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Judgment
Chopra, J.—Chet Singh petitioner is a debtor of the Bhatinda branch of the Bank of Patiala. On a request made by the Managing Director of the Bank, the amount due from the petitioner is being realised by the Collector, Bhatinda as an arrear of land-revenue. A house belonging to the petitioner at Jaiton has been attached and advertised for sale. In this petition under Art. 226 of the Constitution, the petitioner prays for a direction, order or some other appropriate writ quashing the recovery proceedings and restraining the respondents from proceeding any further in the matter. The Managing Director of the Bank of Patiala, the Collector, Bhatinda, and the Assistant Collector who is entrusted with the proceedings under orders of the Collector are impleaded as respondents 1, 2 and 3 respectively.
Though a number of objections were raised in the petition, the only points urged during arguments are; (1)�that The Patiala Recovery of State Due Act (No. IV of 2002 B.K.) under which the recovery proceedings are going on, stands repealed by S. 4, Opium and Revenue Laws (Extension of Application) Act, No. 33 of 1950; and (2)�that S. 3(1) (b), Patiala Recovery of State Dues Act (4 of 2002 B.K.), by virtue or which the Bank dues can be recovered through the Collector, as arrears of land-revenue, is ''ultra vires'' the Constitution.
Objection to the vires of S. 3(1), Patiala Recovery of State Dues Act (4 of 2002 B.K.); was also raised in another petition, - ''Sakhi Chand v. Central Co-operative Bank, Kapurthala'', (S) AIR 1055 Pepsu 129 (A), which was heard along with this petition and has been decided by this Bench today. There it has been held that the statutory provision regarding the inclusion of the Bank dues within the definition of "State dues" and thereby making the Bank dues recoverable as arrears of land-revenue is not hit by the provisions of Art. 14 of the Constitution. For the reasons given by me in that judgment, which shall form part of this order, the second objection stands rejected.
The Patiala Recovery of State Dues Act (hereinafter called the impugned Act) was enforced in the erstwhile Patiala State in the year 2002 B.K. with a view to consolidate and amend the law relating to the recovery of "State dues". This Act became the law for the whole of the State of Patiala and East Punjab States Union by virtue of S. 3 of Ordinances 1 and XVI of 2005 B.K.
The Opium and Revenue Laws (Extension of Application) Act, 1950, (hereinafter called the Extension of Application Act) came into force on 20-4-1950. Section 2 of this Act extended the application of the Revenue Recovery Act (1 of 1890), along with a number of other Acts, to this State and some other parts of India where it was nod already in force. Section 4, Extension of Application Act expressly repeals any law in force In Part B States corresponding to the Acts specified in S. 2 of the Act.
The contention on behalf of the petitioner is that the impugned Act is a law corresponding to the Revenue Recovery Act (1 of 1890), and therefore it stands repealed by virtue of S. 4, Extension of Application Act of 1950. It is consequently urged that the recovery proceedings which are being taken under the impugned Act, are void and liable to be quashed.
The position of learned Advocate General on behalf of the respondents is (a) that the operation of the impugned Act is saved by S. 7, Revenue Recovery Act (1 of 1890); (b) that the provisions of the impugned Act cannot be regarded as "corresponding to those of Act 1 of 1890 and therefore the former Act is not hit by the mischief of S. 4, Extension of Application Act of 1950; and (c) that the proceedings are not vitiated even if Act 1 of 1890 be held to be applicable.
Act 1 of 1890 was meant to "make better provision for recovering certain public demands". It is not an exhaustive Code by itself and is not all comprehensive on the subject. It does not even define the "public demands" or the sums which may be recoverable as arrears of land-revenue. For that one has to refer to some other legislation, local or central. The Act merely lays down the mode of initiating proceedings for recovery of certain "public demands", but does not prescribe the modes in which the recovery is to be made. For that again one has to depend upon the law of the place where the recovery is actually made. Each State has its own law for recovery of land-revenue or of sums recoverable as arrears of land-revenue. These laws are not affected by Act 1 of 1890. Section 7 of this Act saves ''local laws relating to Revenue'' and says:�
Nothing in the foregoing sections shall be construed�
(a) to impair any security provided by, or affect the provisions of, any other enactment for the time being in force for the recovery of land-revenue or of the sums recoverable as arrears of land-revenue, or
(b) to authorise the arrest of any person for the recovery of any tax payable to the corporation, commissioner, committee, board, Council or person having authority over a municipality under any enactment for the time being in force.
Provisions for collection of land revenue or sums recoverable as arrears of kind revenue are contained in Chaps. VI and VII of the Punjab Land Revenue Act (17 of 1887) which applies, ''mutatis mutandis'', to this State. The first two sections (61 and 62) of Chapter VI of this Act relate to the securities for payment of land revenue. Section 61(1) lays down that in the case of every estate, the entire estate and the land-owner, or if there are more than one, the land-owners jointly and severally shall be liable for the land revenue for the time being assessed on the estate. Section 62(1) says that the land revenue shall be the first charge upon the rents, profits and produce of the estate.
The sections that follow lay down the various modes of and the procedure to be followed in recovering the arrears of land-revenue. Section 69 provides for the arrest and detention of a defaulter for non-payment of land revenue. It is to these provisions of the local law that S. 7 of the Central Act 1 of 1890 relates, and it saves or partly exempts their operation. Clause (a) of this section saves the above provisions for the security and realisation of the land revenue or sums recoverable as arrears of land revenue.
Clause (b) of the section creates an exception to the application of S. 69, Land Revenue Act in certain cases where the sum is recoverable as an arrear of land revenue. Section 7 can by no stretch of reasoning be read as referring to the provisions of the impugned Act. I do not, therefore, find any force in the learned Advocate General''s contention that the operation of the impugned Act is saved by the provisions of S. 7 of Act 1 of 1890.
The next question is how far or which of the provisions of the impugned Act can be regarded as corresponding to those of Act 1 of 1890. Mere partial similarity in the names given to the two Acts cannot make me agree with Shri Dalip Chand, Learned Counsel for the petitioner, that the application of Act 1 of 1890 to this State has the effect of repealing the impugned Act in its entirety. The impugned Act was enacted with a different object and it has a much wider scope. Its S. 3 defines the term "State dues" and some other terms used in the Act.
Section 4 prescribes the manner in which and by whom the "State dues" shall be determined. Section 5 lays down the two modes of recovery of the ''State dues''. Leaving out the portions which are not relevant for the purposes of this case, S. 5 reads as follows:�
(1) State dues may be recovered by a department through�
(a) the Nazim who shall proceed to recover such dues as if these were arrears of land revenue;
(b) the Accountant General who shall proceed to recover such dues by withholding payment to the defaulter of any amount payable to him by the State and apply the same towards satisfaction of State dues.
Provided that the head of the department shall not move both the authorities simultaneously except in cases where the amount is so large that it cannot be recovered through one authority only and there is an apprehension that by the time one authority has exhausted all possible means of recovery and resort is made to the other authority the defaulter is ''likely to dispose of the property with intention to deprive the department of its dues or receive payment from the Accountant General of any amount due to him from the State, as the case may be.
(2) Where recoveries of State dues are made by the Nazim as arrears of land revenue the provisions of Chapter VI except S. 78, Punjab Land Revenue Act, 1887 (17 of 1887), in force in the State ''mutatis mutandis'', shall apply so far as they can be made applicable, as if the State dues were arrears of land revenue, and the person from whom either as principal or surety the State dues are recoverable, were a defaulter in respect of such arrears.
(3) ........
Section 6 relates to the transmission of a certificate for recovery by the head of department to the Nazim (Collector) or the Accountant General. Section 7 says that the Nazim shall, on receipt of the certificate, proceed to recover the amount as if it were an arrear of land revenue accruing in his district. The section further provides for the amount of commission to be charged by the Nazim in certain cases, Section 8 relates to recovery of "State dues" through the accountant General.
Section 9 provides for the rateable distribution of moneys recovered from the defaulter, where the demand is from more than one department. Section 10 authorises the Nazim or the Accountant General to refuse to realise the debts due to the Bank of Patiala etc., in case the claim would be barred by time if a suit were to be brought for the amount. Section 11 excludes the jurisdiction of civil Courts in certain matters; it says:
No Civil Court shall have jurisdiction in any matter which the head of department, or any authority or officer authorised by the head of department is empowered by this Act or the rules made thereunder to dispose of or take cognizance of the manner in which any such head of department, or authority, or officer, exercises any powers vested in him or it by or under this Act or the rules made thereunder.
Section 12 contains the rule-making power of the State Government S. 13, the last section, excludes the application of the Act or the rules framed thereunder to the pending proceedings.
The Revenue Recovery Act (1 of 1890) contains ten sections in all. Section 7 of this Act has been reproduced above. Sections 8 and 9 make the provisions of the Act applicable to recovery in India of land revenue etc., accruing in Burma or some other places outside India. Section 10 requires the Collector to remits the amount realised by him, less his expenses, to the Collector issuing the certificate. Section 1 gives the name of the Act and the extent of its application and S. 2 defines the terms "District," "Collector", and "Defaulter" used in the Act. The definition of the term "defaulter" is almost the same as in the impugned Act.
Section 3 provides for cases where arrear of land revenue or a sum recoverable as an arrear of land revenue is payable to a Collector and is required to be realised in a District other than that in which the arrear accrued or the sum is payable. The Collector in such a case may send to the Collector of that other District a certificate in the given form, and the latter shall then proceed to recover the amount as if it were an arrear of land-revenue, which had accrued in his own district. There being nothing in the impugned Act correspondent to or at variance with the above provisions the question of repeal of any corresponding law does not arise.
Section 4 (1) of Act 1 of 1890 reads as follows:�
When proceedings are taken against a person under the last foregoing section 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.
The suit is to be instituted in a civil court of the District wherefrom the certificate is issued. Section 11 of the impugned Act seemingly contains a contrary provision. It bars the jurisdiction of a Civil Court in any matter on which the head of department, or any authority or officer authorised by the head of department, is empowered by the Act or the rules thereunder to dispose of, or to take cognizance of the matter in which any such head of department etc., exercises any powers vested in him under, the Act or the Rules. The main function of the head of department under the Act is to determine the exact amount of State dues recoverable by his department from the defaulter and to send a certificate for its recovery to the Nazim or the Accountant General.
It shall be noticed that S. 4 of Act 1 of 1890 allows a suit to be instituted by the defaulter only in one case, viz., where the amount is payable to a Collector and the same is being recovered on a certificate issued by that Collector in some district other than his own. To this extent only S. 11 of the impugned Act should be deemed to have been repealed. Its application to other cases remains un-affected.
Section 5 of Act 1 of 1890 says:
Where any sum is recoverable as an arrear of land revenue by any public officer other than a Collector or by any local authority, the Collector of the district in which the office of that officer or authority is situate shall on the request of the officer or authority, proceed to recover the sum as if it were an arrear of land revenue which has accrued in his own district, and may send a certificate of the amount to be recovered to the Collector of another district under the foregoing provisions of tins Act, as if the sum were payable to himself.
Section 5 of the impugned Act, the relevant portion of which is reproduced above, provides for two modes of recovery; (1) through the Collector, and (2) through the Accountant General. So far as the second mode of recovery is concerned the section is not affected by S. 5 of Act 1 of 1890, for the simple reason that the latter contains no similar or corresponding provision. It may hardly be possible for the legislature to lay down abstract propositions of law - propositions applicable to every combination of facts and circumstances on any particular subject, all the more so in a single statute.
Laws are expressions of policy arising out of specific difficulties and addressed to the attainment of specific ends by use of specific remedies. By necessary implication the provisions of the impugned Act, so far as they do not correspond to, but may supplement, those of the repealing Act, are preserved. However, the first part of S. 5 of the impugned Act, with provides for the recovery of State dues through the Collector must be deemed to be repealed by the corresponding provision in S. 5 of Act 1 of 1890.
Section 6 of Act 1 of 1890, the only remaining section, empowers the Collector, on receipt if a certificate, to issue a proclamation prohibiting the transfer or charging of any immovable property belonging to the defaulter in the district. A part of S. 4 of the impugned Act contains an almost similar provision and to that extent the section stands repealed.
In the present case, we are concerned with S. 5 of either of the two Acts. The Managing Director of the Bank of Patiala, vide his letter dated 1-10-1950, addressed to the Deputy Commissioner, Faridkot, Bhatinda District, intimated that an amount of Rs. 17,099/15/3 had been determined as due from the petitioner and requested that the same be recovered from the petitioner or his property at Jaiton as an arrear of land revenue. This letter conforms with the form for a certificate given in the impugned Act.
The petitioner''s contention is that since the corresponding part of S. 5 of the impugned Act stands repealed by S. 5 of Act 1 of 1890 the letter of request could only be addressed to the Collector, Patiala and not directly to the Collector, Bhatinda, for the office of the Managing Director is situate in Patiala, and that it was the Collector, Patiala who should have sent a certificate of the amount to be recovered to the Collector, Bhatinda.
The objection though only a technical one is unassailable and has to be accepted. But that does not mean that the defect is sufficient to vitiate the entire proceedings or to entitle the petitioner to the relief prayed for. It has been repeatedly held that the powers under Art. 226 of the Constitution are of an extraordinary nature, to be resorted to in exceptional cases of an urgent nature and where adequate relief could not be got otherwise.
The discretionary relief can and ought to be refused if the defect is only a technical one and has not resulted in any clear injustice or real injury to the petitioner. Here, only a defective procedure has been adopted. That defect has no relation to the equities or justice of the respondent''s claim, nor does it in any way interfere with the fundamental rights of the petitioner. There is little force in Shri Dalip Chand''s contention that the Collector Bhatinda had no jurisdiction to proceed in the matter without a proper certificate from the Collector, Patiala.
It is not a case of inherent lack of jurisdiction over the subject-matter, but one of an irregular exercise of it, the irregularity consisting in non-compliance with the procedure prescribed for transmission of the certificate. The Collector, Bhatinda, instead of requisitioning a certificate from the Collector, Patiala, started the recovery proceedings on a request directly made by the Managing Director, the Bank of Patiala. No objection on this score was taken before the Collector nor was it specifically raised in this petition.
The proceedings for recovery started in October 1950, while the petition was presented on 14-8-1952. In view of all these facts, I do not consider the petitioner is entitled to the discretionary relief merely on the basis of a procedural and technical defect.
In the result the petition is dismissed with costs. Counsel''s fee shall be Rs. 50/-.
Passey C.J.
I agree.