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Prabhakar Vishnu Naik Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 305 of 1969
Judge
Reported inAIR1970Bom285; (1970)72BOMLR160; ILR1970Bom527
ActsCode of Civil Procedure (CPC), 1908 - Sections 11, 21, 100 and 107 - Order 41, Rule 1; Revenue Recovery Act, 1890 - Sections 2(3), 3(1), 3(2), 4, 5, 6 and 7; Constitution of India - Article 226; Evidence Act, 1872 - Sections 114; Public Accountants' Default Act, 1850 - Sections 4; Public Accountants' Default Rules - Rule 103; Prevention of Corruption Act - Sections 5(1); Indian Penal Code (IPC), 1860 - Sections 477A; Land Revenue Code
AppellantPrabhakar Vishnu Naik
RespondentUnion of India
Appellant AdvocateH.A. Tambe, Adv.
Respondent AdvocateS.C. Pratap, Asstt. Govt. Pleader
Excerpt:
.....order competent to decide matter finally--collector before issuing certificate under section 5, revenue recovery act required to give notic to defaulter and hold enquiry--provisions of r.r. act whether impairs provisions of bombay land revenue code.;in an appeal to the high court from an order of the lower appellate court returning the plaint to be presented to the proper court when the lower appellate court has also heard all the arguments on merits and determined the issues before it, the jurisdiction of the high court is not confined to the order returning the plaint but it is competent under section 107 of the civil procedure code, 1908, to decide the matter finally. ;t.r.s. mani v i.r.p. (radio) (pr.) ltd. [1963] a.i.r. mad. 30, dissented from. ;section 5 of the revenue recovery..........were illegal and contrary to law and the proceedings, therefore, be quashed.4. it appears that the learned trial judge dismissed the plaintiff's suit holding that he had no jurisdiction in the matter as the alleged misappropriation had taken place at nanded. the plaintiff filed an appeal to the district court, which, having considered all the aspects of the matter, held that the trial court had jurisdiction to deal with the suit and it accordingly remitted the matter back to the trial court for hearing and decision. after remand the learned civil judge, senior division, ahmednagar held that the order was bad and declared that the property of the plaintiff was not liable to attachment and sale according to the certificate (ex. 31). he also granted an injunction against the defendant. from.....
Judgment:

1. This appeal is filed by the original plaintiff whose plaint has been returned for presentation to the proper Court by the District Court. The short facts leading to the appeal are as follows: The plaintiff was serving in the Post and Telegraph Department as Sub-Post Master at Latur in Osmanabad District from October 8, 1953 to April 5, 1955. It appears that some amounts were misappropriated from the Post Office. He was, therefore, suspended from service on and from April 5, 1955. The postal authorities made an inquiry and had the accounts audited and it was found that a sum of Rs. 2925.56 appeared to have been misappropriated by the plaintiff. First Information Report (Ex. 55) was filed at the Police Station at Latur against the plaintiff. Later on, a charge-sheet was filed against him in the Court of the Special Judge Osmanabad for offences under Section 5(1)(c) of the Prevention of Corruption Act and Section 477A of the Indian Penal Code. At the trial, only three items were selected amounting to Rs. 721,6, indeed a very small part of the total amount charged against him. Ultimately, at the end of the trial it was found that the plaintiff had misappropriated the amount of Rs. 19.50 only. He was sentenced to suffer rigorous imprisonment for one year. The plaintiff came to this Court in appeal, which was heard and his conviction and sentence were confirmed. Later on, forty criminal cases were lodged against the plaintiff in the Court of the Judicial Magistrate, First Class, Latur. But, no further action was taken against him as these charge-sheets were withdrawn as he had already been convicted in the test case.

2. Thereafter, the Superintendent of the Post Offices, Nanded wrote to the Superintendent of Posts and Telegraphs, Ahmednagar saying that an amount of Rs. 2116.31 was due from the plaintiff and it should be recovered as arrears of land revenue, as the plaintiff had properties in that District, The Superintendent apparently sent this letter to the Mamlatdar on June 20, 1961 requiring him to make the payment by realisation of the said amount. The Mamlatdar called upon the plaintiff to pay the amount intimating that if the amount was not paid his property would be attached. In the meantime, the Superintendent of the Posts and Telegraphs at Nanded sent a letter to the Collector of Osmanabad requesting him to send a certificate to the Collector of Ahmednagar for the recovery of the amount of Rs. 2625.56 being the balance of Rs. 2926,58 after recovery of Rs. 300/- from the surety. Ex. 31 is the certificate issued by the Collector, Osmanabad to the Collector, Ahmednagar in respect of the same. The Mamlatdar received the certificate (Ex. 31) and thereafter on August 1, 1963 he issued the proclamation at Ex. 52 attaching the plaintiff's half share in Survey No. 5/2, situated at village Brahmanagaon in that District. Thereafter a date for sale was also fixed.

3. The plaintiff then filed the present suit for a declaration that the Mamlatdar's order and the proclamation were illegal and contrary to law and the proceedings, therefore, be quashed.

4. It appears that the learned trial Judge dismissed the plaintiff's suit holding that He had no jurisdiction in the matter as the alleged misappropriation had taken place at Nanded. The plaintiff filed an appeal to the District Court, which, having considered all the aspects of the matter, held that the trial Court had jurisdiction to deal with the suit and it accordingly remitted the matter back to the trial Court for hearing and decision. After remand the learned Civil Judge, Senior Division, Ahmednagar held that the order was bad and declared that the property of the plaintiff was not liable to attachment and sale according to the certificate (Ex. 31). He also granted an injunction against the defendant. From this judgment the Union of India appealed to the District Court. The learned Joint Judge, Ahmednagar, held that the trial Court had no territorial jurisdiction in the matter and he, therefore, ordered the plaint to be presented to the proper Court. Though he gave this finding, he also gave his findings on merits holding that the certificate issued by the Collector of Osmanabad under Section 3(2) of the Revenue Recovery Act was valid and that the proclamation of sale issued in pursuance of this certificate was also valid, though he held that the orders passed by the Mamlatdar on June 20, 1961 and July 11, 1961 were not valid. The plaintiff comes to this Court in second appeal.

5. The first and the foremost argument made by Mr. Tambe, for the appellant, is that the learned Joint Judge was in error in holding that the Trial Court had no jurisdiction to try the suit and returning the plaint for presentation to the proper Court. In this connection, it has been pointed out to me that originally the Trial Court had returned the plaint holding that it had no territorial Jurisdiction to deal with the matter and that the plaintiff had appealed to the District Court, which reversed the finding of the trial Court and held that the Court of the Civil Judge, Senior Division, Ahmednagar, had jurisdiction to deal with the matter. Mr. Tambe rightly argues that this finding was conclusive so far as the learned Judge was concerned and ho would not be entitled to reopen the finding and hold that the Trial Court had no territorial jurisdiction. Mr. Pratap, Assistant Government Pleader, for the State, fairly conceded that that would be so. Apart from this, in every case where the question of territorial jurisdiction arises the Court cannot lose sight of Section 21 of the Code of Civil Procedure and unless it is shown that by reason of the suit having been instituted in a forum which has no territorial or pecuniary jurisdiction, prejudice has been caused to the other party, such a point cannot be entertained at the appellate stage. Even apart from this, the subject-matter of the suit was the proclamation and sale proceedings and action taken by the Mamlatdar in that district, and only that Court would have jurisdiction. In my view, the learned appellate Judge was wrong in holding that the Trial Court had no jurisdiction to determine the merits of the matter.

6. Ordinarily, I would have remanded the matter to the District Court for disposal of the appeal in accordance with law on other issues. But the learned Joint Judge, has given his findings on the other points argued before him. There is, therefore, no necessity of sending the matter back to the District Court for rehearing and rewriting the judgment and then inviting a further appeal later on. When I informed Mr. Tambe that I would hear the appeal and dispose it of myself, the learned Advocate contended that though it is possible that that course can be adopted in an appeal against a decree, that course cannot be adopted in an appeal against the order in a case such as the present. He has relied on the decision in T. R. S. Mani v. I. R. P. Radio Pvt. Ltd. : AIR1963Mad30 . In that case, the Trial Court had ordered the return of the plaint for presentation to the proper Court, but had also decided the issues on merits as well. The learned Judges said that the jurisdiction of the High Court either to maintain the judgment of the lower Court or set it aside would be confined to the order returning the plaint alone, and the result was that the suit would have to be remitted to the trial Court for a fresh trial. The ratio does support Mr. Tambe. With respect I am unable to agree with the reasoning of the learned Judges. In my view, it is not possible to hold that in a case such as the present that, it is incumbent upon me to remit the case to the District Court for rehearing the same on merits. It seems attention of the learned Judges was not drawn to Section 107 of the Code. This section in unequivocal terms gives power to the appellate Court, subject to any conditions and limitations which may have been prescribed, to decide a case finally, to remand it, to frame issues and refer them for trial and to take additional evidence or to require such evidence to be taken. Subject to the prescribed conditions, the appellate Court has as nearly as may be the same duties and powers as the trial Court. This section applies notwithstanding that the appeal is from an order returning the plaint. I do not see why the ambit of this section must be reduced to a nullity, when the Appellate Court had heard all the arguments on merits and determined the issues before it. The only result of the remand would be that the learned Judge will hear the arguments and rewrite the same judgment with the consequences of another appeal. I am clearly of the opinion that sitting as a Court of appeal I would be entitled to decide the matter finally.

7. Mr. Tambe then on merits raised quite a few points. Firstly, he contended that even if the certificate (Ex. 31) is proved it is invalid as it is issued by an authority which was not entitled to issue a certificate of this type under Section 3(1) of the Revenue Recovery Act; secondly, that the certificate is not proved; thirdly, that the certificate is invalid for the reason that no inquiry was held before issuing the certificate; fourthly, that the plaintiff was not a defaulter as defined by the Act and no proclamation could be issued; fifthly, that the Mamlatdar had no authority to issue such a proclamation and sixthly, that the proclamation was not issued in pursuance of the certificate.

8. The first contention takes the form that the petitioner was serving as the Sub-Post Master at Latur. The Superintendent of the Posts and Telegraphs was in Nanded, and under Section 5 of the Revenue Recovery Act, therefore, only the Collector of Nanded could issue the order for recovery under that section.

It must be observed that this certificate was filed by the Union of India along with the written statement. The plaintiff did not amend his pleadings and contend its invalidity giving reasons for the same. The allegations made in his pleading were that even though he was prosecuted for defalcations in respect of three of the items and that the Court had convicted him, as no fine was imposed and no order for recovery was made by the Special Judge, no recovery could be made from him in law. The plaintiff also said that no inquiry was made by the department against him to determine the actual amount, These were the only two grounds on which the said certificate was challenged. These two grounds have been answered against the appellant. It would not now be right to permit the appellant to traverse beyond those pleadings and raise the point of the certificate being illegal on the ground that it was not issued by the proper authority. If these facts had been alleged and the certificate was challenged on this ground, the Union may have had several answers. As the Union had no opportunity to meet the point at the trial, it is impossible to permit the plaintiff to take up the point at this stage. It may be that the plaintiff was liable to make good the loss to the Post Master at Latur or his immediate superior at Osmanabad, the district headquarters of Latur. I am not, therefore, prepared to allow him to canvass this point.

9. The second contention is that the certificate is not proved. I do not see why, when ex facie it shows that it has been issued by the Collector of Osmanabad, it should be required to be proved by calling the Collector to show that the signature on it was made by him. It is not the appellant's contention that the signature is not of the officer who purports to have signed it. The argument made in connection with this contention is that if the Collector had come in the box, he would have been cross-examined to show that no inquiry was held. These two aspects are entirely different and have nothing to do with each other, Evidently, Section 5 of the Revenue Recovery Act does not require that before the Collector issues a certificate he must give notice to the defaulting officer and hold an inquiry and thereafter issue the certificate. This is for an understandable reason. In a case, where the amount is due and claimed by the Union, the defaulting officer is entitled to question that amount by a suit as provided by Section 4 of the said Act. He would then have a full-fledged trial. No doubt, the condition is that he must deposit the amount. That also is understandable. A suit may take years together for trial and the Government would be kept out of the money for a considerably long time as has happened in the present case.

10. The third contention is that the certificate is invalid because the rules of natural justice are violated, in that no inquiry was held. The answer is as in the above paragraph. Moreover, the learned Joint Judge Gas pointed out that when the demand was made by the Mamlatdar from the appellant, he applied to the Mamlatdar to stay the proceedings. The Mamlatdar intimated to him that if he wanted stay of further proceedings he should approach the Superintendent of Posts and Telegraphs and represent his case. Admittedly, the appellant did not approach the Superintendent. If at all, therefore, he has lost the opportunity of contesting the claim, he must thank himself. If he had approached the Superintendent, the latter would have heard him and thereafter if he showed that a lesser amount had to be recovered from him, the Superintendent would have altered the demand. Apart from this, on payment of the amount claimed from him which in this case is comparatively small, the appellant could have got a full trial on merits. The learned Judge has also pointed out that the appellant in his long plaint has claimed that demand cannot be made from him because in the criminal case no order was made for recovery against him.

It is not his case that the money was misappropriated by some other persons, nor has he said that in fact no loss was caused to the Union, Apart from this, as I have said he could have agitated the question during the trial.

11. It is then argued that the word 'defaulter' is defined in Section 2(3) of the Revenue Recovery Act to mean a person from whom an arrear of land revenue, or a sum recoverable as an arrear of land revenue, is due, and that the plaintiff does not satisfy that condition. The point also was not raised in the plaint with the result that the Union had no opportunity to produce the documents in support of its case. I called upon the Union to produce the bond which the appellant had executed in its favour. In this bond the appellant refers to Rule 103 of the Posts and Telegraphs Manual, Volume II, Third Edition, and says that he would be bound by the same and act accordingly. Then there is a clear undertaking to pay whatever loss is caused to the Union by reason of carelessness, mistake, misappropriation by him or by his conduct to the Post Master General or to such other authority of the department as directed by him, He has also referred to a circular and agreed to be bound by the same. I have received a copy of this bond in evidence and marked it as Ex. A in this appeal. If, therefore, the department found that by reason of the appellant's conduct or carelessness loss is caused to the Union to the extent of a sum of Rs. 2900 and odd the appellant is clearly bound to pay, the same and is thus a defaulter.

12. Rule 103 of the said Manual refers to the provisions of the Public Accountants' Default Act, 1850 and provides that a postal officer shall be bound by the provisions of that Act. By Section 4 of the said Act of 1890 it is provided that the person or persons at the head of the office to which any public accountant belongs may proceed against any such public accountant and his sureties, for any loss or defalcation in his accounts, as if the amount thereof were an arrear of land revenue due to Government. Clearly, therefore, the loss caused to the Union is recoverable as an arrear of land revenue, The appellant, therefore, would clearly fall within the terms of this section. On his undertaking he is clearly a defaulter.

13. It is then argued that the proclamation issued by the Mamlatdar is illegal and void, Reliance for this contention is placed on Section 6 of the Revenue Recovery Act, which reads as follows:

'(1) When the Collector of a district receives a certificate under this Act, he may issue a proclamation prohibiting the transfer or charging of any immovable property belonging to the defaulter in the district.' In this connection, Section 7 is also relevant and so far as material is as follows:

'Nothing in the foregoing sections shall be construed-

(a) to impair..... or affect the provisions of any other enactment for the time being in force for recovery of land revenue or of sums recoverable as arrears of land revenue.'

In the present case, the answer to this contention is two-fold. Firstly, Section 6 of the said Act has no application to the proclamation issued which is at Ex. 52. The proclamation referred to in Section 6 is of the nature of attachment, while the proclamation that is issued by the Mamlatdar is for the sale of the property. Section 5 relates to the issue of the certificate by the Officer concerned and transmission of that certificate to the Collector of the district where the property of the defaulter is situated. Section 6 speaks of an attachment so as to prevent the transfer of that property to others. No special procedure has been prescribed for selling the property of the defaulter. As provided by Section 7, the procedure obtaining under any other local Act would continue to apply with the result that the provisions of the Land Revenue Code for attachment and sale of the property must apply notwithstanding Section 6 of the Act of 1890. Under the administrative order No. VIII which has been reproduced by Gupte in his Rules under the Land Revenue Code, a Collector is entitled to delegate some of the powers to the Mamlatdar. This includes the power to issue proclamation for sale and to sell the property of a defaulter. The Mamlatdar has purported to do what he is thus authorised to do. If a contention had been raised by the appellant in clear and precise terms regarding this proclamation in the trial Court, the orders delegating the authority to the Mamlatdar to issue such proclamation and effect sale could have been produced. Ordinarily, the presumption of law is that official acts are done as required by law in a proper way. I do not see why the presumption should not be applied to the proclamation of sale in this case. The decision, therefore, in Bulu Rani v. Member, Board of Revenue : AIR1962Cal499 which was relied upon by Mr. Tambe, can have no application to the present case. Even in the case, the learned Judge held that, at least as regards those matters for which no special provision Is made by the Revenue Recovery Act the ordinary law is applicable. This judgment, in my view, does not support Mr. Tambe, but in a large measure supports the conclusion to which I have reached, though, of course, I hold that the provisions of the Revenue Recovery Act do not impair the provisions of the Land Revenue Code for recovery of land revenue by reason of Section 7. Since the amount is to be recovered as land revenue, those provisions will apply.

14. In this connection, I may observe that the proclamation itself shows that an order directing auction was made by the concerned Prant Officer, who would have the power to issue orders of recovery tinder administrative Order VIII. It is, therefore, clear that it is under this authority that the Mamlatdar derived the power to issue the proclamation.

15. The Trial Court held that the proclamation was bad and invalid on the ground that the certificate itself was bad as it was issued without holding an inquiry. No other ground was urged before the Trial Court. In appeal Court, the learned Appellate Judge held that the proclamation was valid because he came to the conclusion that the certificate was good. Even if, therefore, the appellant was allowed to raise this point, in my view, the proclamation is clearly a valid proclamation and there is no substance in the contention raised on behalf of the appellant that it was issued without authority.

16. Another contention that was urged by Mr. Tambe in connection with the proclamation is that the Mamlatdar was not aware of the certificate issued by the Collector for recovery of this amount. It is not his case that the certificate is ante-dated. The certificate is of February 16, 1962 and the proclamation for sale has been issued on August 1, 1963 on the order of the Prant Officer for doing so. Reliance is placed on paragraph 7 of the written statement and it is pointed out that there is no specific allegation by the Union that the proclamation was issued as a result of the issue of the certificate or by reason of the certificate. I have carefully read the said paragraph and I am of the view that it is implicit in the said paragraph that the proclamation for sale was issued by reason of the certificate and the order of recovery of the Prant Officer. The Union relied upon the certificate and contended that the proclamation was fully authorised, I do not see why it was further necessary to state that the certificate was also brought to the notice of the Mamlatdar. It is the Collector who has to direct sale of the property, and the Prant Officer exercising the powers of the Collector has directed the same. The Mamlatdar was only concerned with the issuing of the proclamation of sale which he has done. The authority, however, of the Prant Officer and the Mamlatdar flowed from the certificate and even if they were not aware of the existence of the certificate, which I hardly doubt, the order would be valid, as decided in Pitambar Vajirshet v. Dhondu Navlapa, (1888) ILR 12 Bom 486. It has been also held that even if there is wrong reference to the power under which action is taken, that does not invalidate the action, if it could be justified under some other provision. (vide Hukumchand Mills v. State of M. P. : [1964]52ITR583(SC) , P. Balakotaiah v. Union of India : [1958]1SCR1052 .

17. The learned appellate Judge has also held that the suit cannot be maintained by the appellant unless he deposits the amount claimed from him in Court. Now, it is true that if the appellant had contested the claim on merits and had challenged the liability, then probably Section 4 of the Revenue Recovery Act would have applied. If he, however, challenges only proclamation and its legality, then in every probability that section may not have any application. It is, however, not necessary for me to decide that point as on merits I have decided against the plaintiff.

18. In the result, the appeal fails and theplaintiff's suit is dismissed with costs throughout. Interim injunction in the Civil Application is vacated. The appellant will paythe costs of the application also to the Union.

19. Appeal dismissed.


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