Kunwar Vikram Singh vs Prabhari Adhikari, Town Area Committee (Sub-Divisional Magistrate) and Others

Ravi S. Dhawan, J.—This writ petition was originally filed by Rani Brijraj Kunwar, widow of the late Raja Bahadur, Raja Bhagwati Prasad Singh, resident of village Ram Garh, Tappa Daiya. Pargana Khairgarh, Post Office Ram Garh, District Allahabad, seeking a writ of mandamus, in effect, a direction to Respondents not to interfere with the Petitioner''s right of collecting the tahbazari in Koraon market, known as Gola market, and also the other markets of Koraon which had been settled with her by the ad interim Zila Parishad, Allahabad. The Petitioner further seeks a writ of mandamus restraining the Respondents not to auction the tahbazari of Koraon markets, which is held on the parties (roadside) of the roads of Koraon. Originally the Respondents were : (1) The Prabhari Adhikari, Town Area Committee, Koraon, Tehsil Meja, through the Sub-Divisional Magistrate, Meja. District Allahabad, and (2) the Zila Parishad, Allahabad, through the District Magistrate, Allahabad. Notice was issued on this writ petition on 20th April, 1982. The prayer for an ad interim relief was initially granted at the time when notice was issued, but subsequently rejected on 27th November, 1991.

During the pendency of the writ petition, two impleadment applications were moved. One on the side of the Petitioner, the other by the Respondents. Neither objected to the impleadment sought by the respective applicants. Thus, the applications were allowed and the impleadments were permitted. An applicant sought impleadment as a Petitioner. This was Kunwar Vikram Singh, the grandson of the Petitioner, Rani Brijraj Kunwar, and the son of the late Hon''ble Mr. Justice Chandra Shekhar Pratap Singh, also resident of the same village and tehsil. The Petitioners, thus, before and after impleadment are the erstwhile Zamindars of Tappa Daiya. The Respondents also applied to implead the Chairman, Town Area Committee. Koraon, Allahabad. The Petitioner did not object to this application. This impleadment has. also, been permitted.

On facts, whatever be the right of the Petitioner, there is no issue between the Petitioner and the Town Area Committee that a right, by a contract, as has accrued to the Petitioner, from this local body, is a matter of record. On 25th January, 1956 a covenant was signed between the erstwhile Zamindar, the original Petitioner, and the Secretary, District Board, Allahabad, which decision the District Board, Allahabad, took at its meeting. This local body passed a Resolution No. 96 dated 8 January. 1956 with intent and purposes to assign the right to collect tahbazari to the Petitioner from certain named roads of village Koraon in Tehsil Meja. The District Board took its decision and made an offer to the Petitioner of an assignment of the contract. Before the covenant was signed the Petitioner accepted the offer, the local body accepted the consideration. The covenant grants the rights to collect tahbazari for ninety years. The duration of these rights, under the contract, are effective from 1 April, 1955 to 31 March, 2045. Certain conditions have been stipulated by the lessor, the then District Board. One of the conditions is that the consideration of the contract would see an increase of 50% every 30 years. The rate of tahbazari on each item of sale as a consequence of hawking in the bazar, is mentioned in the schedule to the contract. There are 42 items. The covenant also stipulates that as long as the lessee abides by the conditions of contract, the right so conferred will continue with him as also with his heirs.

The contract was worked without issue for about 25 years until the lessor seemed to be substituted by a legal successor. This situation was involuntarily to the Petitioner. This situation was involuntarily to the Petitioner. The District Board found itself replaced when a notification u/s 3 of the U.P. Town Area Act, 1914 (U.P. Act No. 2 of 1914) declared the village Koraon in district Allahabad to be a Town Area and to be known as Town Area, Koraon. This notification was published in the U.P. Extra-ordinary Gazette, dated 10 September, 1981. Simplicitor, the notification as a measure of formality gave the territorial limits of the extent to which the Town Area had been identified towards north, south, east and west.

Thus, on record there stands a standing agreement between the Zila Parishad (District Boaid) and the Petitioner. But. an overt act was done by the Zila Parishad when the Deputy Executive Officer attempted to cancel the agreement. The Petitioner (then Rani Brijraj Rani Kunwar) filed a writ petition. The order of 23 September, 1977 of the Zila Parishad was quashed on the ground that principles of natural justice had not been adhered to before cancelling the contract. The breach of the agreement was certified. This is the judgment dated 1 May, 1991 of Division Bench, comprised of the Hon''ble S. K. Dhaon and Hon''ble G. D. Dubey, JJ. After five years when Koraon became a Town Area, its Secretary recommended to the Prabhari Adhikari, by a report of 20 March, 1982 that the right to collect tahbazari at the bazar on the roadside parties (sidewalks) of the village be put to public auction. The order of 20 March, 1982 has been appended as Annexure 2 to the writ petition. The report is in Hindi, the translation of which in English is reproduced below:

The Prabhari Adhikari, Town Area, Koraon. -- The auction for the year 1982-83 of the following within the Town Area Koraon is most necessary.

Tahbazari Market (All public places, lanes and roads etc.

Auction of cattle pound.

Auction of cycle and other vehicles etc.

Auction of pond.

The aforesaid auctions are proposed to strengthen the financial condition of the Town Area. If you agree, please fix the day. date and place so that the general public may be informed by beat of drums.

Sd/- Secretary, Town Area, Koraon 20.3.82

Auction be held on 27.3.82.

Order of Pargana Adhikari. Meja (in English)

Sd/- Pargana Adhikari, Meja 20.3.82

The report does not mention or brief the Prabhari Adhikari that, in reference to the context, on the action contemplated, the rights which were intended to be assigned by a public auction were already a subject matter of a subsisting contract between Rani Brijraj Kunwar (the then Petitioner) and the District Board by an agreement signed on 21 January, 1956. The Petitioner represented against the contemplated action of the Town Area to put the collection of tahbazari to public auction during the subsistency of the contract settled with her. The Petitioner mentions that on her representation the Town Area Committee stayed the auction on 27 March. 1982 but were threatening to resume the auction proceedings. Thus, the present writ petition was filed.

Pleadings have been exchanged in answer to the writ petition. A counter-affidavit, now on behalf of the Town Area Committee, Koraon, and a reply by a rejoinder-affidavit, by the Petitioner are on record.

The Court has heard at length arguments submitted by the Petitioner and the Town Area Committee, Koraon.

On behalf of the Petitioner it has been contended that similar contracts with erstwhile zamindars by the local administrations have been the subject-matter of decisions by the High Court. In reference to these, the Petitioner draws the attention of the Court to the decision by a Bench of the Hon''ble Satish Chandra, C.J. and the Hon''ble A. N. Verma, J., in Writ Petition No. 3 of 1978; Raja Kamlakar Singh v. Prescribed Authortity (Sub-Divisional Magistrate), Koraon Town Area, Shankargarh, Allahabad, and Ors. The decision is dated 15 April, 1982. The Court was Interpreting and upholding the continuation of a kabuliyat executed by the parties in the matter when tahbazari rights for a market on a roadside at Shankargarh had been settled by contract between the District Board, Allahabad and Raja Kamlakar Singh. Initially, the local administration was the District Board, Allahabad. Later it became a Town Area, in circumstances similar to the present one. A passage from this judgment including recommendation of the Government is relevant, and is reproduced below:

...Enquiries have been made whether such Hats, Bazars and Melas should be deemed to have vested in the State Government wholly or partly the management of these Hats, Bazars and Melas and the income therefrom has to be apportioned between the intermediaries and local bodies and, if so, in what manner. The Government gave its decision. It stands:

As regards the legal position, I am to state that the part of the Hats, Bazars and Melas held on Sir. Khudkasht and grove etc. continues in the ownership of the intermediary and the part held on other land has vested in the State Government. Legally, it is, therefore, possible to allow the different agencies to manage these Hats, Bazars and Melas, i.e., the intermediaries can continue to manage them in so far as they are held on their land and the local bodies (Disrict Boards or the Gaon Samaj, as the case may be) can take over the management of the other part of the Mela. Such an arrangement, however, is bound to lead to serious difficulties and involve the danger of disputes. I am, therefore, to advise that in such cases an attempt should be made to arrive at an amicable settlement with the intermediaries. These settlements can take on of two shapes. Firstly, the management be left over entirely to the intermediary on the condition that he pays to the Gaon Samaj or the District Board, the part of the income appertaining to land other than Sir, Khudkasht or grove etc. The total income may be apportioned according to the area. For instance, if the total area which 50 acres are Sir, Khudkasht or grove, the annual income in 1359F may be ascertained and distributed into two equal portions. Zamindars may be given a licence for holding the Mela on wasteland, etc. at an annual rent equal to half the total income of the Mela. Secondly, by a similar arrangement the management could be taken over by the local bodies concerned, in which case it would be the intermediary who would give a licence on similar terms for the Mela being held on his Sir, Khudkasht or grove.

It appears that at Shankargarh a Bazar or Mela was being held since long. A part of the Mela was held on roadside or patri while the rest was being held in an enclosure called Galla Godown. The part which was held on the godown remained vested with the intermediary, namely, the Petitioner while the Mela which was being held on the roadside or patri vested in the State Government. Till then the Mela was being managed by the Petitioner completely.

In view of the aforesaid instructions of the Government, negotiations ensued between the Petitioner and the District Board because in view of the directive of the Government dated July 2, 1952, the management of the Hats, Bazars and Mela at Shankargarh had been entrusted to the District Board.

Ultimately, the Court had to declare that the Respondents, i.e., the Town Area Committee, Shankargarh, District Allahabad, were not to interfere with the right of Raja Kamlakar Singh, the Petitioner, to collect tahbazari at Shankargarh markets under the agreement. That writ petition succeeded.

In similar circumstances, the Court had yet another situation to interpret a similar contract with one Rani Rajendra Kumari, wife of Raja Kamlakar Singh. The action impugned was of a Town Area Committee in the matter of Writ Petition No. 3883 of 1977 : Rani Rajendra Kumari v. Zila Parishad, Allahabad and Anr. It was decided on 6 January, 1987 by a Division Bench of which one of us was a member. The action of the Town Area Committee cancelling the collection of tahbazari under a contract assigned to Rani Rajendra Kumari, was quashed.

Against the decision of Hon''ble Chief Justice Satish Chandra, C.J., and Hon''ble A. N. Verma, J., in re. Raja Kamlakar Singh v. Prescribed Authority/Sub-Divisional Magistrate, Karchhana, Town Area, Shankargarh. Allahabad and Ors. (supra), an appeal was filed before the Supreme Court. The judgment of the High Court, dated 15 April, 1982, was affirmed by the Supreme Court on 19 September. 1983. and this fact finds mention in the judgment in Re Rani Rajendra Kumari (supra).

On behalf of the Respondents the submissions as have been made are:

(a) whatever has been done by any authority prior to the Town Area being declared, is totally irrelevant as the earlier local body (the District Board) ceased to be operative. And, of any contract assigned by lease or license stands "impliedly repelled";

(b) in view of the fact that Koraon had been declared as a Town Area in the year 1981 all earlier transactions, agreements and contracts entered by the earlier authorities, ceased to be operative;

(c) the Respondents, i.e., the Town Area Committee now have a right to collect this tahbazari by Section 14 of the Uttar Pradesh Town Area Act, 1914, notwithstanding any arrangement which has been made as a measure of formality by contract or otherwise. It is urged that anything done by the earlier authority, had not been continued by the Notification dated 9 September, 1981 declaring Koraon as a Town Area.

(d) the counter-affidavit on behalf of the Town Area describes the contract between the Petitioner and the District Board, as an illegal and unfair contract by an authority which has no relevance now after the year 1981, the year when Koraon became Town Area.

Summing up, the submission are, to the effect, that the declaration of Koraon as a Town Area by the notification of 9 September. 1991 has repealed all the agreements and contracts signed by the District Board and such contracts have ceased to be operative and have not been saved by the Act. To submit that the contract with the Petitioner does not survive, reference was made to two decisions in Radhakrishna Agarwal and Others Vs. State of Bihar and Others, and Bareilly Development Authority and Another Vs. Ajay Pal Singh and Others,

The arguments so made on behalf of the Respondents were replied by the Petitioner. The theme of reply being that there is a continuity of arrangement in administration, and contracts made cannot be violated so easily as has been submitted and that, legislation is so structured that in local administration a change in corporate characteristics maintains the continuity, otherwise, there would be an impossibility in continuing valid arrangements, specially when the breach of it is not at the instance of the Petitioner nor alleged to be so.

Neither of the two cases cited apply to the circumstances of the writ petition under consideration.

Both the cases were about revision of the terms of the contract, and not about the assignment of it to a third party. The case of Radhakrishna Agarwal (supra) was directed against the orders of the State Government revising the rate of royalty payable by the Petitioner during subsistence of the lease. The contract provided for revision of the rates of royalty. Mala fides were also alleged in the cases cited. In such circumstances, the Court held that competing claims have to be investigated and found before the question of violation of Article 14 could arise. It was further held that disputes on facts which require an investigation could not be conveniently or satisfactorily decided in a writ jurisdiction. Thus, the Supreme Court held "we are certain that the cases before us are not such in which powers under Article 226 of the Constitution could be invoked." In the other case, the matter of the Bareilly Development Authority (supra) the issue related to the redetermination of the cost of the Appellants'' flats and instalments payable by them. The revised terms and conditions gave the cause to bring issue to the High Court; those opposing the change maintained that the original terms and conditions be retained. The record revealed that given certain constraints the Bareilly Development Authority had been invested with the right to modify the terms and conditions or increasing costs co-related with inflation. Such issues where contractual rights are governed only by the terms of the contract, the Supreme Court held no writ or order can be issued under Article 226 of the Constitution of India as there was no unreasonableness on the part of the Bareilly Development Authority in increasing the cost of the houses/flats as the aspect of revising costs and price determination after the contract has been entered permitted this authority to act purely in its executive capacity and disputes were governed not by statute or constitutional provisions but the contract.

The cases cited by the Respondents do not apply and their context has been torn and misplaced in citing them. The submissions were wound up by even offering an argument before the Court that the Town Area Committee, Koraon, may have brazenly broken the contract; yet the Petitioner''s remedy is not here, but elsewhere.

The spirit of the Constitution of India gives a guideline to the Court that there is a link between the past, the present and the future. The obligations on whoever ruled India previously, in the matter of properties, contracts, rights, liabilities, obligations and suits, the continuity came to vest with the Union of India and the corresponding States. The rights, liabilities and obligations before the republic, became the rights, liabilities and obligations of the Government of India and the Government of each corresponding State. Such is the theme which is indicated in Part XII, Chapter III of the Constitution of India.

On this learned Counsel for the Petitioner, Mr. Keshari Nath Tripathi, Senior Advocate, has submitted that the contention of the Town Area Committee to the extent that they are not bound by any agreement which may have been entered with the Petitioner by its predecessor-in-law, being the District Board, is an argument which cannot hold except to make the pattern of administration archaic and send a message that a State or a local administration vested with the attribute of the State does not honour its obligations. In this context, learned Counsel for the Petitioner drew the attention of the Court to certain provisions of other enactments of Uttar Pradesh which interconnect these other enactments in a theme of a spirit of continuity in local administration so that obligations, on which faith has been given, cannot be disturbed so easily as has been contended on behalf of the Town Area Committee.

It was submitted on behalf of the Petitioner that all that has happened is that by a notification under the United Provinces Town Area Act, 1914, Koraon has been declared as a Town Area. This Act or the legislation is eighty years old today. The contention is that if every village which became a District Board or a District Board a Town Area and the latter a Municipal Board, were to contend that all previous agreements do not hold, it would be a bad day for local governments or bodies to suggest that past contracts will not be honoured.

To show how the decision of the District Boards found continuity, the Courts''s attention was drawn to three other legislations of Uttar Pradesh. These are the U.P. Panchayat Raj Act, 1947, the U.P. Kshetra Samities and Zila Parishad Act, 1961 and the U.P. Municipalities Act, 1916. The court''s attention was Invited to Section 8 of the U.P. Panchayat Raj Act, which is reproduced below:

Effect of change in population or inclusion of the area of a Gaon Sabha in Municipalities. etc -- If the whole of the area of Gaon Sabha is included in a city municipality, cantonment, notified area, or town area, the Gaon Sabha shall cease, and its assets and liabilities shall be disposed of in the manner prescribed. If a part of such area is so included, its jurisdiction shall be reduced by that part.

It was submitted that it is the normality of the situation and it is often that an area of a Gaon Sabha is included either in a city, municipality, cantonment, notified area (emphasis) or town area (emphasis) in which case the Gaon Sabha ceases. Thus, it was submitted that the assets and liabilities of the Gaon Sabha are disposed of in the manner prescribed. The obligation to take over, as an advantage, the assets of the Gaon Sabha or the disadvantage of the liabilities, is routine which the law recognises and provides for. In this regard, the Court''s attention was invited to Rule 3A of the U.P. Panchayat Raj Rules, 1947. In so far as they are relevant, the first part of this rule is reproduced.

3A. Change in the Jurisdiction of Sabhas. -- {1) A Sabha may, after a resolution to that effect has been passed, make suggestions for changes in the Jurisdiction of Sabha. A copy of the resolution shall be sent to the District Panchayat Officer who shall forward it to the Director of Panchayats for necessary action.

It was submitted that the manner in which the assets and liabilities would be transferred to the local body which takes over the administration in lieu of the Gaon Sabha has also been prescribed by law. It was submitted that the District Board, as a local body or a local administration functioned under the United Provinces District Boards Act, 1922. This enactment was repealed by the U.P. Kshetra Samities and Zila Parishad Adhiniyam, 1961. Reference was made to Chapter XIV of the 1961 Act, aforesaid, titled ''Transitory, provisions, Repeals and Amendments." Then, the Court''s attention was drawn to Section 267 to say that while the District Boards were being phased out an ad interim Zila Parishad known as " Antarim Zila Parishad" was provided for to infuse the rights and obligations which ultimately passed to the Zila Parishad under the aforesaid, Act. Thereafter, the Court''s attention was drawn to Section 269 which referred to debts, obligations, contracts and pending proceedings and lastly in reference to the 1961 Act, reference was made to Section 270 providing for "Continuation of appointments, taxes, budget, estimates, assessments, etc.". It was pointed out that Section 270 provides that of any appointment, delegation, notification, notice, tax, order, direction, scheme, licence, permission, registration, rule, bye-law, regulation, form made, issued imposed or granted under certain enactments or any other law in force in so far it is not inconsistent with the provisions of the 1961 Act continue in force until superseded in accordance with law. On this aspect Court''s attention was drawn to the U.P. Municipalities Act, 1916, with particular reference to Section 116 and, thereafter, the Uttar Pradesh Town Area Manual where a specific Chapter refers to certain provisions of the U.P. Municipalities Act, 1916. There is a reference by context to amendments in regulations by adopting the provisions of Section 116 of the U.P. Municipalities Act, 1916, which insertion has been made vide Notification No. 4200-T/XXXIII-34-T{15)-60.

In this regard, it is submitted that the Gazette notification refers the provisions of Section 116 and places the management of certain properties indicated in Clauses (a), lb), (c), (d), (e), (f) and (g) of Section 116, with the Town Area Committee. The properties indicated and the context refers to public townhalls, gates, markets, slaughter-houses, manure and night-soil depots, and public buildings of every description, public streams, lakes springs, tanks, wells and works for the supply, storage and distribution of water for public purposes and all bridges, buildings, engines, public sewers, drains, culverts, and water sources, and all works, all dust, dung, night soil, ashes, refuse, animal matter or filth or rubbish of any kind, or dead bodies of animals collected by the Board from the streets, houses, privies, all lands or other property transferred to the Board by the Government or by gift, purchase or otherwise for local public purpose, public streets and pavements, stones and other materials, thereof, and also all trees, erection materials, implements and things existing on or appertaining to such streets.

Between the provisions of the Constitution of India to which the Court has referred, particularly, Part XII, Chapter III, and the submissions as have been made by the Petitioner, there is harmony which permits the legislations referred, to be interpreted in such a way that there is a continuity on the transfer of both assets and liabilities whenever local Government sees a change in heirarchy or status from a District Board becoming a Town Area and a Town Area into a Municipality and a Municipality into a city corporation. The Constitution of India suggests continuity of administration. The Court cannot lend itself to situations that whenever the status of a local administration changes in the manner indicated or, for that matter, a local authority may be superseded, a phenomena which does happen frequently in this State, all previous binding contracts, and covenants will be broken as a routine. The Court cannot accept such an interpretation.

Further, previous judgments of this Court to which reference has been made in Re Raja Kamlakar Singh v. Prescribed Authority (Sub-Divisional Magistrate, Karchhana) Town Area Shankargarh, Allahabad and Ors. (supra) and in Re Rani Rejendra Kumari v. Zila Parishad, Allahabad and Anr. (supra) do not permit the Court to take any other view. One of the judgments, in fact, had even been affirmed by the Supreme Court.

In the circumstances, the attempt of the Town Area Committee, Koraon, to wriggle out of a contract between its predecessor-in-law, the District Board, cannot be certified as an action in accordance with law. Simply put, the Court certifies that this circumstance was one of error by the Town Area Committee, Koraon. The agreement subsists.

By submitting that the Town Area has committed an overt act and the Petitioner may file a suit for compensation is not the excellence of the situation nor a solution. Past decisions of the High Court give some confidence to the Petitioner and guidance to the Town Area Committee, Koraon, that the agreement signed with the Petitioner or, for that matter, an erstwhile Zamindar continues. It can only be taken away by two modes, one is legislation, the other is the principle of force majeure. There is nothing indicated to the Court that either of the two situation has happened.

One of the circumstances, the Court may indicate, but that is not a matter to occasion a breach of agreement, but finding a solution. The Court indicated to both the Petitioner and Respondent, Town Area Committee that certain decisions of the Supreme Court in the last ten years clearly indicate that street hawking in today''s context is a phenomena which has dated. It has dated because there is pressure on public roads and streets of the nation whether the streets are in villages, town areas, municipalities, city corporations or metropolitan cities. There are enumerable decisions of the Supreme Court indicating that streets are meant for the purposes of passage only and for no other purpose. The first of these decisions, is being forgotten as it was rendered more than thirty years ago in the matter of Municipal Board, Manglaur Vs. Sri Mahadeoji Maharaj, . The case was unnoticed but the principle laid down by the Supreme Court in this decision was reiterated subsequently two decades later in two decisions of Bombay Hawkers'' Union and Others Vs. Bombay Municipal Corporation and Others, and Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, . Then came the decision of Municipal Corporation of Delhi Vs. Gurnam Kaur, . The last decision of the Supreme Court is in the matter of Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and others, .

The principle is that street hawking as an institution is now not to be encouraged on public roads and streets. And effectively a solution of the problem will have to be found. This activity of street hawking cannot take place on streets, roads and side-walks, ''patri'' as is known in Uttar Pradesh. Therefore, if the contention of the Town Area Committee is that the Petitioner cannot collect tahbazari from hawkers on the street, whatever may be the reason, the same principle applies to the Town Area Committee and that what the Petitioner may not do the Town Area Committee, also, cannot do.

It has been indicated to the Court that Tahbazari is a right which has been conferred on the Town Area Committee, Koraon and now it is not the Petitioner''s right, notwithstanding that a contract may have been signed between the Petitioner and the predecessor-in-law of the Town Area Committee, that is, the erstwhile District Board. The argument is misplaced. All that has happened is. a situation noticed by the Court that Koraon was declared as a Town Area. The enactment under which Koraon will function now as a Town Area was passed in 1914. Here, the Court is not interpreting Section 14 on which the Court''s attention has been drawn and is reproduced below:

Imposition of town tax. -- (1) Subject to any general rules or special orders of the (State Government) in this behalf, the taxes which a committee may impose are the following:

(a) A tax upon rent payable under the provisions of the United Provinces Tenancy Act, 1939, not exceeding (Six paise) in a rupee of such rent, the tax being payable by the person or persons severally or jointly recorded as tenant of a holding or in receipt of sayar income therefrom as defined therein:

Provided that the tax payable by a permanent tenure holder or fixed rate tenant may be up to (nineteen paise) in a rupee.

(b) A tax upon the rent received by proprietors or under-proprietors on account of land as defined in Section 3 of the United Provinces Tenancy Act, 1939, not exceeding (three paise) in a rupee of such rent, the tax being payable by the person or persons severally or jointly recorded in proprietary or under-proprietary possession of any land in accordance with the provisions of Section 32 thereof.

(c) A tax upon the assumed rental value of sir and khudkasht land calculated in accordance with the provisions of Section 63D of the United Provinces Land Revenue Act, 1901, at a rate not exceeding (eight paise) in a rupee payable by the person or persons severally or Jointly recorded in proprietary or under-proprietary possession of the land in accordance with the provisions of Section 32 thereof.

(d) A tax on trades callings or professions not exceeding such rates as may be prescribed.

(e) A tax upon a building payable by the owner thereof not exceeding such rate as may be prescribed, provided that such owner is not already assessed under Clauses (a), (b) or (c), above.

(f) A tax on persons assessed according to their circumstances and property not exceeding such rate and subject to such limitations and restrictions as may be prescribed.

(g) any other tax, being one of the taxes mentioned in Sub-section (1) of Section 128 of the U.P. Municipalities Act, 1916 (except a tax mentioned in Clauses (vii) and (viii) of that sub-section:

Provided that such a person is not already assessed under Clauses (a) to (e) above.

(2) The Committee may also impose the following taxes and fees:

(a) Fees for licensing hackney carriages.

(b) Tahbazari leviable for the use of public land or public roads.

(c) Fees for licensing carts.

(d) Fees for licensing palledars.

The Court is not interpreting whether the Tahbazari is a fee or a tax. Certain decisions of the High Court hold that it is a fee, Raj Bahadur Singh v. Collector, Etawah 1985 AWC 738. But Section 14 itself has not indicated specifically whether Tahbazari is a tax or a fee. When the Town Area Committee, Koraon, decided to auction the right to collect Tahbazari to someone else, this gave the Petitioner an occasion to file the present writ petition to contend that the Town Area Committee was contradicting itself on the submission that it has the right to collect Tahbazari. The Town Area Committee was already intending to part with its right to another. The issue plainly is whether the covenant signed between the Petitioner and the District Board, is to be honoured or breached. Judgments of this Court in similar circumstances have Indicated that the agreements signed with erstwhile Zamindars are to continue. One such decision has also been upheld by the Supreme Court

The excellence of the solution would be to blend old institutions with modern times and shed them only if they have become outmoded, archaic or outlived their utility. Sub-section (2) of Section 14 of the U.P. Town Area Act, 1914, only says that the Town Area Committee may also impose the following taxes and fees. A reference is made to Tahbazari as being leviable lor the use of public land or public roads. The section does not indicate whether it will be a tax or a fee. Whether tahbazari is a tax or a fee is not in issue. But, there are enough decisions of the Supreme Court to indicate that street hawking on public roads and streets is a dying practice. But Tahbazari as an institution has not been frustrated.

What after all is Tahbazari. Tahbazari is a charge levied on sellers of articles in a bazar either in money or in kind as the rent of the ground on which the shops or stalls are placed. Of tahbazari, the word ''tahbazari'' comes from the Persian language, the syllables Tah'' signifies a place on ground. The expression ''bazari'', is a qualification, Glossary of Judicial Terms H. H. Wilson London 500 . The two syllables put together signify assessed fee in the form of a rent for the shops or sales. It is possible that ''tahbazari, may also be a tax, Rural and Agricultural Glossary for North Western Provinces and Oudh, William Crooke. But it will have to be collected by prescribing a procedure for the assessment for it.

If the Town Area Committee takes a very strict view of the aspect that the Petitioner may not collect tahbazari from public roads, the same principle will apply to the Town Area also. The issue is not of how to break a contract, but to make it survive. The contract can be saved, if the spirit to save it is there. The Court has referred to certain provisions of other enactments which operate in the State of Uttar Pradesh. They state that there is a continuity of local administration when it changes its personality from a village to a town area to a municipality and to a city corporation. And for this, there is guidance from the Constitution of India that there is a continuity in public administration; in this context contracts are consequential as also the obligations and liabilities.

If the intention of the Town Area Committee is that there can be no Tahbazari collected on the public streets in Koraon, then, one thing is clear that even the Town Area Committee cannot indulge in this activity. If such is the situation, regard being had to certain decisions of the High Court and the Supreme Court the matter will be one of a frustration of a contract not the breach of it. Such contracts survived in identical situations by earlier decisions of the High Court. The only thing is that it is not possible to work such contracts from the side walks of public streets. What the Court in indicating is that this will be a circumstance which will apply both to the Petitioner and the Town Area Committee, but the excellence of the solution will be that another place may be found on which the collection of tahbazari may continue as changing times do not permit it to be encouraged on public streets.

The contract between the Petitioner and the erstwhile District Board, Koraon, and, today, its successor the Town Area Committee, Koraon, survives and has not been rendered in a state of breach merely because the personality of the corporate entity, as a District Board has seen a change to a Town Area Committee. The attempt to assign the tahbazari to others is illegal in the face of a subsisting contract between the Petitioner and the local body. In the circumstances similar to the matters of Smt. Brijrani Kunwar v. Zila Parishad. Allahabad and Ors. (supra), decided by a judgment of 1 May. 1991 by a Division Bench, and the matter of Raja Kamlakar Singh v. Prescribed Authority (supra), decided by another Division Bench by a judgment dated 15 April, 1982, affirmed by the Supreme Court, to assign by public auction or otherwise the same contract to others without an opportunity to the Petitioner before doing so is violation of the rule of natural Justice.

The petition, thus, succeeds, subject to observations made in this judgment. By a writ of mandamus the Respondents are restrained from interfering with the Petitioner''s right of collecting tahbazari as settled in reference to Koraon Market also known as Gola Market.

The petition is allowed with costs.