- (1.) THIS is a petition under Article 226 of the Constitution for a writ of certiorari quashing the orders passed by the Additional Collector, Saharanpur, on the 7th of August, 1968 (Annexure 3) the Additional Commissioner, Meerut Di vision dated 16-1-1970 (Annexure 5) and the order dated 30-12-1970 (Annexure 13) passed by the Board of Revenue, dismiss ing the petitioner's objections, appeal and revision respectively against attachment of its properties enumerated in the peti tion. The petitioner has further prayed for a writ of mandamus directing the opposite parties (sic) (to refrain?) from selling the attached properties or from confirming the auction sale which already took place on 3-11-1970.
(2.) THE relevant facts are that the petitioner is a Public Limited Company registered under the Indian Companies Act and is the tenure-holder of lands situate in two villages in district Saharanpur as mentioned in the petition. The Company fell in arrears of agricultural tax and land revenue amounting to Rs. 32, 000 and odd. In order to realise the agricultural tax and land revenue, at first standing crops of the petitioner were at tached on 2-4-1968 but as the value of the crops as estimated by the opposite par ties w.as found to be insufficient to make good the dues a notice was served res training the petitioner from transferring its properties. The notice is dated 5-4-1968 and has been filed as Annexure 1 to this petition. Thereafter both movable and immovable properties of the peti tioner were attached on 19-4-1968. These properties were enumerated in the notice (Annexure 1). It may also be mentioned that the movable and immovable proper ties which were attached did not include the land or the holdings in the two vil lages of which the petitioner is the tenure holder. The petitioner filed objections be fore the Additional Collector which were rejected by the order filed as Annexure 3. Thereafter, the petitioner went up in ap peal to the Additional Commissioner who dismissed the same by his order dated 16-1-1970 filed as Annexure 5. Thereafter, the petitioner filed a revision application before the State .Government which was transferred to the Board of Revenue and the Board of Revenue dismissed it by its order dated 30-12-1970 (Annexure 13). The Board of Revenue also rejected the petitioner's prayer for stay of the propos ed auction sale. Thereafter the properties were auctioned on 3-11-1970, but the con firmation of the sale was stayed by this Court till the disposal of this writ peti tion. The contentions put forward on behalf of the petitioner were that the at tachment and sale of the petitioner's pro perties were in contravention of the pro viso to Section 22 of the U. P. Vrihat Jotkar Adhiniyam, 1963 (U. P. Act No. XII of 1963) and also in contravention of Section 286 of the U. P. Zamindari Abo lition and Land Reforms Act as regards mode of realisation of the land revenue due from the petitioner. It was also con tended that the attached properties were exempt from attachment and sale under Section 60 of the Code of Civil Procedure and that the orders passed by the Addi tional Collector and the Board of Reve nue were not speaking orders and the Board of Revenue disposed of the revi sion application without giving any op portunity to the petitioner of being heard and, therefore, the principles of natural justice were violated. The proviso to Sec tion 22 of the U. P. Act No. XII of 1963 nms as follows:- "The Collector may, on the motion of the assessing authority, recover (a) ......... the amount assessed as holding tax and (b) ......... as if it were an arrear of land revenue: Provided that the processes mention ed to clauses (c), (e), (f) or (h) of Section 146 of the U. P. Land Revenue Act, 1901 (U. P. Act No. Ill of 1901) or those men tioned in clauses (c) and (f) of Section 279 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act No. I of 1951), shall be issued only after the other processes mentioned in the said sections of the said Acts have been ex hausted."
(3.) A perusal of Section 279 (1) of the U. P. Zamindari Abolition and Land Re forms Act, 1950 will show that land re venue could be recovered by any one or more of the processes enumerated as clauses (a) to (g). As has been pointed out, the proviso to Section 22 of the U. P. Act No. XII of 1963 lays down that the mode of realisation as laid down in clau ses (c) and (f) of Section 279 shall not be resorted to unless the other modes enu merated in clauses (a) to (g) of Section 279 of the U. P. Zamindari Abolition and Land Reforms Act, 1950, had been ex hausted. The different clauses from (a) to (g) of Section 279 of the U. P. Zamindari Abolition and Land Reforms Act are as follows:- "279 (1) ............... (a) by serving a writ of demand or a citation to appear on any defaulter, (b) by arrest and detention on 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 appointment of a receiver of any property, movable or immovable of the defaulter".It was pointed out that the movable and immovable properties of the petitioner including the standing crops were at tached in accordance with clauses (c) and (f) of Section 279 of the U. P. Zamindari Abolition and Land Reforms Act though the other modes enumerated in clauses (a), (b), (d) and (e) were not resorted to. Though in the supplementary counter-affidavit filed on behalf of the State on the 17th of October, 1973, it was mention ed that a writ of demand was served on the petitioner, this fact has been denied in the supplementary rejoinder-affidavit. It was pointed out that no counter-foil of the notice of demand nor any receipt showing that any such notice was sent by registered post to the petitioner, was filed. The mode of service of a writ of demand, as laid down in clause (a) of sub section (1) of Section 279 of the U. P. Za mindari Abolition and Land Reforms Act is laid down in Rule 246 of the U. P. Za mindari Abolition and Land Reforms Rules. There is nothing to show that Rule 246 was followed or actually any writ of de mand was served on the petitioner. It is true that the process enumerated in clause (b) of sub- section (1) of Section 279 could not be followed in this case as the petitioner is a registered Public Li mited Company and a Company could not be arrested or detained but there is no explanation for not following the process enumerated in clause (d) quoted above. Admittedly, the holdings in question were not attached. It was argued by the learn ed counsel for the respondents that this could not be done as the Consolidation Officer by his order dated 16-5-1969 dec lared the holdings to be of the Gram Samaj (vide Supplementary Counter-Affi davit dated 17-10-1973). This contention again has no force. The attachment order was made, as already mentioned on 19-4-1969, more than a year before the Con solidation Officer declared the holdings to be of the Gram Samaj and, therefore, there is no satisfactory explanation as to why the holdings were not attached be fore resorting to the processes enumerat ed in clauses (c) and (f) of Section 279 of the U. P. Zamindari Abolition and Land Reforms Act. Similarly, the process enu merated in clause (e) was not resorted to. Under the circumstances it is clear that in trying to realise agricultural tax from the petitioner the mandatory provisions, as laid down in the proviso to Section 22 of the U. P. Vrihat Jotkar Act, were vio lated. ;