessary for me to investigate whether the notices of demand impugned in this writ petition include any portion of the amount or part thereof which would become payable by the petitioner for a period subsequent to 26th January, 1970.

7. The petition therefore has no force and is dismissed with costs.


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