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Judgment
(1) These four writ petitions viz No. 232 of 1968 Ghulam Mohd Vs. The State of Jammu and Kashmir and other No. 239 of 1968 Abdul Salam
Vs. The Director Supplies, Jammu and others. No 240 of 1968 Ghulam Kassam Malik Vs. The Director, Supplies, Jammu and No. 241 of 1968
Ahad Ullah Wani Vs. The Director, Supplies. Jammu, were before a Single Judge of this court, who by means of his order dated 25 41969
referred them for disposal by a Division Bench as important points of Law regarding limitation were involved in these cases. Consequently they
were heard by a Division Bench and will be disposed off by this judgment.
(2) The facts of these writ petitions are enumerated separately and are as follows :
In writ petition No 232 Ghulam Mohd Vs. The State of Jammu and Kashmir and ors, the order of the Tehsildar Kishtwar demanding Rs.
12,990.24 mentioned in the demand writ, as the price of 762 maunds of food grains entrusted to the petitioner for carrying to Warwan Store in the
year 1959 The petitioner alleges that the Tehsildar sent for the petitioner in February 1958 and ordered him to pay Rs. 51,211 02 failing which
proper proceedings by way of attachment of his property and imprisonment of the petitioner would follow, that the petitioner put in written
objections which were rejected by the Tehsildar, that the petitioner was a contractor .for carriage of food grains from Kishtwar to Warwan in
1959, that he was entrusted with 762 maunds of food grains to be carried to Warwan but instead of delivering the entire quantity of food grains to
stores at Warwan, he distributed 761 maunds through dealers to people at Warwan who did not allow him to deliver the same to the stores, that
he deposited the price of the foodgrains with Tehsildar Controller and the balance one maund of foodgrains and empty bags were delivered to
stores, that the petitioner was prosecued u s 407 R. P. C. and was sentenced to pay a fine of Rs. 60/ only by the SubJudge, Magistrate, Kishtw'ar
by means of his order dated 2111960, that originally the Tehsildar demanded Rs. 51.211.02 from the petitioner but now he has reduced the claim
to Rs. 12.990.24 that the foodgrains were entrusted to the petitioner in August 1959 and are now more than 8 years old, that this amount cannot
be realised as arrears of land revenue, that the petitioner does not owe anything to the respondent No. 2 on the other hand his security of Rs.
1000/ is lying with the Tehsil Controller The petitioner prays that the writ of demand issued by the Tehsildar Kishtwar demanding from the
petitioner Rs, 12,990 24 be quashed.
(3) The Director of Food and Supplies, Jammu, S Sohan Singh has sworn a affidavit. The objections raised in the affidavit are that it is a
contractual matter and a writ is not a proper remedy, that this .recovery is authorised by Land Rev. Act, that a writ of certiorari cannot be issued
as there was no obligation upon the Director to act judicially in arriving at the rate at which recovery is to be made That the petitioner does not
pray for any specific writ in absence of which no writ can lie, that under clause 13 of the agreement the dispute had to be referred to the
arbitration; that the amount recovered is due from the petitioner, that the contract was for the year 195960 and is not concerned with a particular
occurance, that out of 762 maunds encrusted to the petitioner, he delivered only one maund that the recovery is sought to be made within tight
years of the contract, that the amount has been arrived at by working double the landed cost at destination store.
(4) In writ petition No. 239 of 1968 Abdul Salam Ys. The Director Supplies Jammu and others, it is stated by the petitioner that the contract for
the carriage of food grains from Wailu to Chatroo in the year 19^9 was given to the petitioner that the contract was cancelled in the month of
August or September, 1959, that after August or September 1959, there was no carriage work of foodgrains undertaken by the petitioner. That
after a period of 8£ years a demand for Rs, 90.699/is made from him, that the petitioner challenges, this amount as being due from him, on the
other hand he stated that there is no amount due from him, that the claim has been made only to victimize the petitioner on account of political
difference that the action of the respondents is wholly malafide and illegal, that even if any amount is found actually due, it is not recoverable as
arrears of land revenue as the same is more that eight years old, that the amount has been determined behind the back of the petitioner.
(5) S. Sohan Singh, Director, Food and Supplies, Jammu has sworn an affidavit in this case also and the same pleas as in the case of Ghulam
Mohd have been taken by him in this case also. It is further alleged that the petitioner filed another writ petition on the same ground which was
dismissed in default on 9 21968 and it is stated that as huge shortage were detected against the petitioner, therefore his contract was suspended
and not cancelled, that the recovery is sought to be made within 8 years, that the recovery proceedings for first time were starred on 2331S64,
that that the amount of Rs 90.69902 has been found due from the petitioner after verification.
(6) In writ petition No. 240 of 196S Ghularn Massan Malik Vs. The Director of Food and Supplies, Jammu and others it is stated that the
petitioner's father was a carriage contractor for the years 195859 for carriage of foodgrains from Larnu to Marwa and Warson, that on account of
certain shortages which were not attributed to the petitioner's father, a sum of Rs. 4,661.68 was found outstanding against this petitioner's father,
against this petitioner's father was entitled to Rs. 4,17560 on account of carriage charges, as such there is only a sum of Rs. 486/ outstanding
which was deposited in the Govt. Treasury, that in the month of Jan. or Feb. 1968 as amount of Rs. 16,227.26 was shown outstanding against him
which has absolutely no basis but on the other hand the security deposit of Rs. l.000/ which was with the respondents, has been paid back to him,
that the recovery being sought after eight years the amount is not recoverable from the successors of the father of the petitioner, that the petitioner
was never heard before issuing this writ.
(7) S. Sohan Singh Director Food and Supplies, has again sworn an affidavit in this case also and the same pleas are repeated as in the first two
cases and about the specific facts of the case it is stated that food grains weighing 281 maunds 3 seers were not at all delivered by the petitioner
and its cost has been worked at double the landed cost which works out Rs 16,127.36 that the food grains were' delivered to the petitioner in July
1959 and according to clause 5 of the agreement is within 8 years.
(8) In writ petition No. 241 of 1961 Ahad Ullah Wani Vs. Director of Food and Supplies and others, the petitioner states that he had to carry
foodgrains from Larnu Centre to Warwan store and he was to be paid Rs. 303 per maund as carriage charges, that a culvert near store at
Warwan was washed away due to floods rendering it impossible for the petitioner to deposit the food grains in the store at Warwan and had to be
taken to a distance of 9 miles away where they were deposited with Ahad Loan Govt. dealer and Mohd. Abdullah Moru, the Sarpanch of the
area, that these food grains were subsequently distributed among the local inhabrants under the supervision of the Store Keeper Warwan but the
sale proceeds thereof were not got deposited in the Govt. Treasury, that the matter remained as it was for some time and an amount of Rs
3,728.02 was found due against the petitioner paid Rs. 2,72802 cash in the Govt. Treasury and got adjusted Rs, l.000/ the security amount which
was lying with the Tehsildar, that a certificate was got from the Tehsildar by the petitioner that there was no amount outstanding, that the petitioner
on the other hand made a claim for Rs. 3,050.96 on account of arrears of his carriage money which was recommended by the Tebsildar to the
Director but somehow in February 1963 a demand for Rs. 14,625.80 was made from the petitioner which is illegal and was made simply to
victimise the petitioner on political grounds. It is further stated that after the certificate issued by the Tehsildir Kishtwar there could be no question
of any amount being due from the petitioner, that the proceedings are illegal. The amount, if at all any became due in July 1959 and its realisation in
1968 is not warranted, that the amount has been determined behind the back of the petitioner.
(9) S Sohan Singh Director Food and Supplies Jammu has sworn an affidavit on more or less the same lines as in the other writ petitions. About
the issue of certificate by the Tehsildar as alleged by the petitioner that fact is not denied but it is stated that the petitioner deposited Rs 3,738.02
which sum was worked as concessional rate minus concessional rate minus transport charges but on the basis of council decision No, 1105 dated
21967 and as per terms of the agreement the cost of the foodgrains found short in transit were to be recovered at double the landed cost which
works at Rs. 14,525.80.
(10) In our opinion two of the writ petitions can be disposed of with the same remarks i e. petition Nos. 232, 239 of 1968, the last two petitions
viz. petition Nos. 240 and 241 will have to be decided separately.
(11) The main grievance of the petitioner in all the petitions is that the arrears are more than eight years old. Further the contracts were entered into
in the year 1959 and the goods are alleged to have been entrusted to the petitioners somewhere in July to August 1959. They had to deliver these,
according to the terms of the contract, within the time specified by the Tehsil Controller that would be some days after lifting the goods and the
goods and the claim would be due in August or September 1959. Therefore the writ of demands issued in the year 1968 are time barred and the
amounts as such cannot be recovered as arrears of land revenue even if the period of limitation is computed as 8 years. M. Anil Dev Singh the
learned counsel appealing for the respondents in these cases referred me to clause 5 of the agreement which says that :
The period of contract shall begin from the date of signing this agreement to 31st March 1960.
Which means that the goods had to be taken and delivered between the period of contract and the shortages would be calculated only at the end
of the contract i. e. March 1970. The demand, it appears has been made somewhere in February 1968, obviously therefore the writs of demand
issued in the cases has been made within 8 years of the terra of the contract as the contract in each case had to expire on 3134960
(12) The second point is whether the limitation of 3 years would govern this case or that of 8 years. According to the learned counsel for the
petitioners when these contracts were entered into, no amounts of the kind claimed by the respondents could be recovered from any person which
were more than three years old. But this section 90 of the Land Revenue Act was amended by Act No. XXXIX of 1960 which substitute 8 years
for three years in the proviso to this section. According to Mr. Thakur the law that would govern this case would be the law as it stood when the
contract was entered into or was to be performed i. e the year 1959 and at that time the limitation was only three years and if by any subsequent
amendment the period of limitation is extended from three years to eight years that would not apply to the cases of the petitioners.
(13) Mr. Anil Dev Singh has however drawn our attention to the fact that the law of limitation is a procedural law and any amendment procedural
law is always retrospective. He has referred me to AIR 1957 Hyderabad 21 which lays down that the law of limitation existing on the day of the
suit will govern the suit and not the law which was prevalent at the time when the contract was entered into. Similarly in AIR 1963 SC 1356 the
limitation for starring for proceedings in respect of escaped income was extended and it was held that the extended period would apply. In that
case Hidayarullah J. as His Lordship then was speaking for himself and Raghubar Dayal J. laid dawn as under :
'Subsequent changes in the period of limitation donot take away an ammunity which has been reached under the law as it was previously. In this
case, statutes of limitation have been picturesquely described a'starutes of reposs e'.
(14) But it is somewhat inapt to describe S. 34 with its many amendments and validating sections as a 'Section of repose'. Under that section there
is no repose till the tax is paid or the tax can be collected .What the law does by prescribing certain period of time for action is to create a bar
against its own officers administrating the law. It tries to trim between recovery of tax and the possibility of harrasment to an innocent person and
fixes a duration for action from these two points of views. These periods are occasionally readjusted to cover some cases which would otherwise
be left out and hence these amendments. An assessment can be said to become final and conclusive if no action can touch it but where the
language of the statute clearly reopens closed transactions, there can be no finality. These prescribed periods cannot be raised to the level of those
periods of limitation which confer not only immunity but also give titles by the passage of time.
(15) Under the scheme of the Income Tax Act, a liability to pay tax is incurred when according to Finance Act in force the amount of income,
profits of gains is above the exempted limit. That liability to the State is independent of any consideration of time and in the absence of any
provision restricting action by a time limit, it can be enforced at any time. What the law does is to prevent harrasment of assesses to the end of rime
by prescribing a limit of time for its own officer to take action. This limit of time is binding upon the officers, but the liability under the charging
section only be said to be enforceable after the expiry of the period under the law as it stands. In otherwords, though the liability to pay tax remains
it cannot be enforced by the officers administering the tax laws. If the disability is removed or according to a new law a new time limit is created
retrospectively, there is no reason why the liability should not be treated as still enforceable. The law does not deal with concluded claims or their
revival but with the enforcement of a liability to the State which though existing remained to be enforced.
(16) Therefore the argument of Mr. Thakur is not correct that the limitation that would apply to such a case would be that of three years. On the
other hand if on the date when the proceedings were started, the period of limitation had been exented as in these cases. from three years to eight
years, the action would be within time.
(17) The third point raised in some of the petitions is that these amounts were arrived at without hearing the petitioners Ghulam Mohd petitioner in
his petition No 232 states in paragraph 2 of the petition that when he was given notice he submitted his objections which were not held to be
genuine by the Tehsil Controller. There fore he should have no grievance of not having been heard. In the other petitions it is stated on affidavit by
the Controller of Food and Supplies that the amounts shown against each of the petitioners have been arrived at on the basis of the contract with
them and are really due from them. This point cannot be agitated in these writ petitions because under section 90 of the Land Revenue Act there is
a civil remedy open to the petitioners to contest their liability to pay the amount. The relevant law on this point is contained in the second para of
proviso to Section 90 and runs as under :
The persons from whom the money is so recovered may, if he denies his liability, due the Govt. to recover the same
(18) Further this point came for consideration in a recent case by a Division Bench of this Court as AIR 1969 J&.K 51 Re. Abdul Samad Versus
State of Jammu and Kashmir and others That was a case under the Forest Act and under Section 52 of the Forest Act; a Forest Officer could
certify certain amount due from a certain party and it was held that his certificate would be sufficient The learned counsel appearing for the
respondents has further drawn our attention to clause 13 of the agreement which allows either party to the contract in case of a dispute to refer the
matter to arbitration. The petitioners have not at all taken recourse to that remedy but have come direct to this court. There is a contract between
the parties and Clause 13 is as much binding on the parties as any other. Therefore if the petitioners felt aggrieved by the writs of demand they
should have moved by a proper petition for referring the matter to arbitration. That they have not done, on the other hand they have taken recourse
to this extra ordinary writ jurisdiction of this court which is sparingly used in such cases because it is very well settled when there is an alternative
remedy open, action by means of a writ should not be taken or encouraged or permitted to. Therefore the two petitions No 232 of 1968 and 239
of 1968 filed by Ghulam Mohd and Abdul Salam respectively fail and are hereby dismissed without any order as to costs.
(19) But the other two writ petitions viz. No. 240 of 1968 and Nos. 241 of 1968 stand on different footing. In the latter writ petition viz. 241 of
1968 the contracting parties are Tehsil Controller on behalf of the SadariRiyasat and the petitioner. In this case the petitioner has got a certificate
from the Tehsil Controller, Tehsildar Kishtwar dated 2321965 which after giving the amounts due to and from the petitioner, ultimately certified
that there is nothing outstanding against the petitioner. Further there is recommendation of this very Tehsildar recommending a sum of Rs. 1640/ for
additional carriage to be paid to the petitioner and for the refund of Rs 1.000/ security money. It is not clear what happened to these
recommendations but when the contracting party i. e. the Tehsildar has given a discharge in full satisfaction of the claim, the subsequent
proceedings after three , years are hardly justified. The least can be said is that resort to a summary procedure of getting any amount alleged to be
due from the petitioner realised as arrears of land revenue is hardly justified. The respondents cannot approbate and reprobate The Tehsildar who
is respondent No, 3 has the petitioner a complete discharge He cannot again himself take recourse to drastic provision of Land Revenue Act and
recover these amounts as arrears of land revenue from the petitioner. If at all any sum is due to the respondents from the petitioner their remedy is
by way of acivil suit where they have to satisfy a civil court that the discharge given by a Tehsildar is not operative and binding on the respondents.
(20) Similarly in writ petition No 240 of 196S Ghulam Massan Malik Vs Director of Food and Supplies, two documents have been placed by the
petitioner on the file. These are a letter from the Tehsildar Kishtwar to the Director Food and Supplies No. 430/C dated 2531960 and the other is
a copy of a letter No. 10360/A dated 2581960 from the Director Food and Supplies, Jammu to the Tehsildar Kishtwar. In the first letter of the
Tehsildar it is stated that Ghulam Mohiuldin contractor has deposited Rs 486.06 in the treasury and there is nothing outstanding against him. The
Controller wants the release of the security. As the contractor has paid all the outstandings, he is entitled to take back his security. To this letter of
the Tehsildar the Director of Food and Supplies returns the three call deposits receipts totalling to Rs. 1.000/ which are the cash security of
Ghulam MohiulDin contractor. The direction is that the Call Deposit receipts be released. These documents are not denied in the objections or the
affidavit of the Director of Food and Supplies, all that he says in this behalf is that the return of the security deposit does not in any way discharge
the petitioner from the liability to pay at double the landed cost of food grains which were found short in transit. In this case as in the earlier case
the contracting party, the Tehsildar has given a clear certificate that there is nothing outstanding against the contractor, not only that he recommends
the release of the security in favour of the contractor. This request of the Tehsildar Kishtwar also has been accepted by the Director Food and
Supplies and he has ordered the return of the security deposit. These two documents clearly connote that at that time nothing was found due from
the contractor and he was discharged from the contract. Now after about eight years the Government turns round and wants to recover the penal
rate from the petitioner on account of some default committed by the contractor, the father of the petitioner. Such a course taken by the
respondent State to recover these damages by means of coercive machinery of law as provided under Arrears of Land Revenue Act is hardly
justified in law or in justice. Under this Arrears of Land Revenue Act the persons from whom any sum is demanded has first to deposit the amount
and then file a civil suit contesting his liability to pay the same. This is a very hard piece of legislation. We donot make any comment about the
liability of the petitioner to pay the price of the short supplied grains at double their price, that is a matter which will be decided by a proper civil
court. But we feel no hesitation in holding that it is not either just or legal, to allow the State to recover any such outstanding from the petitioner as
arrears of land revenue under the Arrears of Land Revenue Act.
(21) The result is that the two writ petitions Nos. 240 and 241 filed by Ghulam Massan Malik and Ahad Ullah Wani respectively are allowed.
There will be no order as to cost Srinagar. September 30th 1969.
As per Anant Singh J.
(22) I fully agree with my learned brother that the writ petition Nos. 240 and 241 must succeed and the other two NJS. 232 and 239 fail, all
without costs.
(23) I may, however, only add that its writ jurisdiction the court seldom interferes on the merits of any case. But where on merits the claim of a
party, on the face of it is manifestly found unjust and unfounded on a mere reference to any admitted or even a proved material. Present on the
record, this court must interfere with a view to preventing injustice being done and driving away the party affected by such a refusal to interfere to
seek his remedy otherwise, by a complicated and cumbrous process of the ordinary law.
(24) In the two writ petitions Nos. 240 and 241 as my learned brother has shown, the claims of the State against these two petitioners were
admitted by the officers concerned to have been satisfied and there was nothing due from anyone of them. It will be now most unjust to deny them
the relief sought for in these writ petitions and ask them to seek their remedy in the civil court after depositing in favour of the State the large sum of
money of the claim against them.