Prakash Narain, J.
(1) This judgment will dispose of both L, No. 123 of 1967 and L.P.A. 124 of 1967 arising out of a judgment dated 22nd November, 1967 dismissing C.W. 217-D of 1964 and C.W.No. 150-D of 1961.
(2) The appellant/petitioner in both these appeals is a society registered under the Bombay Co-operative Societies Act, 1925, as extended to Delhi. Certain lands situated in village Okhla Molar Bund, Ali, Jasola, Sadabad, Madanpur and certain other villages within the Union Territory of Delhi are owned by the Government of Uttar Pradesh. With a view to assist the Grow more Pood Campaign of the Government of India by bringing under cultivation as much land as possible the appellant society approached the Government of Uttar Pradesh through the Government of India for lettiag out to it the above land so that the same could be brought under plough. By a letter dated 7th September, 1949, Shri A.D. Pandit, the then Secretary to the Government of Uttar Pradesh expressed the willingness of his Government to lease out 928.8 acres of its land situated in the Union Territory of Delhi for a period of 10 years Ob a rent of Rs. 40.000.00 for the first year and Rs 50,000.00 per annum for the remaining 9 years on certain conditions. Since the Government of India was itself not prepared to take the land on lea se from the Government of Uttar Pradesh it suggested that the land may be leased out by the Government of Uttar Pradesh directly to the appellant -society. By a letter dated 15th September, 1949, the State Government conveyed its willingness to lease out the land to the appellant provided the latter deposited one years rent in advance. The appellant accepted this offer and deposited the amount. A lease deed was then executed on or about l3th November, 1950 between the appellant and the Governor of Uttar Pradesh in which a note was appended at the end that for want of full records 810 acres were being entered as leased out to the appellant but the area was Subject to verification and amendment. Possession of some land was given to the appellant on 1st November, 1949, even prior to the execution of the lease-deed or grant. In may, 1955 actual measurements were carried out on the spot and it transpired that the area of the land handed over to the appellant was only 810 acres The appellant thereupon represented to the Government of Uttar Pradesh that since the original rent had been fixed on the basis of 928.8 acres being let out, a proportionate reduction in the rent should be made in view of only 810 acres having been Jet out to it. Several meetings were held in this connection and the Executive Engineer of the Agra Canal Department of the Uttar Pradesh Government recommonded a proportionate reducticn in the rent. Whether this proposal was ever considered by the Government of Uttar Pradesh is not clear on record
(3) The appellant aid pay some moneys but kept on agitating about Jental being re-fixed. Uttar Pradesh Government, on the other band, did not decide this question and on 26th July, 1970 the Executive Engineer of the Upper Division, Agra Canal Mithura (Under whose charge these lands were) gave a note to the appellant to arrange to pay a total sum of Rs. 4,48 978.55 as lease money and interest due till then within 30 days failing which legal action to enforce the payment will be taken. It appears that the appellant did rot pay this amount and so the said Executive Engineer acting for the State of Uttar Pradesh took recourse to section 3 of the Revenue Recovery Act and asked for sending of a certificate by the Collector of Mathura to the Collector of Delhi to recover the amount due to the Uttar Pradesh Government as arrears of land revenue. In the certificate dated 23td February, 1961 that was actually sent the amount claimed was Rs. 4,73,038.52. Another certificate for Rs. 2,41,923.74 was sent on 4th February, 1964. The collector of Delhi in accordance with the provisions of the Revenue Recovery Act., 1890 issued warrants of attachment against the appellant. The appellant society challenged these demands by way of two writ petisions on several grounds lt was contended that the a mount sought to be recovered by the Cllector of Delhi at the instance of the Uttar Pradesh Government and the Collector of Mathura could not be recovered as arrears of land revenue in as much as Section 65 of the Bombay Cooperative Societies Act, was not attracted for dues payable by the Cooperative Society to any Government of any State but was attracted only if there were dues payable by the Co-operative Society to the Government of the State in which the society was registered. It was also .contended that the Collector of Mathura could not issue a certificate in respect of the amounts to the Collector of Delhi under the provisions of section 3 of the Revenue Recovery Act, 1890 because the amounts were not sums recoverable under that Act Lastly it was contended that even if a certificate of recovery could be issued it could be issued only for sums that were legally due and recoverable and in as much as there was a dispute between the appellant and the Uttar Pradesh Government as to the amount that could be charged as rent unless some determination was made by some forum as to what was the actual amount payable, recovery could not be made.
(4) None of these points found favor with the learned Single Judge with the result that the writ petitions were dismissed. Aggrieved the appellant preferred the present appeals.
(5) During the course of hearing of these appeals an application was moved by the appellant seeking permission to urge additional grounds. In this application it was contended that sections 3 and 5 of the Revenue Recovery Act, 1892 were vocative of Article 14 of the Constitution of India in as much as persons similarly situated could be treated differently inregard to recover of arrears of land revenue or sums recover able as arrears of land revenue by the Collector who may either proceed under the Revenue Recovery Act or may file a suit for recovery of the amount. The contention was that it was left to the Government seeking the issue of certificate to choose whether the sums recoverable as arrears of land revenue were recovered by it by adopting the more stringent method prescribed by sections 3 and 5 of the Revenue Recovery Act or by filing a civil suit without there being any guideline given as to in winch cases the Government decides to choose one method or the other It was also contended in this application that in fact the Government of Uttar Pradesh has filed a suit for possession of these lands and recovery of the lease money and damages for use and occupation in this High Court during the pendency of these appeals and the amount claimed in the suit included the amount sought to be recovered through the Collector of Delhi The respondents opposed the application. we, however, by our order of May 25, 1970 permitted the appellant to raise the additional grounds,
(6) Apart from challenging the decision of the learned Single Judge on merits, Mr. D.D. Chawla strongly challenges the constitutionality of sections 3 and 5 of the Revenue Recovery Act, 1890 as being vocative of Article 14 of the Constitution and has also urged that in any case the administrative act of the Government of the State of Uttar Pradesh in trying to recover the amounts due to it by getting a certificate of recovery issued to the Collector of Delhi is vocative of Article 14 of the Contitution. It is urged that inasmuch as now even a suit has been filed by the State of Uttar Pradesh for various reliefs including recovery of the amounts sought to be recovered through the Collector of Delhi, a clear case of discrimination and following of alternate remedies by the Government of Uttar Pradesh stands established
(7) The view that we are going to take in this matter makes it wholly unneessary for us to either dilate upon the contentions advanced by the appellants before the learned Single Judge or on the constitutionality of sections 3 and 5 of the Revenue Recovery Act, l890. In our view the recovery certificate must be quashed on the ground of Article 14 of the Constitution of India being violated by an officer of the Government of the State of Uttar Pradesh inasmuch as the action of invoking Section 3 of the Revenue Recovery Act is discriminatory
(8) Under our Constitution both executive or administrative acts on the one hand and legislative acts or the other are included in acts of State according to the definition of the word ''State' given in Article 12 of the Constitution. Looking at article 13 of the Constitution we find that the word 'law' includes, among other things, any order or notification, so that even executive orders or notifications mast not impinge upon the guarantee enshrined in Article 14 of the Constitution. Reading 'Articles 12,13 and 14 together it becomes obvious that the State is prohibited from discriminating whether it be in the legislative or in administrative sphere. It is in this view of the matter that Article 14 of the Constitution prohibits discrimination both in equality before the laws as well as equal protection of the laws.
(9) A clear distinction must be kept in view in the application of the equal protection clause enshrined in Article 14 to discriminatory legislation and discrminatory application of a non-discriminatory law. A law ofends against this guarantee if it lacks intelligible differentia for the classification made by it but an administrative act done in pursuance of a legislation which is not discrminatory offends the guarantee of equal protection if the act is intended to be discriminatory as distinguished from the inequality resulting from the operation of the statute. The act of an officer of the State even if supported by the authority of a particular law can be discriminatory inasmuch as the same cannot be justified on the grounds of State necessity, public convenience, orders of a superior etc Further, though the law may by constitutional, if the action is such that there is an element of arbitrariness or absence of bona fides, it v. ill impinge upon the equality clause enshrined in Article 14 of the Constitution
(10) Another aspect that has to be kept in view in determining a challenge to an excutive action as being discriminatory is that where the State has two alternative remedies available to it and it chooses to adopt both in order to achieve an object, the adoption of the more stringent of the two remedies would per se be hostile discrimination.
(11) The Supreme Court as far back as in 1952 in Stats of West Bengal v. Anwar Ali, and in the case of Kathi Raning v. State of Saurashtra, held that equality before the law and equal protection of the law guranteed by Article 14 of the Constitution includes the concept that the law being what it is, its application should be universal in every case which answers the discription of the legislation and so where an officer of State is guilty of discriminatory conduct in his official capacity when carrying out the provisions of an Act which are not themselves discriminatory bids action would be vocative of the equality clause enshrined in that Article of the Constitution. To quote from the speech of Mukherjee, J. in the case of Anwar Ali: 'It appears to be accpepted doctrine of American Courts that the purpose of the equal protection clause is to secure every parson within the States,against arbitrary discrimination, whether occasioned by the express terms of the statute or by their improper application through duly constituted agents. This was clearly laid down Sunday Lake Iron Co v. Wake field. In.this case, the complaint was against a taxing officer, who was alleged to have assessed the plaintiff's properties at their full value, which all other persona in the country' were assessed at not more than one-third of the worth of their properties. It was held that the equal protection clause could be availed of against the taxing officer, but if be was found to have acted bona fide and the discrimination was the result of a mere error of judgment on his part, the action would fail. The position, thereforee, is that when the statute is not itself discriminatory and the charge of violation of equal protection is only against the official who is entrusted with the duty of carrying it into operation the equal protection clause could be availed of in such cases ;..... ...'' In Rathi Raning v State of Saurashtra the same learned Judge observed as follows :-
'IT is a doctrine of American Courts.which seems tome to be well founded on prinnciple that the equal protection clause can be invoked not merely where discrimination appears on the express terms of the Statute itself, but also when it is the result of improper or prejudiced execution of the law : vide Weaver on Constitutional Law, Page 404.'
This view has been consistently followed by the Supreme Court in all subsequent decisions. In the cose of State of Andhra Pradesh v. Raja Reddy it has been observed that Article 14 includes within it spurview both executive and legislative acts and that official arbitrariness is more subversive of the doctrine of equality than statutory discrimination
(12) The sums of money claimed by the Uttar Pradesh Government arise out of a contractual liability as per the lease deed or grant issued by the State Government in favor of the appellant for 810 acres of land. There was a dispute raised by the appellant as to the annual rent payable in view of what they claim to be a reduced area given to them as against the area originally promised and on the basis of which the rental was worked out. In any case, whatever the amount due could be realised by filing a suit for the recovery of arrears. This is in fact has been done subsequently and the suit is pending in this Court. The sums of money claimed are neither land revenue nor sums recoverable as arrears of land revenue within the meaning of the revenue RecoVery Act itself read with the Punjab Land Revenue Act or any other Revenue Act applicable. It is only by invoking the provisions of section 68 of the Bombay Co-operative Societies Act, that it is sought to make the sums recoverable as sums recoverable by way of land revenue. Under the lease or grant it cannot be disputed the sums claimed by the Uttar Pradesh Government could be recovered by filing a civil suit. The Uttar Pradesh Government first tried to recover the Sams due to it by the stringent process provided by the Revenue Recovery Act and later filed a suit for the recovery of the sum. That such a large sum of money was first sought to be recovered through coercing process cannot but be regarded in the circumstances of the case to be anything but official arbitrariness which, as observed in the case of Raj Raddy, is more subversive of the doctrine of equality than statutory discrimination.
(13) Mr. C B. Aggarwala the learned counsel for the .State of Uttar Pradesh has urged that Article 14 would not beattracted in the circumstances of the present case inasmuch as if two procedures to obtain the same relief are available to the State Government msrely because it chose to adopt one particular procedure its action cannot be called arbitrary or discriminatory so as to violate Article 14 of the Constitution. According to him even the subsequent filing of the suit by the uttar Pradesh Government does not throw any stigma on its earlier action of invoking sections 3 and 5 of the Revenue Recovery Act. In this connection he first relied on the decision of the Supreme Court in Manna Lal and others v. Collector of Jhalwar In this case a liability due to Jhalwar State Bank which was payable by the debtor under the application for a loan and the receipt for the money advanced became a public demand after the merger of Jhalwas State in State of Rajasthan and so could be legally recovered under the provisions of Rajasthan Public Demands Recovery Act, 1952 and Article 14 of the Constitution was not violated. It is urged on this ratio the moneys due to the Government in respect of its trading activities could be recovered by way of filing a civil suit or proceedings under the Rajasthan Public Demands Recovery Act. In our view the judgment relied upon does not lay down this proposition at all. The contention raised in that case was whether the Government as a banker could legitimately be put in a separate class and it was held that the Government could not be equated with other bankers and so Article 14 of the Constitution is not offended, the position vis-a-vis two debtors was not considered or adverted to or even urged in that ease.
(14) Reliance was next placed on the decision of the Supreme Court in the case Nav Ratianmal v. State of Rajasthan where providing a different period of limitation for Government as against an individual or citizen was upheld as a reasonable classification. The question of choosing alternative remedies did not arise at all. Reliance by the learned counsel on the decision of the Supreme Court in the Padrauna Raj Krishna Sugar Works Ltd. and others v. The Land Rejorms Commissioner, U. P. and others and decision of the Supreme Court in Collector of Malabar v. E. Ebrahim would also not help the respondents inasmuch as in neither of these cases did the executive action as being vocative of Article 14 of the Constitution of India came up for consideration These cases merely upheld the validity of the various Revenue recovery Acts which point would be relevant only to the other contention about the constitutionaality of sections 3 and 5 of the Revenue Recovery Act on which we are expressing no opinion. Similarly, the decision of the Supreme Court in 1955 I.T.R. 891 would be relevant only on this issue.
(15) The present csae where by administerative fiat one or the other remedy is chosen is really a case which falls in the other category of cases envisaged by Article 14 of the Constitution .viz., there mast be equality of treatment for all persons falling in the same class and it cannot be left to the absolute and uacontrolled discretion of the executive authority to decide whether it adopts the more prejudicial procedure to start with and the normal procedure thereafter. The challenge here is only against the specific act of an individual officer as being in contravention of Article 14 of the Constitution. The argument that the appellant can deposit the money under protest and then recover it by filing a civil suit in which even the validity of the certificate of the Collector can be questioned would not prevent this court from issuing a writ quashing the impugned action. That argument is really relevant if it is urged that the appellant has an alternative remedy or other adequate remedy disentitling them to relief under Article 226 of the Constitution of India. This aspect has beea negatived by the Supreme Court in its decision in the State of Bombay v. The United rotors (India) Ltd. If the alternative remedy is more onerous and of burdensome character inasmuch as the appellant must first deposit the amount and then reclai it, the remedy can hardly be described as an adequate alternative remedy.
(16) In, view of the matter the impugned certificate is quashed on different grounds and the appeals must be accepted. It is thereforee, ordered that a writ shall issue to the respondents restraining them from Realizing the arrears of lease money and interest thereon from the appellant as sums by way of arrears of land revenue in parsuance of the certificate issued by the Collector of Mathura under sections 3 and 5 of the Revenue Recovery Act. The appellants will also be entitled to their costs of these appeals.
(17) I agree, but, in view of the importance of the matter, would like to add a few lines.
(18) Article 14 of the Constitution enshrines the doctrine of equality before the law and of equal protection of the laws within the territory of India. It is well established that the equality or equal protection of laws guaranteed by Article 14 is not confined to the law enacted by a legislature but covers also executive orders and notifications. This, as it should be; for otherwise the protection afforded would become illusory, if the law enacted by the legislature could not violate Article 14, but the executive action could. In modification of the words of Lord Atkin in James v. Cowan it may be said that the Constitution is not to be mocked by substituting executive for legislative interference with equality.
(19) The liability of the appellant for the amounts in question arises out of contract. The State of Uttar Pradesh is seeking to recover the amounts due from the appellant by resort to the provisions of the Revenue Recovery Act. The said State has also filed a suit in this Court for the recovery of those amounts. The fact that two different and parallel proceedings have been started against the appellant for the recovery of the same amounts shows that there are no guide lines to indicate as to what are the cases in which resort has to be made to the provisions of the Revenue Recovery Act and what others where the remedy of the suit is to be availed of. To argue that it is left to the discretion of authorities to avail of whatever remedy they consider proper' shows that the discretion is uncanalised and absolute This would smack of arbitrariness and impinge upon the guarantee provided by Article 14. It can hardly be disputed that the provisions of the Revenue Recovery Act are much more coercive and stringent. The facts of the case show that the appellant-society denies its liability to pay the amounts claimed by the State of Utter Pradesh. Admittedly, there has been no adjudication by any Tribunal as to what amounts are due from the appellant. According to Mr. Aggarwal. if the appellant-socity denies the liability to pay the amounts, it should pay the same and then file a suit for the recovery of those amounts under Section 4 of the Revenue Recovery Act. According to that section, when proceedings are taken against a person for the recovery of an amount stated in a certificate, that person may, if he denies his liability to pay the amount or any part thereof and pays the same under protest made in writing at the time of payment and signed by him or his agent, institute a suit for the repayment of the amount or the part thereof so paid. Keeping in view the enormity of the amounts claimed from the appellant, the remedy provided by Section 4 cannot be considered to be adequate. I, thereforee, agree with my learned brother that the impugned certificates be quashed.