V. Bhargava, J. - (1.) BY this petition Under Article 226 of the Constitution the Petitioner has prayed for the issue of various writs to quash certain proceedings which are being taken against the Petitioner for recovering certain amounts under the UP AIT Act. For convenience we are not reproducing the prayers as they have been put in the petition and prefer to put those prayers in a clearer form so as to bring out the points that really call for decision.
(2.) IN effect, the prayers, taken together amount to a request to this Court to issue appropriate writs by which all proceedings which are being taken against the Petitioner for recovery of a sum of Rs. 17,674/5/0 be quashed. This sum of Rs. 17,674/5/0 consists of three items. One amount is a sum of Rs. 13,274/0/0 being the second instalment of the agricultural income tax assessed on the Petitioner by an order dated 13 -10 -1052. The next sum of Rs. 1,100 is being recovered as part of the penalty due from the Assessee Under Section 31 of the UP AIT Act because of default of the Petitioner in paying the first instalment of the tax assessed by the order dated 13 -10 -1952. The third sum of Rs. 3,300 similarly purports to be penalty under the same provisions of law for committing default in paying the second instalment of the tax due under the same order of assessment dated 13 -10 -1952. In dealing with this petition, we consider that the proceedings relating to the two amounts sought to be recovered as penalty can be dealt with together on one basis while the proceedings being taken for recovery of the sum of Rs. 13,274/5/0 alleged to be due as second instalment of the tax assessed on 13 -10 -1952 can be separately dealt with. So far as the two amounts of penalty are concerned, amongst other grounds, one ground raised by the Petitioner was that these penalties were imposed without giving any opportunity to him to show cause against the imposition of penalty. In view of this ground, we called upon learned Counsel for the opposite parties to point out to us the orders Under Section 31 of the Act by which these penalties had been imposed and learned Counsel was unable to point out any such orders. Certain orders were brought to our notice but none of them could be held to be orders imposing penalty under Section 31 of the Act. The orders that have been brought to our notice are those which direct recovery of the penalty as arrears of land revenue. As an example, with respect to the sum of Rs. 3,300 sought to be recovered as penalty for committing default in paying the second instalment, the order relied upon is an order of the Dy. Commissioner of Sultanpur dated 22 -4 -1953. The copy of that order as reproduced in the counter affidavit translated in English would read as follows: The second instalment and Ks. 3,300 penalty be realised very soon as arrears of land revenue from the Petitioner.
(3.) THIS language of the order clearly indicates that it was a mere direction as to the manner in which the second instalment and the penalty were to be realised and it was not an order imposing the penalty. Under the scheme of the UP AIT Act, there has to be first an order imposing the penalty Under Section 31 followed by an order directing its recovery as arrears of land revenue Under Section 32. This is even further clarified by the provisions of sub Rules (3) and (4) of Rule 28 of the rules framed under that Act. When the Act and the rules themselves clearly required two separate orders to be made, one imposing penalty under Section 31 and the other directing the recovery of the penalty as arrears of land revenue under Section 32, an order of the type relied upon by the opposite parties quoted above can only be held to be an order Under Section 32 which order could not have been competently passed unless there was a prior order of imposition of tax under Section 31. Similar is the position with regard to the imposition of the penalty out of which the sum of Rs. 1,100 is sought to be recovered at this stage. The proceedings for recovery of these amounts of penalty are, therefore, not based on any orders imposing the penalties under Section 31 of the Act and consequently, all these proceedings are void and must be restrained.;