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Ganesha Ram Vs. Collector, Jalore and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 312 of 1966
Judge
Reported inAIR1968Raj72
ActsTenancy Law; Rajasthan Land Revenue Act, 1956 - Sectioins 256, 257A and 257B; Rajasthan Panchayat Act, 1953 - Sections 80; Code of Civil Procedure (CPC) , 1908
AppellantGanesha Ram
RespondentCollector, Jalore and ors.
Appellant Advocate Hastimal Pareekh, Adv.
Respondent Advocate B.C. Chatterji, Dy. Govt. Adv.
DispositionPetition allowed
Cases ReferredR. v. Edmundson
Excerpt:
- - a copy of the charge list has been brought on this record and is ex-1. the petitioner's case is that in all 5 copies of this charge list were prepared at that time which consisted of 4 pages in all, and each of these pages was signed by him as well as the new sar panch tulsa ram and one copy of such charge list was sent to the collector jalore, another to the block development officer, raniwara, yet another copy was kept in the office of the panchayat itself and one copy each was retained by the outgoing and incoming sar panchas. it is common ground between the parties that the collector and the block development officer received their respective copies of the charge list on the 13th february, 1965. it further appears that on the last mentioned date, that is, 13th of february,.....modi, actg. c.j. 1. this is a writ petition by ganesh ram under article 226 of the constitution praying for the issue of a writ, direction or order quashing the proceeding for recovery of a sum of rs. 8, 997/30 paise which is being enforced against him under section 256 of the rajas-than land revenue act (act no. 151 of 1956 (hereinafter to be: referred as the 'act'), and the cognate sections as amended and also for restraining the respondents from taking any further proceedings against him in that behalf under the said act. 2. the material facts are these: the petitioner ganesh ram was sar panch of gram panchayat ropsi. tehsil bhinmal district jalore from 1961 to 1964. on the expiry of the term of the panchayat he handed over charge of his office to the new sar panch tulsa ram on or.....
Judgment:

Modi, Actg. C.J.

1. This is a writ petition by Ganesh Ram under Article 226 of the Constitution praying for the issue of a writ, direction or order quashing the proceeding for recovery of a sum of Rs. 8, 997/30 paise which is being enforced against him under Section 256 of the Rajas-than Land Revenue Act (Act No. 151 of 1956 (hereinafter to be: referred as the 'Act'), and the cognate sections as amended and also for restraining the respondents from taking any further proceedings against him in that behalf under the said Act.

2. The material facts are these: The petitioner Ganesh Ram was Sar Panch of Gram Panchayat Ropsi. Tehsil Bhinmal district Jalore from 1961 to 1964. On the expiry of the term of the Panchayat he handed over charge of his office to the new Sar Panch Tulsa Ram on or about the 8th February, 1965. According to him, a charge list was prepared of all the papers and cash which he handed over to the incoming Sar Panch and this included the sum of Rupees 5,807/63 paise, which stood as a cash balance in the Cash Book of the Panchayat on that day. A copy of the charge list has been brought on this record and is Ex-1. The petitioner's case is that in all 5 copies of this charge list were prepared at that time which consisted of 4 pages in all, and each of these pages was signed by him as well as the new Sar Panch Tulsa Ram and one copy of such charge list was sent to the Collector Jalore, another to the Block Development Officer, Raniwara, yet another copy was kept in the office of the Panchayat itself and one copy each was retained by the outgoing and incoming Sar Panchas.

It is common ground between the parties that the Collector and the Block Development Officer received their respective copies of the charge list on the 13th February, 1965. It further appears that on the last mentioned date, that is, 13th of February, 1965, the new Sar Panch Tulsa Ram made a complaint to the Block Development Officer, the Deputy District Development Officer and the Sub Inspector of Police at Bhinmal that the petitioner had failed to pay him the aforesaid balance of Rs. 5,807/63 paise on demand, presumably on the 8th of February, 1965 and consequently he refused to sign the fourth page of the charge list which contained an entry as respects the delivery of this amount during the course of the charge to him, but the petitioner had somehow forged his signatures on that fourth page of each of the charge lists. It is also submitted that the particular entry relating to this item contained some over-writing.

Thereafter on the 22nd March, 1965, the Tehsildar Bhinmal served a notice on the petitioner asking him to show cause why he should not be asked to deposit the sum of Rs. 5807/63 paise, which he had failed to make over to the new Sar Panch, as alleged by him. This notice is Ex. 2. In his reply to the notice, according to the petitioner, he stoutly repudiated the allegations made against him and relied in support of his submission on the charge lists which were allegedly signed by him as well as Tulsa Ram on all the pages thereof, The petitioner's grievance is that thereafter no inquiry whatsoever was made into this matter in his presence or after giving a notice to him, and that on the 12th October, 1965, the Tehsildar issued a warrant of attachment (Ex-3), against him calling upon him to pay a sum of Rs. 8,997/13 paise which included some more items (see Ex. A/9 for the details thereof), in addition to the aforesaid amount of Rs. 5,807/63 paise as having been found payable by him to the Panchayat, and certain properties belonging to the petitioner came to be attached in consequence. The petitioner then states to have moved an application Ex-4, before the Collector Jalore complaining against the action taken against him by the Tehsildar in ordering the attachment of his properties without any rhyme or reason.

In this application he had also prayed that a proper inquiry be ordered to be made in his presence and he was prepared to face it. The petitioner's case, however, further is that the Collector did not accede to his request and allowed the recovery proceedings to continue and consequently he filed the present writ application in this Court on 19th April, 1960. The main contentions raised by the petitioner in his writ application may be summarised as follows:

(1) It was entirely incorrect to say that any money of the Panchayat was at all outstanding against the petitioner and the fact was that he had handed over the sum of Rs. 5,807/63 paise to the new Sar Panch Tulsa Ram along with the Cash Book of the Panchayat when he handed over charge to him which is clearly borne out by the signatures of the latter on all the four pages of the charge list, (2) that no inquiry was made into this matter in his presence or after notice to him and, therefore, any conclusions to which the Panchayat Assistant or the Deputy District Development Officer came were ex parte and not at all binding and (3) in any case the method adopted for the recovery of the aforesaid amount from him under the Act was wholly illegal, and it was further contended in this connection, that even if any amount is considered to be realisable from the petitioner, the only method by which it would be lawfully recovered would be by means of a civil suit in a competent court where the points of dispute arising between the petitioner and the departmental authorities could be properly investigated and adjudicated upon.

3. This writ application has been opposed by the respondent State. The stand taken by the State is that the petitioner's version that he had made over the sum of Rs. 5,807/63 paise to the new Sar Panch Tulsa Ram at the time of the handing over the charge to him on or about the 8th February, 1965, was entirely false and that, although three of the four pages of the Charge list, which was prepared at the time of handing over charge had been admittedly signed by Tulsa Ram, the new Sar Panch, the fourth page which contained the relevant entry as to the delivery of the aforesaid cash amount to him was not at all signed by him and that the signatures of Tulsa Ram on that page were forged. It is further contended in this connection that there was a certain amount of over-writing in the relevant entry both in the charge list, and the cash book which was handed over by the petitioner to Tulsa Ram, the new Sar Panch and that there was no endorsement made in the cash book on the relevant date of the handing over of the cash to the latter.

As for the inquiry, the position taken up by the State is that the first inquiry was conducted against him by the Panchayat Assistant ' on the 22nd April, 1965, and that although the petitioner had chosen to appear before that official, at the inception of the inquiry he made himself scarce when he was asked to give his statement which he did not want to give. A second inquiry was then made on the 13th June, 1965, by the Deputy District Development Officer after due notice to the petitioner through the Vikas Adhikari. The petitioner is alleged to have avoided his appearance before that officer and was eventually traced out at Bhinmal and then filed an application dated 19th June, 1965, making his submissions with respect to the various acts of irregularity or misconduct alleged against him and from this it is contended that it would clearly appear that the allegation of the petitioner that he had no notice of the inquiry or inquiries made against him was wholly without foundation. Lastly, it is contended that as the amount of Rs. 8997/13 paise has been rightly found due against the petitioner, it was recoverable from him under Section 256 of the Act as arrears of land revenue and consequently the Tehsildar was entitled to effect the recovery thereof.

4. We may state at once that it is not for this Court exercising its writ jurisdiction, to go into the various disputed questions of fact, and that being so, we do not feel called upon to go into the two disputed questions of fact set out above, the first of which is whether the sum of Rs. 8997/13 paise, including the sum of Rs. 5807/63 paise which is alleged to have been handed over by the petitioner to the incoming Sar Panch, but is denied by the latter and by the State, to have been so handed over was in point of truth and fact, made over to or wrongly misused by the petitioner; and the second question is whether a proper inquiry into the whole case including the examination of witnesses was made by the departmental officers in the presence of the petitioner and a reasonable opportunity of defence was afforded to him on which question, again they do not seem to us to be agreed.

We should also like to mention in this connection that we should have preferred the inquiry papers to be placed before us including the notice or notices issued thereof to the petitioner, but this has not been done. We do not, however, wish to pursue this matter further, as, in our opinion, the proceedings taken by the department against the petitioner must stand concluded on a legal ground which seems to us to clinch the issue. But before we deal with that point we may as well advert to the fact that it appears from the reply filed on behalf of the State as well as from the submissions made to us by the learned Deputy Government Advocate on its behalf that a criminal complaint has already been lodged against the petitioner before the Police, and that the same has been registered and is pending in connection with the identification by a handwriting expert of the disputed signatures of the new Sar Panch Tulsa Ram on a part of the charge report containing the relevant entry relating to the delivery of the sum of Rs. 5807/63 paise with his admitted signatures.

5. This brings us to the narrow question whether the recovery proceedings taken against the petitioner under Section 256 of the Act are lawful. By way of clearing the ground, we may as well mention here that these recovery proceedings have not been taken by the State under the Rajasthan Public Demands Recovery Act obviously, because the money payable to a Panchayat cannot be equated with that payable to Government or any of its departments and was, therefore, not recoverable by resort to that Act, in support of which view, reference may be made to a Bench decision of this Court in Jagannath v. State of Rajasthan, 1966 Raj LW 253 to which one of us was a party, in which, after an elaborate examination of the legal position it was held that a sum of money payable to a Panchayat could not be held to be one payable to the Government.

6. We next turn to Section 256 of the Act which raises the crux of the controversy This section reads as follows:

'Section 256. Recovery of miscellaneous revenue and other moneys.--The following moneys may be recovered under this Act in the same manner as an arrear of revenue:

(a) all sums of money declared by this Act or by any law for the time being in force, other than the Rajasthan Public Demands Recovery Act, 1952 (Rajasthan Act 5 of 1952).

(i) to be recoverable or realisable as an arrear of revenue or land revenue or rent or

(ii) to be a demand or a public demand or to be recoverable or realisable as a demand or a public demand or as an arrear of a demand or a public demand:

(b) all sums of money '' payable to the State Government or to a department or an officer of the State Government or to a local authority on account of rates, duties, taxes, charges or other dues under any law or rule having the force of law, notwithstanding that such law or rule does not declare the same to be recoverable or realisable as an arrear of revenue or land revenue or rent or to be a demand or a public demand or to be recoverable or realisable as an arrear of a demand or a public demand:

(c) all sums of money payable to the State Government or to a department or an officer of the State Government or to a local authority,

(i) by way of fees, fines, penalties, compensation or costs imposed or awarded by any authority, hot being a civil or criminal court under this Act or under any other law for the time being in force, or

(ii) on account of pasturage, forests rights, fisherise mills, natural products of land, water-rates, irrigation charges, maintenance and management of irrigation Works and the like;

(d) all rents, premia, cesses, rates, fees and royalties due to the State Government on account of the use or occupation of land or water or other immovable property, whether belonging to the State Government or not, or on account of any products thereof or proceeds therefrom or on any other account;

(e) all sums of money due to the State Government under any grant, lease or contract which provides that they shall be recoverable as arrears of revenue or land revenue.'

This section forms part of Chapter X of the Act which is headed as 'Collection of Revenue'. Sections 224 to 254 lay down the procedure for collection of revenue and the various processes for recovery thereof. Section 256 deals with the recovery of miscellaneous revenue and other moneys. It may also be pointed out before proceeding further that this section and Sections 257A and 257B were substituted by Rajasthan Act No. 42 of 1960. A critical examination of this section with utmost respect convinces us that the drafting of this section is, by no means, very happy and that its various parts are not a little overlapping. We would particularly invite attention in this connection to Clauses (b), (c) and (d) thereof, every one of which inter alia pertains to the recovery of sums of money payable to the State Government on account of rates, duties, taxes, charges or other dues under any law or rule having the force of law (see Clause (b)) and like sums again described as fees, fines, penalties, compensation (see Clause (c) (i)), and again water-fates, irrigation charges and the like (see Clause (c) (ii)) and still further all cesses, rates, fees etc., mentioned in Clause (d).

It is difficult to comprehend the legislative purpose behind such wholesale repetition in the various clauses of a single section. Another noticeable and a rather singular feature of this section appears to us to be that it not only provides for the recovery of the various sums of money which may have been declared under the Act or by any other law for the time being in force, save the Rajasthan Public Demands Recovery Act (No. 5) of 1952, to be recoverable or realisable as an arrear of revenue or land revenue or rent, but which may not have been so declared under the Act concerned and while making such a provision it has not only included certain charges such as taxes, duties, fees and other like charges which are definitely ascertainable under the particular Act to which such charges relate but it has taken in its sweep various other dues also, which expression as used in Clause (b), it is contended, is very comprehensive indeed and would include controversial claims which may be put forward and sought to be realised by the State or a local authority but which are seriously disputed, and about the ascertainment of which no precise machinery may have been provided under the relevant Act.

Putting the whole matter in plain language, and applying it to the case in hand, the contention of the learned Deputy Government Advocate is that the sum of rupees eight thousand odd is according to the authorities concerned due to the Panchayat which is of course a local authority within the meaning of Section 256 of the Act, and, therefore, there can be no valid objection to its being recovered as an arrear of land revenue in accordance with the procedure embodied in Section 256 (b) and the following cognate sections. Now, before we answer this question we should like to refer to some of these sections which will give an idea of the procedure which will be attracted into application in such cases once Section 256 is successfully called in aid.

7. Section 257A lays down the requirements of an application which may be made by an officer or authority to whom any sum of money is due for the recovery thereof, and such application will have to be made to the Collector. There is a proviso to this section which further provides that no such application shall be necessary in cases where a certificate or certified statement of account or other document specifying the required particulars has to be sent to the Collector according to law under which such sum of money is payable. Sub-section (2) of this section is then very important and provides that such application or certificate or statement of account shall be conclusive evidence of the existence of the arrear payable to the authority signing the same as also of the amount of such arrear and of the person who is the defaulter.

8. Then follows Section 257B which enacts that a person against whom action has been taken under Section 256 or 257 must pay the amount claimed, though, where he wants to challenge the same, he may deliver a protest signed by himself or by his authorised agent. It is then provided under Sub-section (3) of this section that it will be open to a person making a payment under protest to institute a suit for the recovery of the whole or a part of the sum so paid by him under protest. This rule has been further made subject to a condition that where the law under which a particular sum of money paid under protest is due, provides a remedy by way of appeal, application or other proceedings then a suit under Sub-section (3) shall not lie. Lastly, it is provided under this section that there shall be no appeal or reference from an order of the revenue officer passed in proceedings taken under this chapter for the recovery of sums of money within the meaning of Section 256 or 257. Some other ancillary provisions have also been made but with those we are not principally concerned, and we will not mention them here.

9. From a survey of the procedure that we have made above, it is unmistakably clear that the method of recovery provided under Section 256 and the allied sections is a rather summary and stringent one. It is against this background that we have felt not a little difficulty in interpreting the phrase 'or other dues under any law or rule having the force of law' occurring in Clause (b) of Section 256. The dictionary meaning of the word 'due' may be very wide indeed, but with all respect, we do not think that we will be justified in holding that meaning in its widest connotation to be applicable here. Now what we have in mind is something like this: There are 'dues' such as taxes, duties, rates, fees or the like which are leviable under a particular enactment and a definite procedure has been laid down for their assessment under the Act itself whereunder an opportunity of hearing is available, as a matter of law, to the tax-payer or the person charged and, as a rule, opportunities are also available to the party affected by such levy or assessment to file an appeal or revision against the same, if he is aggrieved by it, and then the demand, so to speak, becomes a fixed and finalised one. They are certainly 'dues' in the proper sense of the word, and we can see no objection to such dues being recovered as an arrear of land-revenue by the machinery laid down under Section 256 of the Act, provided of course they otherwise fall within its meaning.

There are, however, dues which are not dues properly so-called, but are merely claims which are of highly disputatious character or. in other words, which one party claims against another, but the latter seriously disputes them, and there is no machinery provided by the particular enactment under which they are sought to be raised for finalising them and consequently they cannot be accepted as having been ascertained nor properly ascertainable under that law. It may be that that enactment leaves the question of such ascertainment at large, and in which case the normal course should be to have the claim adjudicated in a competent civil court or a competent revenue court or a competent tribunal as the case may be. On the other hand, the particular Act. under which such a claim is sought to be raised, itself, provides for the machinery of the suit being filed for that purpose. To both these kinds of cases, that is, where the so-called dues which are disputed have not been ascertain-ed and are not ascertainable under the given Act, it is a serious question whether Clause (b) of Section 256, where it speaks of 'or other dues under any law or rule having the force of law', will be properly attracted.

On a careful and earnest consideration of the whole matter and having full regard to the implications of the stringent procedure provided under Section 256 and the following sections in this behalf, we are on the whole definitely disposed to think that claims of this character do not and cannot properly be held to fall within Clause (b). A contrary view, in our considered judgment, may lead to highly anomalous results. In the first place, it is likely to put the citizen to unmerited hardships. In the second place, the wide interpretation which is contended before us on behalf of the State may make this particular part of Clause (b) namely, 'or other dues under any law or rule having the force of law' open to serious constitutional objection as being violative of either Article 14 or Article 19 or both, and we think that in a situation, like this, it is our duty to interpret the section in such a manner that it is saved from such an objection rather than that it should stand destroyed.

10. Looking at the matter yet from another angle it will be noticed that the words 'or other dues in the context in which they have been used in Clause (b) follow immediately after 'on account of rates, duties, taxes, charges'. In other words, the general words follow certain particular and specific words, more or less, of the same nature. It is an accepted rule of construction of statutes that in such a situation the general word or words should be presumed to take their meaning from the words preceding, and it may be presumed that they belong to the same genus. This is what is known as a rule of ejusdem generis. Reference may be made in support of this view to Section 5 of Chapter XI of Maxwell on the Interpretation of Statutes (11th Edition at page 326) and the discussion made thereunder.

11. Dealing with the rule of ejusdem generis said Lord Campbell in R. v. Edmundson, (1859) 28 LJMC 213: 'I accede to the principle laid down in all the cases which have been cited, that, where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified. It is really a question of the assumed intention of the statute.'

12. From the discussion that we have made above, we have come to the conclusion that the words 'or other dues' as used in Clause (b) must be of the same class or category as the words preceding, that is 'rates, duties, taxes, charges' which again, as we have already adverted to, are leviable under a particular law and can also be definitely ascertained and fixed with finality with reference to the provisions made therein and under which law, we may again point out, the person sought to be proceeded against always has an opportunity of a hearing or defence including a right of appeal and revision against the action proposed to be taken against him.

13. There is one further consideration which greatly fortifies us in coming to the conclusion to which we have come and that takes us to Section 80 of the Rajasthan Panchayat Act (No. 21) of 1953. This section reads as under:

''Section 80. Liability of Panchas --(1) The Sarpanch and every Panch shall be liable to the panchayat for the, loss waste or misapplication of any money or other property belonging to the panchayat if such loss, waste or misapplication is a direct consequence of his neglect or misconduct while a Sarpanch or Panch.

(2) No suit shall be instituted by a panchayat under Sub-section (1) against any Sarpanch or Panch except with the previous sanction of the Officer-in-charge of Panchayats.

(3) From the order of the Officer-in-charge of the Panchayats under Sub-section (2) sanctioning or refusing to sanction the institution of a suit, the Sarpanch or Panch as the case may be, the Panchayat may appeal to the State Government within sixty days of such order exclusive of the time requisite for obtaining a copy thereof.

(4) Notwithstanding anything -contained in Sub-sections (2) and (3) the State Government may institute a suit under this section on its own intiative.' This section clearly fastens on a Sar Panch and every Panch of the Panchayat liability for any acts of his neglect or misconduct resulting in loss or waste or misapplication of any money or other property belonging to the Panchayat. It is remarkable that this section or any other sections of this Act do not lay down any procedure for the fastening of such liability or the quantum thereof. On the other hand, in its second sub-section the section specifically provides for the remedy of a suit for the recoupment of such loss, waste or misapplication. It is further noticeable that the institution of a suit is also hedged with a condition precedent and that is that no such suit could be brought except with the previous sanction of the officer-in-charge of the Panchayat. The third sub-section further lays down that where the officer-in-charge sanctions, or refuses sanction to the institution of a suit, either party to the dispute, that is, the Panchayat or the Sar Panch or Panch concerned may appeal to the State Government.

Lastly, it is provided that where the Panchayat may have been found remiss in the performance of its proper duties in this behalf, the State Government will be at liberty to institute a suit against the person concerned on its own initiative. The policy underlying this section is obviously to afford all reasonable protection to a Sar Panch or Panch of a Panchayat, but at the same time, to hold him accountable for any acts of negligence or misconduct on his part which may have resulted in loss to the Panchayat.

The question naturally arises whether having regard to this provision, which is contained in the Panchayat Act itself, we would be justified in holding that the recovery of certain sums of money by a Panchayat or Government from its Sarpanch, as in the present case, assuming that such recovery is being sought to be made on the ground of misconduct of the Sarpanch, by recourse to the provisions of Section 256, and the allied sections of the Act, would be lawful. We think not, A contrary view, in our opinion, would render the provisions of Section 80 of the Panchayat Act completely nugatory and we do not think that we should interpret Section 256 in such a way so as to nullify the provisions contained in Section 80 of the Panchayat Act, which is indeed the particular or special Act, under which the petitioner in this case is sought to be held blame-worthy and with reference to which recovery proceedings have been set afoot against him. Thus from whichever point of view we look at the matter we are strongly disposed to hold the view that the recovery proceedings taken against the petitioner under Section 256 of the Act, are illegal.

14. For the reasons mentioned above,we allow this writ application and quashthe recovery proceedings instituted againstthe petitioner by the State and prohibit itor any of its officers from taking any actionagainst the petitioner for the recovery ofthe sum of Rs. 8,997/13 paise under Section 256or the allied sections of the Act. We needhardly add that this will not prevent theState from taking such further proceedingsagainst the petitioner, as may be open to itto have his alleged liability fixed and thenecessary recoveries, if any effected againsthim according to law. Under the circumstances we make no order as to costs.


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