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Judgment
S. Murtaza Fazl Ali, C.J.—This is a batch of 22 petitions out of which two are Civil revisions and the rest are writ petitions which have been
heard together because they involve common questions of law regarding the constitutionality of certain provisions of the Forest Act, the Land
Revenue Act and the Mines and Minerals Act. These petitions were heard by various Benches who have made a reference to this Full Bench pre-
eminently for the purpose of deciding the question of the constitutional validity of the provisions of the aforesaid Acts. We, therefore, do not intend
to decide these petitions on merits but we shall give our opinion regarding the question of the constitutionality of the statutes raised before us and
then leave the Benches concerned to decide the petitions on merits
Writ Petitions 65/70, 134/72, 128/72, 166/73, 169/73. 184/73, ""206/73 and 224/73 relate to the cost of food shortages which is sought to be
realized from the petitioners as arrears of land revenue. In these writ petitions the constitutionality of Sections 90 and 91 of the Land Revenue Act
is being questioned.
Writ Petitions 131/72, 110/72, 116/72, 107/72 and 222/73 relate to the royalty of mines and minerals (sand, stone, Bajri etc.) sought to be
realized from the petitioners u/s 25 of the Mines and Minerals (R. & D.) Act as also u/s 91 of the Land Revenue Act.
Writ Petitions 115/71, 116/71, 147/71, 144/72, 32/73, 162/73 and 155/73 and Civil Revisions 144/73 and 139/73 relate to recovery of
arrears of forest royalties against the petitioners who were forest lessees. These. recoveries are sought to be made from the petitioners u/s 52 of
the Forest Act and Section 90 of the Land Revenue Act.
Since we have to decide the questions of law involved in these petitions. it is not at all necessary for us to mention the facts of each petition
either as a whole or even separately because the petitions shall have to be decided ultimately on their merits in accordance with the opinion given
by us.
The main grounds on which the provisions of the Act referred to above have been challenged before us are as follows:
(1) That Sections 90 of the Land Revenue Act, 52 of the Forest Act and 25 of the Mines and Minerals (R. & D.) Act are arbitrary provisions
which contain uncanalized power to make recoveries of dues without detennining them in an objective manner and through the coercive machinery
of arrest and detention.
(2) That under these provisions the authorities concerned have been conferred a pure discretion to take resort to this particular remedy in the case
of one set of debtors and to proceed in the Civil Court against other debtors. The provisions are therefore, clearly discriminatory and are therefore
violative of Article 14 of the Constitution of India. This argument appears to have been inspired by a decision of their Lordships of the Supreme
Court in Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, . As against this the respondents have submitted that
the word 'may' used in various statutes has been used not in a directory sense but has a mandatory force and therefore the statutes leave no
discretion in the hands of the authority concerned to choose two remedies or to proceed against one through the coercive machinery laid down by
law and against another in the Civil Court, (b) That the statutes concerned are self-contained provisions and a Civil Suit is clearly barred in respect
of matters covered by Sec. 90 of the Land Revenue Act and therefore the question of discrimination does not at all arise, (c) That even if it is open
to the authorities concerned to choose between two alternative remedies, one, through the coercive machinery provided by the statute and another
to file a civil suit, public revenue being the money of the people form a class by itself and therefore it will fall within a reasonable classification so as
to be permissible under Article 14 of the Constitution of India.
Counsel for both the parties have cited a large number of decisions in support of their view. Before, however, dealing with the contentions raised
by the parties, it may be necessary to examine the ambit and import of Article 14 of the Constitution of India. This Article runs thus:
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
It would be seen that the concept of equality contained in Article 14 is not absolute or unconditional, for indeed if it were so, then the doctrine of
equality would become wholly unworkable in a socialistic society such as ours where we have all sorts of people living, for instance, there are the
more affluent and the well provided for. while there are others who live in abject poverty; similarly there are the stronger sections of the society and
the weaker sections and the Government in order to bring about socialism has to strike a balance, so as not only to make provision for equal
distribution of wealth but also to afford equal opportunities to all. That is why the Supreme Court from the very beginning has stressed that what
Article 14 forbids is discrimination between persons similarly circumstanced or equally placed and not classification based on rational and
reasonable grounds with a view to ensuring equal opportunity to all. This is yet another reason why the Constitution has made specific provision for
reservation of the weaker sections of the society namely the backward classes, and members of the scheduled caste etc. We must also realize that
ours being a democratic welfare State, the Government is run by the representatives of the people, is responsible for the welfare of the people and
stands committed to the promises which it has made to the people. It is therefore the primary duty of the Government to muster up and exploit all
its resources, and in order to do so. it must be armed with a quick and effective machinery to recover and collect Government revenue or public
demands from its debtors, whether they are drawn from individuals, societies or Corporations, for the rights of the individuals must necessarily
subserve to the supreme and expanding needs of the nation. In order to achieve this goal, the Government must be given a free hand in collecting
public revenues, in seeing that Government moneys are not blocked and in collecting arrears of Government moneys in the hands of various
debtors, which if realized through the dilatory process of the Civil Court would hold up all Government projects and render the working of the
Governmental machinery nugatory.
The question whether Government revenues and State lands should be treated as a class so as to fall within the permissible limits of Article 14 has
been considered by the Supreme Court in several cases and even in Northern India Caterers Private Ltd. and Another Vs. State of Punjab and
Another, , the majority judgment does not appear to have struck down this classification but has rather endorsed that in view of the manner in
which the State has to work it forms a separate class. What their Lordships have held is that if the State is treated to be a class by itself, then there
cannot be any discrimination inter se within the members of the same class. We might also mention here that their Lordships of the Supreme Court
were not at all considering the validity of the provisions regarding recovery of public dues but were concerned with the constitutional validity of the
law relating to lands and properties belonging to the State whose possession was sought to be recovered in a summary manner. Our clear opinion
on this subject is that Government property cannot be equated with Government revenue or public demands. The reason for this is that in case of
property it is obvious that certain complicated rights are involved and in some cases there may also be a lis and it will be difficult to uphold any
statute which in a summary manner evicts a person from a property without determining the rights claimed by him. The same however cannot be
said of public revenues. A debtor of the Government cannot be equated with a trespasser, for whereas the trespasser has the right to prove that he
has a better title than the State or that he has acquired title by adverse possession, a debtor who owes public moneys cannot be allowed to hold
back the moneys so as to create a vacuum in the machinery of the Government. It is in the light of these facts that we have to approach the
constitutional validity of the provisions assailed before us and examine the impact and the applicability of the Supreme Court decision in N. I.
Caterer's case. To begin with it may be pertinent to note a few observations of their Lordships in the aforesaid case on some of the important
aspects which they have dealt with:
The Act no doubt differentiates occupiers of public property and premises from other occupiers. Nevertheless, it is possible to say that there is an
intelligible differentia between the two classes of occupiers, that they are not similarly situated in that in the case of public properties and premises
the members of the public have a vital interest and are interested in seeing that such properties and premises are freed from encroachment and
unauthorised, occupation as speedily as possible. It is also possible to contend that such classification is justified in that it is in the interest of the
public that speedy recovery of rent and speedy eviction of unauthorised occupiers is made possible through the instrumentality of a speedier
procedure instead of the elaborate procedure by way of suit involving both expense and delay. On these considerations it may be contended that
the segregation of tenants of public properties and premises from the tenants of private property is based on justifiable reason and that such
segregation has a rational nexus with the object and policy of the Act.
The ratio of this case therefore amplifies the fact that the segregation of tenants of public properties or premises from the tenants of private
property is based on a justifiable reason which has a rational nexus with the object and the policy of the Act. In the Punjab Public Premises and
Land (Eviction and Rent Recovery) Act, Section 5 of that Act had empowered the Collector to make an order of eviction after giving a summary
hearing to the unlawful occupant. While detailing the provisions of the Act. their Lordships referred to Section 7 of the Act which provides for
recovery of rent as arrears of land revenue, a point that is directly in issue here, but their Lordships have nowhere in their judgment struck down
the validity of Section 7 of the Act or made any adverse comment thereon. Thus the ratio of that judgment revolves round the validity of Section 5
of the Act only. Their Lordships further go on to observe as follows:
Assuming that the classification is valid, the complaint of the appellants is that Section 5 of the Act makes a discrimination amongst those in
occupation of public properties and premises inter se and that such discrimination has no valid basis nor any reasonable nexus with the object of
the Act.
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S. 5 has left it to the discretion of the Collector to make such an order in the case of some of the tenants and not to make such an order against
others. Section 5 thus enables the Collector to discriminate against some by exercising his power u/s 5 and take proceedings by way of a suit
against others, both the remedies being simultaneously available to"" the Government.
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Section 5 does not lay down any guiding principle or policy under which the Collector has to decide in which cases he should follow one or the
other procedure and therefore, the choice is entirely left to his arbitrary will. Consequently. Sec. 5 by conferring such unguided and absolute
discretion manifestly violates the right of equality guaranteed by Art. 14.
Xx xx xx xx
Assuming that persons in occupation of Government properties and premises form a class by themselves as against tenants and occupiers of
private owned properties and that such classification is justified on the ground that they require a differential treatment in public interest, those who
fall under that classification are entitled to equal treatment among themselves. If the ordinary law of the land and the special law provide two
different and alternative procedures, one more prejudicial than the other, discrimination must result if it is left to the will of the authority to exercise
the more prejudicial against some and not against the rest. A person who is proceeded against under the more drastic procedure is bound to
complain as to why the drastic procedure is exercised against him and not against the others, even though those others are similarly circumstanced.
Bachawat, J., with whom Hidayatullah. J. (as he then was) agreed, in his dissenting judgment observed as follows:
It is settled by our previous decisions that the Revenue Recovery Acts and other Acts creating special tribunals and procedure for the expeditious
recovery of revenue and State dues are in the public interest and do not violate Article 14. See Manna Lal and Another Vs. Collector of Jhalawar
and Others, , Nav Rattanmal and Others Vs. The State of Rajasthan, at pp. 1707-08 The Collector of Malabar, Kozhikode and Another Vs.
Erimmal Ebrahim Hajee, : Purshottam Govindji Halai Vs. Shree B.M. Desai, Additional Collector of Bombay and Others, and Lachhman Das on
Behalf of Firm Tilak Ram Ram Bux Vs. State of Punjab and Others, . If quick recovery of revenue is in the public interest, expeditious recovery of
State property from which revenue is derived is a fortiori in the public interest. The impugned Act has properly devised a special machinery for the
speedy recovery of premises belonging to the Government.
The class of public premises to which the benefit of the impugned Act extends includes premises belonging to the District Board. Municipal
Committee, notified area committee and panchayat. The classification has reasonable relation to the object of the Act and does not offend Article
We have upheld similar classification for the purpose of other Acts (See Baburao Shantaram More Vs. The Bombay Housing Board and
Another, It may also be noticed that the majority judgment has not even referred to the decisions mentioned by Bachawat. J., in para 20 of his
judgment (Supra) regarding the validity of the provisions of the Revenue Recovery Acts. This is an intrinsic circumstance which shows that the
majority judgment was not called upon to consider the validity of such provisions, but was only concerned with the validity of Section 5 of the
Punjab Act
Before applying this decision to the facts of the present cases, it may be necessary to analyze the relevant provisions of the statute whose
constitutional validity has been assailed before us. Section 90 of the Land Revenue Act runs thus:
An officer whose duty it is under any law or rule having the force of law to realize a sum of money and the same is lawfully recoverable as an arrear
of land revenue may request an Assistant Collector of the first class under whose jurisdiction the person from whom it is recoverable resides or
holds any property to realize the same as arrear of land revenue. With such request such officer shall forward to the Assistant Collector a
certificate showing the correct amount due upto the date of such certificate;
Provided that, no arrears which are more than eight years old shall be realized summarily under this section.
The person from whom the money is so recovered may, if he denies his liability, sue the Government to recover the same.
The relevant portion of Section 91 of the same Act reads as under:
In addition to any sums recoverable as arrears of land revenue under this Act or any other enactment for the time being in force, the following sums
may be so recovered, namely;
* * * *
(ee) Sums recoverable by the Food and Supply Department Jammu on account of purchase, sale, transportation, milling husking, storage or transit
shortages of food grains and other essential commodities.
The essential requirements of Section 90 (Supra) are as follows:
(1) that there must be a particular officer designated for the purpose of realising a sum of money.
(2) that the sum of money sought to be realised must be lawfully recoverable.
(3) that it must be recoverable as arrear of land revenue.
(4) that if the aforesaid conditions are fulfilled a request must be made to the Assistant Collector concerned for making the recovery.
(5) When such a request is made, a certificate must be issued by the officer concerned to the Assistant Collector. The proviso clearly shows that
the procedure mentioned in Section 90 of the Act will not apply to any arrears which are more than eight years old. Finally the debtor from whom
the money is sought to be recovered has a right to sue the Government after depositing the arrears. One of the main arguments advanced before us
by the counsel for the petitioners is that this section contains unguided and uncanalized powers to the Government for realizing Governmental dues
from the debtors and is therefore violative of Article 14 of the Constitution of India. This argument, however, must be rejected because the analysis
of the section as discussed above shows that sufficient safeguards have been provided by the section before the actual recovery is made. To begin
with, the discretion is vested not in an ordinary person but in a designated officer. Secondly the section would apply only if the dues are lawfully
recoverable as arrears of land revenue Thirdly the recovery can be made only if a certificate is given by the officer concerned. Again the last part of
the section clearly gives the right to the debtor to sue the Government in the ordinary Civil Court if he denies his liability to pay, but this suit is to be
filed only after the money is recovered. We must remember that the section deals with Government revenues which having regard to the nature of
the dues stand as a class by themselves. Government revenues are really moneys of the people and they cannot be allowed to be blocked so as to
affect the smooth working of the Governmental machinery. In these circumstances the provisions of Section 90 (Supra) clearly fall within the
reasonable classification as envisaged by Article 14. But even apart from being a separate class we have pointed out that sufficient safeguards and
guarantees have been laid down by the statute before actual recovery is made from the debtor. In order that Government revenues are realized
from the debtors with utmost expedition, it is only fit and proper that a quick and effective machinery should be devised so that funds of the
Government for various proiects are provided for in time. In these circumstances the objection of the counsel for the petitioners that Section 90 is
violative of Article 14 inasmuch as it confers unguided and uncanalized powers on the authority concerned, must be overruled. We are fortified in
our view by a decision of the Supreme Court in Jyoti Pershad Vs. The Administrator for The Union Territory of Delhi, (1609, 1611) wherein their
Lordships observed as follows:
It is manifest that the above rule would not apply to cases where the legislature lays down the policy and indicates the rule or the line of action
which should serve as a guidance to the authority. Where such guidance is expressed in the statutory provision conferring the power, no question
of violation.of Article 14 could arise, unless it be that the rules themselves or the policy indicated lay down different rules to be applied to persons
or things similarly situated. Even where such is not the case there might be a transgression by the authority of the limits laid down or an abuse of
power, but the actual order would be set aside in appropriate proceedings not so much on the ground of violation of Article 14, but as really being
beyond its power.
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In view of the foregoing we consider that there is enough guidance to the competent authority in the use of his discretion u/s 19 (1) of the Act and
we therefore reject the contention that Section 19 is obnoxious to the equal protection of laws guaranteed by Article 14 of the Constitution. We
need only add that it was not. and could not be, disputed that the guidance which we have held could be derived from the enactment, and that it
bears a reasonable and rational relationship to the object to be attained by the Act and. in fact, would fulfil the purpose which the law seeks to
achieve.
To the same effect are decisions of the Supreme Court in P.J. Irani Vs. The State of Madras, and K.L. Gupta and Others Vs. The Bombay
Municipal Corporation and Others, .
Before coming to the second ground of attack, it may be necessary to quote the relevant sections of the other statutes whose validity has been
questioned before us. Section 52 of the Forest Act runs as under:
All money payable to the Government under this Act or under any rule made under this Act or on account of the price of any forest produce, or of
expenses incurred in the execution of this Act in respect of such produce, may, if not paid when due. be recovered under the law for the time being
in force as if it were an arrear of land revenue.
Section 25 of the Mines and Minerals (R. and D.) Act reads as under:
Any rent, royalty, tax, fee or other sum due to the Government under this Act or the rules made thereunder or under the terms and conditions of
any prospecting licence or mining lease may, on a certificate of such officer as may be specified by the State Government in this behalf by general
or special order, be recovered in the same manner as an arrear of land revenue.
It may be noticed that Section 90 of the Land Revenue Act as also the other sections of the Acts (Supra)give power to the officers specified to
recover the dues contemplated by the Statutes concerned in a summary manner, namely, as arrear of land revenue. It is true that none of these
sections in any way bars the jurisdiction of the Civil Court to recover or determine the dues.
Thus the officer concerned has undoubtedly a discretion whether to proceed against a debtor under these sections or to proceed against him in the
ordinary Civil Court. In this connexion the argument of the learned Counsel for the petitioners was that the word 'may' used in Sec. 90 of the Land
Revenue Act. Sec. 52 of the Forest Act and S. 25 of the Mines and Minerals (R. & D.) Act has been used in a directory sense conferring
discretion on the authority concerned. For the purpose of deciding the question whether the provisions mentioned above are constitutionally valid
or not, we shall presume that the word 'may' has been used in a directory sense and confers discretion on the authorities to proceed against the
debtors in either of the two ways mentioned above. In other words, the officers have got two remedies open in case of debtors, namely, to recover
the dues as arrears of land revenue through the agency of the Assistant Collector or to file a suit in the Civil Court The question is whether in view
of the two remedies being available to the officers, there is a possibility of discrimination between one debtor and another. The main argument of
the counsel for the petitioners has been that in view of this possibility the cases fall squarely within the ratio laid down by the Supreme Court in
Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, . In order to reinforce their argument the learned Counsel
relied on a Full Bench decision of the Allahabad High Court in Tandon Sugar Works, Shahjahanpur Vs. Uttar Pradesh Financial Corporation,
Kanpur and Others, , Prakash Pottery Industries, Chunar Vs. The District Magistrate, Mirzapur and Others, . Before we deal with this case we
would like to refer to certain decisions of the Supreme Court before the N. I. Caterer's case was decided and which specifically relate to the
Revenue Recovery Acts prevalent in various States. In Manna Lal and Another Vs. Collector of Jhalawar and Others, a Bench of five Judges was
dealing with the Rajasthan Public Demands Recovery Act which was a law giving a special facility for recovery as public demand of dues to the
State Government as banker. Sarkar, J. (as he then was) speaking for 'the Court observed as follows:
The last point argued was that in so far as the Act enables moneys due to the Government in respect of its trading activities to be recovered by
way of public demand, it offends Article 14 of the Constitution. It is said that the Act makes a distinction between other bankers and the
Government as a banker, in respect of the recovery of moneys due. It seems to us that the Government, even as a banker, can be legitimately put
in a separate class. The dues of the Government of a State are the dues of the entire people of the State. This being the position, a law giving
special facility for the recovery of such dues cannot, in any event, be said to offend Article 14 of the Constitution.
It would thus be seen that their Lordships decided two clear points: first that the distinction between Government Banks and other banks was not
discriminatory and that the dues of the Government formed a separate class and secondly that, the special facility for recovery of the said dues did
not offend Article 14 of the Constitution of India. This case was noticed by Bachawat. J., in his dissenting judgment in the N.I. Caterer's case but
has not been referred to in the majority Judgment. In the same volume there is another decision Nav Rattanmal and Others Vs. The State of
Rajasthan, wherein again a Bench of five Judges observed as follows:
First we have the fact that in the case of the Government if a claim becomes barred by limitation, the loss falls on the public, i.e., on the community
in general and to the benefit of the private individual who derives advantage by the lapse of time. This itself would appear to indicate a sufficient
ground for differentiating between the claims of an individual and the claims of the community at large. Next, it may be mentioned that in the case of
governmental machinery, it is a known fact that it does not move as quickly as in the case of individuals. Apart from the delay occurring in the
proper offices ascertaining that a cause of action has accrued Government being an impersonal body, before a claim is launched there has to be
inter-departmental correspondence, consultations, sanctions obtained according to the rules. These necessarily take time and it is because of these
features which are sometimes characterised as red-tape that there is delay in the functioning of government offices.
These matters apart, the ratio underlying the special provisions for summary recovery of amounts due to Government without resort to suits by a
procedure not available for enforcing the dues of private individuals, like the ""Revenue Recovery Acts"" and ""Public Demands Recovery Acts
which have been on the statute book for over a century is also similar, viz., the interest of the public and of the community in realising what is due to
it expeditiously; and the constitutional validity of such, provisions have been sustained by this Court"" In this case their Lordships relied on Manna
Lal and Another Vs. Collector of Jhalawar and Others, . In this case their Lordships clearly pointed out that there were sufficient grounds for
differentiating between the claims of an individual and the claims of the community at large. These observations apply a fortiori to the claims of the
Government and the claims of an individual.
In The Collector of Malabar, Kozhikode and Another Vs. Erimmal Ebrahim Hajee, , 691 again a Bench of five Judges of the Supreme Court
while interpreting the provisions of Section 46 (2) of the income tax Act which also provided for summary recovery of the income tax dues,
observed as follows:
When dues in the shape of money are to be realised by the process of law and not by voluntary payment, the element of coercion in varying
decrees must necessarily be found at all stages in the mode of recovery of the money due. The coercive element, perhaps in its severest form, is the
act of arrest in order to make the defaulter pay his dues When the Collector has reason to believe that withholding of payment is wilful or that the
defaulter has been guilty of fraudulent conduct in order to evade payment, obviously, it is on the supposition that the defaulter can make the
payment, but is wilfully withholding it, or is fraudulently evading payment.
We are of the opinion, therefore, that where an arrest is made u/s 48 after complying with its provisions, the arrest is not for any offence committed
or a punishment for defaulting in any payment. The mode of arrest is no more than a mode for recovery of the amount due.
It may be noticed that in this case their Lordships clearly held that even the mode of arrest of debtor for default of the payment of his dues is no
more than mode for recovery of the amount due. The validity of Section 46 (2) of the income tax Act was upheld by the Supreme Court.
In Purshottam Govindji Halai Vs. Shree B.M. Desai, Additional Collector of Bombay and Others, their Lordships were dealing with the
provisions of the Bombay City Land Revenue Act which are also in pari materia to the provisions of the statutes quoted above. Their Lordships
were also considering the effect of Section 46 (2) of the income tax Act and have also decided the question which is directly involved in these
cases. In this connexion their Lordships observed as follows:
It is conceded that each State is well within its rights to devise its own machinery for the recovery of its own public demand and that no person
belonging to one State can complain that the Law of his State is more rigorous than that of the neighbouring State. The reason is obvious, for the
people of one State are not similarly situated as people of another State. Their needs, as understood by their own legislature, are different from
those of the people of other States.
If in the matter of recovery of arrears of land revenue defaulters of one State cannot complain of denial of equal protection of the laws on the
ground of the difference in the modes of recovery prevailing on other States, can it be said to be unreasonable for the Union to adopt, for the
recovery of its public demand from defaulters of each State, the same mode of recovery of public demand prevailing in that State.
Here the defaulters are classified on a territorial or geographical basis and this basis of classification has precisely the same correlation to the object
of the Indian income tax Act as it has to the object of the different public Demands Recovery Acts. The objects of the two Acts in this behalf are
pari materia' and the same consideration must apply to both. People of each State are familiar with and used to the coercive processes which each
State finds it necessary to impose on its own people for the recovery of public demand and there can be no hardship and consequently no
objection to their being put to the same processes for the recovery of the public demand of the Union.
The grouping of the income tax defaulters into separate categories or classes Statewise is certainly a territorial classification which is based on an
intelligible differentia and the subjection, for the purpose of the recovery of the certified demand, of each of such classes of defaulters to the same
coercive process devised by their own State, on a consideration of local needs, for the recovery of their own public demands, cannot be regarded
as bereft of a reasonable nexus or correlation between the basis of classification and the object sought to be achieved by the Indian income tax Act
any more than it can be so regarded with respect to the respective State laws.
(See pp. 25-26 of the Reports).
This decision therefore clearly shows that their Lordships have held in the first place that the mode of recovery of certain amounts of taxes merely
confers additional powers on the Collector for the better and more effective application of the recovery proceedings authorized by the statute.
Their Lordships further held that viewed in this light there is no question of the possibility of any discrimination violating Art. 14 of the Constitution
of India. Their Lordships have also pointed out that each State is well within its rights to devise its own machinery for the recovery of public
demands. One of the questions raised in this case was that because the Recovery Acts provided different patterns for different States, therefore
discrimination results. This argument was negatived by their Lordships. On a parity of reasoning therefore it is manifest that if the State is permitted
to devise its own machinery for recovery of Governmental dues as arrears of land revenue, the said machinery cannot be impugned on the ground
that it violates Art. 14 even if such remedy exists in addition to the remedy of recovering the amounts by a civil suit. To the same effect is a decision
of the US Supreme Court in (1918) 249 US 152, at P. 157.
In Lachhman Das on Behalf of Firm Tilak Ram Ram Bux Vs. State of Punjab and Others, (232, 233) once again a Bench of five Judges was
considering the validity of the Patiala Bank Recovery of State Dues Act. Their Lordships observed as follows:
Thus a Bank established by a State has got distinctive features which differentiate it from the other banks and for the purpose of Article 14 it forms
a category in itself. The law is now well settled that while Art. 14 prohibits discriminatory legislation directed against one individual or class of
individuals, it does not forbid reasonable classification, and that for this purpose even one person or group of persons can be a class.
On the principles stated above we are of the opinion that the Patiala State Bank is a class by itself and it will be within the power of the State to
enact a law with respect to it.
In this case their Lordships pointed out that Article 14 merely prohibits discriminatory legislation directed against one individual and that for the
purpose of classification even one person or group of persons can be a class. In the instant cases as all the dues are Government dues either
relating to the Forest Department, the Food Dept. or the Mines and Minerals Department they fall into a separate class or category and therefore
do not exceed the permissible limits of Article 14 of the Constitution of India.
The matter was exhaustively and explicitly dealt with by Subba Rao, J., (as he then was) in R. Kuppuswamy Gramani Vs. State of Madras and
Another, . 24 wherein the learned Judge observed as follows:
In a society of unequal basic structure it is well neigh impossible to make laws suitable in their application to all the persons alike. So a reasonable
classification is not only permitted but is necessary if society should progress. But such a classification cannot be arbitrary but must be based upon
difference pertinent to.the subject in respect of, and for the purpose for which, it is made.
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Public.interests demand that such dues should be collected expeditiously. In this context no private individual can be put on a par with the State.
Nor does the impugned clause finally preclude the affected party from getting his rights decided in a court of law. Section 59 of the Act saves such
a right. The provisions of Sections 52 and 59, in my view, attempt to reconcile the paramount interests and duties of the State with the just rights of
private individuals.
The classification, therefore, is not arbitrary.
This decision was followed by a single Judge of the Andhra Pradesh High Court in Konduri Buchi Rajalingam and Others Vs. State of Andhra
Pradesh by its Secretary, Agriculture Civil Supplies, Government of Andhra Pradesh and Others, . In this case also the learned Judge was dealing
with the provisions of the Madras Rent Recovery Act which is almost identical with the provisions of Section 90 of the Land Revenue Act of the
State.
These are the authorities which have laid down that Government revenues being a class by themselves it was permissible for any State to
provide for summary recovery of such dues. While the minority judgment in the Northern India Caterers Private Ltd. and Another Vs. State of
Punjab and Another, rallied round and endorsed the decisions cited above, the majority judgment has not even referred to these decisions, nor has
it decided this point at all. I have already pointed out that their Lordships of the Supreme Court in that case were concerned with the constitutional
validity of Section 5 which dealt with the eviction of unlawful occupants from Government lands and premises. A careful perusal of the decisions of
the Supreme Court clearly shows that the basic difference between the majority and the minority judgments was on two points. In the first place
the minority judgment was prepared to equate Government lands or premises with Government revenues and therefore they upheld the validity of
the Punjab Act. The majority judgment did not agree with the minority judgment on this point and was not prepared to equate Government lands
and premises with Government revenues. In other words whereas in case of eviction of unlawful occupants of Government lands and premises the
authority concerned had two remedies open, namely to evict a person from the property by the summary remedy provided by the Act or to file a
suit for eviction against him, since the possibility of discrimination inter se was there, the section was struck down as being of violative of Article 14,
the minority judgment, however, was not prepared even to go,to this extent. The majority judgment has not specifically referred to any authority in
the long catena of previous decisions of the Supreme Court (Supra) regarding recovery of Government or public dues.for the simple reason that
they did not dispute the stand taken by the minority judgment so far as this class of dues was concerned. Indeed if the principle laid down by their
Lordships in the said case was intended to be applied even to Govt. dues, then we should have expected a clear reference being made to the
previous decisions of the Supreme Court, most of which were given by five judges - a number larger than the number of judges constituting the
majority judgment. The fact that this point was neither discussed nor referred to clearly shows that the majority judgment did not dispute the
validity of the view of the minority judgment on this point. Thus there was a very narrow range of difference between the minority and the majority
judgments which centered round the question as to the nature of the Government property. If the property was landed and immovable then the
doctrine laid down by the majority judgment applied, but if the property was movable like Government dues or public demand then the doctrine
laid down by the majority judgment did not apply.
This matter was considered by a Single Judge of the Allahabad High Court in Tandon Sugar Works, Shahjahanpur Vs. Uttar Pradesh Financial
Corporation, Kanpur and Others, , wherein the learned Single Judge while voicing the view which we have taken here observed as follows:
His Lordship then observed that if a quick recovery of revenue is in public interest, expeditious recovery of State property from which revenue is
derived is a fortiori in the public interest. The majority opinion nowhere referred to these decisions relating to Revenue Recovery Act and other
similar Acts. The reason seems obvious. The majority apparently did not share the opinion that recovery of State revenues could be equated with
the recovery of State property. Else they would undoubtedly have referred to these previous decisions of that Court itself wherein those Acts were
affirmatively declared to be valid and not violative of Article 14. The various Acts considered in these decisions suffered from 'the same defect
namely the proceedings thereunder were supplemental and not substitutive of the ordinary remedy by way of a suit in the civil courts to recover the
amount. From that point of view they were on a par with the Punjab Public Premises and Land (Eviction and Rent Recovery) Act (31 of 1959)
which was involved in the case of N.I. Caterers. In spite of this similarity the majority did not even refer to these earlier decisions. It will, therefore,
be unsafe to extend the ratio of the majority opinion to statutes providing for speedier methods and procedure for recovery of State's revenues.
Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, could well be confined to statutes relating to recovery of
possession of public properties.
It is true that this decision was overruled by a Full Bench decision of the Allahabad High Court in Prakash Pottery Industries, Chunar Vs. The
District Magistrate, Mirzapur and Others, at P 107 (FB), wherein Pathak J. speaking for the Court observed as follows:
It is the power to elect between two recovery procedures which affords scope for discrimination, and that power has been vested by Section 3 (1)
(c) of the Act in an officer authorised by the State Government. Nowhere, in my opinion, is there any provision, either in the agreement or in the
Act. conferring upon the debtor the power to choose between the two remedies. It is a power to be exercised by the State Government or an
officer authorised by it, and open to the arbitrary exercise of their will.
On the contrary, the basis of the decision in Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, seems attracted.
It has been urged that N.I. Caterers case was concerned with the expeditious recovery of State property and not with the expeditious recovery of
State revenues, and that a distinction should be maintained between the two in deciding the cases before us. I am unable to appreciate any such
distinction.
We are then referred to, Purshottam Govindji Halai Vs. Shree B.M. Desai, Additional Collector of Bombay and Others, ; The Collector of
Malabar, Kozhikode and Another Vs. Erimmal Ebrahim Hajee, ; Manna Lal and Another Vs. Collector of Jhalawar and Others, and Lachhman
Das on Behalf of Firm Tilak Ram Ram Bux Vs. State of Punjab and Others, which were concerned with the speedy recovery of State revenues,
and it is pointed out that recourse to the speedy procedure was upheld by the Supreme Court. It seems to me that the decision of the Supreme
Court in each of those cases turned entirely on different considerations.
With due deference, we express our respectful dissent from the view taken by Pathak J. for the reasons that we have already given above.
Finally it seems to us that what impelled their Lordships to strike down Section 5 of the Punjab Act was that so far as the Government lands or
premises were concerned, the same being substantial properties, the claimants thereof should have been given an adequate opportunity of proving
their title or claim. If it is left to the discretion of an authority to deal with the property rights in some cases through the summary method provided
for in the Punjab Act and in other cases in the Civil Court, there will be a discrimination inter se between contenders of title in a property which
may place some claimants in a disadvantageous position and others in an advantageous position, at the sweet will of the authority concerned. We
would like to make it clear by giving an illustration. Suppose X is a property occupied by B who claims to have perfected his title by adverse
possession. Another property Y is also Government property and a similar claim is put forward by A, The Estate Officer chooses to proceed
against B by evicting him in a summary manner under the provisions of the Punjab Act whereas he does not take recourse to this remedy against A
by filing a suit against him thus giving him a chance to prove his title in a court of law. Here the discrimination inter se results in a matter which is a
very substantial right of a citizen, but the same cannot be said of public demands or Government dues, which have 'to undergo a complicated
system of red tapism. Before taking any action, the matter has to be processed at several levels which takes a long time. Furthermore the
Government needs funds in order to replenish its sources of income. 30 as to meet its commitments to the people. So far as Government dues are
concerned, it is net the right of the debtor to withhold payment; his only right is to either pay the debt or to dispute it. The statutes providing for
summary recovery do not exclude the right of the debtor to establish his claim in a civil court and get a refund from the Government in case his
claim is proved. In these circumstances the Government dues can in no case be equated with Government properties. In such cases the judicial
approach has to be pragmatic rather than pedantic, dynamic not static, liberal not conservative and progressive rather than obscurantist. It must
take into consideration the changing needs of the society, the feelings and aspirations of the people and the temper of the times. Viewed from this
angle, therefore it cannot be said that even if a discretion is conferred on the officers concerned to elect to recover Government dues through the
procedure prescribed by the Recovery Acts or through the civil courts, it is discriminatory so as to be violative of Article 14 of the Constitution of
India.
There is yet another aspect of the matter. A perusal of the provisions of the statutes quoted above clearly shows that the policy underlying the
statutes is that in case of Government dues they have got to be recovered in a particular manner. There is therefore hardly any possibility that the
officers concerned would not choose to exercise their discretion in recovering the money as arrears of land revenue when there is a specific
provision to that effect, but would elect the long drawn remedy of the Civil Court. Such a possibility hardly exists in matters of recovery of public
demands or Government dues. Therefore the possibility of such an election resulting in discrimination also appears to us to be purely illusory.
We shall now refer to certain decisions which have upheld the validity of the Revenue Recovery Acts and have also noticed the decision of the
Supreme Court in Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, and distinguished the same.
In Ramraj Sinh Thakur Vs. State of Maharashtra and Others, a Division Bench of the Bombay High Court was dealing with the validity of the
Bombay Housing Board Act. Repelling a similar argument advanced before them, their Lordships observed as follows:
The effect of the decision is that the limitations subject to which the discretion can be exercised can be ascertained by the Court from the preamble,
the surrounding circumstances, disclosed by well known and notorious facts or those disclosed by affidavits. Northern India Caterers Private Ltd.
and Another Vs. State of Punjab and Another, does not decide anything to the contrary. On the application of the principles mentioned the court
held that the Act was invalid.
(See page 336 of the Reports).
Their Lordships in this case clearly held that the N.I. Caterer's case does not decide anything to the contrary.
In The Government of Andhra Pradesh and Others Vs. Rayalaseema village Association, Chagalarri,. Kurnol District and Another, at pp. 258-
259 while referring to the Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, a Division Bench of the Andhra
Pradesh High Court observed as follows:
The course open to 'the Board is either to institute a suit and obtain a decree and thereafter proceed to execute the decree or send a certificate to
the Collector for the recovery of the amount as arrears of land revenue following the procedure laid under the Revenue Recovery Act. In other
words, it has the choice of either seeking the assistance of the court or the more expeditious remedy of applying to the Collector. In either case it is
open to a debtor to resist the claim if he is not satisfied with the demand of the Board.
Thus the existence of more than one mode of recovery was not held to be. violative of Article 14 of the Constitution. This is in consonance with the
observation of their Lordships in the case of Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, . At p. 1589 it
reads as under:
It is settled by our previous decisions that the Revenue Recovery Act and other Acts creating special Tribunals and procedure for the expeditious
recovery of revenue and State dues are in the public interest and therefore do not violate Article 14.
In the majority judgment in 'the said case the cases cited above have not been overruled and therefore it can be rightly urged that the provisions of
two or more modes of recoveries are not unconstitutional.'
Thus the Andhra Pradesh High Court has pointed out that the majority judgment ""did not at all refer to the cases relied upon in the minority
judgment regarding recovery of Government dues or public demands.
In Chhotalal Vanravan Kakkad Vs. The State of Gujarat and Others, , at pp. 161-62 a Division Bench of that High Court while referring to
the Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, observed as follows:
Therefore, it is well settled even by the majority decision in the N.I. Caterer's case, that the guarantee is violated only where the authority has
unguided power to pick and choose. In State of Gujarat Vs. Shantilal Mangaldas and Others, where there were no two competing powers in the
field and the authority had one single power or where his discretion was not an arbitrary unguided discretion but a canalised discretion, as per the
norms of the statute, the said guarantee of Art. 14 was not held to be violated.
Such a provision for recovery of the dues as provided therein as arrears of land revenue under the Code could never be held to be hit by Art. 14,
In the present case also the case is of a single power and not of two competing powers in the field. Merely because the party entitled to the benefit
of this order under the Act has two remedies to go to the civil court or to the Collector that would not make the provision violate the guarantee of
Article 14.
Therefore where the legislature has provided two different remedies for enforcing the recovery order by approaching the civil court or by
approaching the Collector, there is no question of two competing powers, and in any event there being discretion either of the court or of the
statutory collector under the Code, the discretionary power could never be attacked as discriminatory power that violates the guarantee of Art. 14.
This case appears to be directly in point so far as the facts and circumstances of the present cases are concerned. It may be significant to note that
their Lordships clearly indicated that where the legislature provided two different remedies for enforcing the recoveries of Government dues, one
through the civil court and the other by approaching the Collector, there was no question of two competing powers and the discretionary power
was not violative of Art. 14 of the Constitution of India. This is exactly the situation in the present petitions.
In Abdul Rashid Sahib Vs. The Assistant Engineer (Highways) Kallakurichi and Another, . their Lordship while referring to the Northern India
Caterers Private Ltd. and Another Vs. State of Punjab and Another, and distinguishing the same observed as follows:
It is not therefore, possible to say that under the Madras Act. the Collector has been given the choice without any guidance and at his will, of the
more drastic remedy. Nor it is possible to hold that Section 6 of the Madras Act suffers from the vice which Section 5 of the Punjab Act suffered
from, as held by Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, . Though the Collector under the Madras
Act may choose the remedy under its provisions viz., summary eviction, it cannot be described as drastic, because as we said, the Collector is not
vested with power to adjudicate a dispute as to the ownership of the land, and that in any, case he can remove resistence or obstruction to
summary eviction only if he is satisfied that there is no just cause for it, a question which is open to review and correction in proceedings under Art.
226 of the Constitution. What is more, there is no finality attached to an order of Collector for summary eviction, and an express provision has
been made enabling the aggrieved person to resort to the civil court for remedy in respect of it. We, therefore, reject the attack on the
constitutional validity of the Madras Land Encroachment Act.
We may point out here that even u/s 90 of the Land Revenue Act which provides for summary recovery of dues as arrears of land revenue, two
important safeguards are provided, namely (1) that the procedure for summary recovery would not apply to old arrears, that is to say arrears
which are more than eight years old and (2) that it is open to the aggrieved person to seek his remedy in a Civil Court.
In a later decision of the Supreme Court in Manhar Lal Bhogilal Shah Vs. State of Maharashtra, even though two remedies were open to a
particular authority to choose against the person concerned, the validity of the section was upheld. In this connection their Lordships observed as
follows:
The achievement of one or other objects in view by such reference to the Board of Conciliation or Court of Inquiry or Industrial Tribunal must
guide and control the exercise of the discretion and there was no question of the Government being in a position to discriminate between one party
and the other. In our judgment the ratio of this decision a(sic)sitely applies to the present case, This object and purpose of the Act has already
been noticed as also its scheme and the relevant provisions. The power conferred by Section 187-A has to be exercised for effectuating the object
and purpose of the Act keeping in view the entire scheme. It cannot therefore be said that any unguided discretion or power has been conferred of
the nature which would come within the inhibition of Article 14. The principal contention of the learned Counsel for the appellant based on Article
14 must fail.
The matter was also considered by a Division Bench of our Court in Abdul Samad v. State, AIR 1969 J & K 52 to which I was a party. In that
case also the validity of Sections 90 and 91 of the Land Revenue Act and Section 52 of the Forest Act was questioned on the ground that they
were violative of Article 14 of the Constitution of India. Jaswant Singh, J., who spoke for the court, after a review of the decisions cited at the bar,
observed as follows:
Section 52 of the Forest Act cannot also be held to infringe Article 14 of the Constitution merely because it gives the authority an option of
realizing the arrear of price of the forest produce either by bringing a suit or realizing it as arrear of land revenue. Article 14 of the Constitution does
not at all limit the choice of remedies. It hardly stands to reason that a conscientious recovery officer would resort to the lengthy and arduous
remedy of a suit when speedy and effective method of recovery of the arrears dues is possible u/s 52 of the Forest Act read with Sections 90 and
9l of the Land Revenue Act.
It was also pointed out by Jaswant Singh, J., in that judgment that the duty of a revenue officer being to act in the interest of public revenue to
prevent evasion, the presumption is that he would act honestly and choose the remedy provided by Section 90 of the Land Revenue Act to
recover arrears of public dues rather than favour the defaulter by proceeding against him in a Civil Court.
There is yet one more aspect of the matter that has to be kept in mind. In almost all the cases in which recoveries are made u/s 90. the
defaulters or debtors have entered into an agreement with the Government specifically agreeing to the dues being recovered as arrears of land
revenue. In this view of the matter such debtors cannot in the event of default ""having been made by them, be heard to say that the dues are not
recoverable in the summary manner laid down in Sections 90 and 91 of the Land Revenue Act. Although the petitioners have made a general
grievance that the provisions of the Statutes mentioned above are violative of Article 14 of the Constitution, yet they do not appear to have laid any
foundation for invoking Article 14. The petitioners have neither pleaded nor proved facts from which it can be inferred that they have been selected
for hostile discrimination. It is well settled that the presumption would be in favour of the constitutionality of a statute and the onus lies on the
petitioners to prove that Article 14 has been violated. In none of these petitions a single instance has been given to show that the Recovery Officers
had chosen to elect the summary process of recovery u/s 90 of the Land Revenue Act against some petitioners and had resorted to the remedy by
way of a civil suit in respect of other petitioners or other debtors known or unknown. The argument challenging the constitutionality of the Statutes
(Supra) is based purely on a sort of an abstract formula that merely because two remedies are open to a person it must be presumed that
discrimination would result.
In The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, at P. 9 their Lordships of the Supreme Court observed as
follows:
A rule cannot be struck down as discriminatory on any a priori reasoning 'That where a party seeks to impeach the validity of a rule made by a
competent authority on the ground that the rules offend Art. 14 the burden is on him to plead and prove the infirmity is too well established to need
elaboration.' The burden thus is on the respondents to set out facts necessary to sustain the plea of discrimination and to adduce 'cogent and
convincing evidence' to prove those facts for 'there is a presumption that every factor which is relevant or material has been taken into account in
formulating the classifications.
On a careful review of the entire case law on the subject including decisions of the Supreme Court, we hold that the sections are not discriminatory
as being violative of Article 14 of the Constitution of India but are constitutionally valid.
A close analysis of the majority judgment of Shelat J. in Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another,
would reveal that this case is clearly distinguishable from the facts and circumstances of the present cases. The main grounds of distinction in the
present cases are as follows:
(1) That the present cases specifically deal with Acts regarding recovery of Government dues or public demands, which did not arise for
consideration in the N.I. Caterer's case (supra) at all.
(2) That while making an elaborate exposition of the various aspects of Section 14, the majority judgment in the N.I. Caterer's case was not
prepared to equate Government property and premises with Government revenues or public demands.
(3) That the long catena of decisions of five judges of the Supreme Court (Supra) was not at all considered by the majority judgment in the N.I.
Caterer's case for the simple reason that their Lordships did not choose to take a view different from the one taken in these cases.
(4) The considerations by which their Lordships were swayed regarding Government premises or property cannot apply to Government dues or
public demands against debtors or defaulters and the incidents of these two kinds of properties or claims are separate and distinguishable.
(5) In view of these distinguishing features and the reasons given by us, we are not in a position to agree with the view taken by Pathak, J., in the
Allahabad Full Bench case (Supra).
We would now take up the third ground of attack against these sections. Counsel for the petitioners argued that the word 'may' appearing in
Section 90 of the Land Revenue Act, Section 25 of the Mines and Minerals (R. & D.) Act and Section 52 of the Forest Act had merely a
directory force so as not to oust the jurisdiction of the Civil Court and that two remedies are open to the officer concerned to realise the
Government dues. In the view that we have already taken, it may not be necessary to dilate on this aspect of the matter but as it has been argued at
length before us we might like to say something about it. Repelling the argument of the petitioners the respondents' case which was argued by the
Advocate-General, the Additional Advocate-General and the Asstt. Advocate-General who followed, was in the first place that the word 'may'
used in these sections has a mandatory force and therefore there was no other alternative for the officer concerned to recover the amount as
arrears of land revenue. It was also argued that under certain provisions of the Land Revenue Act a civil suit for the purposes of recoveries
contemplated by Section 90 was clearly barred. Coming now to the question whether the word 'may' has been used in a directory or a mandatory
sense, we might state the following propositions which admit of no doubt:
(1) The word 'may' is generally used in a directory form but where it deals with the substantive rights or is coupled with an obligation or a duty, it
has a mandatory force.
(2) The fact whether the word 'may' has a directory or a mandatory force depends upon the nature of the statute, the context in which the word is
placed, the object that the word seeks to achieve and the surrounding circumstances.
In the instant cases the word 'may' as used in Section 52 of the Forest Act, having regard to the context, clearly shows that it confers only a
discretion on the Government to recover the amount as arrear of land revenue. It does not exclude the remedy of the Government to proceed
against the defaulter in a civil suit. But at the same time it must be remembered that this is a special section which empowers the Government to
make recoveries through a shorter and more effective method and therefore there is no reason to suppose that the Government which is interested
in quick recovery of its dues would deliberately try to choose a dilatory and long drawn process of the civil court. Similarly in Section 90 of the
Land Revenue Act the word 'may' (request an Assistant Collector) also appears to have been used in a purely directory sense, but it does indicate
that once a request is made by the officer concerned the Asstt. Collector has to proceed in the manner laid down in Section 90. Similarly the word
'may' in Section 25 of the Mines & Minerals (R. & D.) Act has been used in a directory sense because it is conditioned by the words 'on the
certificate of such officer as may be specified by the State Government'. All the three sections in which the word 'May' occurs are purely
procedural in character and therefore this is one more reason why the word 'may' must be construed in a purely directory sense. We are fortified in
our view by a Full Bench judgment of this Court in Collector v. Habibullah, AIR 1967 J & K 44, at p. 48 (FB) wherein I wrote the leading
judgment and observed as follows:
Before going further we may state the well-settled principles of Interpretation of Statutes. It is well settled that the use of the word 'may' in a
statutory provision would not by itself show that the provision is directory in nature. In some cases the legislature may use the word 'May' as a
matter of pure conventional courtesy and yet intend a mandatory force. In order, therefore, to interpret the legal import of the word 'may' we have
to consider various factors namely, the object and the scheme of the Act, the context and the background against which the words have been
used, the purpose and the advantages sought to be achieved by the use of this word and the like.
It is equally well settled that where the word 'may' involves a discretion coupled with an obligation or where it confers a positive benefit to a
general class of subjects in a Utility Act, or where the court advances a remedy and suppresses the mischief or where giving the word a directory
significance would defeat the very object of the Act, the word 'may' should be interpreted to convey a mandatory force.
To the same effect are the decisions in The State of West Bengal Vs. Anwar Ali Sarkar, and Seth Banarsi Das Vs. The Cane Commissioner and
Another, .
A close examination of the language of the sections would show that Section 52 of the Forest Act, Section 90 of the Land Revenue Act and
Section 25 of the Mines and Minerals (R. & D.) Act have provided for a specific remedy to the authority concerned for recovering dues in a
particular manner. This remedy is undoubtedly an alternative remedy because none of these Sections bar a civil suit. Section 52 of the Forest Act
and Section 25 of the Mines and Minerals (R. & D.) Act do not at all specifically bar a civil suit. Section 90 in clear terms gives a right to the
aggrieved party to go to the civil court after depositing arrears. Thus the word 'May' occurring in these sections must be construed as being used in
a directory sense. The fact, however, remains that whenever the authorities make up their mind to recover Govt. dues against a debtor or a
defaulter, they are presumed to choose the quicker and more effective remedy. It was contended by the Additional Advocate-General that as
Sections 90 and 91 of the Land Revenue Act are the only sections which empower the Government to realise public dues as arrears of land
revenue, the other remedy is completely barred. We might mention here that Ss. 90 and 91 are slightly different from each other in their scope.
Section 90 comes into play when an officer of any Government Department certifies that a sum which is lawfully recoverable as arrear of land
revenue and sends a certificate to the Asst Collector for making the recovery. Section 91. however, lays down the specific nature of the dues that
can he recovered under its various clauses. In 'the present cases we are concerned with clause (ee) which makes dues of Food Supplies
Department recoverable as arrears of land revenue. As regards Section 25 of the Mines and Minerals (R. & D.) Act and Section 52 of the Forest
Act they give the statutory authority i.e., the Assistant Collector the power to make the recovery after receipt of a certificate from the officers
mentioned in these provisions. It is therefore clear that what is recoverable as arrear of land revenue is a sum of money which is lawfully
recoverable, that is to say, recoverable under the authority of a valid law. In other words, if Sections 90 and 91 of the Land Revenue Act are valid
laws then the dues of the Food Department can be recovered u/s 91 under a lawful authority. Section 52 of the Forest Act and Section 25 of the
Mines and Minerals Act having been held by us to be valid pieces of legislation, they empower the recovery of dues concerned as arrears of land
revenue. We have mentioned this argument because ft was suggested by the petitioners that the words lawfully recoverable' suggest that there
should be a full-fledged inquiry by the authorities to determine the amount due. In our opinion this is not necessary because the words lawfully
recoverable' have merely been used in the sense that the dues sought to be realized must be recovered under any law or statute and should not be
left to the sweet will of the officer concerned. It is not disputed In the present cases that the food dues are recoverable u/s 91 (ee) of the Land
Revenue Act the forest dues are recoverable u/s 52 of the Forest Act and the arrears of royalty of mines and minerals are recoverable under Sec.
25 of the Mines and Minerals Act.
Lastly we come to the argument of the Additional Advocate General that a suit by the State to realise an amount falling under Sections 90 and
91 of the Land Revenue Act is. barred by Section 139 (1) of the Act which runs thus:
Except as provided by this Act- (1) No civil court shall have jurisdiction in. any matter which a Revenue Officer is empowered by this Act to
dispose of or take cognizance of.
The argument was that as u/s 90 of the Land Revenue Act it is a Revenue Officer and a Revenue Officer alone who has power to recover
Government dues as arrears of land revenue, the jurisdiction of the civil court is clearly barred. We are however unable to agree with this argument
The words 'A revenue officer is empowered to dispose of or take cognizance of connote a lis which is to be decided by the Revenue Officer on a
proceeding to be taken by him. The jurisdiction conferred on a Revenue Officer is purely administrative which, has to be exercised as a matter of
course and by way of an automatic formality. Once the Revenue Officer mentioned in Section 90 gets the certificate he has no option in the matter
but to proceed to realise the amount as arrears of land revenue. Furthermore u/s 72 of the Land Revenue Act a person against whom proceedings
are taken for recovery of arrear of land revenue has the eight to institute a suit in a civil court, It is well settled that unless the jurisdiction of the civil
court is expressly taken away, the same cannot be barred by a process of implied intendment. Fox these reasons therefore we do not agree with,
the submission made by the Additional Advocate-General on this score.
36-37. That however makes no difference In view of our decision that the impugned provisions of the various statutes are constitutionally valid.
For the reasons given above, we answer the questions referred to us CIS follows:
(1) That Sections 90 and 91 of the Land Revenue Art, 52 of the Forest Act and 25 of the Mines and Minerals (K & D.) Act are constitutionally
valid and are not hit by Article 14 of the Constitution of India.
(2) That the word 'may' appearing in these sections has been used in a purely directory sense and does not have a mandatory force.
(3) That a suit by the Government to realize public dues is not barred u/s 139 (1) of the Land Revenue Act.
The cases will now go back to the Benches concerned for decision on merits in accordance with the opinion expressed by us.
S. Wasi-Ud-Din, J.
I agree.
Jaswant Singh, J.
I have had the advantage of going through the very elaborate judgment prepared by my Lord the Chief Justice after an exhaustive review of the
decisions of the Supreme Court and the various High Courts of the country bearing on the matter in question and entirely agree with the reasons
given and the conclusions arrived at by his Lordship.
As pointed out by his Lordship the recovery of the State dues and the State property stand on different footing. The majority judgment in the
Northern India Caterers case reported in Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, , on which strong
reliance has been placed on behalf of the petitioners Is not helpful to them as this aspect of the case does not appear to have been considered
therein.
I, therefore, respectfully agree with his Lordship that the impugned provisions of the Land Revenue Act. the Forest Act, and the Mines and
Minerals (R. & D.) Act do not suffer from any vice of unconstitutionality.