Ahmad Rathar and Others vs Tehsildar Khas and Others

Murtaza Fazl Ali, J.—This is an application for a writ of mandamus restraining the Respondents from realising a sum of Rs. 27962/2/- as

arrears of land revenue.

The petition was heard in the first instance by a single Judge of this Court and as a point of law was involved in this writ, it has been laid before

us, for an authoritative decision.

The petition arises in the following circumstances: The Petitioners entered into a con tract with Respondent No. 3 on 2-4-56 for cutting and

carriage of grass from Rakh Hari Bathi (be longing to the State), for a period from May to October, 1956. Under the contract the Petitioners

agreed to supply the grass concerned within the time fixed in the contract, and they further agreed to make themselves liable to a penalty on a

breach of the terms of the contract and they also consented that such a penalty may be realised as an arrear of land revenue, under the machinery

provided in the Land Revenue Act.

The Petitioners, however, failed to supply the grass as stipulated and accordingly the Respondents proceeded to realise the penalty as arrears of

land revenue. It appears that before taking this step, the Respondents wrote a letter to the Petitioners demanding the dues which were to be

realised from them. The Petitioners then moved the Government and obtained an order of stay from the Government but eventually the

Government rejected their representation. The Petitioners have, therefore, come up to this Court for a direction restraining the Respondents from

realising the amounts mentioned above.

In support of the rule, Mr. Dhar contended in the first place that the order realising the amount from the Petitioners is clearly hit by the principle

of natural justice as the Petitioners were not given any opportunity to show cause against this order. In our opinion, this contention does not seem

to be well founded. It appears from the admitted facts that a notice was sent to the Petitioners before taking steps for realising the amount and the

Petitioners had ample opportunity to show cause against the said order of the Respondents.

In fact the Petitioners did move the State Government against this order, but the Government rejected their representation. Apart from this, the

Petitioners were fully aware under the terms of the contract that if they fail to supply the grass within the time fixed in the contract, they were liable

to a penalty at the rate provided in the contract. The penalty imposed on the Petitioners is in fact less than the maximum rate provided in the

contract.

The Petitioners therefore were fully aware that they had in fact committed a breach of contract and that they were, therefore, liable to a penalty

under the terms of the contract to which they had agreed. Moreover, as found above, the materials on the record clearly show that the order for

recovery of the alleged amount from the Petitioners was passed after giving a complete opportunity to the Petitioners of being heard in the matter.

This contention, therefore, must be overruled

Mr. Dhar then contended that as there was no provision in the Land Revenue Act to recover the amount alleged by way of arrears of revenue,

the action of the Respondents in recovering the amount in this manner, amounted to a breach of statutory duty so as to enable this Court to issue a

writ of mandamus. Mr. Dhar further contended that although the Petitioners had agreed in the contract that the penalty could be realised as arrears

of revenue, yet as the Land Revenue Act did not apply in terms to dues claimed by the Respondents, the contract was void and the Respondents

should, therefore, be restrained from enforcing the terms of the contract.

I have given my anxious consideration to this contention, and in my opinion, this contention is absolutely devoid of any substance. It is well

settled that a writ of mandamus cannot lie to restrain a party from enforcing a contract even if the contract be an illegal one Whether a contract is

void or unenforceable is really a matter to be decided in a properly constituted suit and not in a writ of mandamus. Moreover, the Petitioners had

entered into the contract with open eyes and after full knowledge of the consequences and they cannot now turn round and ask this Court for a

declaration that the contract is void, for this would really amount to allowing the Petitioners to take advantage of their own wrong, and it is also

well settled that a writ of mandamus can only lie when the ends of justice so require. Finally, we are of the opinion, that the contract is not illegal or

void at all. In this connection, our attention has been drawn to Sections 90 and 91 of the Land Revenue Act which runs as follows:

An officer whose duty it is under any law or rule having the force of law to realise a sum of money and the same is lawfully recoverable as an arrear

of land revenue may request an Assistant Collector of the First Class under whose jurisdiction the person from whom it is recoverable resides or

holds any property to realise the same as arrear of land revenue. With such request such officer shall forward to the Assistant Collector a

certificate showing the correct amount due upto the date of such certificate.

Provided that no arrears which are more than three years old shall be realised summarily under this section.

The person from whom the money is so recovered may, if he denies his liability, sue the Government to recover the same.

In addition to any sum recoverable as arrears of land revenue, under this Act, or any other enactment for the time being in force, the following sums

may be so recovered namely:

(a) Fees, fines, costs, and other charges including rates of cesses payable under this Act:

(b) revenue due to the Government on account of pasture or other natural products of land, or on account of mills, fisheries or natural products of

water or on account of other rights described in Section 35 or Section 39 in cases in which the revenue so due has not been included in the

assessment of an estate.

(c) Sums leviable by or under the authority of the Government (xxx) (sic) as water rates, or on ac count of the maintenance or management of

canals, embankments or other irrigation works, not being sums recoverable as arrears of land revenue under any enactment for the time (sic) in

force,

(cc) Sums granted on loan by the Government for advanced studies or for undergoing advanced or specially (sic) training in India or abroad.

(ccc) Loan advanced by the Government to a person who has suffered on account of fire, flood; earthquake or a calamity of like nature.

(cccc) Sums advanced in pursuance of Cabinet order No. 1547-C of 1953 dated 15th December, 1953 as lo n by the Government to craftsmen,

artisans, and petty traders with a view to their rehabilitation in such craft, art or trade.

(d) Sums payable to the Government (xxx) by a person who is surety for the payment of any of the foregoing sums or of any other sums

recoverable as an arrear of land revenue.

(e) With the previous sanction of the Government, sums due to the postal Department, the Dharmarth Department.

(f) Sums recoverable by Government as arrears of customs import and export duties, and

(g) Sums due to the Agricultural Department on account of produce of agricultural crops including fruits, contracts or supply of chemical fertilisers.

An analysis of Section 90 would show that in order to resort to the machinery provided under this section, the sum of money should be lawfully

recoverable as arrears of land revenue. The contention is that the penalty imposed by the Respondents is not per se arrears of land revenue as

envisaged in the Land Revenue Act. In our opinion, however, the matter does not rest here. The words used in this section are not merely ""an

arrear of land revenue"" but ""lawfully recoverable as arrears of land revenue. ""...Under these circumstances, if a party which is fully conscious of its

rights agrees, that certain sum of money should be realised through the machinery provided in the Land Revenue Act, and as arrear of land

revenue, we do not see how the contract will become void on that account.

It is always open to a party to agree as to how the rights under a contract may be effectually settled. The Petitioners having agreed that instead of

taking recourse to the ordinary procedure of the Civil Courts, the mode of realisation should be one provided under the Land Revenue Act, the

provisions of Section 90 at once come into play and by virtue of such an agreement the sum of money becomes lawfully recoverable as arrears of

land revenue. Almost precisely a similar question was canvassed before a Division Bench of the Bombay High Court in case Bank of India Vs.

John Bowman and Others, , and their Lordships were pleased to make the following observations:

But the question that we have to address ourselves to is whether the right to recover any sum by the State is confined to a right arising out of a

statute or whether Section 5, Revenue Recovery Act, also contemplates a right arising out of contract. We considered this very question in

Bhagwandass Narottam v. State of Bombay, OCJ App. No. 37 of 1954, D/- 7-4-1954 (Bom), and we came to the conclusion that there was no

reason why we should give a narrow restricted interpretation to the expression ""recoverable"" used by the Legislature in Section 5 and our view

was that whether the right to recover a sum arose out of statute or out of contract, Section 5 was equally applicable. Adhering to that view it

follows that the State had the right to recover the amount due from the Respondent 3 under a contract and by reason of that right a certain sum

became recoverable within the meaning of Section 5. Revenue Recovery Act, and if that sum became recoverable by any public officer â€" in this

case it was Mr. David â€"then the Collector of Bombay on the request of that Public Officer was given the power to proceed to recover that sum

as if it were an arrear of land revenue.

It may be noticed that, in that case their Lordships of the Bombay High Court were interpreting the effect of words ""recoverable"" which also

appeared in Section5 of the Bombay Act. In that case also the argument was that a contract of this kind really amounted to legislation by the

parties by means of a contract, but this argument was repelled by their Lordships with the following observations:

What according to Mr. Seervai, the State and Respondent 3 have done by this contract is to override the provisions of the CPC and to substitute

for the provisions of the Code a special law, as it were, dealing with their own contractual rights and liabilities. The answer to that that contention,

in our opinion, is simple. Parties who are ""sui juris'' can enter into any contract provided that it is not opposed to public policy, and we see no

reason why it was not open to Respondent 3 to agree with the State of Bombay that his debt should be recovered by a particular mode. We are

now only dealing with this contract so far only as it affects the rights of a debtor. A coercive machinery was available to the State and the debtor

agreed that the machinery should be availed of by the State having to recover its debt by the long and dilatory process of going to a civil court.

Therefore, to the extent that it did not affect the rights of the Bank there seems to be no reasons whatsoever why we should take the view that the

State and Respondent 3 were not competent to enter into a contract of this nature.

Mr. Dhar seems to suggest in his argument that the contract is against public policy, but we do not find any material to support this contention. The

contract in the present case does not contravene any specific provision of the statute nor it can be said that the contract is immoral. The counsel,

therefore, has not been able to show that the contract is per se void, merely because the parties have agreed that the mode of realisation of penalty

should be by virtue of the machinery provided by the Land Revenue Act instead of by the long drawn process of the civil courts.

Again counsel for the Petitioners tried to distinguish the case referred to above on the ground that the Bombay Act contained different

provisions. We are, however, unable to agree with this contention because the substance of both the Acts so far as the mode of recovery is

concerned is the same. Moreover, if the contract between the petitioner and the State is a valid one, then even in terms of Section 90 the penalty

imposed on the Petitioners becomes a sum of money which is lawfully recoverable as arrears of land revenue. Mr. Dhar then contended that

Section 90 is really controlled by Section 91 and unless the penalty imposed in this case comes within the categories laid down in Clauses (a to g)

of Section 91, it cannot be deemed to be arrears of land revenue as envisaged in the Act. The opening words of Section 91 are itself:

In addition to any sums recoverable as arrears of land revenue under this Act....

These words clearly refer to a sum which is lawfully recoverable as arrears of land revenue u/s 90. Once it is held that by virtue of the agreement

the penalty imposed was lawfully recoverable u/s 90 of the Land Revenue Act, there can be absolutely no difficulty in holding that Section 91

would in terms apply to such a sum of money. The contention of Mr. Dhar, on this score, is therefore, overruled.

The Advocate-General, however, contended that the penalty imposed would certainly come within Clause (b) of Section 91 as it would amount

to a revenue due to the Government on account of natural products of the land. In the view that we have taken above, it is not necessary for us to

go into this aspect of the matter. The position, therefore, comes to this: that in the first place by virtue of the terms of the contract the amount

sought to be recovered from the Petitioners becomes an amount lawfully recoverable as arrears of land revenue within the meaning of Section 90

of the Land Revenue. Act and consequently there is no breach of any statutory duty by the Respondents so as to warrant a writ of mandamus.

Secondly, we do not see how a writ of mandamus can lie to restrain the Respondents from enforcing a contractual obligation to which the

Petitioners themselves had agreed with open eyes and with full knowledge.

For the reasons given above, we are of the opinion, that the Petitioners have not been able to make out a case for writ of mandamus. The

application is, therefore dismissed with costs assessed at Rs. 100/- to be paid by the Petitioners to the Respondents.

K.V. Gopalakrishnan Nair, J.

I agree.