Judgment:
ORDER
Viney Mittal, J.
1. Relevant facts.
2. On August 24, 2000, Branch Manager, Dena Bank, respondent No. 2, issued two Revenue Recovery Certificates (RRCs), under the provisions of Madhya Pradesh Lok Dhan (Shodhya Rashiyon Ki Vasuli) Adhiniyam, 1987 (hereinafter referred to as 'the Lok Dhan Adhiniyam'), and were referred to Tehsildar, Ratlam, under the provisions of Madhya Pradesh Land Revenue Code, 1959, (hereinafter referred to as 'the Revenue Code'), for effecting recovery of dues outstanding against one Sunita and Ashok Kumar Jain. Whereas, it was indicated that against Sunita an amount of Rs. 91,955/- was outstanding, Ashok Kumar Jain was shown to be a debtor to the extent of Rs. 2,49,703/-. A demand notice was issued by the Tehsildar, Ratlam, to the aforesaid two persons for the amounts mentioned against them, respectively. However, Ashok Kumar Jain expired on May 7,2001. Even after the death of Ashok Kumar Jain, proceedings for recovery against him and Sunita were continued before the Tehsildar. In the said proceedings, House No. 17, Porwalon Ka Vaas, Ratlam (hereinafter referred to as 'the house in question'), being jointly owned by Ashok Kumar Jain and present petitioner, Maganlal Jain (father of Ashok Jain), was ordered to be attached on September 28,2001. The said house was ultimately auctioned on January 30, 2002. Respondent No. 3, Shakuntala Devi participated in the auction proceedings, and was declared as the highest bidder for an amount of Rs. 3,08,000/-. The sale in question was confirmed by the Tehsildar vide order dated June 13, 2002 in favour of respondent No. 3. An order of confirmation passed by the Tehsildar has been appended as Annexure P-1 with the petition.
3. An appeal was filed against the order dated June 30, 2002, passed by the Tehsildar before the Sub Divisional Officer (Revenue), respondent No. 5. On October 22, 2002, the aforesaid Appellate Authority granted an interim order in favour of the appellants. Against the interim order granted by the Appellate Authority, a revision petition was preferred by Shakuntala Devi, auction purchaser, before the Additional Collector. The aforesaid revision petition filed by Shakuntala Devi was allowed by the Additional Collector on September 27, 2003, holding that the appeal, filed by the aforesaid appellants, before the Sub Divisional Officer, against the order of the Tehsildar, was not maintainable in law. Consequently, the interim protection granted by the Appellate Authority on October 22, 2002, was vacated. A copy of the order dated September 27, 2003, passed by Additional Collector, respondent No. 4, has been appended as Annexure P-3 with the petition.
4. Petitioner, Maganlal Jain, preferred a writ petition, being W.P. No. 9490/2003, before this Court. The order passed by the Additional Collector, Annexure P-3, was challenged. An interim protection was granted to the writ petitioner by this Court on September 18, 2003, on deposit of Rs. 50,000/-. The aforesaid amount was duly deposited by the writ petitioner on November 28, 2003. Ultimately, writ petition filed by the writ petitioner was allowed by this Court on August 4, 2005. The order dated September 27, 2003, Annexure P-3, passed by the Additional Collector was set aside. A liberty was granted to all the parties, to raise all the pleas, including maintainability of the appeal, in the proceedings before the Sub Divisional Officer itself. The order passed by this Court in Writ Petition No. 9490/2003 has been appended as Annexure P-4-A with the petition.
5. Thereafter, proceedings in the appeal re-commenced before the Sub Divisional Officer. An objection was taken by respondent No. 3 with regard to the maintainability of the appeal against the order passed by the Tehsildar on June 13, 2002 (Annexure P-1). The aforesaid objection raised by respondent No. 3 has been upheld by the Sub Divisional Officer, and the appeal filed by the appellants has been dismissed on July 12, 2006. A copy of the order passed by the Sub Divisional Officer, Ratlam, rejecting the appeal filed by the appellants, has been appended as Annexure P-5 with the petition.
6. The petitioner preferred an appeal before the Additional Commissioner. Even, the said appeal has been dismissed in limine by the Additional Commissioner vide order dated October 9, 2006 (Annexure P-6). Thus, it is with a challenge to the aforesaid orders (Annexures P-1, P-5 and P-6), that the petitioner has approached this Court through the present petition.
7. It has been maintained by the petitioner that the Sub Divisional Officer has wrongly rejected the appeal filed by the appellant, through order (Annexure P-5), as not maintainable, inasmuch as, the order dated June 13, 2002 (Annexure P-1), passed by the Tehsildar, Ratlam, was in exercise of the powers under the provisions of the Revenue Code, and therefore, the appeal was clearly maintainable under Section 44 of the Code.
8. On merits of the controversy, the order (Annexure P-1) passed by the Tehsildar on June 13, 2002, confirming the sale in favour of respondent No. 3 has also been assailed. It has been maintained that Ashok Kumar Jain had died on May 7, 2001, and therefore, all the proceedings, thereafter, having been continued without bringing on record, his legal representatives, all the said proceedings were null and void, and as such, attachment order dated September 28, 2001, of the house in question, and the action proceedings dated January 30, 2002, with regard to the said house, are also liable to be set aside, being against a dead person.
9. The claim made by the petitioner has been contested by respondent No. 3. A detailed reply has been filed. It has been maintained that auction proceedings had rightly been conducted by the Tehsildar with regard to the RRCs issued by respondent No. 2- Bank, and therefore, respondent No. 3, being the highest bidder in the said auction proceedings, a valid title has passed to her, on confirmation of the sale by the Tehsildar on June 13, 2002. It has also been maintained that the appeal against the order of the Tehsildar, before the Sub Divisional Officer, was not maintainable in law, under the provisions of Lok Dhan Adhiniyam, and as such, the said appeal has also been rightly dismissed. Respondent No. 3 has also maintained that, as a matter of fact, the said appeal had been filed by Sunita, and was also shown to have been filed in the name of Ashok Kumar Jain, who was a dead person, at the time of filing of the appeal, and therefore, the said appeal was not duly constituted, and has rightly been dismissed.
10. I have heard Shri A.K. Sethi, learned Senior Counsel for the petitioner and Shri A.S. Garg, learned Senior Counsel appearing for respondent No. 3, who is the real contesting respondent. Although Shri Vivek Phadke, learned Government Counsel appearing for official respondents and Shri P.M. Bhargat, learned Counsel appearing for respondent No. 2-Bank, have also addressed arguments, but in essence, the contest remains between petitioner and respondent No. 3.
11. Shri A.K. Sethi, learned Senior Counsel for the petitioner has referred to the provisions of Lok Dhan Adhiniyam and has brought my pointed attention to Section 3 of the said Adhiniyam, to contend that although RRCs were issued by the Authorities mentioned in the said provisions for effecting the recovery against the defaulter, but under Section 3(2) of the said Adhiniyam, the Collector or his Subordinate Officers, to whom the recovery certificates were so forwarded, were to initiate proceedings under the provisions of Revenue Code, and therefore, since proceedings under the Revenue Code, for recovery, after receiving the certificates by the Revenue Officer, were to be conducted under the provisions of the Revenue Code only, therefore, in terms of Section 44 of the Code, an appeal was duly maintainable against any order passed by the Tehsildar/Collector, as the case may be. Shri Sethi has also pointed out that, as a matter of fact, a demand notice had been issued against Sunita and Ashok Kumar Jain by the Tehsildar, respondent No. 1, under the provisions of Section 147 of the Revenue Code and all the proceeding thereafter had, in fact, continued under the Revenue Code itself. Additionally, it has been argued that an appeal had been filed by the appellants, challenging the order dated June 13, 2002 (Annexure P-1), which had been passed by the Tehsildar in the absence of the legal representatives of Ashok Kumar Jain, without issuing any notice. It has also been argued by the learned Senior Counsel that the appeal had been filed, immediately on acquiring the knowledge of the order dated June 13, 2002, passed by the Tehsildar, and as such, could not be treated to be barred by limitation.
12. It has also been argued by the learned Senior Counsel that since the proceedings before the Tehsildar were continued against Ashok Kumar Jain and the name of Ashok Kumar Jain continued to be reflected in the cause title of the order, therefore, through an inadvertence, while the appeal had been filed by Sunita, one the debtors, Ashok Kumar Jain, who was dead, had wrongly been shown as party appellant.
13. On the other hand, Shri A.S. Garg, learned Senior Counsel for respondent No. 3 has refuted all the aforesaid contentions. It has been maintained by the learned Senior Counsel that an appeal against an order passed by the Tehsildar, such as an order (Annexure P-1), under the Lok Dhan Adhiniyam, could not be held to be maintainable, as such, the said appeal has rightly been rejected by the Appellate Authority, vide order (Annexure P-5). In support of the aforesaid contention, Shri Garg has relied upon a judgment of this Court reported as 2002 (5) MPLJ 462, Rewa Sidhi Gramin Bank v. Ramniwas Agrawal and Ors. A further reliance has been placed upon an unreported judgment of this Court in the case of Rewa Sidhi Gram Bank v. State of M.P. and Ors. in Writ Petition No. 5990/2001, decided on January 29,2002, which judgment was also relied upon later on in Rewa Sidhi Gramin Bank's case (supra).
14. On merits of the controversy, Shri Garg has also submitted, by maintaining, that the appeal filed against the order of the Tehsildar was barred by limitation, and in any case, had been filed on behalf of a dead person, and therefore, was mis-constituted.
15. I have duly considered the rival contentions raised on behalf of the contesting parties by their learned Senior Counsel. I have also perused the record of the case as well as gone through the various relevant provisions of law.
16. At the out set, it would be relevant to extract Section 3 of the Madhya Pradesh Lok Dhan (Shodhya Rashiyon Ki Vasuli) Adhiniyam, 1987, as follows:--
3. Recovery of certain dues as arrears of land revenue.--(1) Where any person is a party,--
(A) to any agreement relating to a loan, advance or grant given to him or relating to payment of price of goods sold to him on credit or relating to hire-purchase of goods sold to him by the State Government or a Corporation by way of financial assistance; or
(B) to any agreement relating to loan advance or grant given to him or relating to payment of price of goods sold to him on credit or relating to hire-purchase of goods sold to him by a banking company or a Government Company under a State sponsored scheme or as the case may be, under a socially desirable scheme; or
(C) to any agreement relating to a guarantee given by the State Government or a Corporation in respect of a loan raised by an industrial concern; or
(D) to any agreement providing that any money payable thereunder to the State Government shall be recoverable as arrears of land revenue and such person,--
(i) makes any default in repayment of the loan or advance or any installment thereof; or
(ii) having become liable under the conditions of the grant to refund the grant or any portion thereof makes any default in the refund of such grant or portion or any installment thereof; or
(iii) otherwise,
fails to comply with the terms of the agreement then,--
(a) in the case of the State Government such Officer as the State Government may be notification authorize in this behalf;
(b) in the case of a Corporation or a Government Company, the Managing Director thereof by whatever name called; and
(c) in the case of banking company, the local agent thereof by whatever name called;
may send a certificate in such form as may be prescribed, and consistent with the provisions of Sub-section (2) of Section 4, to the Collector of the district in which such person normally resides or carries on business or owns property, or to such other Subordinate Officer of the Collector, as the State Government or the Collector may, by an order, specify in this behalf, mentioning the sum due from such person and requesting that such sum together with the cost of proceedings and interest on the sum due at the rate specified in the agreement, up to the date of recovery, be recovered as if it were an arrear of land revenue:
Provided that a certificate issued under this sub-section may be withdrawn by the authority issuing such certificate at any time: Provided further that the cost of proceedings shall always be calculated at the rate of three per cent, of the principal sum to be recovered.
(2) The Collector or his Subordinate Officer specified under Sub-section (1) on receiving the certificate shall take steps to recover the amount stated therein as arrear of land revenue under the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959).
(3) No suit for the recovery of any such due as aforesaid shall lie in a Civil Court against any person in respect of whom a certificate for recovery of such sum has been issued under Sub-section (1):
Provided that in computing the period of limitation for institution of suit for the recovery of any such sum, the period during which the recovery is barred under this section shall be excluded.(4) In the case of any agreement referred to in Sub-section (1) between any person referred to in that sub-section and the State Government or a Corporation, no arbitration proceedings shall lie at the instance of either party either for recovery of any sum claimed to be due under the said sub-section or for disputing the correctness of such claim:
Provided that whenever proceedings are taken against any person for the recovery of such sum he may pay the amount claimed under protest to the officer taking such proceedings, and upon such payment the proceedings shall be stayed and person against whom such proceedings were taken may make a reference under arbitration agreement or otherwise enforce an arbitration in respect of amount so paid.(5) Save as otherwise expressly provided in the first proviso to Sub-section (1) and the proviso to Sub-section (4), every certificate issued under Sub-section (1) shall be final and shall not be called in question in any original suit, application (including any application under the Arbitration Act, 1940) or in any reference to arbitration and no injunction shall be granted by any Court or other authority in respect of any action taken or intended to be taken in pursuance of any power conferred by or under this Act.
(6) Any amount recovered under this Act shall, notwithstanding anything contained in any other law for the time being in force, be applied in the following manner, namely:
(a) firstly, towards the cost of proceedings to be shared between the State Government and the authority issuing the certificate under Sub-section (1), in such manner as may be prescribed;
(b) secondly, towards interest to be paid to the authority;
(c) thirdly, towards the principal amount due to be paid to the authority; and
(d) the balance, if any, as far as possible in accordance with the provisions of Section 151 of the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959).
(Underlining supplied)
17. It would also be relevant extract provisions of Sections 146 and 147 of. M.P. Land Revenue Code, as fallows:
Section 146. Notice of demand.-- A Tehsildar or Naib Tehsildar may cause a notice of demand to be served on any defaulter before the issue of any process under Section 147 for the recovery of an arrear.
Section 147. Process for recovery of arrears.-- An arrear of land revenue, payable to Government or Gram Sabha may be recovered by a Tehsildar by any one or more of the following processes:
(a) by attachment and sale of moveable property;
(b) by attachment and sale of the holding on which arrear is due and where such holding consist of more than one survey number or plot number by sale of one or more of such survey numbers, or plot numbers as may be considered necessary to recover the arrears:
Provided that no holding shall be sold for the recovery of any dues of a co-operative society without first exhausting the procedure prescribed in Section 154-A;
(bb) by attachment of holding on which arrear is due and letting the same under Section 154-A;
(bbb) by attachment of any other holding belonging to the defaulter which is used for the purposes of agriculture and letting the same under Section 154-A;
(c) by attachment and sale of any other immovable property belonging to the defaulter:
Provided that the process specified in Clauses (a) and (c) shall not permit the attachment and sale of the following, namely:
(i) the necessary wearing apparel, cooking vessels, beds, and bedding of the defaulter, his wife and children and such personal ornaments, as, in accordance with the religious usage, cannot be parted with by any woman;
(ii) tools of artisans and, if the defaulter is an agriculturist, his implements of husbandry, except an implement driven by mechanical power and such cattle and seed as may, in the opinion of the Tehsildar, be necessary to enable him to earn his livelihood, as such;
iii) articles set aside exclusively for the use of religious endowments;
(iv) house and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for the enjoyment) belonging to an agriculturist and occupied by him:
Provided further that the process specified in Clause (b) shall not permit attachment and sale of holding where the defaulter holds,
(i) six hectares or less than six hectares of land in the Scheduled Area; or
(ii) four hectares or less than four hectares of land in other areas.
Explanation:-- For the purpose of this proviso, 'Scheduled Area' means any area declared to be Scheduled Area within the State of Madhya Pradesh under Paragraph 6 of the Fifth Schedule to the Constitution of India.
18. First question which arises for consideration before this Court is as to whether the order passed by the Tehsildar on June 13,2002 (Annexure P-1), has to be treated as an order passed under provisions of Lok Dhan Adhiniyam or has to be treated as an order passed under the provisions of Section 147 of the Revenue Code.
19. Perusal of Section 3(1) of the Lok Dhan Adhiniyam would indicate that officers mentioned therein, in case of a default committed by any of the persons described in the said provision, may send a certificate in such form, as may be prescribed, to the Collector of the District in which such person normally resides, mentioning the sum due from such person, and requesting that such sum together with cost of proceedings and interest etc. may be recovered, as if it were an arrear of land revenue. Thus, aforesaid provision envisages an issuance of an RRC by the Competent Authority under Section 3(1) of the Lok Dhan Adhiniyam.
20. Thereafter, under Section 3(2) of the Lok Dhan Adhiniyam, the Officer receiving an RRC, i.e., Collector or his Subordinate Officer, shall initiate proceedings to recover amount therein, as arrears of land revenue under the Madhya Pradesh Land Revenue Code, 1959.
21. It is, thus, apparent that, whereas an order passed under Section 3(1) of the Lok Dhan Adhiniyam, issuing an RRC and forwarding the same to the Competent Authority, has to be treated as an order passed under Section 3(1) of the Lok Dhan Adhiniyam, but any further proceedings taken by the Revenue Officer, in terms of Section 3(2) of the Lok Dhan Adhiniyam, are to be treated as the proceedings under the Revenue Code and not under the provisions of Lok Dhan Adhiniyam.
22. No doubt, there is no provision of appeal/revision, envisaged under the Lok Dhan Adhiniyam, and as such, action taken/order passed, and issuance of an RRC by Officer/Authority under Section 3(1) of the Lok Dhan Adhiniyam, is neither appealable nor revisable. As a matter of fact, Section 3(5) of the Adhiniyam provides a finality to the RRC issued under Section 3(1) and makes it beyond a challenge. However, it cannot be suggested at all, that proceedings taken by the Collector or his Subordinate Revenue Officer, under the provisions of Revenue Code are also protected and immune from an appeal/revision. As a matter of fact, once an RRC is received by the Collector/any other Revenue Officer, then entire procedure envisaged under Sections 146/147 of the Revenue Code, and other provisions of Code, is attracted and required to be followed. If a person is aggrieved against any action taken by the said Authority, acting under the Revenue Code, then any such action or any such order passed, can be challenged by an aggrieved person, under Sections 44/50 of the Code, by way of appeal/revision etc.
23. At this stage, the authorities relied upon by the learned Senior Counsel for respondent No. 3 may also be noticed. In the case of Rewa Sidhi Gramin Bank, Writ Petition No. 5990/2001, after noticing the provisions of Lok Dhan Adhiniyam, this Court observed, as follows:
From the aforesaid provisions, if they are read in proper perspective, there remains no trace of doubt that the M.P. Land Revenue Code bars a revision and Rule 5 only lays down the procedure. When substantial provision does not confer any right to the party aggrieved to prefer a revision or appeal. I am of the considered view the order passed in revision is without jurisdiction, and accordingly the same is quashed. However, it is observed that it is open to respondent No. 2 to assail the aforesaid order before the appropriate forum, if so advised.
24. The law laid down by the aforesaid judgment was followed by this Court again in 2002 (5) MPLJ 462. Following observations made by the Court may be noticed:
6. Sub-section (5) of Section 3 of the M.P. Lok Dhan (Shodhya Rashiyon Ki Vasuli) Adhiniyam, 1987, provides that every certificate issued under Sub-section (1) shall be final and shall not be called in question in any original suit, application (including any application under the Arbitration Act, 1940) or in any reference to arbitration and no injunction shall be granted by any Court or other authority in respect of any action taken or intended to be taken in pursuance of any power conferred by or under this Act.
7. The Act is Special Act and no right of appeal or revision has been conferred in the M.P. Lok Dhan (Shodhya Rashiyon Ki Vasuli) Adhiniyam, 1987, the order passed by Recovery Officer is final. Petitioner has placed reliance on decision of this Court in W.P. No. 5990/2001, decided by brother Justice Dipak Misra on 29-1 -2002, in which it has been opined that no appeal/revision lies against order passed by the Recovery Officer in the M.P. Lok Dhan (Shodhya Rashiyon Ki Vasuli) Adhiniyam, 1987 under the M.P. Land Revenue Code. I am in respectful agreement with the view expressed.
25. It is apparent from the perusal of the aforesaid observations made by this Court that only question, which was considered by this Court was to whether any order passed by Competent Authority under provisions of Lok Dhan Adhiniyam, and issuance of an RRC, could be subjected to an appeal/revision. In the light of the provisions of Lok Dhan Adhiniyam, more specifically relying upon Section 3(5) thereof, it was held by this Court that an order passed by an Authority, under Section 3(1) of the Lok Dhan Adhiniyam of issuance of RRCs, was final and was not questionable in any proceedings. However, question as to whether when an RRC had been issued, and thereafter further proceedings had been initiated by the Collector/Revenue Authority, in terms of Section 3(2) of the Lok Dhan Adhiniyam, whether in that case also, an appeal/revision were barred, was not even a subject matter of adjudication before the Court in the said cases/judgments.
26. Provisions of Section 3 of the Lok Dhan Adhiniyam have been extracted above. Section 3 of the Adhiniyam is divided into various parts. Initial portion of Section 3(1) describes a person against whom proceedings can be initiated. Later portion of Section 3(1) specifies the Authorities, who are Competent Authorities to issue an RRC/order for recovery, and for issuing a request in this regard to the Collector/Revenue Officer, where the defaulter resides. However, Section 3(2) specifically provides that the request forwarded by the Competent Authority, mentioned in Section 3(1) would be dealt with by the Collector or his Subordinate Officer, under provisions of Revenue Code. Thus, it is clear that the provisions of Section 3(2) of the Lok Dhan Adhiniyam itself envisage that the proceedings by the Collector/Revenue Officer, to whom RRC is issued, are to be conducted under the provisions of the Revenue Code only. Thus, even if there is a specific bar under Section 3(5) for raising a challenge to an RRC issued under Section 3(1), the appeal/revision against the order passed/action taken by the Collector/Revenue Officer, under the provisions of the Revenue Code, to whom an RRC has been forwarded, cannot be held to be barred, in any manner, inasmuch, those proceedings are obviously to be governed by the provisions of the Revenue Code, as per provisions of Section 3(2) of the Lok Dhan Adhiniyam.
27. Once, it is so held that under Chapter V of the Revenue Code, appeals/revisions are maintainable against various orders passed by the Officers under the Code, it has to be held that after an RRC is received by the Collector/Revenue Officer, and further proceedings are taken for recovery of the amount in question, as arrears of land revenue under the provisions of the Revenue Code, then in that situation, any action taken by the Collector/Revenue Officer and any order passed therein, would be subject-matter of appeals/revisions, as per provisions of the Code itself. In these circumstances, it is apparent that order dated July 12, 2006, Annexure P-5, holding that the appeal filed against the order dated June 13, 2002. Annexure P-1, is not maintainable, is illegal, erroneous, and is liable to be set aside.
28. The appeal filed against the order of the Tehsildar has also been rejected on two more grounds. It has been held that the appeal was barred by limitation. It has further been held that the appeal was shown to have been filed by Ashok Kumar Jain, who was a dead person, at the time of filing of appeal.
29. Although the appeal has been held to be barred by limitation as well as not properly filed, while passing order (Annexure P-5), but since the said appeal has also been dismissed as not maintainable, and the view taken by this Court is that the appeal, indeed was maintainable before the Sub Divisional Officer, therefore, it would not appropriate to express any view on the rest of the issues, including the merits of the controversy.
30. In view of the aforesaid discussion, the present petition is allowed. The order dated July 12, 2006, Annexure P-5, passed by the Sub Divisional Officer, respondent No. 5, as well as order dated October 9,2006, Annexure P-6, passed by the Additional Commissioner, dismissing the appeals filed by the petitioner, are hereby set aside. The appeal, Annexure P-4, filed by appellants against order dated June 13, 2002, Annexure P-1, passed by the Tehsildar is restored to its original number, and shall be decided afresh by the Sub Divisional Officer, in accordance with law.
31. In the aforesaid proceedings before the Sub Divisional Officer, it would be open to all the concerned parties, to take up all pleas, on facts as well as on law, which are available to them, in accordance with law. However, aforesaid liberty would not be construed to mean that the issue of maintainability of appeal against the order of Tehsildar can be raised by any of the parties.
32. The parties through their learned Counsel are directed to appear before the Sub Divisional Officer, respondent No. 5, on September 15, 2009.
33. Since interim protection has been continued in favour of the petitioner, all through the proceedings, it would be appropriate to order that during the pendency of the proceedings before the Sub Divisional Officer, the interim protection granted by this Court shall continue to operate.