RAMBHADRA UPADHYA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS guarantor's second appeal is directed against dismissal of his suit filed for declaration that citation issued by Tahsildar for recovery of the amount taken by Respondents 3 and 4 was illegal. Trial Court deserved the suit as U.P. Public Moneys (Recovery of Dues) Act of 1965 had been declared ultra vires by this Court. In appeal it was however held that as provisions of 65 Act had been validated by U.P. Public Moneys (Recovery of Dues) Act, 1972 the claim of Appellant that no recovery could be made was unsustainable.

(2.) NUMEROUS pleas had been taken in suit but it is nut necessary to mention them as the arguments in this Court have been advanced only on legality or otherwise of the citation issued by the Tahsildar. Learned Counsel for Appellant submitted that as citations have been issued by Tahsildar proceedings were without jurisdiction. According to him Respondent Nos. 1 and 2 had proceeded to recover the amount under Zamindari Abolition Act and that could not be done in view of specific enactment namely U.P. Public Moneys (Recovery of Dues) Act, 1965. According to Learned Counsel citation shows that proceedings had been initiated under Zamindari Abolition Act as provision for issuing citations was contained only in Section 270 of the Zamindari Abolition Act. Argument does not appear to have any substance because it was not raised in court below. The suit proceeded as recovery was being made under 65 Act Section 3(2) of 65 Act provided that Collector on receiving the certificate from, concerned authority from whom a person had taken loan shall proceed to recover the amount stated therein as arrears of land revenue. It has been found and is not disputed that Respondents 3 and 4 had taken loan from Respondents 1 and 2 of which Appellant was guarantor. It was agreed by him that in case there was default it may be recovered from him as arrears of land revenue. In view of the agreement case of Appellant squarely fell under Section 3 of the Act. And once amount became due, due to default committed by Respondents 3 and 4 then Collector on receiving certificate could proceed under Section 3(2). Argument of Learned Counsel for Appellant that as citation was issued by Tahsildar it was not established that Section 3(2) was complied with inasmuch as State Government or the Bank or the Industries Officer had not forwarded any certificate to Collector, cannot be accepted. It was question of fact and in case Appellant intended to raise this controversy it should have been raised in plaint itself and evidence should have been led on it. In absence of any such evidence it is not possible to accept that authority concerned did not forward any certificate to Collector to proceed as provided under Section 3(2) of the Act. In fact the argument is founded on misapprehension. The 65 Act does not lay down any procedure for recovery of the amount due. It only provides that it shall be recovered as arrears of land revenue. Therefore, once the Collector is approached to recover any amount due to Government or Cooperative or Bank etc. in accordance with Section 3 the Collector proceeds under Land Revenue Act. And under that Act citation is issued by Tahsildar, If the Appellant wanted to challenge legality of citation or recovery for non -compliance of any stage anterior to it then it was to be established by him.