GH RASOOL Vs. DY COMMISSIONER, FOOD AND SUPPLIED

JUDGEMENT

(1.) GHULAM Rasool petitioner was appointed as carriage contractor by Deputy Commissioner. Food and Supplies, Jammu (respondent No. 1 herein), for the carriage of food grains from Kishtwar to Marwah and Warban and also from Larno (Anantnag District) to Marwan and Warbao, for the year 1958 -59 and the contract was to remain in force till end of March, I960. The petitioners contention is that in the month of February, 1959, officers of the Food and Supplied Department, conducted a raid on the godown of the petitioner at Kishtwar in his absence and took away number of receipts and challans which were in the godown at that time These receipts and challans related to various consignments of foodgrains which he handled on various occasions in the course of his said contract. It is further averred by the petitioner that after the determination of the contract which was not renewed for another term; respondent No. 1 some time in the year 1960, demanded a sum of Rs. 31, 292. 27 as arrears of land revenue recoverable from the petitioner But he at that time pleaded for compensation and readjustment of the amount which he could not account for due to loss of receipts and challans which had been taken away from his godown. He was told that the matter would be looked into After a period of more than 9 years, respondent No. 1 determined an amount of Rs. 2.96,630.19 as the amount recoverable from him. The petitioner has further contended that, in fact, there was no amount due from him and the claim was made to victimise him and the amount was determined at his back without affording him any opportunity whatsoever of being heard and defending himself against the arbitrary act of respondent No. 1. Respondent No. 1 issued certificate for realisation of the amount on 25.1. 1968 and referred the matter lo the Deputy Commissioner, Doda (respondent No. 2) and ultimately Tehsildar, Kishtwar (respondent No, 3) issued a notice on 20.2,1968. The petitioner has raised points that Sections 90 and 91 of the land Revenue Act, were ultravires to the Constitution of India as applicable to the State of Jammu and Kashnvr on the ground that they conferred a discretion on the revenue officer to recover the amount as arrears of land revenue.

(2.) SHRI S. S. Pathania, the then Deputy Commissioner Food and Supplied, Jammu, in his counter affidavit has pleased that the petitioner has efficacious, alternate remedy and without exhausting; the same the petition was not competent. It is further pointed out in the said counter affidavit that the petition is not maintainable and is liable to be rejected as the certificate issued by respondent No 1 imposing liability on the petitioner is final and cannot be challenged by way of a writ petition It is further submitted that Sections 90 and 91 of the Land Revenue Act, hereinafter referred to as the Act, are wholly constitutional and not violative of Article 14 of the Constitution of India in view of the pronouncement of our own High Court, It is further mentioned in this affidavit that the petitioner was entrusted with 23, 480 maunds 26 seers and 14 chhataks of foodgrains issued from the Govt. store, Kishtwar, which were to be delivered at Govt. Store, Marwah, but the petitioner mis -appropriated 4840 maunds 8 seers and 6 chhataks of foodgrains thereby causing financial loss to the tune of Rs, 2,96,630 -19. The petitioner was several times asked to pay the said amount but he was all along avoiding. In order to recover the said amount the only alternative was to recover the same as arrears of land revenue under the provisions of the Act. A notice to this effect was issued by Tehsildar, Kishtwar, interims of Sec. 90 of the said Act on 24.2. 1968 in pursuance of the certificate issued by respondent No. 1 on 25.1.1968. The amount shown against the petitioner in the said certificate was arrived at on the basis of the contract entered into between the parties and in accordance with the account books, which were being properly and regularly maintained by the office. Moreover the petitioner did not submit any acknowledgment receipts and challans to show that the deficient foodgrains were delivered at Marwah, store by the petitioner. According to Clauses 6 & 8 of the Contract agreement, it was imperative for the petitioner to produce the challans and receipts before the proper authority in evidence of having delivered the foodgrains at the destination store.

(3.) LEARNED Single of this Court vide order dated March 10, 1972, placed the case before the Honble Chief Justice for constituting a larger bench to hear the matter as it required determination of some important constitutional points. The Honble Chief Justice, Vido order dated 203.1973 observed that vires of Sections 91 of the Act were challenged in the case and as such the same be placed before a Full Bench. The Full Bench of this Court on April, 5,1974, hold sections 90 & 91 of the Act to be constitutionally vaid and not hit by Article 14 of the Constitution of India This case then came up before single bench for determination of other points and ultimately again it was referred to the Division Bench.