Shiv Dayal, C.J.
1. By this petition under Article 226 of the Constitution the petitioner seeks a writ in the nature of certiorari to quash the orders of assessment, the orders of the Central and the State Governments holding that the petitioner is liable to pay royalty on limestone according to use the notices of demand for recovery of additional royalty and the recovery proceedings pending before the Tahsildar, Maihar. He further seeks a writ of mandamus or prohibition to restrain the respondents from recovering the amounts of additional royalty in accordance with the impugned assessment and the notices of demand by coercive process, and further to direct respondents 1 and 2 to assess the petitioner properly,
2. The respondents, while resisting the petition, raised a preliminary objection at the hearing before the Division Bench. The preliminary objection is based on Section 150 of the M. P. Land Revenue Code. It was urged that an alternative remedy by way of a suit being available under that section, this petitionabated by force of Section 58 (2) of the Constitution (42nd Amendment) Act, 1976. The Division Bench has referred this preliminary question for decision by a larger Bench. That is how the matter is before us.
3. The recovery proceedings are inrespect of royalty on limestone. It is common ground that the proceedings have been taken under Chapter XI of the M. P. Land Revenue Code, inasmuch as by virtue of Section 155 of the Code moneys are recoverable in the same manner as an arrear of land revenue. That section enacts that moneys may be recovered, as far as may be, under the provisions of that Chapter in the same manner as an arrear of land revenue. Now. Section 150 runs thus :--
'150. Payment under protest and suit for recovery.---(1) If proceedings are taken under this Chapter against any person for the recovery of an arrear of land revenue, he may, at any time before the property is knocked down at a sale, pay the amount claimed and may, at the same time, deliver a protest signed by himself or by his authorised agent to the Revenue Officer taking such proceedings, and thereupon they shall be stayed.
(2) Any person complying with the provisions of Sub-section (1) may, notwithstanding anything contained in Section 145, apply to the Sub-Divisional Officer that nothing was due or that the amount due was less than the amount for the recovery of which proceedings were taken and the Sub-Divisional Officer shall decide the objection so raised.
(3) No appeal shall lie against the order of the Sub-Divisional Officer passed under Sub-section (2) but the person concerned may institute a civil suit for the recovery of the sum or Dart thereof paid under protest.'
4. The preliminary objection raisedfor the respondents is that the defaulter may deposit the amount and get his liability determined by the Sub-Divisional Officer. In case he is not satisfied with that decision, he can file a civil suit. Thus a civil suit being an alternative remedy within the meaning of Section 58 (2) of the Constitution (42nd Amendment) Act, 1976, this petition under Article 226 of the Constitution is barred.
5. In order to appreciate the applicability of Section 150 of the Code, the scheme of Chapter XI has to be seen. This Chapter was primarily enacted for realisation of land revenue. That is the title of the Chapter. Land revenue is the first charge on land and on the rents and profits thereof (vide Section 137). However, Section 155 enables recovery of certain other moneys enumerated and classified in that section, in the same manner as an arrear of land revenue. It must, however, be noted that a clear distinction has been maintained throughout the Chapter between an 'arrear of land revenue' and 'dues recoverable as an arrear of land revenue'. Once that distinction is appreciated, it will be clearly seen that Section 150 applies to the former and not to the latter. Section 139 speaks of arrears of land revenue, pure and simple. Sub-section (1) of Section 142 reads thus :--
'Where a Patel, Patwari, Gram Sabha or Gram Panchayat receives a payment from any person (i) on account of land revenue or (ii) on account of any sum of money recoverable as an arrear of land revenue he/it shall grant a receipt for such sum in the prescribed form.'(Numbering by us)
The two expressions are not confused and mixed together. An obligation is cast on the Patel, etc, to grant a receipt when he receives a payment either on account of land revenue or on account of any money recoverable as an arrear of land revenue.
6. Section 143 speaks of penalty for default of payment of land revenue. Section 145 enacts a presumption in respect of a certificate issued by the Collector or the Tahsildar about the amount of arrears payable to Government and about the person who is a defaulter. Section 147 describes the process for the recovery of arrears, primarily an arrear of land revenue in the strict letter of the section. It is this recovery provided in Section 147 which is referred to in Section 155 by employing the expression 'in the same manner as an arrear of land revenue.'
7. Section 151 deals with applicationof proceeds of sale. Sub-section (1) speaks of three things; (i) Arrears on account of which the sale was held, which necessarily means both arrears of land revenue and moneys recoverable as an arrear of land revenue; (ii) arrears of cesses and (iii) any other arrear payable to the State Government by the defaulter. Under Sub-section (2) it is further clarified that arrears of land revenue is the first charge.
8. Section 152 enacts that the purchaser of the land sold for arrears of land revenue shall acquire title free of all encumbrances. Again, the basis for this provision is that land revenue being the first charge on land, a tenure holder is not allowed to create encumbrances on the land so as to jeopardise the right of the State to realise land revenue. This section does not speak of a sale for the recovery of money as an arrear of land revenue.
9. By virtue of Section 153, a purchaser at a sale under Chap. XI acquires title to the property from the time when the property was sold, and not from the time when the sale becomes absolute. This provision thus applies both to arrears of land revenue and money recoverable as an arrear of land revenue. Section 154-A again speaks of both separately :--
'When the arrear of land revenue is due in respect of a holding or where any money is recoverable in the same manner as an arrear of land revenue under Section 155, the Tahsildar may ... ... ...let out the holding.'
Under Sub-section (3) of this section again the distinction is maintained : on the expiry of the period of lease the holding shall be restored to the person concerned free of any claim on the part of (i) the State Government (in the case of land revenue) and (ii) any other authority whatsoever for the money recoverable in the same manner as an arrear of land revenue under Section 155. Section 156 provides for recovery of moneys from surety under any provisions of the Code or any other enactment as an arrear of land revenue.
10. From the above analysis, it can be clearly seen that (i) 'an arrear of land revenue' is distinct and separate from (ii) 'money recoverable as an arrear of land revenue'; and this distinction has been studiously maintained thought out the chapter. The intention of the Legislature becomes obvious enough. In every section only that expression has been used to which it was meant to apply. There does not appear to be any confusion. Where the expression 'an arrear of land revenue' alone is used it does not include 'money recoverable as an arrear of land revenue'. Bearing in mind this distinction, Section 150 of the Code may now be read carefully. The first sub-section speaks of 'an arrear of land revenue'' alone. There is no mention of 'moneyrecoverable as an arrear of land revenue', in the whole of the section. To put it differently it is only the person against whom proceedings are taken for the recovery of an arrear of land revenue, who can pay the amount claimed before the property is knocked down and deliver a protest. As soon as this is done, the proceedings shall be staved. On an application by that person, the Sub-Divisional Officer shall determine whether anything at all was due from him or any amount was due from him less than the amount for the recovery of which proceedings were taken. The decision of the Sub-Divisional Officer is not appealable but the person concerned may institute a civil suit for the recovery of the amount which he paid under protest or any part thereof.
11. The whole of Section 150 is applicable only to a proceeding for the recovery of an arrear of land revenue but not to a proceeding for the recovery of money recoverable as an arrear of land revenue. Although it is not necessary to enter into wisdom of the law makers, it is apparent enough that the levy and asessment of land revenue is a subject-matter within the exclusive jurisdiction of revenue authorities. The Sub-Divisional Officer can give a decision on the objection raised by the defaulter about his non-liability for the entire arrears of land revenue claimed from him or part thereof. The Legislature did not intend to empower the Sub-Divisional Officer to give a decision on an objection in respect of any dues other than land revenue, the jurisdiction regarding levy and assessment of which vests in other authorities exercising powers under other enactments, For instance, the Excise Act, the Sales Tax Act, etc. Having provided for a deposit and protest and having conferred jurisdiction on the Sub-Divisional Officer to decide the objection the section provides for the remedy of a civil suit as well. But such a suit can be instituted only after the amount has been deposited and decision has been obtained from the Sub-Divisional Officer This position would not obtain in case of any dues other than land revenue simipliciter although they have been made recoverable as an arrear of land revenue. Adverting now to Section 257 of the Code itself Clause (h) bars a civil suit on questions which can be determined by Revenue Authorities under the Land Revenue Code. It follows that the question whether the whole or any part of theland revenue claimed as arrears is really due or not, being within the jurisdiction of the Sub-Divisional Officer a civil suit will not lie. Opening words of Section 257 override Clause (h) with the result that a civil suit will be competent under Sub-section (3) provided it satisfies the condition precedent i.e. the compliance of Sub-section (1) and Sub-section (2).
12. Where Section 150 of the Code applies as explained above under the specific provisions contained in that section, undoubtedly, an alternative remedy within the meaning of Article 226(3) of the Constitution and Section 58 (2) of the Constitution (42nd Amendment) Act. 1976, is available,
13. Shri Dharmadhikari referred to State of M.P. v. Sunder Lal, 1976 MPLJ 254 : (AIR 1976 Madh Pra 175) and submitted that although it was a case of dues in respect of country liquor, and not a case where any question relating to arrears of land revenue as such was involved, the Division Bench proceeded to examine the impact of Section 150 of the Land Revenue Code, which was out of place.
14. It appears from the facts narrated in para. 2 of that judgment that the plaintiffs in the different suits had been granted a licence for the retail sale of country liquor under the supply system for shops. Their case was that because of shortage of liquor in the warehouse they could not get adequate supplies and they had to close their shops for a number of days causing loss in business. They (except one of them) adjusted the unpaid amounts of licence fee against the compensation which they claimed in the suits. The plaintiff in the remaining suit sought a decree for whole of the compensation claimed by him. One of the contentions for the Department was that the plaintiffs were not entitled to deduct the unpaid licence fee from the amount of compensation and to sue for the balance. It was contended that the suits were not maintainable to the extent the plaintiffs claimed adjustment of the arrears of the licence fee because of the bar contained in Section 257 (h) read with Section 150 of the M. P. Land Revenue Code, 1959. From what we have said above, it can at once be said that the objection raised by the defendant had to be rejected straightway on the ground that Section 150 had no application to that case. However, what the Division Bench said in para. 7 may be reproduced here:--
'The arrears of licence fee payable to the State under an excise licence canbe recovered as arrears of land revenue under Section 64(1)(c) of the Excise Act. The procedure provided for realisation of land revenue in Chapter XI of the Land Revenue Code can, therefore, be utilised by the State for recovering licence fee due under an excise contract, If proceedings are taken for recovery under this Chapter, the person against whom recovery is sought can pay the amount claimed under protest before his property is knocked out at a sale. He can then object to the Sub-Divisional Officer that no amount was due or that the amount due was less than the amount for which recovery proceedings were started. If the Sub-Divisional Officer overrules the objection so raised, the person aggrieved can institute a civil suit. This procedure is prescribed in Section 150 of the Land Revenue Code.' (Underlined by us)
Having said all this, the Division Bench proceeded to see whether Clause (h) of Section 257 applied and barred the suit. They expressed their opinion thus :--
'In our opinion, the suits with which we are concerned in these appeals do not fall under that clause. But then itis submitted that the plaintiffs after depositing under protest the arrears oflicence fee in recovery proceedings underSection 150 could have applied to the Sub-Divisional Officer for adjudication thatthe arrears were not due as they stoodadjusted against the amount of compensation payable to them. It is furtherargued that the remedy of suit could beresorted to by the plaintiffs only afterfollowing, this procedure and after rejection of their claim of adjustment by theSub-Divisional Officer. In our opinion,Section 150 is not open to any such construction. All that the section means is thatif the defaulter wants to have first asummary decision of the Sub-DivisionalOfficer, which is open to challenge in acivil suit, he should deposit the amountof arrears claimed by the State underprotest before the sale of his property isknocked down.' (Underlined by us)
Shri Dharmadhikari submits that since Section 150 had no application at all inasmuch as it was not a case of 'arrears of land revenue' as such, this entire discussion was out of context and irrelevant. He is right.
15. Again, the observations of the Division Bench to the effect that in a case where Section 150 applies a suit under Sub-section (3) can be instituted straightway without depositing amount of land revenue under Sub-section (1) or approaching the Sub-Divisional Officer for a decision as contemplated in Sub-section (2) are not right. The reason is that the right to institute a civil suit under Sub-section (3) accrues only after the defaulter has deposited the amount under Sub-section (1) of that section. The civil suit contemplated in Sub-section (3) is 'for the recovery of the sum or part thereof paid under protest.' A civil suit is otherwise barred by Section 257 (h). Land Revenue Code.
16. Our answer to the question referred to us is this:--
(1) Section 150 of the M. P. Land Revenue Code, applies to recovery of 'an arrear of land revenue' but not to proceedings for the recovery of any sum of money which is 'recoverable as an arrear of land revenue' within the meaning of Section 155 of that Code.
(2) In a proceeding for the recovery of an 'arrear of land revenue', the person proceeded against has an alternative remedy by applying to the Sub-Divisional Officer for the determination of the objection that no amount was due or that the amount due was less than the amount claimed in the proceeding, and that decision is subject to a civil suit. The suit contemplated in Sub-section (3) of Section 150 is an alternative remedy within the meaning of Article 226(3) of the Constitution and Section 58 (2) of the Constitution (42nd Amendment) Act, 1976.
(3) In a proceeding for the recovery of a sum of money 'recoverable as an arrear of land revenue', the provisions of Section 150 of the Land Revenue Code are inapplicable. Neither the proceeding under Sub-section (2), nor a civil suit under Sub-section (3) is available to a defaulter. Thus, in such a case, a civil suit contemplated under Section 150 (3) of the Code is not an alternative remedy.
(4) The question whether in a case for the recovery of a sum of money 'recoverable as an arrear of land revenue' a civil suit under the general law will be an alternative remedy within the meaning of Article 226(3) of the Constitution, or Section 58 (2) of the' Constitution (42nd Amendment) Act. 1976, is not before us. We, therefore, do not express any opinion on that question
17. The petition shall now be laid before a Division Bench.