It
has been seen that the concern authority invokes the provisions of UP Z A &
L R Act 1950 to recover a sum recoverable as an arrear of land- revenue and
charging cost of recovery @ 10% of the amount stated in the recovery
certificate.
No
recovery charges / collection charges @10% for recovery as arrears of land
revenue under UP Z A & L R Act 1952 required to be paid henceforth.
Three
judges bench (comprising Hon'ble R.K. Agrawal, J.Hon'ble S.P. Mehrotra, J.
Hon'ble S.U. Khan, J.) of Hon’ble Allahabad High Court unanimously ruled
on 09.01.2013 “If
the recovery as arrears of land revenue is being made by invoking the
provisions of 1950 Act (i.e. U.P. Zamindari Abolition and Land Reforms Act,
1950) then in that event the fee prescribed under 1952 Rules for various
process for realisation of arrears of land revenue while selling moveable and
immovable properties and also where properties are not sold alone is payable”
instead of collection charges at the rate of 10% of the amount stated in
the certificate while deciding Writ C No. 56175 of 2011 titled as Mahrajwa
and others vs. State of U.P. and others.
The
aforesaid bench was constituted to decide following issue
“Whether
decision in Mange Ram & Anr. Vs. State of U.P. & others, 2010 (2) CRC
216 in so far as it takes the view that there is no provision under any of the
Acts for levying any collection charges for mere issuance of
citation or sale proclamation is correct; or, the decision in Chinta Mani Vs.
State of U.P. & Ors., 2011 (1) AWC 637 holding that provisions
of sub-section (2) of
Section 279 do not
contain any provision for an absolute waiver of recovery charges
where the citation has been issued
under sub-section (1) and
the charging section empowers the Collector to raise
such demand subject to the rules and provision of Revenue Recovery Act U.P. Act
No.37 of 2001, is correct.”
While
deciding aforesaid issue, the bench discussed extensively following laws on
cost of recovery / recovery charges / collection charges 10% for recovery as
arrears of land revenue:
1.
The Revenue Recovery Act, 1890
2.
U.P. Zamindari Abolition and Land
Reforms Act, 1950,
3.
U.P. Zamindari Abolition and Land Reforms Rules,
1952
4.
The Uttar Pradesh Agricultural Credit
Act, 1973.
5.
The Uttar Pradesh Agricultural Credit Rules,
1975.
At Page 20-21 of the attached
judgment, the Hon’ble Court observed :
“From the scheme of 1890 Act, 1950 Act
and 1973 Act as also 1952 Rules and 1975 Rules one thing is amply clear that
while Sections 3 and 5 of 1890 Act and Rule 29 of 1975 Rules speak of the
cost of recovery to be realised along with the arrears it is necessarily to be
understood and restricted to where the arrears have been recovered by the
concerned authorities. If
the authorities have not been able
to recover the amount
of arrears through coercive process undertaken by them,
then there is no question of realising the cost of recovery from the defaulter.
The issuance of recovery certificate is a ministerial job. If no concrete
further steps have been taken and the arrears have not been realised by them
and instead the defaulter pays the amount of arrears directly to the creditor
or to the person to whom it is due then it cannot be said by any stretch of
imagination that the State authorities have recovered the amount of arrears. In
that event, there is no question of realising the cost of recovery/recovery
charges from the defaulter either under the 1890 Act or under the 1975 Act. The
provisions of Section 3 of the 1890 Act and Rule 29 of 1975 Rules have to be
read accordingly”
After referring number of earlier
judicial pronouncements of cost of recovery/recovery charges / collection
charges 10% for recovery as arrears of land revenue, finally ruled:
“………… it is absolutely clear that it
has to be seen as to under what Act the recovery has been initiated.
1.
Whether it is under 1890 Act, 1950 Act
or 1973 Act.
2.
If the recovery proceedings have been
initiated under 1890 Act then in that event if the recovery is being made under
Section 3 of the Act then cost of recovery would be 10% of the amount stated in
the certificate. However, if
recovery certificate has been issued but no recovery had
been made by the
State authorities, who had issued
the recovery certificate as for example the defaulter directly
deposits the amount or therecovery certificate is withdrawn or cancelled for
any reason whatsoever thenin that event there is no question of charging any
costs of recovery. At best thefee for the process mentioned in 1952 Rules
can be levied. However, if the recovery certificate has been issued
under Section 5 of 1890 Act then there is no question of any cost of recovery
being realised as the State Government has not yet issued any notification
specifying any rate.
3.
If the recovery has been issued under 1973
Act then in that case realisation of recovery charges by the State authorities
can be made from the defaulter only where the entire amount had been recovered
by the authorities of the State.
4.
If
the recovery as arrears of land revenue is being made by invoking the
provisions of 1950 Act (i.e. U.P. Zamindari Abolition and Land Reforms Act,
1950) then in that event the fee prescribed under 1952 Rules for various
process for realisation of arrears of land revenue while selling moveable and
immovable properties and also where properties are not sold alone is payable.