- (1.) THESE two Letters Patent Appeals Nos. 4 and 35 of 1970 which are directed against the judgment and order dated July 23, 1970, passed by the Honble Chief Justice in writ Petition No. 120 of 1968 and against the judgment and order dated August 26, 1970, passed by Mian Jalal -ud -Din J. in writ petition No. 1 of 1969, respectively, shall be disposed of by this judgment as they raise common questions of law.
(2.) FOR a proper appreciation of the points involved it is necessary to give a resume of the facts leading to these appeals. From 2007 -2008 (Samvat) to 1966 -67 (A. D.) Shri Ali Mohd. Mir, respondent in appeal No. 4 of 1970, is alleged to have collected in his capacity as Lambardar of village Janwara, Tehsil Sapore. land revenue and Abiana totalling Rs. 51843.56 from the land owners under his Lambardari. On receipt of complaints that the said Lambardar had not remitted the entire amount realized by him to the Government Treasury but has mis -appropriated a huge amount therefrom, the Tehsildar Sopore, held an enquiry into the matter which revealed that the Lambardar had not deposited by due dates in the Government Treasury an aggregate amount of Rs. 2303.81. Consequently the Lambardar was put under suspension and proceedings of recovery of the said amount as arrears of land revenue were initiated against him by the Tehsildar Sopore. On default of the Lambardar to pay up the amount despite several opportunities afforded to him the Sub -Divisional Officer, Sopore, vide his No. 89/800 dated May 31, 1968, recommended to his superior that the immovable property belonging to the Lambardar be attached and put to auction as provided by section 51 of the Land Revenue Act, hereinafter referred to as "The Act". On the matter eventually coming up before him, the Divisional Commissioner, Kashmir vide his Order No. 612 -14 LRA dated June 29, 1968 accorded sanction to the attachment and sale to the extent of the arrears of agricultural land measuring 38 kanals and 18 marlas comprised in Khasra Nos. 287, 391, 522, 274, 928, 548/1 and 291 and a one storeyed house situate in village Janwara belonging to the Lambardar. On receipt of the sanction the Sub -Divisional Officer attached the aforesaid property of the respondent and - issued a proclamation fixing the date for sale by public auction of the said property. Aggrieved by this order the Larabardar filed before the original (writ) side of this Court a petition, being writ petition No. 120 of 1970, praying that an appropriate writ or Order quashing the aforesaid order No. 612 -14/LRA of the Divisional Commissioner, Kashmir, respondent No. 1 herein, be issued. It was averred by the Lambardar that due to draught and floods in the area within his Lambardari the land owners could not pay to him the land revenue due from them which accordingly remained in arrears and that whatever little could be realized by him as a result of his entreaties and pursuation was paid into the Government treasury. It was further pleaded by the Lambardar that the impugned order regarding the attachment and sale of his aforesaid property was illegal and unconstitutional inasmuch as it violated the provisions of Section 69 -A of the Act and the alleged arrears were not due from his holding which was being put to sale. It was also contended by the Lambardar that the amount in question was assigned land revenue which could not be recovered from him as arrears of land revenue under Chapter VII of the Act.
(3.) THE petition was resisted by the appellants who averred, inter alia that the Lambardars assertion that the land holders had not paid up the land revenue due from them to him due to draught or floods was wrong and was belied by the different stands taken by him in his applications dated November 30, 1963. and February 18, 1964, that the land revenue remitted or suspended in view of the floods had not been included in the amount shown to be outstanding against the Lambardar and that the petition was not tenable as an alternative remedy under the provisions of the Act was available to the Lambardar which he had not availed of. On the matter coming up before the Honble Chief Justice the contention put forth on behalf of the Lambardar that the amount sought to be realized from him could not be recovered as arrears of land revenue as it was assigned land revenue found favour with His Lordship, who quashed the aforesaid order of applicant No. 1, holding that according to the rules framed by the Government, land revenue is assigned to the Lambardars who are paid some percentage thereof as commission and are required to collect the land revenue from the land holders. The contention advanced on behalf of the appellants that the amount in question was in the nature of a charge under the Act and was recoverable in a summary manner provided by section 91 of the Act was repelled by the Honble Chief Justice who held that the procedure laid down in section 57 (3) of the Land Revenue Act should be followed by the appellants where a Lambardar collects land revenue but fails to deposit the same in the Government treasury.;