1. This is an application for revision of an order, dated the 20th September 1906, of the Officiating Sessions Judge of Gorakhpur, confirming the order of Babu Ganga Prasad, a magistrate of the first, class, sentencing the first three applicants to five months' under Sections 147 and 353 of the Indian Penal Code and sentencing the last five of the applicants to three months' rigorous imprisonment each.
2. It would appear that the applicants had made default in the payment of Government revenue. Property was seized under what was alleged to be an attachment under the provisions of the Land Revenue Act of 1901. The applicants resisted the seizure of the property and hence the charge against them and their Conviction,
3. It is contended on behalf of the applicants that the attachment was illegal. Section 147 of the Land Revenue Act empowers the Collector to attach and sell the property of a person making default in payment of Government revenue. Section 227, Sub-section 16, confers this power to attach and sell property upon an Assistant Collector of the first class in charge of a sub-division of a district. Section 228 confers a like power on an Assistant Collector of the first class although he is not in charge of a subdivision, but his power is limited to such cases or classes of cases as the Collector may from time to time refer to him for disposal. The Act in no case confers this power of attachment and sale on any other person. The attachment in the present case was not made by or under the authority of the Collector, or of the Assistant Collector in charge of a sub-division, or by an Assistant Collector to whom the case had been referred under the provisions of Section 228. The attachment and sale was made by the tahsildar, who gave some kind of a warrant of authority to the probationary tahsildar. The only sanction for the action of the tahsildar was a general order which the Collector had endorsed on an application by the tahsildar dated the 24th May 1906.
4. This application or document commences with a kind of a report from the tahsildar to the Collector that the landholders are troublesome people who know the law and against whom it would be advisable to have a general order for attachment and sale. The endorsement by the Collector purports to grant it sanction to the general attachment in pursuance of the prayer of the application. In my judgment the attachment and sale of the property was illegal. It is quite clear that the Legislature conferred the power of sale and attachment only upon the Collector and Assistant Collector of the first class in manner already stated. The Collector and Assistant Collectors of the first class are bound to exercise themselves the power and discretion vested in them by law, and they have no right to delegate their authority to a tahsildar. The Board's Circular, Vol. I, Part III, relating to the recovery of arrears of land revenue under the Land Revenue Act of 1901, Rule No. 4, expressly provides that process under Section 149 is only to be issued by or under the orders of the Collector or Assistant Collector in charge of the sub-division. In my judgment the passing of a general order for all cases whether of a sub-division or particular villages or village is not a compliance with the Act or rules. It is stated that the practice adopted in this case is a general practice. If this is the case, the practice in my judgment ought to cease.
5. On the general merits of the case it would appear that the persons seizing the property were acting in good faith under colour of their office. The convictions might be sustained under Sections 352 and 147 of the Indian Penal Code, if not under Section 353. It is unnecessary, however, to alter the convictions in view of the order which I now intend to make. Being of opinion that the applicants have been sufficiently punished by the imprisonment they have already undergone, I direct that in the cases of those applicants whose terms of imprisonment have not yet expired, they be immediately released. In the cases of the other applicants I make no order. The record may be returned.