ALI MOHD MIR Vs. DIVISIONAL COMMISSIONER, KASHMIR

JUDGEMENT

(1.) THIS is an application against an order of the Divisional Commissioner directing the realization of the extent of the land revenue from the petitioner by sale and attachment of his agricultural properties. This order purports to have been passed under S. 91 of the Land Revenue Act (hereinafter to be referred to as the Act). The petitioner is an agriculturist and was a Numberdar of Village Janwara. It was alleged that he had realised land revenue from the land owners of the village, but had not deposited the amount into the government treasury. This allegation is, however, denied by the petitioner in his petition.

(2.) IT appears that in accordance with the rules framed by the Government, land revenue is assigned to the Numberdars of the villages who are paid some percentage of the commission and are required to collect land revenue from the land owners. In other words, the Numberdars are assignees of the land revenue. The petitioner in the first place denied that he had collected any land revenue and defaulted in depositing the same in the Government treasury. Secondly the petitioner averred that even if he was liable to pay, the respondents could have recovered the amount by the specific procedure laid down under S. 57(3) of the Act and not under S. 91. In my opinion the contention raised by the learned counsel for the petitioner is well founded and must prevail. S. 57 runs thus: - "The Government may make rules consistent with this Act to regulate the collection, remission and suspension of land revenue and may by those rules determine the circumstances and terms in and on which assigned land revenue may be collected by the assignee. (2) Where land revenue due to an assignee is collected by a Revenue Officer, there shall be deducted from the sum collected an amount of two percent of such sum on account of the cost of collection. Provided that land revenue payable in kind to an assignee shall not be collected by a Revenue Officer. (3) A suit for an arrear of assigned land revenue shall not be entertained unless there is annexed to the plaint at the time of the presentation thereof a document under the hand of the Collector specially authorising the institution of the suit." It would be seen from a perusal of this section that sub -clause (3) lays down a specific procedure for filing a suit for arrears of assigned land revenue. There can therefore be no doubt that where an assigned land revenue is in arrear, then the respondents should adopt the procedure laid down in sub -clause (3) of S. 57 by filing a suit against the petitioner after duly authorizing its institution by the Collector. Reliance was, however, placed by the Dy. Advocate General on S. 91 (a) of the Act which runs thus: - "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: - (a) fees, fines, costs and other charges, including rates and cesses, payable under this Act". It was submitted that an arrear of assigned land revenue would amount to charges payable under the Act and therefore could be recoverable by the summary procedure laid down in S. 91 (Supra). I am however unable to agree with this contention, in view of the specific provisions of S. 57(3), S. 91 cannot be read in isolation but has to be interpreted in harmony with the provisions of S. 57(3). A harmonious construction of these two provisions would lead to the inescapable conclusion that even though assigned land revenue may be a charge payable under the Act, the Act so far as this class of revenue is concerned, lays down a separate procedure for recovery of the arrears by filing a suit with the authorization of the Collector. It is well settled that unless the intention to take away the jurisdiction of the civil court is expressly or by necessary intendment implied in the statute, no such presumption can be drawn against the jurisdiction of civil court to entertain a suit.

(3.) IN the present case not only the jurisdiction of the civil court has not been taken away, by section 57(3), but such a jurisdiction has very much been conferred by sub -clause (3) of S. 57 and this is the only mode which has been prescribed for recovering arrear of assigned land revenue. In other words, the legal position seems to me to be that whereas all other charges payable under the Act may be recovered under the harsh and summary procedure prescribed by S. 91 of the Act, an arrear of assigned land revenue has been put under a separate category and can be realized only in accordance with the mode laid down by the statute in sub -clause (3) of S. 57 of the Act.