Judgment:
S.M. Daud, J.
1. The short point arising for determination in this writ petition is whether petitioners who are the inferior holders of alienated land could be proceeded against for arrears of land revenue under the Maharashtra Land Revenue Code, 1966---hereinafter referred to as 'Code'?
2. The land in dispute belongs to N.J. Dubhash and Sir H.P. Dastur, who on the second day of September 1949 leased out the same to the first petitioner - the second petitioner being a Director of the said first petitioner - for a period of 99 years. The land revenue payable on the same was paid for the period 1973 to 1981 by the petitioners. In 1982 petitioners raised a dispute about their liability to pay the land revenue contending that the same was recoverable from the superior holders. This led to their lodging an objection with the Tahsildar, Andheri, Bombay. In this objection, they claimed a refund of the sums paid towards land revenue from 1973 to 1981. The Tahsildar was unmoved and threatened coercive action. Against that action the petitioners went in appeal to the Deputy Collector and he granted a stay of the proposed recovery vide Exhibit G. This stay was against a Bank guarantee which was furnished by the petitioner. While the appeal was pending the Circle Inspector on 29-1-1986 addressed Exhibit 1 to the first petitioner contending in pursuance of a Cabinet decision no authority except the Chief Minister of the State could grant stay orders in respect of Government revenue. Petitioner No. 1 was called upon to pay the outstanding sum of Rs. 79,767.60 ps. failing which its movable and immovable properties were to be confiscated for sale to realise the dues. That has occasioned the present petition.
3. Learned Counsel for the petitioners argues that under section 168 of the Code the respondents had no authority to proceed against his clients in the first instance. Instead of proceeding against the lessors who were the superior holders, the respondents had straightaway taken action against the inferior holders. Mr. Bora, for the respondents contends that the contract of lease under which petitioners came into occupation, itself obligated the petitioners to pay the land revenue. This is a mis-reading of the lease document which makes it clear that 'the existing assessment payable in respect of the land demised' shall continue to be paid by the lessors. It is only 'future rates, taxes, cesses, assessments dues, duties, impositions and outgoings' which will be borne by the lessees. Not to be outdone, Mr. Bora, says that section 168 of the Code entitles the authorities to proceed against the occupants also. That entitlement in only when the person primarily liable makes a default in the payment of land revenue. This is made clear by sub-section (2) of section 168 of the Code. Where the occupant is a tenant the amount recoverable from him is not to exceed the demands of the year in which the recovery is sought to be made. Here, the threatened recovery is for the period of more than one year, in fact, ranging from 1973 to 1981. There is no evidence to show that the superior holders had committed a default. Until that had occurred, the authorities could not proceed against the occupant, and, if the occupant be a tenant not for the recovery of such revenue for a period of more than one year. This would be so even if we were to assume that petitioners as tenants had bound themselves under the document of lease to pay the land revenue, for the State cannot take advantage of a clause in a contract between the parties like the petitioners and the superior holders. However looked at the threatened recovery is mis-conceived in law.
4. The appeal preferred by the petitioners to the Deputy Collector has been returned by that Officer on the ground that the appeal has to be filed before the Deputy Collector (Appeals), Bombay Suburban District. The latter authority shall entertain the appeal which petitioners shall present before him within four weeks from today. The said appeal shall be heard by the Appellate Officer who shall decide it in accordance with law. Until the decision thereof and four weeks after the communication of the order to the petitioners, they shall keep the Bank guarantee furnished alive. In case the verdict is against the petitioners the same shall not be enforced for a period of four weeks as from the date of the communication of the order to the petitioners. Rule in these terms made absolute, with parties being left to bear their own costs.