Bansi Lal Majra Singh vs State of Jammu and Kashmir and Others

J.N. Bhat, J.—This is a writ petition under Article 32(2A) of the Constitution of India for quashing the order of Respondent 5 the Tehsildar.

Jammu, dated 16-4-1964 by virtue of which he has directed the arrest of the Petitioners and also directed the attachment of the boat' belonging to

them. The writ petition mentions Section 126 of the Constitution of the State. This section is wrongly quoted: probably the Petitioner wanted to

invoke Section 103 of the Constitution of Jammu and Kashmir.

The facts giving rise to this writ Petition are that the Petitioners obtained a contract from the Dy. Commr. Jammu, for plying a boat to carry

passengers from Bahu for to the other, bank of the river Tawi, for Rs. 4,800 for the year 1964-65. 'According to the Petitioners any person

passing on foot or' carrying cattle or other loaded animal had to pay some fees The passengers and other people and animals crossing the river

without the boat Of the Petitioners did not pay any fee to the Petitioners but the Petitioners thought that they were entitled to charge fees from such

people also The Petitioners approached different authorities but to no avail Subsequently the Tehsildar Jammu. by means of the impugned order

issued warrants of arrest against the; Petitioners for arrears of the contract money and ordered attachment of their boat The petition makes other

allegations with regard to the DC who according to the Petitioners refused to obey an order of the Commissioner A further plea of. the Petitioners

is that the arrears of contract money or Mir Bahri are not realizable as arrears of land revenue, u/s 91 of the Land Revenue Act.

Mr. Harbans Lal Bakshi. Tehsildar, Jammu, has sworn an affidavit on behalf of the Respondents. He has admitted that the contract of, he Mir

Bahri was sanctioned in favour of the petitions for the relevant period for a sum of, Rs. 4,150. The passengers and animals crossing the river

without -the boat of the Petitioners, were not liable to pay any fee to the Petitioners, It is not admitted that the Dy Commr refused to obey the

orders of the Commr. It is said that the Commr had merely drawn the Attention of the D.C to para No. 4 of ( the terms of the con tract and asked

him to give a fresh decision after consideration. of that paragraph.

It was admitted, that the Tehsildar had directed the arrest of the Petitioners as well attachment of their boat A further plea was taken by the

Respondents that the Petitioner never pointed out to the concerned authorities that Section 91 of the Land Revenue Act did not cover sbis case.

As no representations had been made in this behalf before the concerned authorities .and as there had been no demand for vacating the orders on

the ground of non-realizality of the same as arrears of land revenue, a Mandamus could not be issued against the Respondents.

The petition can be disposed of on a small point. So far as the objection of the Respondents that no demand hats been made by the Petitioners

from the concerned authorities for getting a decision from them that the case is not covered by Section 91 of the Act is concerned, It is not well

founded. The petition does not pray for a writ of mandamus; it prays for a writ of certiorari, quashing the order is held to be availed. Proceedings

flowing from the order will automatically come to an end. There is no necessity of issuing a Mandamus in this case, and hence this objection that no

demand has been made by the Petitioners nor has any refusal been made by the Respondents cannot stand in the way of the Petitioners for getting

writ of certiorari. As already stated, no Mandamus need be issued in this case, because once the order in question of the Tehsildar is quashed no

subsequent proceedings can be taken on that order and hence no Mandamus is called for.

About the petition, as I said, it can be disposed of on a simple point. The Respondents it their objections have not anywhere taken the stand that

this case is covered by the provisions of Section 91 of the Act. A bare perusal of Section 91 of the Act would make it clear that Clause (a) and (b)

thereof refer to arrears which full due under the Act. The present dues are admittedly those which are not covered by (he provisions of the Act.

such as fees, fines, etc Sub-section (c) of this section (Section 91) refers to water rates, maintenance of canals, embankments or other irrigation

works. A number of Sub-sections were added to this section which is (cc). (ccc), and (cccc).

Sub-section (cc) refers to loans by the Government for advanced studies; (ccc) refers to loans advanced by the Government to persons who have

suffered on account of fire, flood, etc.: (cccc) refers to loans advanced to craftsmen, artisans and petty traders. Sub-section (d) refers (o a surely

of a Government Iounee. Sub-section (e) refers to arrear of postal and Dhartnarth departments but in that ease sanction of the Government is

necessary. Sub-section (f) refers lo sums recoverable as arrears of customs duty and export duty and (g) refers to sums due to the Agricultural

Department on account of certain things None of these Sub-sections cover the contract of Mir Bahri. Therefore it is obvious that any arrears of

contract money on account of Mir Bahri cannot be recovered as arrears of land revenue u/s 91 of the Act. As such the order of the Tchsildan

Jammu dated 10-4-1964 is without jurisdiction and cannot be maintained.

It is therefore ordered that the order of the Tehsildar, Jammu dated 18-4-1964 whereby he has ordered the arrest of the Petitioners and the

attachment of their boat be quashed by means of a writ of certiorari. The authorities may take such other steps as they are advised to under the

laws prevalent the State to recover, the sums due from the Petitioners, if any. There will be no order as to costs.