- (1.) Finding conflict in the decisions of two Division Benches of this Court, namely Chinta Mani v. State of U.P. & Ors., 2011 1 AWC 637, and Mange Ram & Anr. v. State of U.P. & Others,2010 2 CRC 216, the learned Single Judge has referred the following question for decision by a Larger Bench. Whether decision in Mange Ram & Anr. v. State of U.P. & Others,2010 2 CRC 216, in so far as it takes the view that there is no provision under any of the Acts for levying any collection charges for mere issuance of citation or sale proclamation is correct; or, the decision in Chinta Mani v. State of U.P. & Ors., 2011 1 AWC 637, holding that provisions of sub-section (2) of Section 279 do not contain any provision for an absolute waiver of recovery charges where the citation has been issued under sub-section (1) and the charging Section empowers the Collector to raise such demand subject to the rules and provision of Revenue Recovery Act U.P. Act No. 37 of 2001, is correct. Brief facts of the case: The petitioners had taken an agricultural loan for the purchase of a tractor from U.P. Sahkari Bank Ltd., Rath, district Hamirpur, respondent No. 4. When the loan was not paid a recovery certificate was sent by the respondent No. 4 to the District Magistrate, Hamirpur for its realisation. Pursuant thereto the Tehsildar, respondent No. 3 issued a citation on 23.1.2011 calling upon the petitioner to appear and show cause as to why the sum of Rs. 6,39,640/- be not recovered as arrears of land revenue. The petitioners approached this Court by means of Writ Petition No. 8158 of 2011 challenging the citation dated 23.1.2011. This Court vide judgment and order dated 11.2.2011 disposed of the writ petition with the direction to the petitioners to deposit the amount in instalments. The Court observed that in case all the instalments are deposited as per the schedule, the petitioners may approach the Collector concerned for waiving of recovery charges and in the event of any such application being filed the same shall be dealt with in accordance with law by the authority concerned. In compliance of the order dated 11.2.2011, the petitioners had deposited the entire dues with the respondent No. 4 i.e. the Bank and thereafter moved an application before the respondent No. 3 for waiving the collection charges. The District Magistrate, respondent No. 2, vide order dated 7.9.2011 had rejected the application of the petitioners stating therein that the amount of Rs. 5,83,000/- has been deposited by the petitioners directly with respondent No. 4 Bank and accordingly, a sum of Rs. 58,300/- is recoverable as collection charges and there is no provision for waiving of collection charges. The petitioners thereafter approached this Court by means of the present writ petition seeking a writ, order or direction in the nature of certiorari quashing the order dated 7.9.2011 passed by the District Magistrate, respondent No. 2 on the ground that the recovery charges can be recovered by the Revenue authorities only when the amount due has been recovered by them and not when the amount has been deposited directly with the bank and, therefore, the respondent No. 2 has illegally rejected the application for waiving the recovery charges. When the writ petition came up for consideration before the learned Single Judge, the learned Single Judge finding conflict of opinion between the two Division Benches mentioned above, referred the aforementioned question for decision by a Larger Bench. Law laid down by two Division Benches Mange Ram & Anr.
(2.) In Mange Ram's case the Division has held as follows: There is no provision under any of the Acts for levying any collection charge for mere issuance of citation of sale proclamation. The cost of these items have been taken adequate care in the U.P.Z.A. & L.R. Rules and as such there is no scope for any additional charge in this respect. Chinta Mani
(3.) In Chinta Mani's case the Division Bench of this Court has held as follows: 20. The contention on behalf of the appellant that no such collection charges can be realised, to our mind, does not appear to be correct inasmuch as sub-section (2) also empowers the Collector to realise costs of recovery even where the processes adopted is by serving a writ of demand or a Citation to appear. Subsection 2 of Section 279 does not contemplate that some other actual process apart from the issuance of Citation should be undertaken for raising a liability of recovery charges. Subsection 2 would apply independently to clause (a) of sub-section 1. The provisions of the Revenue Recovery Act 1890 and the Rules framed thereunder as noted above supplement the aforesaid procedure for realising collection charges as well. 21. The impact of the said provisions have not been noticed in any of the other cases that have been relied upon by the learned Counsel for the petitioner. The judgment in detail with regard to realisation of collection charges which has been referred to in para 16 of the decision in the case of Mirza Javed Murtaza is in relation to the processes of sale of immovable property under Rule 284 of the U.P.Z.A. & L.R. Rules. The Division Bench observed that the loan that was sought to be recovered therein was extended by the U.P. Financial Corporation and the Managing Director of the Corporation can only ask the Collector to recover the amount as arrears of land revenue. The Court further went on to observe that what would be the actual cost of the proceeding would naturally be ascertained when the costs are actually incurred. The said observations were made in relation to Rule 284 of the U.P. Zamindari Abolition and Land Reforms Rules which are in relation to sale of immovable property. The ratio of the said decision would not be attracted hereunder inasmuch as that was a case where a process of distress by sale of immovable property had been undertaken. The said decision has nowhere considered the impact of subsection 2 of Section 279 of the U.P. Zamindari Abolition & Land Reforms Act as referred to herein above. In view of the said position as also the subsequent amendments as noticed above, the ratio of the said decision would, therefore, not apply on the facts that have emerged in the present case. 22. Accordingly, we are of the opinion that so far as the law is concerned, the provisions of sub-section 2 of Section 279 do not contain any provision for an absolute waiver of recovery charges where a Citation has been issued under sub-section 1 of the said provision. The charging Section itself empowers the Collector to raise such demand subject to the rules and the provisions of the Revenue Recovery Act (U.P. Act No. 37 of 2007) referred to herein above. 23. There are no provisions introduced in the U.P. Zamindari Abolition and Land Reforms Act 1950 for the levy of 10% collection charges but the Revenue Recovery Act 1890 has been amended as noted above. There is no challenge to the vires of the amendments introduced through U.P. Act No. 37 of 2007. Accordingly, we do not propose to examine the issue any further. Statutory Provisions: The Revenue Recovery Act, 1890. ... 3. Recovery of public demands by enforcement of process in other districts than those in which they become payable.--(1) Where an arrear of land-revenue or a sum recoverable as an arrear of land-revenue, is payable to a Collector by a defaulter being or having property in a district other than that in which the arrears accrued or the sum is payable, the Collector may send to the Collector of that other district a certificate in the form as nearly as may be of the Schedule, stating- (a) the name of the defaulter and such other particulars as may be necessary for his identification, and (b) the amount payable by him and the account on which it is due. (2) The certificate shall be signed by the Collector making it, and save as otherwise provided by this Act, shall be conclusive proof of the matters therein stated. (3) The Collector of the other district shall, on receiving the certificate, proceed to recover the amount stated therein, together with the costs of the recovery, as if it were an arrear of land revenue which had accrued in his own district. (3-a) The costs of the recovery under sub-section (3) shall be such as may be specified by the State Government by notification but the amount of such costs shall not exceed ten per cent of the amount stated in the certificate. ... 4. Recovery by Collectors of sums recoverable as arrears of revenue by other public officers or by local authorities.--(1) Where any sum is recoverable as an arrear of land-revenue by any public officer other than a Collector or by any local authority, such officer or authority may send to the Collector of the district in which the office of that officer or authority is situate or of any other district in Uttar Pradesh where the defaulter is or has property, a certificate in such form as may be prescribed by rules made in this behalf. (2) Save as otherwise provided by this Act, the certificate shall be conclusive proof of the matter therein stated. (3) The Collector shall, on receipt of the certificate under sub-section (1), proceed to recover the amount stated therein, together with the costs of the recovery as if the amount stated in the certificate were payable to himself and such costs were also an arrear of land revenue. (3-a) The costs of the recovery under sub-section (3) shall be such as may be specified by the State Government by notification but the amount of such costs shall not exceed ten per cent of the amount stated in the certificate. (4) The provisions of Section 4 shall have effect in relation to such certificate as if it were a certificate sent under sub-section (1) of Section 3. U.P. Zamindari Abolition & Land Reforms Act, 1950 278. Certified account to be evidence as to arrears of land revenue.- A statement of account certified by the tahsildar shall, for the purposes of this chapter, be conclusive evidence of the existence of the arrears of land revenue of its amount and of the person who is the defaulter: Provided that in any village in respect of which an order under Section 276 has been made such statement, may, in respect of an individual defaulter, be certified by the Land Management Committee. 279. Procedure for recovery of an arrear of land revenue.--(1) An arrear of land revenue may be recovered by any one or more of the following processes: (a) by serving a writ of demand or a citation to appear on any defaulter; (b) by arrest and detention of his person; (c) by attachment and sale of his movable property including produce; (d) by attachment of the holding in respect of which the arrear is due; (e) by lease or sale of the holding in respect of which the arrear is due; (f) by attachment and sale of other immovable property of the defaulter; and (g) by appointing a receiver of any property, movable or immovable of the defaulter. (2) The costs of any of the processes mentioned in sub-section (1) shall be added to and be recoverable in the same manner as the arrear of land revenue. 282. Attachment and sale of movable property.--(1) The Collector may, whether the defaulter has been arrested or not, attach and sell his movable property, (2) Every attachment and sale under this Section shall be made according to the law in force for the time being for the attachment and sale of movable property in execution of a Civil Court. (3) In addition to the particulars mentioned in Clauses (a) to (o) of the proviso to sub-section (1) of Section 60 of the Code of Civil Procedure, 1908 (V of 1908), articles set apart exclusively for the use of religious worship shall be exempted from attachment and sale under this Section. 284. Attachment, lease and sale of holding.--(1) The Collector may in addition to or instead of any of the other processes hereinbefore specified either of his own motion or on the application of the Land Management Committee, attach the holding in respect of which an arrear is due. (2) Where any holding is so attached the Collector may, notwithstanding anything contained in this Act, but subject to such conditions as may be prescribed, let out the holding, for such period not exceeding ten years commencing from the fist day of July next following as he deems fit, to any person, other than the defaulter, who pays the whole of the arrear due on the holding and agrees to pay the same amount of land revenue during this period of the lease as has been payable by the defaulter in respect of the holding immediately preceding its attachment. (3) If during the period of lease, the lessee commits defaults in payment of the land revenue due under lease, the arrear may be recovered from him by any one or more of the processes mentioned in Clauses (a) to (e), (f) and (g) of sub-section (1) of Section 279 and his lease shall also be liable to be determined. (4) Upon the expiry of the period of lease the holding shall be restored to the tenure-holder concerned free of any claim on the part of the State Government for any arrear of revenue in respect thereof. (5) If the Collector is satisfied that no suitable person is forthcoming to take the land on lease under sub-section (2) then notwithstanding anything contained in this Act he may sell the holding free from all encumbrances in such manner as may be prescribed and appropriate the proceeds in satisfaction of the arrears, and refund the excess, if any, to the defaulter. (6) The Collector shall report to the Board of Revenue any sale made under sub-section (5). U.P. Zamindari Abolition and Land Reforms Rules, 1952 243. The fee charged for the issue of a writ of citation to appear shall be rupees two. This fee shall be added to the arrears to which the writ of citation is issued and shall be included in the amount specified therein. 248. The fee levied for a warrant of arrest in Z.A. Form 70 shall be rupees five. 255. Every attachment and sale of movable property in realization of revenue under Section 282 shall, unless the officer ordering the attachment otherwise directs, be made by a qurkamin. The fee levied for a warrant of attachment (Z.A. Form 71) shall be 75 Naye Paise. Note.--Entries in the counterfoils and outerfoils of Z.A. Form 71 will be made at the tahsil and will be submitted to the collector or Assistant Collector Incharge of the Sub-division for signature on the warrant of attachment in the outerfoil. After orders have been passed by the Collector or the Assistant Collector in charge of the sub-division, the book will be returned to the Tahsildar for necessary action. The outerfoil will after attachment, be kept with the Nathi in cases, further proceedings of sale and is, the counter foil the Tahsildar will make an entry giving reference to the Nathi. 259. When the sale officer goes to any place to conduct a sale and no sale takes place, the fees chargeable to meet the costs of his deputation shall be according to the following scale: 284. (1) When the land is put up for sale a charge shall be levied on account of the costs of every sale, upon such amount not exceeding the total sum due for recovery as may be realised by the sale at the following rates. (i) Where such amount does not exceed 200 rupees at the rate of one rupee for every 100 rupees or portion of 100 rupees. (ii) Where such amount exceeds 200 rupees but does not exceed 1,000 rupees, 2 rupees for the first 200 rupees and at the rate of 50 naye paise per every 100 rupees or portion of 100 rupees in excess of 200 rupees; (iii) Where such amount exceeds 1,000 rupees, six rupees, for the first 1,000 rupees and at the rate of one rupee for every 500 rupees or portion of 500 rupees in excess of 1,000 rupees. (2) When immovable property other than the land is put up for sale, a charge shall be levied upon such amount not exceeding the total sum due for recovery as may be realized by the sale at the rate of three naye paise per rupee of the sale proceeds, fractions of a rupee being excluded. (3) When the same officer goes to any place to conduct a sale and no sale takes place, a charge shall be levied to meet the cost of his deputation according to the following scale: The Uttar Pradesh Agricultural Credit Act, 1973. 10.B. Distraint and sale of produce and movables.--(1) Where any sum in respect of any financial assistance granted to an agriculturist remains unpaid on the date on which it falls due, the bank granting the financial assistance may apply to the Tahsildar having jurisdiction for the recovery of the sum due, together with expenses of recovery, by distraint and sale of the movable property or the crop or other produce charged in favour of the bank. (2) The provisions of the Limitation Act, 1963, shall apply in relation to an application under sub-section (1), as if such application were a suit in a Civil Court for sale of the movable property for enforcing recovery of the sum referred to in that sub-section. (3) On receipt of an application under sub-section (1), the Tahsildar or any other official authorised by him may, notwithstanding anything contained in any other law for the time being in force, take action in the manner prescribed for purposes of distraining and selling the property referred to in that sub-section. (4) Any sum so recovered shall be transferred to the bank after deducting the expenses of recovery and satisfying the Government dues or other prior charge, if any. 11. Recovery of dues of a bank through a prescribed authority.--(1) Notwithstanding anything contained in any law for the time being in force, an officer specified by the State Government by notification in the Gazette (hereinafter referred to as the prescribed authority) may, on the application of a bank by order, direct that any amount due to the bank on account of financial assistance given to an agriculturist be paid by the sale of the land or any interest therein or other immovable property which is charged or mortgaged for the payment of such amount: Provided that no order of sale shall be made under this sub-section unless the agriculturist has been served with a notice by the prescribed authority calling upon him to pay the amount due. (1-A) The provisions of the Limitation Act, 1963, shall apply in relation to an application under sub-section (1), as if such application were a suit in Civil Court for sale of the land or interest therein or other immovable property for enforcing recovery of the sum referred to in that sub-section. (2) An order passed by the prescribed authority shall, subject to the result of appeal under Section 12, be final and be binding on the parties. (3) Every order passed by the prescribed authority in terms of subsection (1) or by the appellate authority under Section 12 shall be deemed to be a decree of a Civil Court and shall be executed in the same manner as a decree of such Court by the Civil Court having jurisdiction. 11-A. Recovery in the case of personal security.--(1) Where any amount of financial assistance is granted by a bank to an agriculturist and the agriculturist fails to pay the amount together with interest on the due date, then without prejudice to the provisions of Sections 10-B and 11, the local principal officer of the bank, by whatever name called may forward to the Collector a certificate in the manner prescribed, specifying the amount due from the agriculturist. (2) The certificate referred to in sub-section (1) may be forwarded to the Collector within three years from the date when the amount specified in the certificate fell due. (3) On receipt of the certificate, the Collector shall proceed to recover from the agriculturist, the amount specified therein together with expenses of recovery, as arrears of land revenue, and the amount due to the bank shall be paid after deducting the expenses of recovery and satisfying any Government dues or other prior charges, if any. Explanation.--For the purposes of this Section, the expression 'Collector' means the Collector of the district in which the agriculturist ordinarily resides or carries on the activities referred to in clause (a) of Section 2 or where any movable or immovable property of the agriculturist is situate, and includes any officer authorised by him in that behalf. 25. Power of State Government to make rules.--(1) The State Government may, by notification in the Gazette, make rules for carrying out the purposes of this Act including any rules prescribing fees in respect of any proceeding under this Act. (2) Every rule made under this Section shall be laid as soon as may be after it is made, before each House of State Legislature while it is in session for a total period of thirty days, which may be comprised in one session or more than one successive sessions and if, during the said period both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter had effect only in such modified form or be of no effect, as the case may be, so however, that such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. The Uttar Pradesh Agricultural Credit Rules, 1975. 12. Application for distraint and sale of the Movables: Sections 10B and 25.--(1) Where any charge has been created on any movable property or the crop, or other produce in favour of a Bank in respect of any financial assistance granted to an agriculturist, and the whole or any part of the amount due in respect thereof remains unpaid, the Bank may apply to Tahsildar having jurisdiction, for distraint and sale of such property, crop or other produce. (2) Every application under sub-rule (1) shall be in Form B. The application shall be accompanied by sufficient number of copies thereof alongwith copies of notices in Form C for service on the agriculturist or his heirs or legal representatives, as the case may be. (3) A fee at the rate of ten per cent (or at such other rate as the State Government in the Revenue Department may from time to time fix in this behalf), on the amount of the claim shall be payable in respect of every such application. The amount of fee shall be deposited in Government Treasury under the Head "-65-Other Administrative Services-Other Services-(20) Other Miscellaneous-Receipt", and the Treasury Challan shall be attached to the application as evidence of payment of the prescribed fee. (4) An attested copy of the document creating the charge shall be filed alongwith the application referred to in sub-rule (1). But the Tahsildar may summon the original document as and when he considers it necessary. 13. Notice of demand: Sections 10B and 25 .--On receipt of the application referred to in Rule 12 the Tahsildar shall cause to be noted thereon, the date of its presentation, and if he is satisfied that the application is in order, he shall cause to be served on the agriculturist or his heir or legal representative, a written notice of demand in Form C, calling upon him to pay the amount specified in the notice within a period of fifteen days from the crate of service thereof or to show cause why the property charged be not distraint and sold. 14. Service of demand notice.-Section 10B and 25.--The notice referred to in Rule 13, shall be served by delivering a copy to the agriculturist or his heir or legal representative or to any adult male member of his family at his usual place of residence or to his authorised agent, or when such service cannot be so effected, by affixing a copy of the notice on some conspicuous part of his residence, or by registered post. (15) Distraint of the property charged: Sections 10B and 25.--If the amount specified in the notice or any part thereof remains unpaid after the expiry of the time allowed therefor, or if no cause is shown, or where the cause shown is considered by the Tahsildar to be insufficient, the Tahsildar shall cause the property charged to be distrained. ... (23) Application for sale of land or interest therein: Sections 11 and 25.--(1) Where any charge or mortgage has been created on any land or interest therein or on any other immovable property in favour of a bank in respect of any financial assistance granted to an agriculturist and the whole or any part of the amount due in respect thereof remains unpaid, the bank may apply to the Prescribed Authority for the sale of such land, or interest therein or other immovable property. (2) Every application by a Bank under sub-rule (1) shall be in Form D. The application shall be accompanied by sufficient number of copies thereof alongwith copies of notices in Form E for service on the agriculturist or his heirs or legal representatives, as the case may be. (3) A fee at the rate specified in Rule 12(3) shall be payable on every application referred to in sub-rule (1). The amount of fee shall be deposited in Government Treasury or the State Bank of India under the Head mentioned in Rule 12(3) and the Treasury Challan shall be attached to the application as evidence of payment of the prescribed fee. (4) An attested copy of the document creating the charge or mortgage shall be filed alongwith application referred to in sub-rule (1). But the Prescribed Authority may summon the original as and when it is considered necessary. 29. Utilisation of the amount recovered: Section 11-A and 25.- The amount recovered under Rule 21 or Rule 28 shall be utilized in the following manner: (a) Firstly, for meeting the expenses of recovery which shall be charged at the rate of ten per cent (or at such other rate as the state Government in the Revenue Department may from time to time fix in this behalf) on the amount of the claim; (b) Secondly, for payment of the Government dues or other prior charges, if any; (c) Thirdly, for payment of the dues of the bank (d) The balance, if any, shall be paid to the person from whom the recovery was made. Rival Submissions;