State of Rajasthan and ors. Vs. Bhinmal Co-operative Marketing Society Limited - Court Judgment

Excerpt:
rajasthan land revenue act, 1956 - sees. 229/286--recovery as arrears of land revenue--proceedings started against respondent-petitioner a co-operative marketing society for recovery of sum of rs. 2,71,630 as arrears of land revenue--however neither the claim of appellants has been adjudicated yet nor the said claim falls within ambit of any amount due to the state or public undertaking or local authority which is recoverable as arrears of land revenue--in the circumstances proceedings against respondent--petitioner for recovery of said amount as arrears of land revenue rightly quashed by single judge--no interference called for.;special appeal dismissed - - 29,097/-as profit on these transactions which was carried on no profit no loss basis has been recovered from it and recommended that no recovery should be made and whatever amount has been recovered may be refunded. the letter also indicated that on failure to pay the said amount, the same shall be recovered by attachment and sale of the property of the society. (i) by way of fees, fines, penalties, compensation of costs imposed or awarded by any authority, not being a civil or criminal court, under this act or under any other law for the time being in force, or (ii) on account of pasturage, forests rights, fisheries mills, natural products of land, water-rates, irrigation charge, maintenance and management of irrigation works and the like; such amounts are recoverable under the public demand recovery act, 1962. the provision clearly indicates that declaration of such demand must be by a statute to be a demand or public demand to be recoverable or realisable as a demand or a public demand or as an arrear of land revenue. 19. the learned counsel for the appellant has failed to point out any law or rule under which such amount was payable to the state except that it has arisen out of the transactions that took place through the correspondence referred to above and the fixing of the rates as alleged by the respondents by the collector while procuring and selling the fodder to be brought within the district of jalore. the collector, jalore (supra). the question has arisen regarding taking recourse to the provisions of sections 229 and 256 of the rajasthan land revenue act for recovering certain amount from the sarpanch of gram panchayat ropsi who has allegedly failed to deliver the cash in hand, shown in the charge-sheet of handing over and taking over the office at the end of his term to the new sarpanch. ' 23. the like view was taken by a learned single judge in the case of babulal v. 24. the distinction has been clearly made out by the division bench in the case ganesha ram v.rajesh balia, j.1. heard learned counsel for the parties.2. this appeal is directed against the judgment by the learned single judge quashing the proceedings started under section 229 of the land revenue act. 1956 against the respondent-petitioner for recovering a sum of rs. 2,71,630/-. the respondent-petitioner is a co-operative marketing society and the amount was sought to be recovered from it as arrears of the land revenue.3. the said notice of initiating proceedings under the rajasthan land revenue act, 1956 was issued on 16.8.1991 by additional collector, jalore (annexure-12 to the writ petition).4. the district collector (relief), jalore directed the bhinmal co-operative marketing society ltd. to supply one truck of fodder at each of the centres in the schedule and to furnish the details about the price at which the fodder was purchased, transport cost and the estimated distribution cost so that the rate for distribution of fodder can be fixed and on necessity the supply of more fodder may be sought. in pursuance of this letter dated 21.8.1987, it was informed that the f.o.r. cost at jalore will be rs. 125/- per qtl., pilferage, storage, security and measurement charges will be rs. 5/- per qtl. and establishment and transportation charges will be rs. 5/- per qtl. thus, the total sum of rs. 135/- would be the cost and this supply will be made on no profit no loss basis. the collector by letter dated 8.9.1987 fixed the rates for different depots for sale and distribution of the fodder.5. this letter also reveals that the co-operative societies will be entitled to claim rs. 65/- per qtl. as transport charges from the area shown in item no. 1 and item no. 2 + rs. 5/- per qtl. for transporting the fodder from the district head quarter to different deposits within the district. by common letter dated 30.10.1987, the sale price for fodder was fixed at rs. 75/- per qtl., for ramdev kraya vikraya sahkari samiti ltd., sanchor bhinmal co-operative marketing society ltd., bhinmal. rajasthan welfare association, bhinmal and managing director, jalore-sirohi, district dairy production co-operative federation ltd., raniwada. the supplies were made during the famine period by the respondent society and certain payments were made against the bill. it appears that audit has raised certain objections about the payment.6. in the case of the petitioner, the audit has objected that a sum of rs. 4,26,348 & 45 paisa has been paid in excess against the bill submitted by it and cleared by the collector (relief) which was bifurcated into three items. firstly, the excess payment as a result of transport charges, the cost of longer distances was shown from the procurement to the distribution centres which amounted to rs. 1,67,319/-. the other objection was of higher sale price amounting to rs. 2,54,048/- and excess payment of fodder brought from 1.1.1988 within the state.7. these objections were replied to by the collector vide his letter dated 16.6.1989 and it has been pointed out that no excess amount has been paid to the society and the society who has earned rs. 29,097/-as profit on these transactions which was carried on no profit no loss basis has been recovered from it and recommended that no recovery should be made and whatever amount has been recovered may be refunded. however, thereafter, the addl. collector, jalore issued the impugned notice dated 16.8.1991 to the respondent-petitioner for appearing before his court, in case he fails to deposit rs. 2,71,630/-which is due against him after adjusting the amount due to the respondent- petitioner against him pending bills which according to him was payable to him. the letter also indicated that on failure to pay the said amount, the same shall be recovered by attachment and sale of the property of the society.8. the petitioner has denied that any amount due from his and adopting the reasons contained in the recommendation in the letter dated 16.6.1989 has urged before the learned single judge that the alleged recovery in any sense cannot be considered to be a due to the state or any public undertaking or local authority for the recovery of which recourse can be had to the provisions under the land revenue act for recovering the amount as arrears of the land revenue.9. his contentions was that the aforesaid claim by the appellants has not been adjudicated until now and that nor the said claim falls within the ambit of any amount due to the state or public undertaking or the local authority which is recoverable as arrears of the land revenue under section 256 read with section 229 of the rajasthan land revenue act.10. the said contention has been upheld by the learned single judge relying on a bench decision of this court in the case of ganesh ram v. the collector, jalore, reported in 1968 rlw 95.11. the non-petitioner-appellants have relied on. clause (b) of section 256 of the land revenue act to support the proceedings initiated, by the addl. collector, jalore under section 229 of the land revenue act with reference to as 'any other demand due.'12. the same contention has been raised by the learned counsel for the appellants before us; firstly, that since the notice under section 229 has been issued against the respondent-petitioner, which is subject matter of challenge by the petitioner under article 226 of the constitution of india was pre-mature as these objections could have been raised before the addl. collector, jalore and decided by him before he issued the order of attachment and recovery. secondly, he urged that since the amount has been over-paid in terms of the rates determined by the collector, the amount was rightly held to be recoverable from the respondent-society and once the amount was rightly recoverable it became a debt due from the society for the recovery of which the appellant could take recourse to the provisions of land revenue act.13. it is not in dispute before us that the transactions of the supply of fodder by the society was not under any statutory rules or any other form of principal or subordinate legislation out has arisen as a result of administrative exigency to meet with the extra ordinary situation arising from famine which is reflected in the order of the collector, annexure-1 to the writ petition and the contract for supply of fodder has come into existence as a result of the correspondence which followed the earlier communication with the sahakari upbhokta bhandar and the various co-operative societies functioning under the collector, jalore.14. in this background, we notice the provisions of section 256 of the rajasthan land revenue act, which read as under:256. recovery of miscellaneous revenue and other moneys--the following moneys may be recovered under this act in the same manner as an arrear of.[(a) all sums of money declared by this act or by any law for the time being in force other than the rajasthan public demands recovery act, 1952 (rajasthan act 5 of 1952)].(i) to be recoverable as an arrear of revenue and revenue or rent, or(ii) to be a demand or public demand or to be recoverable or realisable as a demand or a public demand or as an arrear of a demand or a public demand;(b) all sums of money payable to the state government or to a department or an officer of the state government or to a local authority on account of rates, duties, taxes, charges or other dues under any law or rule having the force of law, notwithstanding that such law or rule does not declare the same to be recoverable or realisable as an arrear of revenue or land revenue or rent or to be a demand or a public demand or to be recoverable as an arrear of a demand or a public demand;(c) all sums of money payable to the state government or to a department or an officer of the state government or to a local.(i) by way of fees, fines, penalties, compensation of costs imposed or awarded by any authority, not being a civil or criminal court, under this act or under any other law for the time being in force, or(ii) on account of pasturage, forests rights, fisheries mills, natural products of land, water-rates, irrigation charge, maintenance and management of irrigation works and the like;(d) all rents, premia, cesses, rates, fees and royalties due to the state government on account of the use or occupation of land or water or other immovable property, whether belonging to the state government or not, or on account of any products thereof or proceeds therefrom or on any other account;(e) all sums of money due to the state government under any grant, lease or contract which provides that they shall be recoverable as arrears of revenue as land revenue.15. a perusal of the aforesaid provisions which confers jurisdiction to invoke the provisions relating to the recovery of any sum due to state or its officers or department or to local authority as arrears of land revenue by revenue authorities has to be authorized to be so recovered as arrears of land revenue either by the relevant statute or by the contractual agreement.16. clause (a) of section 256 of the rajasthan land revenue act, 1956 is clear in itself and it says that all sums of money declared by this act or by any law for the time being in force to be recoverable as an arrear of revenue and revenue or rent or to be a demand or public demand or to be recoverable or realisable as a demand or a public demand or as an arrear of a demand or a public demand. it may further be noticed that all public demands which are governed by the rajasthan public demands recovery act, 1962, cannot be subjected to recovery procedure under the land revenue act. such amounts are recoverable under the public demand recovery act, 1962. the provision clearly indicates that declaration of such demand must be by a statute to be a demand or public demand to be recoverable or realisable as a demand or a public demand or as an arrear of land revenue. in view of the aforesaid clear provisions of clause (a) of section 256 of the rajasthan land revenue act, 1956, it has rightly not been invoked by the appellants not have contended that the recovery/demand may fall under clause (a) of section 256.17. clause (b) of section 256 of the rajasthan land revenue act, 1956 expands the field, the operation of the section 256. it includes such demands or dues payable to the state government or to a department or an officer of the state government or to a local authority on account of (i) rates, (ii) duties, (iii) taxes, (iv) charges, or (v) 'other dues' under any law or rule having the force of law. even if such law or rule does not declare the same to be recoverable or realisable as an arrear of revenue or land revenue or rent, or even if, there is no such declaration to treat such a demand as a demand or a public demand as envisaged under sub-clause (i) of clause (a) of section 256.18. obviously, the key to the authority to be exercised under clause (b) is that such money should be due whether by way of rates, or duties, or taxes, or charges or any other dues which are payable under any law or rule. if any amount becomes due to the state as a result of the contractual relationship it does not become recoverable under clause (b) of section 256 of the rajasthan land revenue act. it is clarified by using non obstante expression even if the words law or rule under which the demand becomes due or recoverable does not declare it to be public demand or recoverable as arrears of land revenue, it becomes so recoverable if the same is due to the state or to any of its department or to any of its officer or to any local authority. only condition is that such amount must have become due or realisable under any law or rule obviously. such law or rule in the later part of clause (b) can only refer to any law or rule having the force of law under which the various types of dues becomes payable to the state government or to a department or to a local authority. obviously, if it is a public demand within the purview of the rajasthan public demands recovery act, 1962, the same shall be governed by the said act and if it is not a public demand, it may be recovered as an arrear of land revenue or as a demand or as a public demand or as arrears of the land revenue under section 256 of the rajasthan land revenue act, 1956. but none the less, the authority to receive such amount by the state government of its departments or a local authority must emanate from any statute or rule framed thereunder having the force of law. the words 'other dues' alongwith proceeding expression 'rates', 'duties', 'taxes' and 'charges' are controlled by the following expressions 'under any law or rule having the force of law'. this indicates firstly that expression 'other dues' has been used ejusdem genusis to the preceding expressions. in other words the 'other dues' takes its color from the words rates, duties, taxes or charges which become due and payable to state or its department or its officer or a local authority because of any enactment or rules framed thereunder or any other instrument which can be termed statutory. having the force of law. it excludes from its perview any other demands, contractual or otherwise. apparently, the demand in question does not fall under any of other category and in our opinion, the learned single judge rightly allowed the petition.19. the learned counsel for the appellant has failed to point out any law or rule under which such amount was payable to the state except that it has arisen out of the transactions that took place through the correspondence referred to above and the fixing of the rates as alleged by the respondents by the collector while procuring and selling the fodder to be brought within the district of jalore.20. we are fortified by the decision of this court which is relied on by the learned counsel in the case of ganesh ram v. the collector, jalore (supra). the question has arisen regarding taking recourse to the provisions of sections 229 and 256 of the rajasthan land revenue act for recovering certain amount from the sarpanch of gram panchayat ropsi who has allegedly failed to deliver the cash in hand, shown in the charge-sheet of handing over and taking over the office at the end of his term to the new sarpanch. the court considered what is the meaning of the 'other sum due' under section 256(1)(b) of the rajasthan land revenue act.21. it was held by the division bench that 'it is against this background that we have felt not a little difficulty arises in interpreting the phrase 'or other dues under any law or rule having the force of law' occurring in clause (b) of section 256....on a careful and earnest consideration of the whole matter and having full regard to the implications of the stringent procedure provided under section 256, and the following sections in this behalf, we are on the whole definitely disposed to think that claims of this character do not and cannot properly be held to fall within clause (b).'22. the court went on to say that 'it will be noticed that the words' or other dues' in the context to which they have been used in clause (b) follow immediately after 'on account of rates, duties, taxes, charges.' in other words, the general words follow certain particular and specific words, more or less, of the same nature. it is an accepted rule of construction of statutes that in such a situation the general word or words should be presumed to take their meaning from the words preceding, and it may be presumed that they belong to the same genus...the words 'or other dues' as used in clause (b) must be of the same class or category as the words preceding, that is, 'rates, duties, taxes, charges' which again, as we have already adverted to, are leviable under a particular law and can also be definitely ascertained and fixed with finality with reference to the provisions made therein and under which law, we may again point out, the person sought to be proceeded against always has an opportunity of a hearing or defence including a right of appeal and revision against the action proposed to be taken against him.'23. the like view was taken by a learned single judge in the case of babulal v. the state of rajasthan and ors. reported in 1976 wln (uc) 221. it was a case where the question has arisen before this court about the excess payment allegedly made to the petitioner for the transportation of food grains during the famine year 1968-69 in shergarh tehsil. the court held that the respondents has no jurisdiction to recover such amount as an arrear of the land revenue under section 256 of the rajasthan land revenue act, 1956 which deals with the various money which may be recovered under the act in the manner as an arrear of the land revenue does not cover such payment. the facts of this case are more nearer with the facts of present case.24. the distinction has been clearly made out by the division bench in the case ganesha ram v. the collector, jalore, where their lordships have said that:there are certainly 'dues' in the proper sense of the word, and we can see no objection to such dues being recovered as an arrear of land revenue by the machinery laid down under section 256 of the act, provided of course they otherwise fall within its meaning. there are, however, dues which are not dues properly so- called, but are merely claims which are of highly disputatious character or, in other words, which one party claims against another, but the latter seriously disputes them, and there is no machinery provided by the particular enactment under which they are sought to be raised for finalising them and consequently they cannot be accepted as having been ascertained nor properly ascertainable under that law. it may be that enactment leaves the question of such ascertainment at large, and in which case the normal course should be to have the claim adjudicated in a competent civil court or a competent revenue court or a competent tribunal as the case may be. on the other hand, the particular act, under which such a claim is sought to be raised, itself, provides for the machinery of the suit being filed for that purpose. to both these kinds of cases, that is, where the so- called dues which are disputed have not been ascertained and are not ascertainable under the given act. it is a serious question whether clause (b) of section 256, where it speaks of 'or other dues under any law or rule having the force of law', will be properly attracted.25. a single bench decision of this court in the case of luxmi chemical v. board of revenue and ors. decided on 13.7.2001 has been relied on by the learned counsel where the collector has sought to realise certain amounts from the petitioner as a damage caused to the state on account of the alleged breach of contract in respect of certain supplies of raw- material. the court has held that the claim of respondents can be termed as claim to unliquidated damages due to loss caused on account of alleged breach of contract by the petitioner but such a claim to damages is not a claim to money due until the same is determined and ascertained by any competent authority, if any dispute is raised through adjudicatory process known to law.26. the judgment under appeal is in consonance with principles enumerated in aforesaid cases with which we are in agreement.27. in view of the above discussions, we find no merit in this appeal. this appeal, therefore, fails and is hereby dismissed. no order as to the cost.