S.N. Dwivedi, J. - (1.) THE facts in this case are not in dispute. The Petitioner obtained a licence for sale of Tari in 1957 -58. He was required to pay Rs. 4,000/ - for the licence to Government. The amount was presumably to be paid in instalments. He defaulted, and then the license was revoked and the shop was re -sold for Rs. 2,500/ -. Thereafter the Government demanded a sum of Rs. 778.13 np. from the Petitioner as arrears of the premium payable by him He could not pay. Then some agricultural land belonging to him and measuring 2 Bighas 17 Biswas was attached. A sale proclamation was issued announcing that the land would be sold on September 20, 1958. The sale could not be held on September 20, and was adjourned to October 7, 1958. On October 7, also the sale could not be held, as it was a holiday. Then the Sale Officer fixed October 23, 1958, for auction sale. No fresh proclamation of sale was, however, issued by him this time. The land was sold on October 23, for Rs. 466/5/3. It is claimed by the Petitioner that if there had been a proper proclamation of sale, the and could have been sold for about Rs. 6,000/ -.
(2.) THE Petitioner made an application to the Commissioner for setting, aside the auction sale. The Commissioner allowed his application and get aside the auction sale by his order dated August 3,1959. The State Government interfered with the order of the Commissioner Under Section 219 of the Land Revenue Act. The State Government set aside the order of the Commissioner. The order of the State Government challenged in this petition. While the Petitioner contends that the State Government could not interfere Under Section 219 of the Land Revenue Act, the contention of the counsel for the State Government is that it could Section 219 consists of two parts. The first part provides: the State Government may call for the record of any non judicial proceeding not connected with settlement, held by any officer, sub -ordinate to it, and may pass thereon such orders as it thinks fit." The second part provides that the Board may pall for the record of "any case of judicial nature or connected with a settlement" and may pass such order as it thinks fit if it is of opinion that the order is vitiated by a jurisdictional error. Section 219 obviously provides for a revision against the order of any inferior authority. The revision would lie to the State Government where the authority has passed the order in a non judicial proceeding not connected with settlement. His order would be revisable by the Board of Revenue if the order has been made in a case of judicial nature or connected with settlement. The present case is not connected with settlement. Accordingly we are concerned with the question whether the Commissioner made his order in a case of judicial nature or in a non judicial proceeding. Counsel for the Petitioner has argued that the Commissioner made his order in a case of judicial nature, while counsel for the Respondent argued that he made the order in a non -judicial proceeding.
(3.) I have already stated that some amount was found due from the Petitioner as arrears of the premium for a licence granted under the U.P. Excise Act. Section 39 of the U.P. Excise Act provides that all amounts due to the Government by any person on account of any contract relating to the Excise revenue, may be recovered from the person primarily liable to pay the same or from his surety, as arrears of land revenue or in the manner provided for the recovery of public demands by any law for the time being in force, The amount was thus recoverable from the Petitioner as arrears of land revenue. How an arrear of land revenue may be recovered in this State is pro -vided for in Chapter X of the UPZA and LR Act. Section 279 provides for the various modes of recovery of arrears of land revenue. One of the modes is by attachment and sale of immovable property of the defaulter other than the holding in respect of which the arrear may be due. Section 286 deals with the recovery of an arrear of land revenue from other immovable property of the defaulter. Sub -section (2) thereof provides that any sum recoverable as arrears of land revenue, but not due in respect of any specific land, may be recovered Under Section 286 from any immovable property of the defaulter. By virtue of Sub -section (2) the land of the Petitioner, which was attached and sold, could be attached and sold Under Section 286. Section 293 provides that the provisions of Chapter IX and X of the Land Revenue Act, shall, in so far as they are not inconsistent with the provisions of this Act, apply to applications and proceedings made or taken under Chapter X. Section 294 enables the Govt. to make rules for carrying into effect the provisions of Chapter X. The Government has made certain rules for carrying into effect the provisions of Chapter X. For the present we are concerned with Rule 285 -I(i). It provides that at any time within thirty days from the date of the sale, an application may be made to the Commissioner to set aside the sale on the ground of some material irregularities or mistake in publishing or conducting it. No sale shall, however, be set aside on such ground unless the applicant proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake. Sub -rule (iii) of Rule 285 -I provides that the order of the Commissioner shall be final. It was under Rule 285 -I that the Commissioner set aside the auction sale. The argument of the Petitioner is that as the Commissioner had acted under the rules made under the ZA and LR Act, the proceeding before him was of a judicial nature. It is doubtful whether the source of the proceeding could be determinative of its character. The two expressions "any nonjudicial proceeding" and "any case of judicial nature" occurring in Section 219 of the Land Revenue Act, have not been defined in that Act. Section 5 of that Act provides that the control of all non judicial matters connected with the land revenue in U.P. other than matters connected with settlement is vested in the State Government and the matters connected with settlement is vested in the Board of Revenue. Section 5 shows that certain matters connected with land revenue are non judicial matters. What those matters are, it does not, however, indicate. Section 234 of the Land Revenue Act enables the State Government to make rules in respect of the matters under Clauses (a) (d) (e), (v), (i), (w) (i), (x) (i) and (y). Clause (y) of Section 234 relates to the power of the State Govt. to define, classes of cases, matters, businesses, orders or proceedings Which are to be deemed judicial or non judicial respectively. Thus Section 234 gives power to the State Government to determine which proceeding shall be considered to be non judicial and which one as judicial. In exercise of its power under Section 234(y) the State Government has made certain rules which are incorporated in Chapter XXXV of the U.P. Revenue Manual. Paragraph 911 enumerates the orders and proceedings which shall be deemed judicial for the purposes of the U.P. Land Revenue Act. Paragraph 912(1) provides that all cases, proceedings and other matters under the U.P. Land Revenue Act, not covered by paragraph 911 shall be deemed non judicial. The proceedings under Chapter X of the ZA and LR Act are not mentioned in paragraph 911. Accordingly it would appear that the proceeding before the Commissioner in the instant case was not a proceeding of a judicial nature by virtue of paragraph 912 and it will necessarily be a proceeding of a non judicial nature. This result would follow on account of Section 293 of the UPZA and LR Act which applies Chapter X of the Land Revenue Act to the proceedings under Chapter X of the former Act, Section 219 of the Land Revenue Act occurs in Chapter X of the Act. So the State Government could interfere with the order of the Commissioner in the present case under Section 219 of the Land Revenue Act read with Section 293 of the UPZA and LR Act.;