Premchand vs Board of Revenue

P.V. Dixit, C.J.—The circumstances giving rise to this application under article 26 of the Constitution are that two fields belonging to the petitioner were sold for the recovery of certain arrears of taccavi due from him and were purchased by the respondents Nos. 2 and 3. The applicant then preferred before the Sub-Divisional Officer, Burhanpur, objections to the confirmation of sale which were rejected and the sale was confirmed.

This order confirming the sale was in held in appeal by the Collector and the Commissioner and in revision by the Board of Revenue. By this application the petitioner seeks a writ of certiorari for quashing the sale proceedings and the orders of the revenue authorises confirming the sale.

The main ground on which the sale was attached before the revenue authorities, and which has been repeated before us, is that u/s 134 of the Madhya Pradesh Land Revenue Code, 1954, read with rule 2 of the rules framed under the Code. it was obligatory for the Tahsildar. who conduced the sale, (sic)o have issued a notice of demand to the petitioner for the payment of arrears said to be due from him before the issue of any process u/s 135 of the Code for the recovery of that amount; that this was not done; and hat, there-fore, the sale was illegal and void. This objection was overruled by the revenue authorities taking the view that it was not necessary to issue a notice u/s 134 before taking any proceedings u/s 135.

In our opinion, this contention must be given effect to. Sections 132, 133 and 134 of the Code read as follows-

(1) The State Government may grant remission or suspension of land-revenue in years in which crops have failed in any area or in which crops could not be grown in any area in consequence of any order made under any law by a competent authority, and such remission of suspension shall be determined in accordance with rules made under this Code.

(2) No appeal or revision shall lie against any order passed by a Revenue Officer under such rules and no suit shall lie in a Civil Court to contest any such order.

(1) A statement of account, certified by the Deputy Commissioner or by the Tahsildar shall, for the purposes of this Chapter, be conclusive evidence of the existence of the arrears payable to Government or its amount, and of the person who is the defaulter.

(2) No notice to defaulter shall be necessary before drawing up the statement referred to in sub-section (1).

A Tahsildar or Naib-Tahsildar may cause a notice of demand to be served on any defaulter before the is sue of any process u/s 15 for the recovery of an arrear.

Rule 2 provided that a notice of demand u/s 134 shall issue in duplicate in Form A, and shall be signed and seal d by the officer issuing it. Section 135 enumersted the processes by which an arrear of land revenue payable to Government may be recovered. Section 134 no doubt used the word "may" in connection with the issue of a notice of demand to the defaulter before the issue of any process u/s 135. But it is obvious that the word had been used in an imperative sense making the issue of a notice of demand obligatory. This becomes clear from the fart that the object of the issue of a notice of demand before taking any process u/s 135 was to afford an opportunity to the defaulter to make the payment of the arrears due from him before taking any drastic action u/s 135 for the recovery of the amount from him. No doubt, a defaulter is generally asked to pay the amount due from him before the initiation of any proceedings under the Code for the recovery of the amount as arrears of land revenue, where the amount is no recoverable. But it is common knowledge that a defaulter, who is in a position to pay the amount and who has ignored such demands for payment, is ready persuaded to pay the amount when the threat of the issue of a coercive process is imminent. After all, the attachment and sale of the property of any person for the recovery of any amount is a matter vitally affecting the interest of the person and a serious one from his print of view. When a threat of the issue of any of the processes mentioned in section 135 is held out, the defaulter may think it prudent to pay the amount of arrears due from him and avoid the consequences to which he would therwise be liable u/s 135. There cannot be anything more arbitrary in spirit and method than the sale of property of any person for the recovery of any amount without giving him intimation of any kind, and section 135 and rule 2 only embodied a rule of natural justice. The provision, therefore, about the issue of a notice of demand by the Tahsildar or Naib-Tahsil far before the issue of any process u/s 135 for the recovery of any arrear was a mandatory one. In Narayansingh Vs. Board of Revenue 1962 BN 312=1962 JLJ 503, one of us (Pandey, J.) had occasion to consider the true construction of a similar provision in the C.P. Land Revenue Act, 1917, and the rules made thereunder, it was held in that case that the sale of a holding for recovery of arrears of land evenue without notice of demand to the defaulter was void. The reasoning given in that case applies equally here. The observations of Cotton L.J, in Re Shephard Atkins Vs. Shephard (1890) 43 Ch. D. 131, which were referred to in the case of Narayansingh (supra) bear repetition here. He said-

It is quite new to me to hear it alleged that there is anything in the rules to enable the Court to make an order against a person who is not a party to the action. It is against all principles to proceed against him until he has been brought before the Court, or all proper steps to bring him before the Court have been taken ineffectually.

In our judgment, the revenue authorities were in error in thinking that the issue of a notice of demand u/s 134 was not necessary before putting up the petitioner''s property to sale for the recovery of the arrears due from him.

Shri Sood, learned counsel appearing for the respondents Nos. 2 and 3, however, contended that even if the issue of a notice of demand u/s 134 was obligatory, it was not necessary that the notice should be in writing, and that the petitioner was actually present in the Tehsil on the date when his property was being sold. It was said that all that section 134 and rule 2 required was that an intimation of some kind should be given to the defaulter and that the presence of the petitioner at the auction indicated that he was aware of the fact that his property was going to be sold for the recovery of arrears due from him. We are unable to accept this contention. That the notice of demand had to be in writing is clear from rule 2 which laid down that the notice should be issued in duplicate in the prescribed form and should be signed and sealed by the officer issuing it The object of the notice of demand being to give an opportunity to the defaulter to pay the amount of arrears before his property is actually attached and should, it cannot be held that if and faulted happens to be person by chance when his property is being sold, he has had sufficient opportunity of paying up the amount.

Learned counsel for the petitioner also argued that the Tahsildar started recovery proceedings after receiving a report from Waul-Baki-Navis that certain area''s of taccavi were due from the Petitioners that u/s 33 of the Code, proceedings for the recovery of this amount as arrears of land revenue could be initiated by the Tahsildar only on the basis of a statement of account certified by the Deputy Commissioner; and that in the absence of such a certified statement the Tashildar had no jurisdiction to sell the petitioner''s property. There no substance in this contention. u/s 133 a certified statement of the Deputy Commissioner or of the Tahsildar had not been made the foundation of jurisdiction for the institution of recovery proceedings of arrears due from a defaulter. That provision only makes a statement of account, certified by the Collector or by the Tehsildar, "conclusive evidence of the existence of arrears payable to Government or its amount, and of the person who is the defaulter." In the absence of such a certified statement, the petitioner might have well contended before the Tahsildar that no amount was due from him to Government or that he was not a defaulter. But the Tahsildar''s jurisdiction to take step for the recovery of any amount as arrears from a defaulter does not depend on a certified statement of the Collector.

For these reasons this petition is allowed, the sale proceedings of the petitioner''s property are quashed, and the decisions of the revenue authorities conferring the sale are quashed. In the circumstances of the case, we make no order as to costs. The outstanding amount of security deposit shall be refunded to the petitioner.