Bakhtawar Construction Co. Pvt. Ltd. and anr. Vs. Tahsildar and anr. - Court Judgment

Excerpt:
civil - payment of land revenue - section 168 (2) of maharashtra land revenue code,1966 - during pendency of appeal about liability to pay land revenue can tenant be threatened to pay land revenue - section 168 (2) makes clear that liability to pay arises only when person is defaulter in payment of land revenue. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 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.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.