Sheo Baran Singh v. Collector — 1983 DIGILAW 183 (ALL)

JUDGMENT K.N. Singh, J. - By means of this petition under Article 226 of the Constitution Sheo Baran Singh Petitioner has challenged the validity of the recovery proceedings and the proposed auction sale of his agricultural land by the Sub-Divisional, Officer Fatehpur. 2. The Petitioner is an agriculturist having his holdings in village Teliyani, district Fetehpur. In March, 1962, he obtained Taqabi loan Rs. 5,000/-under the Land Improvement Loans Act, 1883 (Act No. XIX of 1883). The Petitioner pledged one-fourth share of his agricultural land as contained in plot Nos. 49, 50, 56 and 73 of Khata No. 64, as security for the repayment of the loan. According to the Petitioner, he could not repay the loan in time on account of natural calamity. Since the Petitioner fell into arrears the Collector, Fetehpur, took steps for recovery of the Taqabi dues as arrears of land revenue from the Petitioner. On 13-1-1972 a number of agricultural plots, belonging to the Petitioner included in Khatas Nos. 20, 21, 66 and 68 of village Telivani were attached u/s 289 read with Section 279 (d) and (f) of the UP ZA and LR Act, 1950. In all, the Petitioner's land, having an area of 26 bighas 14 biswas and 10.5 biswansis, was placed under attachment for the recovery of the amount of Rs. 6791.34 P. The Collector, after obtaining the permission from the Commissioner, fixed 13-3-1975 for the sale of the attached plots. The Petitioner, thereupon, filed this writ petition challenging the validity of the recovery proceedings and the proposed auction sale. 3. Sri D.P.S. Chauhan, Counsel for the Petitioner urged that the Collector should have, in the first instance, proceeded against the land for the benefit of which the loan was granted he could not proceed against the Petitioner's other land, which was neither pledged nor given in security for the repayment of the loan. He placed reliance on Section 7(1)(c) of the Land Improvement Loans Act, 1883. We find no merit in the contention. Admittedly, the Petitioner had failed to repay the loan and he had become a defaulter and the amount of loan was recoverable from him as arrears of land revenue. Section 7 of the Land Improvement Loans Act, 1883, hereinafter referred to as "the 1883 Act" provides for recovery of loans. We find no merit in the contention. Admittedly, the Petitioner had failed to repay the loan and he had become a defaulter and the amount of loan was recoverable from him as arrears of land revenue. Section 7 of the Land Improvement Loans Act, 1883, hereinafter referred to as "the 1883 Act" provides for recovery of loans. Sub-Section (1) lays down that loans granted under this Act, shall, when they become due, be recoverable by the Collector in all or any of the modes prescribed therein. Clauses (a), (b), (c) and (d) prescribe the modes. Clause (a) lays down that the loan shall be recoverable by the Collector from the borrower as if they were arrears of land revenue due by him ; Clause (b) makes the loan recoverable from surety (if any) as if they were arrears of land revenue due by him ; Clause (c) provides for the recovery of loan out of the land for the benefit of which the loan has been granted-as if the same was arrears of land revenue due in respect of that land and Clause (d) provides for the recovery of loan out of the property comprised in the collateral security. The Collector is empowered to follow any of the aforesaid tour modes in making recovery of the loan. No order of sequence in following the modes is prescribed. The use of the expression "in all or any of the following modes" indicates the legislative intent that the Collector is free to follow any of the four modes prescribed under Sub-Section (1) of Section 7 and it is not necessary for him to exhaust the various modes of recovery in any particular sequence. This conclusion is fortified by Sub-Section (3) of Section 7 which confers discretion on the Collector to determine the order in which he may resort to the mode of recovery permitted by it. The Collector is invested with wide powers to follow any of the four modes in any sequence as he may think fit. The Collector is free to proceed against the borrower treating him to be defaulter and in that process he is entitled to proceed against the property of the borrower other than the land for the benefit of which loan may have been granted. 4. The Collector is free to proceed against the borrower treating him to be defaulter and in that process he is entitled to proceed against the property of the borrower other than the land for the benefit of which loan may have been granted. 4. Learned Counsel, then, urged that under the provisions of the UP ZA and LR Act, 1950, hereinafter referred to as "the 1950 Act" the Collector, in the first instance, must proceed against the land for the benefit of which loan had been obtained and only thereafter he could proceed against the Petitioner's other land which was neither pledged nor given in security for the loan. He referred to the sequence of mode laid down in Sections 279 and 286 to support his contention that unless the Collector exhausted process against the land for the benefit of which loan was taken, he had no authority in law to proceed against the Petitioner's other immovable property. 5. Section 279 of the Act sets out the procedure for recovery of the arrears of land revenue. It reads as under: 279. Procedure for recovery of an arrear of land revenue- (1)-An arrear of land revenue may be recovered by any one or more of the following process- (a) by serving a writ of demand or a citation to appear on any defaulter, (b) by arrest and detention of the person, (c) by attachment and sale of his moveable property including produce, (d) by attachment of the holding in respect of which the arrear is due, (e) by lease of sale of the holding in respect of which the arrear is due, (f)by attachment and sale of other immovable property of the defaulter, and (g) by appointing a receiver of any property, movable or immovable of the defaulter. (2) The cost of any of the process mentioned in Sub-Section (1; shall be added to and be recoverable in the same manner as the arrear of land revenue. Section 286 runs as under: 286. Power to proceed against interest of defaulter in other immovable property- (1) If any arrears of land revenue cannot be recovered by any of the process mentioned in Clauses (a) to (e) of Section 279, the Collector may realize the same by attachment and sale of the interest of the defaulter in any other immovable property of the defaulter. Power to proceed against interest of defaulter in other immovable property- (1) If any arrears of land revenue cannot be recovered by any of the process mentioned in Clauses (a) to (e) of Section 279, the Collector may realize the same by attachment and sale of the interest of the defaulter in any other immovable property of the defaulter. (2) Sums of money recoverable as arrears of land revenue, but no due in respect of any specified land, may be recovered by process under this section from any immovable property of the defaulter including any holding of which he is a bhumidhar. 6. The Petitioner's contention is that in view of Sub-Section (1) of Section 286 the Collector is, in the first instance, bound to follow the mode of recovery in sequence as laid down in Clauses (a) to (d) and if even thereafter the arrears are not recovered the Collector may realise the same by attachment and sale of the interest of the defaulter in any other immovable property. In view of Section 286(1) the Collector is not entitled to proceed against any other immovable property of the defaulter before he exhausts his remedy against the land in respect of which the arrears may be due. We have no hesitation in accepting the contention. It is true that if the Collector is making recovery of arrears of land revenue in respect of a particular agricultural holding, he is first required to exhaust his modes prescribed under Clauses (a) to (e) of Section 279 and if the arrears remain unsatisfied only thereafter the Collector is entitled to proceed against the defaulter's other immovable property as provided under Clauses (f) and (g) of Section 279. However there is no such fetter on the power of the Collector if the amount sought to be recovered is not land revenue instead it is some other amount recoverable as arrears of land revenue. Under various statutes provision is made for the recovery of amounts as arrears of land revenue. Section 7 of 1883 Act itself contains that provision. Section 46(2) of the Indian Income Tax Act 1922 also contains a similar provision for the recovery of Income Tax dues as arrears of land revenue. Sub-Section (2) of Section 286 of 1950 Act prescribes procedure for the recovery of the amounts other than land revenue which are recoverable as arrears of land revenue. Section 46(2) of the Indian Income Tax Act 1922 also contains a similar provision for the recovery of Income Tax dues as arrears of land revenue. Sub-Section (2) of Section 286 of 1950 Act prescribes procedure for the recovery of the amounts other than land revenue which are recoverable as arrears of land revenue. Certain restrictions have been placed on the power of the Collector to recover land revenue by attachment and sale of land other than holding in respect of which the land revenue may be due, but these restrictions operate only when arrears of land revenue is being recovered. There is no restriction on the power of the Collector requiring him to proceed against the land for which the loan may have been granted in the first instance before proceeding against other immovable property of the defaulter. The 1883 Act does not place any restriction on the power of the Collector to recover dues from other immovable property of the borrower. Sub-Section (2) of Section 286 also does not require the Collector to follow any sequence of the processes for recovery of sums of money recoverable as arrears of land revenue; but not due in respect of any specified land. It is open to the Collector to resort to any process prescribed by Section 279 in aid of recovery of the dues which are recoverable as arrears of land revenue-See Padrauna Rajkrishna Sugar Works Ltd. and Others Vs. Land Reforms Commissioner, U.P. and Others, AIR 1969 SC 897 . Since the amount which was sought to be recovered from the Petitioner was not arrears of land revenue in respect of any particular holding as such the Collector did not commit any illegality in proceeding against the Petitioner's other immovable property for the recovery of the loan. 7. Lastly, the learned Counsel urged that the proceedings taken for the auction sale of the Petitioner's land are vitiated as the period of thirty days was not allowed to expire from the date on which the proclamation under Rule 282 was issued. Rule 285-A of the Zamindari Abolition and Land Reforms Rules lays down that no sale shall take place on a Sunday or other gazetted holiday or until after the expiration of atleast thirty days from the date on which the proclamation under Rule 282 was issued. Rule 282 provides for issue of proclamation of sale in Z.A. form 74. Rule 285-A of the Zamindari Abolition and Land Reforms Rules lays down that no sale shall take place on a Sunday or other gazetted holiday or until after the expiration of atleast thirty days from the date on which the proclamation under Rule 282 was issued. Rule 282 provides for issue of proclamation of sale in Z.A. form 74. Rule 285-A requires that sale should not take place before the expiry of thirty days form the date of the issue of the proclamation. The Petitioner's grievance is that this provision was not followed in fixing the sale of the Petitioner's land on March 13, 1975. It was urged that the proclamation was issued on 13-2-1975 fixing 13-3-75 for the sale of the Petitioner's land and as such, the proclamation is illegal. Learned Standing Counsel urged that Rule 285-A which requires expiration of 30 days from the date on which the proclamation was issued is directory in nature. Any violation of this Rule will not vitiate the auction sale. It is not necessary to express any final opinion on this question as the sale proclamation was issued on 13-2-75 but the auction sale which was fixed for 13-3-75 could not be held in view of the interim order of this Court issued on 12-3-75. Since the Collector could not proceed with the auction sale of the Petitioner's land on the date fixed by him, now he will have to fix another date for the same and while doing so the Collector will keep in mind the provisions of Rule 285-A. 8. In view of the above discussion, we do not find any illegality in the proceedings taken for the attachment and sale of the Petitioner's property for the recovery of the amount of loan which the Petitioner failed to repay. 9. The petition fails and is, accordingly, dismissed with costs. Interim order dated 12-3-75 stands discharged.