AZMAT AZIM KHAN Vs. BOARD OF REVENUE

JUDGEMENT

(1.) This is a writ petition filed by Azmat Azim Khan under Article 226 of the Constitution of India. The petitioner's allegations in the writ petition are that his father Sardar Mujibul Rahman Khan was a grantee zamindar of a number of villages in district Kheri and had applied under Section 4 of the U. P. Encumbered Estates Act (Act XXXV of 1934) for the liquidation of his debts. Opposite party No. 3 Raja Shatranjai was a creditor of his father on the basis of a mortgage deed. Opposite party No. 3 obtained a decree for Rs. 1,31,040/1/- plus Rs. 1931/1/.- as costs in the Encumbered Estates Act proceedings. This decree is dated 28th September, 1939. It was transferred to the Collector for liquidation. During the pendency of these proceedings the father of the petitioner died leaving the petitioner and his brother Hikmat Hakim Khan as his heirs. When these proceedings were pending the U. P. Zamindari Abolition and Land Reforms Act (Act No. 1 of 1951) came into force, with the result that the proprietary rights of the intermediaries vested in the State Government and the intermediaries became entitled to receive compensation in lien thereof. Under Rule 77 framed under the U. P. Zamindari Abolition and Land Reforms Act a notice is issued to the intermediaries directing them to take delivery of the bonds or receive payment in cash on specified dates. The petitioner, accordingly took delivery of the compensation bonds of the value of Rs. 42,750/- from the Compensation Officer, Lakhimpur while bonds of the value of Rs. 21,250/- were received by his brother Hikmat Hakim Khan. The total of the amount of bonds received by the petitioner and his brother thus came to Rs. 64,000/-. On the 14th of April, 1959 opposite party No. 3 Raja Shatranjai moved an application in the Court of Collector, Kheri praying that the petitioner and his brother be ordered to return the aforesaid bonds which they had received from the Compensation Officer failing which their moveable and immoveable properties to the extent of these bonds be attached for liquidation of their debts. This application was opposed by the petitioner and was rejected by the Collector on the 17th of August, 1959. Opposite party No. 3 filed an appeal against the aforesaid order of the Collector. This appeal was dismissed by the Additional Commissioner Lucknow Division on the 17th of February, 1960. In revision proceedings, however, taken by the opposite party No. 3 before the Board of Revenue, an order was passed by a Member of the Board on 30th of August, 1960 allowing the revision. Another Member concurred with the said order on the 6th of September, 1960. The Board was of the view that the order of the lower Court holding that the Collector had no jurisdiction to take action in the matter was wrong. The Board further held that the Collector had power to take action under Section 151 of the Code of Civil Procedure and suggested to the Collector to take one or the other of the following steps: (i) To stop payment of money of instalment of the bonds by treasuries. (ii) To direct the Compensation Officer to hand over bonds of the face value of Rs. 32,000/-reported to be remaining with him for liquidation of debts. (iii) To attach moveable and immoveable properties belonging to the petitioner and his brother for liquidation of debts. Thereafter the petitioner filed the present writ petition questioning the authority of the Board to give instructions Nos. (i) and (iii) in their order. The case of the petitioner as set out in the writ petition is that Section 151 of the Code of Civil Procedure had no application to the circumstances of the present case and, in any case, the order of the Board in so far as it suggested that the Collector should stop payment of money of instalments of bonds by the treasuries and attach move-able and immoveable properties belonging to the petitioner and his brother was illegal. The prayer in the writ petition was that the order of the Board dated the 30th August, 1960/6th September, 1960 'be quashed by issuing a writ in the nature of certiorari or any other writ, order or direction.

(2.) The contention of the learned counsel for the petitioner before me was that the impugned order of the Board was illegal and in excess of its jurisdiction. In this connection, he invited my attention to the fact that opposite party No. 3 obtained a decree for Rs. 1,31,040/- and odd on the 28th of September, 1939. The Zamindari Abolition and Land Reforms Act came into force on the 1st of July 1952. Section 70 of the U. P. Zamindari Abolition and Land Reforms Act provides as follows: "Where before any Court or authority any suit or proceeding is pending which directly or indirectly affects or is likely to affect the right of any person to receive the whole or part of the compensation determined under Chapter III, the Court or authority may require the Compensation Officer to place at its disposal the amount so payable and thereupon the same shall be disposed of in accordance with the orders of such Court or authority." Under this provision of law an application should have been made by the creditor before the Collector praying that the Compensation Officer should place at his disposal the amount of money payable under the bonds. No such application was made by opposite party No. 3. The U.P. Encumbered Estates Act of 1934 was itself amended is 1954 and a new section, Section 23-A was introduced by Section 14 of the Amendment Act (Act XIII of 1954). Section 23-A runs as follows: "The Collector shall require the Compensation Officer and Rehabilitation Grants Officer as may be necessary to place at his disposal in pursuance of Section 70 of the U. P. Zamindari Abolition and Land Reforms Act, 1960, the amount of compensation money and rehabilitation grant payable to the landlord in respect of his proprietary rights in land reported to be liable to attachment or sale under the provisions of Sub-section (2) of Section 19." Under this provision of law also it was open to the creditor to move the Collector to issue the necessary directions to the Compensation Officer. It was also open to the Collector to act suo motu in the matter. No such step, however, was taken. The petitioner received a notice to take delivery of the bonds. There is no provision in the Encumbered Estates Act prohibiting him from doing so. He, accordingly, took delivery of the bonds to the extent of Rs. 42,750/-. For the first time, the creditor (opposite party No. 3) made the application as late as 14th of April, 1959 praying that steps might be taken to recover the bonds from him by attaching his properties and stopping payments of the instalment monies due to him under the bonds. The file of the case was summoned in this Court and it showed that the application itself did not cite any provision of law under which it was given. There is no provision in the U. P. Encumbered Estates Act, 1934 under which this application could possibly have been given. The learned counsel for the petitioner has argued that in the absence of any provision in the U. P. Encumbered Estates Act such an application was, on the face of it, not maintainable and should have been dismissed. Apart from that he has argued that the provisions of Section 151 of the Code of Civil Procedure could not have been invoked by the Board for the purpose of giving directions to the Collector which were unwarranted by any law and which amount to an infrigement of his fundamental rights under Article 19(F) of the Constitution of India.

(3.) Having heard the learned counsel for the parties I am of the view that there is force in the contention advanced on behalf of the petitioner. While allowing the revision petition and passing the impugned order the Board of Revenue was acting under the provisions of Section 46(2) of the U. P. Encumbered Estates Act, 1934 which lays down as follows: "The Board of Revenue may, on an application filed by any person concerned on any of the grounds mentioned in Sub-section (i) of Section 100 of the Civil Procedure Code, 1908, or at any time on its own motion for any sufficient reason, call for the record of proceedings of any case under this Act which is pending in the Court of, or has been decided by, a Collector, a settlement officer or a Commissioner and after giving notice to the parties concerned pass such order thereon consistent with the provisions herein contained as it thinks fit, and such order shall be final." The Concluding portion of the above provision of law indicates that while dealing with the revision petition the Board can only pass such orders as are consistent with the provisions of the U. P. Encumbered Estates Act. The Board has not cited any provision of the U. P. Encumbered Estates Act which could be invoked to justify the legality of the impugned order. Reliance on behalf of the opposite parties can, however, be placed on Rule 6 framed under the U.P. Encumbered Estates Act which provides as follows: "Proceedings under this Act shall be governed by the provisions of the Code of Civil Procedure of 1908, for the time being in force, so far as they are applicable and not inconsistent with the provisions of the Act and of these rules, except that in proceedings under Chapter V of the Act when a debtor or creditor who was a party to the execution proceeding dies, the Collector shall have the power to determine his legal representative and join him as party to the proceeding in place of the deceased." The above rule also indicates that the provisions of the Code of Civil Procedure are applicable to the proceedings under the U.P. Encumbered Estates Act only in so far as they are not inconsistent with the provisions of the Act. The Act itself does not lay down any method by which the bonds already received by a judgment debtor can be recovered from him nor does it lay down any method whereby a party taking delivery of the bonds can be penalized.