Gurbakhsh Singh vs The Deputy Commissioner

Shamsher Bahadur, J.—Gurbakhsh Singh, a Lambardar of village Mahana, tehsil Tarn Taran in district Amritsar, in this writ petition has challenged the proceedings initiated by the Collector to collect some dues from him as arrears of land revenue by putting him under arrest and directing a sale by auction of his property u/s 75 of the Land Revenue Act.

The order passed by the Collector is challenged on every con- ceivable ground and the sole Respondent in this case, who is the Depute Commissioner of Amritsar has filed a return which shows that the assertions made by the Petitioner on questions of fact have been controverted.

The Petitioner has been a Lambardar of village Mahana since 1955 and in that capacity it was his duty to recovery land revenue and local rates from the landowners of the village. For the years 1955 to 1963 the Petitioner on his own showing had collected a sum of Rs. 10,496.44 and had deposited a sum of Rs. ,172.39 in the treasury. Acceding to the Respondent a sum of Rs. 2,438 was due from the Petitioner and the Naib Tehsildar (Recover) had issued a notice on 12th May, 1965, for its recovery. According to the Petitioner, no demand had ever been made from him. In paragraph 8 of the written statement it is averred that a notice for recovery had been sent to the Petitioner on 12th May, 1965, and the report of the process serving agency was that the Petitioner had accepted the amount that was due from him and had promised to pay the same within a week.

The Petitioner had been put under arrest and later released for recovery of this sum and it is only when his land was attached and put to auction that he has filed this writ petition.

It is submitted by the learned Counsel for the Petitioner that the sum which has been demanded from the Petitioner could not be recovered as arrears of land revenue, the Petitioner being a headman of the village. Under Sub-section (1) of Section 69 of the Punjab Land Revenue Act (hereinafter called the Act):

At any time after an arrears of land revenue has accrued a Revenue officer may issue a warrant directing an officer named therein to arrest the defaulter and bring him before the Revenue officer.

u/s 70 of the Act, distress and sale of movable property could be effected against the person from whom arrears of land revenue are to be recovered. Section 72 relates to attachment of estate or holding and in Section 75 under which the Petitioner is now being proceeded with, it is provided that:

When an arrears of land revenue has accrued and the foregoing processes are not deemed sufficient for the recovery thereof the Collector with the previous sanction of the Commissioner, may in addition to, or instead of. all or any of those processes and subject to the provisions hereinafter contained sell the estate or holding in respect of which the arrears is due....

It is not disputed that the Collector is taking proceedings for the sale of the Petitioner''s property with the previous sanction of the Commissioner. The counsel for the Petitioner says a Lambardar is not a defaulter as denned in Sub-section (8) of Section 3:

''defaulter'' means a person liable for an arrears of land revenue, and includes a person who is responsible as surety for the payment of the arrears.

The suggestion of the learned Counsel for the Petitioner is that Chapter VI, which deals with the collection of land revenue, is only concerned with recoveries which are to be effected from landowners and not from village headman. Apart from his bare assertion, there is not the slightest support either in the Act or the Rules framed thereunder for this proposition. Indeed, under Clause (i) of Rule 20 of the Land Revenue Rules it is said that a village headman in addition to his other duties shall "collect by due date all land revenue and all sums, recoverable as land revenue from the estate or subdivision of an estate in which he holds office, and pay the same personally or by revenue money order or by remittance of currency notes through the post." The counsel points out that under Rule 16, which relates to dismissal of a headman, it is provided in Clause (f) that a headman shall be dismissed when "he neglects to discharge his duties, or is otherwise shown to be incompetent". The ensuing contention of the learned Counsel is that if the Petitioner is found to have misappropriated the land revenue which is due from him he can be dismissed and nothing more. I think the Petitioner is a defaulter and the process of recovery u/s 75 of the Act can be executed against him.

It is not denied that a Lambardar as headman of the village is responsible for collection of land revenue. As mentioned in paragraph 516 of Sir James Douie''s Punjab Land Administration Manual (1931edition):

''Defaulter'' is defined in the Land Revenue Act as meaning ''a person liable for an arrear of land revenue'', and as including ''a person who is responsible as surety for the payment of the arrear''. The definition has a wider scope than might at first sight appear. Reading it with Section 61 of the Act, it is clear that all the landowners in an estate are defaulters it an arrear accrues in respect of any particular holding. In practice, the milder coercive processes which are all that are usually needed, are directed either against the owner of the holding in respect of which the default arises or against his headman.

Again in para 522. at page 195, it is mentioned:

The actual defaulter or the headman who represents him may be arrested and detained at the tehsil or district office for ten days.

It seems clear to me that the provisions of Chapter VI dealing with recoveries are concerned not only with landowners, but a headman or Lambardar as well, so far as they have made defaults in payment of land revenue dues which have accrued and which they have realized from the owners.

It is further contended by the counsel that Section 75 of the Act is ultra virus. It is strange that such a contention should be raised when the Punjab State is not even made a party in these proceedings. Section 75 of the Act which has been reproduced aforesaid, empowers the Collector with previous sanction of the Commissioner to direct a sale of the property in recovery of the sum which is found due from the defaulter. The provision which has been on the statute book since 1887, to ensure the speedy realization of land revenue cannot be struck down for the reason that it vests uncontrolled or arbitrary powers in the Collector. Such an order is open to appeal and revision and what is more, a suit can also be filed under Sub-section (1) of Section 78 of the Act which says:

Notwithstanding any thing in Section 66, when proceedings are taken under this Act for the recovery of an arrear, the person against whom the proceedings are taken may, if he denies his liability for the arrear or any part thereof and pays the same under protest made in writing at the time of payment and signed by him or his agent, institute a suit in a civil court for the recovery of the amount so paid.

It is significant that the Petitioner himself has taken steps to file a suit as provided in Sub-section (1) of Section 78. A notice u/s 80 of the CPC has been sent by the Petitioner and its copy has been filed as Annexure A to the petition. Section 13 of the Act provides for an appeal against any order passed by a Revenue Officer under this Act. The order being of Collector, an appeal could have been preferred to the Commissioner, or at least to the Financial Commissioner if it is found that the Commissioner having given his previous approval to the order of the Collector u/s 75 could not have heard it. A further review is provided in Section 15. The Petitioner without resorting to these remedies has rushed to this Court in certiorari proceedings and he cannot be heard to agitate the question regarding the merits of the controversy whether the amount which is sought to be recovered from him through the recovery processes of Section 75 of the Act is actually due from him. The principal grievance of the Petitioner is, and always seems to have been, that the amount which is sought to be recovered from him is not actually due. This is a point which should have been agitated before the appropriate authorities under the Act.

The petition must also fail on another ground as well. The impugned order had been passed by the Collector with the previous sanction of the Commissioner. The Commissioner has not been made a party to these proceedings. As I said in Phalgu Dutta Kirpa Ram Vs. Pushpa Wanti and Others, .

It is absolutely necessary that the tribunal to quash whose order the application for the issue of a writ of certiorari is taken should be a party because without issuing notice to him, the records of the proceedings cannot be brought up to the High Court. The omission to make him a party to the petition goes to very root of the relief sought.

It is the central point in the Petitioner''s case that there was no writ of demand issued against him and further, the action u/s 75 had been taken without prior resort to Section 72 and other preceding sections of the Act. Both these allegations of fact are denied and as mentioned aforesaid a writ of demand had actually been made on 12th of May, 1965, and a report of the process serving agency is that the Petitioner, when served with the notice, had admitted his liability. Again there is a clear assertion made on behalf of the Respondent that proceedings had been taken u/s 72 of the Act by attachment of the property. Moreover, the Petitioner himself has admitted that he had been arrested u/s 69 of the Act. It cannot, therefore, acceptably be urged that action by sale of property is being effected for the first time under the provisions of Section 75 of the Act.

I have been asked by the counsel for the Petitioner to ignore and brush aside the denials on questions of fact made in the written statement filed on behalf of the Deputy Commissioner for the reason that the document is not executed on a proper paper and the verification is defective. These technical defects cannot sway me from taking legal considerations into account and such presentation of facts as has been made by the counsel for the Respondent based on facts brought on the record.

This petition being wholly without substance and merits is dismissed with costs.