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1972 DIGILAW 8 (ALL)

Gauri Shankar v. State of U. P.

1972-01-04

R.L.GULATI

body1972
ORDER R.L. Gulati, J. - This is a petition Under Article 226 of the Constitution. 2. The Petitioner owns some agricultural land in village Kamhardih, Teh. Robertsganj, Distt. Mirzapur. In the year 1944-45 he took two loans of Rs. 2,300/- and Rs. 2,700/- under the Land Improvement Act, 1883. He was not able to repay the debt in full. In the year 1953 the Collector, Mirzapur, the fourth Respondent, attached the Petitioner's land u/s 289 of the UP ZA and LR Act for the recovery of the unpaid loan. Thereafter the Petitioner moved several applications. The Land Reforms Commr., the third Respondent, by his order dated 8-9-1953 remitted a sum of Rs. 2,272/- which was the balance of the first loan. Similarly by his order dated 4-1-1966 he remitted a further sum of Rs. 1,890/- which was the unpaid balance out of the second loan. The Petitioner alleges that inspite of the fact that the unpaid balance of the loans had been remitted his land was not released from attachment. It is further alleged that the land revenue in respect of the land was demanded from the Petitioner for the period the land was under attachment. In 1960, the Tehsildar Robertsganj, the first Respondent, issued against the Petitioner a warrant of arrest for the recovery of the arrears of land revenue. The Petitioner moved two applications contending that he was not liable to pay the land revenue as the land in dispute had all along remained under attachment and in the custody of the Collector, Mirzapur. The Collector, it is alleged, reattached the land on 30-9-1961 for the recovery of the arrears of land revenue. The Petitioner thereafter appears to have made several attempts to have his land restored, but he did not succeed. Eventually he received a notice on 16-12-1969 from the SDO, Robertsganj, Mirzapur, the sixth Respondent, demanding a sum of Rs. 2,711-22. The Petitioner has filed this petition praying for the quashing of this notice. 3. The Petitioner has in para. 33 of the petition alleged that the sum of Rs. 2,711-22 which is being demanded from him by the notice dated 16-12-1969, as land revenue in respect of the land in dispute is for the period the land remained attached. This assertion of the Petitioner has not been controverted in the counter-affidavit. 3. The Petitioner has in para. 33 of the petition alleged that the sum of Rs. 2,711-22 which is being demanded from him by the notice dated 16-12-1969, as land revenue in respect of the land in dispute is for the period the land remained attached. This assertion of the Petitioner has not been controverted in the counter-affidavit. It is thus the admitted case of the parties that the amount sought to be realised from the Petitioner is the land revenue for the period the land was under attachment. 4. The Petitioner contends that u/s 289 of the UP ZA and LR Act under which the attachment has been made, no land revenue is payable for the period the land remains under attachment. This contention of the Petitioner appears to be correct. Section 289 of the UP ZA and LR Act has been deleted by U.P. Act No. XII of 1965, but it was in force at the material time. That provision reads: 289 (1) Attachment of village for arrears of land revenue: At any time after an arrear of land revenue has accrued, the Collector may attach the village or any area therein in respect of which the arrear is due and place it under his own management or that of an agent appointed by him for that purpose for such period as he may consider necessary: Provided that the period for which any village or any area therein may be so attached, shall not exceed three years from the commencement of the agricultural year next following the date of attachment and the attachment shall be cancelled if the arrears are sooner liquidated. (2) Upon the expiry of the period of attachment, the village shall be restored free of any claim on the part of the Government for any arrear of land revenue due in respect thereof. 5. It is thus clear that Under Sub-section (2) of Section 289, the Govt. is obliged to restore the land attached for the recovery of arrears of land revenue after the expiry of the period of attachment free of any claim in respect of the land revenue. This means that after the expiry of the period of attachment not only the previous arrears of land revenue but also the land revenue accruing during the period of attachment stands wiped out. This means that after the expiry of the period of attachment not only the previous arrears of land revenue but also the land revenue accruing during the period of attachment stands wiped out. The defaulter thus is not liable to pay any land revenue in respect of the period during which the land remained under attachment. 6. From the counter-affidavit of Sri Ram Lakshan Pandey filed on behalf of the Collector, Mirzapur, it appears that the stand of the Govt. is that although the land in dispute remained under attachment, yet its possession was not taken from the Petitioner. This averment is contained in para. 7 of the counter-affidavit and is sworn on the basis of the record. No document, however, has been filed to show that the management of the land was not taken over by the Collector. On the other hand, the repeated applications of the Petitioner for restoration of the land show very clearly that the land had been taken over by the Collector. A copy of the proclamation issued for the attachment of the land has been filed by the Petitioner as Annexure (iv) to the writ petition. In this proclamation it is specifically stated that the Petitioner shall not be entitled to cultivate the land, nor he be able to deal with it in any manner whatsoever. The averment to the effect that the custody of the land was not taken over by the Collector, therefore, cannot be accepted. 7. A reference may be made to Section 279 which provides the procedure for recovery of arrears of land revenue. Sub-clause (d) of that section provides for, the recovery of arrears of land revenue by attachment of the holding in respect of which arrear is due. Sub-clause (3) of Rule 272 of the Rules framed under the UP ZA and LR Act provides that where a holding is attached Under Clause (d) of Section 279, the Collector shall forthwith make necessary arrangements for the cultivation of land either by grant of a lease u/s 291 or in such other manner as he considers desirable. Rule 273 then provides that where any land is attached u/s 289 or Clause (d) of Section 279 or leased u/s 291 the proclamation (Z.A. Form 73) shall be affixed in a conspicuous place in the village in which the land is situated and shall be notified by beat of drum. Rule 273 then provides that where any land is attached u/s 289 or Clause (d) of Section 279 or leased u/s 291 the proclamation (Z.A. Form 73) shall be affixed in a conspicuous place in the village in which the land is situated and shall be notified by beat of drum. A copy of the proclamation issued Under Rule 273 is annexure IV to the writ petition and has already been referred to above. This proclamation says categorically that the Petitioner was not permitted to cultivate the land. It is clear therefore that when the land is placed under attachment either u/s 279 or u/s 289, the defaulter is divested of the holding in respect of which the land revenue is due as a matter of course. There is no option with the Collector of leaving the land in the custody of the defaulter. There is presumption that all official acts must have been done in accordance with the law. It must, therefore, be presumed that the proper procedure had been followed and the management of the land had been taken over by the Collector during the period the land remained under attachment. 8. The learned Standing Counsel then contended that Sub-section (2) of Section 289 applies only in the case of a village and not in the case of any area therein. There is no substance in this contention. No doubt Sub-section (2) of Section 289 provides that after the expiry of the attachment the village shall be restored free of any claim etc. But village shall include any area therein also. This is dear from the proviso to Sub-section (1) of Section 289. It follows, therefore, that the demand of the arrears of land revenue from the Petitioner is wholly unjustified and is contrary to the law. 9. The writ petition succeeds and is allowed with costs. The notice dated 16-12-1969 (copy whereof is Annexure 13' to the writ petition) is quashed.