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Judgment
M. A. Chowdhary, J
The Petitioner, in this Petition filed under Article 226 of the Constitution of India, claims to be a Government Contractor involved in the business of construction, for which he is stated to have been paying the requisite Goods and Services Tax (GST) from time to time upon completion of any Government contract. It is stated that the Special Tehsildar Recovery, District Srinagar-Respondent No.4 herein, however, initiated recovery proceedings against the Petitioner and issued a notice under Section 62 of the Land Revenue Act, which was challenged by the Petitioner before this Court through the medium of Writ Petition bearing WP (C) No. 1970/2023. The said Writ Petition came to be disposed of in terms of Order dated 14th of August, 2023, with the observation that the Petitioner can appear before the Respondent No.4 and raise all the objections, including the issue of jurisdiction on the part of the Respondent No.4. The Respondent No.4, in turn, was also directed to first decide the issue of maintainability of the impugned notice and jurisdiction before proceeding on merit. The Petitioner, vide the aforesaid Order, was also granted liberty to approach this Court again, if he is aggrieved by any decision taken by the Respondent No.4
It is pleaded that the aforesaid Order passed by this Court was duly served upon the Respondent No.4, who did not comply with the same and, instead, proceeded to issue non-bailable warrants (NBW) against the Petitioner on 19th of August, 2023. Thereafter, the Petitioner claims to have approached the Respondent No.4 for cancellation of the non-bailable warrants in view of the fact that there is already an Order passed by this Court directing the Respondent No.4 to first decide the issue of maintainability of the impugned notice and jurisdiction before proceeding on merit. The Respondent No.4, however, is alleged to have brushed aside the aforesaid direction passed by this Court and is bent upon arresting the Petitioner, come what may.
Feeling aggrieved and dissatisfied with the conduct of the Respondent No.4, the Petitioner claims to have filed a Contempt Petition bearing CCP (D) No. 43/2023 before this Court, which came to be disposed of vide Order dated 13th of September, 2023, with a direction to the Respondent No.4 to pass an Order on the application of the Petitioner for recalling of the warrant, within a period of one week from the date the certified copy of the Order was placed before the learned Authority.
The Petitioner claims to have brought the aforesaid Order dated 13th of September, 2023 passed by this Court into the knowledge of the Respondent No.4, but despite that, the Respondent No.4 is stated to have not considered the application moved by the Petitioner for cancellation of warrants and is bent upon to arrest the Petitioner in pursuance of the non-bailable warrants dated 19th of September, 2023.
Faced with the above circumstances, the Petitioner has filed the instant Petition before this Court, wherein he has prayed for the grant of following relief(s) in his favour:
“i. Writ, order or direction in the nature of mandamus, commanding the respondent No.4 to first decide the issue of maintainability of the impugned notice and jurisdiction before proceeding on merit as has been laid down in order dated 14-08-2023 passed by this Hon’ble Court;
ii. Writ, order or direction in the nature of certiorari, quashing the non-bailable warrant dated 19-08-2023 issued by the respondent No.4;
iii. Writ, order or direction in the nature of certiorari quashing the summon dated 22nd of September, 2023 issued by the Respondent No.4; and
iv. Any other order or direction, which the Hon’ble Court may deem just and proper may also be passed in favour of the petitioner and against the respondents, for the same will be in consonance with law and justice.”
When this matter was taken up for consideration on motion hearing viz. 8th of November, 2023, this Court, while granting time to the learned Counsel appearing for the Respondents to have instructions in the matter, directed that till then, no coercive action shall be taken against the Petitioner.
Mr Mohammad Yawar, the learned Counsel appearing on behalf of the Petitioner, argued that the Special Tehsildar Recoveries is not a competent authority to proceed against the Petitioner, stated to be a defaulter of the payment of tax for the reason that under the scheme of the Jammu & Kashmir Land Revenue Act, it is only the Collector of the District who is competent to initiate proceedings against any defaulting person. He has further argued that the Special Tehsildar Recoveries has, on his own, initiated the proceedings, though he is not competent to do so as it is only the Collector who is competent to initiate proceedings in this behalf. The learned Counsel has also argued that the Special Tehsildar Recoveries has issued the process, including the non-bailable warrant against the Petitioner, against his competence and jurisdiction and, despite direction from this Court vide Order dated 14th of August, 2023 passed in WP (C) No. 1970/2023, he has not addressed the issue raised by the Petitioner with regard to the maintainability of the proceedings and his authority over the recovery proceedings. It has been finally prayed that the present Petition be allowed and the relief prayed therein granted in favour of the Petitioner.
Mr Sajjad Ashraf Mir, the learned Government Advocate, on the other hand, appearing on behalf of the Respondents, submitted that the Deputy Commissioner, State Taxes (Recovery), Kashmir Division has exercised the option of recovery of the amount of Rs.1,45,97,064/-, to which the Petitioner has defaulted in payment, to be recovered as Land Revenue, through the Collectorate under the Jammu & Kashmir Land Revenue Act. He has further argued that the State Taxes (Recovery) Authority had certified and applied to the District Collector for recovery of the aforesaid amount as a land revenue arrear and proceedings have been initiated by Respondent No.4, Special Tehsildar Recoveries, Srinagar under the District Collectorate, Srinagar and since the Petitioner did not respond to the writ of demand and process for appearance, as such, the Special Tehsildar Recoveries was competent to issue non-bailable warrant against the Petitioner. The learned Government Advocate has also submitted that the Petitioner, despite passing of the Order in his Writ Petition on 14th of August, 2023, had not produced the copy of the said Order before the Special Tehsildar Recoveries on 19th of August, 2023, when the non-bailable warrant was issued against him, therefore, the Special Tehsildar Recoveries cannot be blamed for not complying with the Court Order for the inaction on the part of the Petitioner to have produced the aforesaid Order to the Tehsildar concerned for compliance. He has further argued that there was no legal impediment for the Respondent No.4, who is a Revenue Officer under the Land Revenue Act, to proceed in the matter of recovery, including issuance of process and warrant for recovery of the amount by adopting coercive methods. He has also brought it to the notice of this Court that the Petitioner has not challenged the Order passed by the State Taxes Officer creating liability for which these proceedings are taking place. The Petitioner has neither assailed the liability raised against him nor paid the same, therefore, the proceedings against him are being taken in accordance with the provisions of the law, particularly in terms of clause (e) of Sub-Section 1 of Section 79 of the GST Act and in terms of Sections 61, 62 and 63 of the Jammu & Kashmir Land Revenue Act.
We have heard the learned Counsel appearing for the parties, perused the pleadings on record and have considered the matter.
The short question that falls for consideration of this Court is as to whether the Respondent No.4 was competent to issue the writ of demand based on declaring the Petitioner as defaulter by the Deputy Commissioner, State Taxes (Recoveries), Kashmir Division, Srinagar, for an amount of Rs.1,45,97,064/-, along with two percent of recovery charges in proceedings under Section 62 of the Land Revenue Act and a non-bailable warrant of arrest issued against the Petitioner on 19th of August, 2023 in the name of Station House Officer (SHO), Police Station Saddar, directing him to arrest and produce the Petitioner before his Court on 28th of August, 2023 in case he defaults in the payment of the aforesaid amount and also a summon issued on 22nd of September, 2023, whereby the Petitioner had been asked to appear before the Tehsildar on 4th of October, 2023 to deposit the default amount along with two percent of recovery charges. It appears that under the GST regime, the Petitioner had been declared as defaulter for payment of an amount of Rs.1,45,97,064/- by the Deputy Commissioner States Taxes (Recoveries), Kashmir Division, Srinagar and he had taken up the matter for recovery of the amount in terms of the Land Revenue Act, pursuant to which the Special Tehsildar Recoveries, Srinagar, vide his No. 233-235/STR/2023 dated 9th of May, 2023, issued a writ of demand for the aforesaid amount along with two percent recovery charges, directing the Petitioner to attend his Court on 24th of May, 2023, failing which coercive measures under Sections 63 and 64 of the Land Revenue Act would follow, which may include arrest, sale of moveable property, seizure of bank accounts, etc.
Aggrieved of the issuance of the writ of demand, the Petitioner invoked the Writ jurisdiction of this Court by filing WP (C) No. 1970/2023, which was disposed of by this Court vide Order dated 14th of August, 2023, directing the Petitioner to raise all the objections including the lack of jurisdiction on the part of the Special Tehsildar Recoveries, Srinagar with a further direction to the Tehsildar concerned to first decide the issue of maintainability of the impugned notice and jurisdiction before proceeding on merits. However, the Petitioner alleges that though he had served this Order on the Tehsildar concerned, however, he did not comply with the Court directions and, instead, issued a non-bailable warrant of arrest against the Petitioner on 19th of August, 2023, directing the Station House Officer, Police Station, Saddar to arrest the Petitioner and produce him before his Court on 28th of August, 2023, in case he defaults in making the payment of the aforesaid amount.
Aggrieved of the issuance of the non-bailable warrant, the Petitioner filed a Contempt Petition before this Court, being CCP (D) No. 43/2023, seeking initiation of contempt proceedings against the Respondent-Tehsildar for having not complied with the Court Order dated 14th of August, 2023. A Co-ordinate Bench of this Court, however, vide Order dated 13th of September, 2023, disposed of the said Contempt Petition observing that after the Order passed by this Court on 14th of August, 2023, the same was placed before the Special Tehsildar Recoveries, Srinagar only on 22nd of August, 2023, when the warrant of arrest had already been issued on 19th of August, 2023, as such, it was held that the Respondent cannot be prima facie found guilty of having acted in contempt of Order of this Court dated 14th of August, 2023, as the arrest of warrant was issued even before the said Order was placed before the Authority. However, on the statement made by the learned Counsel for the Petitioner that an application for recall of non-bailable warrant had already been moved before the authority on 24th of August, 2023, the authority was requested to pass an order on the application for recalling of warrant within one week from the date on which the certified copy of the Order is placed before the learned Authority.
The learned Counsel for the Petitioner has not stated anything or placed on record any proof as to how the application of the Petitioner for cancellation of warrant had been dealt with by the Respondent No.4. From the perusal of the record, it transpires that the Petitioner had earlier also moved a Petition bearing CRM (M) No. 513/2023 before the Single Bench of this Court, which was dismissed as withdrawn with liberty to the Petitioner to seek appropriate remedy under law vide Order dated 4th of October, 2023. It appears that the Petitioner, instead of facing the writ of demand and the proceedings being carried out by the Special Tehsildar Recoveries, Srinagar for recovery of the tax money, has been trying to lay a web of litigation, so that the tax money due from him is not recovered.
The Deputy Commissioner, State Taxes (Recoveries), Kashmir Division, Srinagar, vide his No. 2033/DCK/Rec dated 25th of March, 2023, requested the District Collector, Srinagar to initiate recovery proceedings against three defaulters, including the Petitioner herein-Mohammad Yaqoob Sheikh, for the recovery of outstanding arrears in the amount of Rs.1,45,97,064/- under the relevant provisions of the Jammu & Kashmir Land Revenue Act, 1996. This communication had been made by the Deputy Commissioner, State Taxes (Recovery), Kashmir Division, Srinagar in exercise of powers under Section 79 (1) (a) of the Goods and Services Tax Act, 2017 and Rule 155 of the GST Rules, along with the prescribed format of DRCO-18 for each of the case. In this backdrop, it shall be pertinent here to take note of the relevant provisions of the Goods and Services Tax Act, 2017 and the Jammu & Kashmir Land Revenue Act, 1996, which are extracted as under:
“Section 79 of the Goods and Services Tax Act, 2017:
Recovery of Tax: (1) Where any amount payable by a person to the Government under any of the provisions of this Act or the rules made thereunder is not paid, the proper officer shall proceed to recover the amount by one or more of the following modes, namely: -
(a) the proper officer may deduct or may require any other specified officer to deduct the amount so payable from any money owing to such person which may be under the control of the proper officer or such other specified officer;
(b) the proper officer may recover or may require any other specified officer to recover the amount so payable by detaining and selling any goods belonging to such person which are under the control of the proper officer or such other specified officer;
(c) (i) the proper officer may, by a notice in writing, require any other person from whom money is due or may become due to such person or who holds or may subsequently hold money for or on account of such person, to pay to the Government either forthwith upon the money becoming due or being held, or within the time specified in the notice not being before the money becomes due or is held, so much of the money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount;
(ii) every person to whom the notice is issued under sub-clause (i) shall be bound to comply with such notice, and in particular, where any such notice is issued to a post office, banking company or an insurer, it shall not be necessary to produce any pass book, deposit receipt, policy or any other document for the purpose of any entry, endorsement or the like being made before payment is made, notwithstanding any rule, practice or requirement to the contrary;
(iii) in case the person to whom a notice under sub-clause
(i) has been issued, fails to make the payment in pursuance thereof to the Government, he shall be deemed to be a defaulter in respect of the amount specified in the notice and all the consequences of this Act or the rules made thereunder shall follow;
(iv) the officer issuing a notice under sub-clause (i) may, at any time, amend or revoke such notice or extend the time for making any payment in pursuance of the notice;
(v) any person making any payment in compliance with a notice issued under sub-clause (i) shall be deemed to have made the payment under the authority of the person in default and such payment being credited to the Government shall be deemed to constitute a good and sufficient discharge of the liability of such person to the person in default to the extent of the amount specified in the receipt;
(vi) any person discharging any liability to the person in default after service on him of the notice issued under sub-clause (i) shall be personally liable to the Government to the extent of the liability discharged or to the extent of the liability of the person in default for tax, interest and penalty, whichever is less;
(vii) where a person on whom a notice is served under sub-clause (i) proves to the satisfaction of the officer issuing the notice that the money demanded or any part thereof was not due to the person in default or that he did not hold any money for or on account of the person in default, at the time the notice was served on him, nor is the money demanded or any part thereof, likely to become due to the said person or be held for or on account of such person, nothing contained in this section shall be deemed to require the person on whom the notice has been served to pay to the Government any such money or part thereof;
(d) the proper officer may, in accordance with the rules to be made in this behalf, distrain any movable or immovable property belonging to or under the control of such person, and detain the same until the amount payable is paid; and in case, any part of the said amount payable or of the cost of the distress or keeping of the property, remains unpaid for a period of thirty days next after any such distress, may cause the said property to be sold and with the proceeds of such sale, may satisfy the amount payable and the costs including cost of sale remaining unpaid and shall render the surplus amount, if any, to such person;
(e) the proper officer may prepare a certificate signed by him specifying the amount due from such person and send it to the Collector of the district in which such person owns any property or resides or carries on his business or to any officer authorized by the Government and the said Collector or the said officer, on receipt of such certificate, shall proceed to recover from such person the amount specified thereunder as if it were an arrear of land revenue;
(f) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the proper officer may file an application to the appropriate Magistrate and such Magistrate shall proceed to recover from such person the amount specified thereunder as if it were a fine imposed by him.
(2) Where the terms of any bond or other instrument executed under this Act or any rules or regulations made thereunder provide that any amount due under such instrument may be recovered in the manner laid down in sub-section (1), the amount may, without prejudice to any other mode of recovery, be recovered in accordance with the provisions of that sub-section.
(3) Where any amount of tax, interest or penalty is payable by a person to the Government under any of the provisions of this Act or the rules made thereunder and which remains unpaid, the proper officer of State tax or Union territory tax, during the course of recovery of said tax arrears, may recover the amount from the said person as if it were an arrear of State tax or Union territory tax and credit the amount so recovered to the account of the Government.
(4) Where the amount recovered under sub-section (3) is less than the amount due to the Central Government and State Government, the amount to be credited to the account of the respective Governments shall be in proportion to the amount due to each such Government.
Sections 61, 62 & 63 of Jammu & Kashmir Land Revenue Act, 1996:
Process for recovery of arrears: Subject to the other provisions of this Act any sum recoverable as an arrear of land revenue under any law for the time being in force may be recovered by any one or more of the following processes, namely:
(a) by service of a writ of demand on the defaulter;
(b) by arrest and detention of his person;
(c) by distress and sale of his movable property and uncut or un-gathered crops;
(d) by transfer of the holding in respect of which the arrear is due;
(e) by attachment of the estate or holding in respect of which the arrear is due;
(f) by annulment of assessment of that estate or holding;
(g) by sale of that estate or holding; and
(h) by proceeding against other immoveable property of the defaulter.
Writ of demand: A writ of demand may be issued by a Revenue Officer on or after the day following that on which any sum recoverable as an arrear of land revenue accrues.
Arrest and detention of defaulter:
(1) At any time after an arrear of land revenue has accrued a Revenue Officer not below the rank of Tehsildar may issue a warrant directing any public servant to arrest the defaulter and bring him before the Revenue Officer.
(2) When the defaulter is brought before the Revenue Officer, the Revenue Officer may cause him to be taken before the Collector or may order that he be confined to Civil Jail or if no Civil Jail exists in his jurisdiction in the local judicial lock-up, for a period not exceeding six days and then if the arrear is still unpaid cause him to be taken before Collector.
(3) When the defaulter is brought before the Collector, the Collector may issue an order to the officer incharge of the civil jail of the district directing him to confine the defaulter in the jail for such period, not exceeding one month from the date of the order, as the Collector thinks fit. The Collector shall without delay report his order under this sub-section to the Divisional Commissioner for his information.
(4) If a Tehsildar keeps under detention, for a period 24 hours, a defaulter arrested under sub-section (1), he shall without delay report this action for the information of the Collector and Collector may take such action on the report as he thinks fit.
(5) Omitted by Act No. X of 2005, Section 7.
(6) The process of arrest and detention shall not be executed against a defaulter who is a female, a minor, a lunatic or an idiot.
(7) So long as the defaulter is detained in jail under this section no other process for collection of any sum recoverable as land revenue due from him shall be enforced.
(8) Every Police Officer shall help and afford assistance to the Revenue Officer in the exercise of his lawful authority.”
Clause (e) of Sub-Section (1) of Section 79 of the Goods and Services Tax Act, 2017 provides that, where any amount payable by a person to the Government under any of the provisions of this Act or the Rules made therein is not paid, the Proper Officer shall proceed to recover the amount by preparing a certificate signed by him specifying the amount due from such person and send it to the Collector of the District in which the said person owns any property or resides or carries on his business or to any Officer authorized by the Government and the said Collector or such Officer, on receipt of such certificate, shall proceed to recover from such person the amount specified thereunder, as if it were an arrear of land revenue. Though, Section 79 of the Goods and Services Tax Act provides different modes for recovery of the amount by the Proper Officer at his own or even by an application to the appropriate Magistrate, who shall proceed to recover from such person the amount specified thereunder, as if it were a fine imposed by him, however, in the present case, the Officer concerned has opted to clause (e) of Sub-Section (1) of Section 79 of the Goods and Services Act, which provides for the recovery of the amount as an arrear of Land Revenue.
Since, the State Taxes (Recovery) Officer had taken up the matter with the District Collector, Srinagar for recovery and, it appears that he had assigned the matter to Special Tehsildar, Recoveries, Srinagar for further proceedings in the matter. Rule 155 of the Goods and Services Tax Rules provides as to how the Land Revenue Authority has to recover the amount. It provides that where an amount is to be recovered in accordance with the provisions of clause (e) to Sub-Section (1) of Section 79 of the Goods and Services Tax Act, the Proper Officer shall send a certificate to the concerned Deputy Commissioner, vested with the power of Collector under the Jammu & Kashmir Land Revenue Act, Samvat 1996, in form GST DRC-18 to recover from the person concerned, the amount specified in the certificate, as if it were an arrear of land revenue. As, the Proper Officer of the Taxes Department had moved the Deputy Commissioner, Srinagar, who is the Collector of the District in form GST DRC-18 in his communication dated 25th of March, 2023, therefore, there does not seem to be any illegality as to how the Petitioner is aggrieved of the recovery proceedings against him initiated through the office of Special Tehsildar Recoveries, Srinagar. The learned Counsel for the Petitioner has not been able to show as to why the recoveries cannot be made by the Special Tehsildar Recoveries acting under the instructions of the District Collector, Srinagar. The office of Special Tehsildar Recoveries, as it suggests from its very nomenclature, is created for initiating recoveries in the Collectorate.
Chapter VII of the Jammu & Kashmir Land Revenue Act, Svt. 1996 deals with the collection of Land Revenue and such a collection has to be enforced by the issuance of process for recovery of arrears in terms of Section 61 by any one or more of the following processes, namely:
a) by service of a writ of demand on the defaulter;
b) by arresting and detention of his person;
c) by distress and sale of his immoveable property and uncut and un-gathered crops;
d) by transfer of the holding in respect of which the arrear is due;
e) by attachment of the estate or holding in respect of which the arrear is due;
f) by annulment of assessment of that estate or holding;
g) by sale of that estate or holding; and
h) by proceedings against other immovable property of the defaulter.
The arrest and detention of the defaulter is provided under Section 63 of the Jammu & Kashmir Land Revenue Act, authorizing the Revenue Officer, not below the rank of Tehsildar, to issue a warrant directing to arrest the defaulter and bring him before the Revenue Officer and, on such production, the Revenue Officer may cause him to be taken before the Collector or may order that he be confined to civil jail for a period not exceeding six days and then, if the arrear is still unpaid, cause him to be taken before the Collector and, for the continued default, the Collector can confine the defaulter in jail for such period not exceeding one month from the date of the order, as the Collector thinks fit.
In view of the clear provisions contained in Chapter VII of the Jammu & Kashmir Land Revenue Act, Svt. 1996, more particularly Sections 61 and 63, the Special Tehsildar Recoveries, Srinagar, being a Revenue Officer and assigned the job of Tehsildar Recoveries in the District Collectorate, by no stretch of imagination, can be stated to not have any jurisdiction in the matter to proceed by issuance of a writ of demand received from the Collector for recovery of the arrears of tax, as certified by the Deputy Commissioner, State Taxes (Recovery), Kashmir Division, Srinagar and further proceedings in the matter.
The contention of the learned Counsel for the Petitioner that the non-bailable warrant dated 19th of August, 2023 has been issued to him and has not been recalled, though applied for, seems to be an incorrect statement in view of the summons issued on 22nd of September, 2023 to the Petitioner for appearing before the Court of Special Tehsildar Recoveries, Srinagar on 4th of October, 2023. It appears that the Petitioner has been labouring under a misconception that the Tehsildar Recoveries is not a competent authority to recover the tax amount from him by issuing writ of demand/ summon to the Petitioner as defaulter and, in default, to issue non-bailable warrant.
For the afore-stated reasons, the instant Petition seems to be misconceived and, therefore, the proceedings initiated by the Respondent No.4 against the Petitioner do not call for any interference by this Court. Accordingly, the Writ Petition is dismissed, along with the connected CM(s). Interim direction(s), if any subsisting as on date, shall stand vacated. No costs.