MODI, J. - (1.) THIS is a writ application by Jagannath under Art. 226 of the Constitution praying that certain proceedings taken against him for the recovery of a sum of Rs. 3378/- beginning with the requisition for a certificate under sec. 3 of the Rajasthan Public Demands Recovery Act, 1952 (Act No. V of 1952, hereinafter called the Act) be quashed as being entirely illegal and without jurisdiction.
(2.) THE material facts leading up to this application are briefly these. It appears that the petitioner Jagannath held the office of Upsarpanch and Sarpanch (it is not quite clear from the record for what specific periods he held these offices) of the Gram Panchayat Roheda at all material times with which we are concerned. It is admitted that a sum of Rs. 3378/- was advanced by the State Government as grant-in-aid to this Panchayat for the construction of certain works within the jurisdiction of the said Panchayat, but this money was not utilised for the specified purposes but was instead applied for certain other works within the area of the Panchayat. On an objection being raised by the Panchayat Prasar Adhikari, Pindwara, it was decided that it be recovered from the petitioner. In pursuance of this decision, the Block Development Officer Pindwara issued a requisition for a Certificate to the Sub-Divisional Officer, Mount Abu, for the recovery of the said sum from the petitioner. Under the column "nature of the public demand for which this requisition is made" it was specified that these were the amounts of grant-in-aid which had not been utilised for the purpose for which they were granted. On having received this requisition, the Sub-Divisional Officer issued a notice to the petitioner dated the 3rd April, 1958 under sec. 6 of the Act. By this notice, the petitioner was asked to pay the money or if he so desired to deny his liability and show cause for the same. In reply the petitioner denied his liability. According to the petitioner Ex. 3 dated the 5th January, 1958, was the objection filed by him in this behalf. It is conceded before us by learned counsel for the petitioner that the date which this objection purports to bear namely the 5th January, 1958, is wrong and that must indeed be as because the notice given to the petitioner under sec. 6 of the Act is itself dated the 3rd April, 1958. We are also disposed to think that Ex. 3 cannot be the objection which was in the first instance filed by the petitioner denying his liability because one of the allegations made therein is that the Block Development Officer at Pindwara (to whom obviously the objection had been filed) did not hear and determine his objection submitted u/sec. 8 of the Act. It may be convenient to point out at this place that according to the respondent State the petitioner's objection is Ex. 4 dated the 20. 5. 1958 (although here again the date of this objection as stated by the respondent in its reply being the 4. 6. 1958 is erroneous ). THE substance of the objection raised by the petitioner was that the entire money which was sought to be recovered from him and for which a certificate was issued against him had been given to the Panchayat and not to him and that this money was actually utilised in accordance with certain resolutions of the Panchayat to which it is unnecessary to refer in detail although those purposes were different from those for which the money had been originally allocated. THE Sub-Divisional Officer forwarded the objection to the Block Development Officer who had made the requisition for the realisation of the amount in dispute u/sec. 8 of the Act. It was for the Block Development Officer to hear and determine the objection and then to communicate its result to the authority before which the certificate had originally been filed. But instead what seems to have been done, and this is indeed accepted by the respondent State in its reply, was that the Block Development Officer in his turn forwarded the petitioner's objection to the Panchayat Extension Officer C-D Block, Pindwara for report and as that report turned out to be unfavourable to the petitioner, he forwarded the same to the Sub-Divisional Officer and requested him to proceed with the recovery of the disputed amount. It is strenuously urged before us on behalf of the petitioner that the procedure followed by the Block Development Officer was in flagrant violation of the provisions of sec. 8 of the Act and was entirely illegal and without jurisdiction. On the 21st September, 1958, the Sub-Divisional Officer sent the papers to the Tehsildar Pindwara for further necessary action. On the 31st December, 1958, the petitioner allegedly came to know of the Sub-Divisional Officer's order dated the 21st September, 1958. He filed a revision application before the Collector Sirohi under sec. 23 B (a) of the Act which appears to have been entertained by the Collector and a stay order was also issued. We pause here to point out that this proceeding was mis-conceived inasmuch as the Sub-Divisional Officer in the present case was admittedly exercising the powers of Collector himself, which had been delegated to him and, therefore, no revision was competent. It then appears that for certain reasons which are not stated in the writ application and presumably because it was realised that the revision filed by the petitioner before the Collector was an erroneous proceeding, the petitioner carried an appeal from the order of the Sub-Divisional Officer dated the 21st September, 1958, to the Commissioner. As this application was obviously barred by time, the petitioner also made an application under sec. 5 of the Limitation Act for condonation of the delay and further prayed that his appeal may, in the alternative be treated as a revision under sec. 238 (b) of the Act. THE Commissioner dismissed the appeal as barred by time and also refused to interfere in the exercise of his revisio-nal jurisdiction by his order dated the 30th September, 1959. THEreafter the petitioner went up in revision to the Board of Revenue but without any success. It is in these circumstances that the petitioner has come up with the present writ application. The main points raised by the petitioner before us are two in number. The first is that the procedure followed by the Block Development Officer in disposing of the objection filed under sec. 8 (1) of the Act by which he merely forwarded his objection to the Panchayat Extension Officer and did not hear the petitioner and give any decision on the objection himself was wholly contrary to the mandatory provisions of sec. 8 (3) of the Act. The second is that a demand like the one with which we are concerned in the present case does not fall within the four walls of the Act and consequently the entire proceedings taken against him are without jurisdiction and illegal. The application has been opposed by the State. On a careful consideration of the law bearing on the points raised before us, we are clearly of the opinion that the writ petition must be allowed. Dealing with the first ground raised by the petitioner, it clearly seems to us that when the aggrieved party raises an objection before the authority issuing the notice denying his liability for the payment of the amount for which the certificate has been issued against him, it is the duty of such officer to forward the objection "to the officer or authority charged with the realisation of the public demand for disposal". (See sec. 1 (2) of the Act ). The further procedure to be followed by the officer so charged is laid down in sub-sec. (3) of sec. 8, which, omitting its immaterial portion, reads as follows: "8 (3 ). Such Officer or authority shall hear and determine the petition as expeditiously as possible and shall communicate the result to the Collector in whose office the certificate has been originally filed. . . . . . . . . and the Collector in whose office the certificate has been originally filed, shall set aside, modify or vary the certificate, if necessary, in accordance therewith. " Sub-sec. (4) then lay down that all proceedings under the certificate shall be stayed pending the determination of the petition presented under this section. The question is whether the procedure laid down by sub-sec. (3) of sec. 8 is mandatory. Having regard to the setting in which the above provision has been made we have no hesitation in coming to the conclusion that it is mandatory. The language of the sub-section clearly shows that the opportunity of defence which has been given to the party aggrieved u/sec. 8 is a vital step in the entire proceedings culminating in the recovery of the disputed amount from him or otherwise, and, therefore, it has been provided that the authority charged with realisation of the public demand before coming to his decision must hear the party concerned and finally decide the matter and it is further enjoined that the authority upon whom the duty of recovering the money has been laid under the Act must mould his further proceedings in accordance with the decision arrived at by the said authority. A breach of this procedure would under the circumstances be a serious infirmity and cannot but have the effect of vitiating the further proceedings. Now the learned Deputy Government Advocate appearing for the State is unable to satisfy us that the procedure outlined above was followed in the present case. What the Block Development Officer who was charged with the realisation of the public demand in question did was to have merely forwarded the petitioner's objection to the Panchayat Extension Officer for report. The latter submitted his report which was obviously adverse to the petitioner. Even on receipt of this report, the Block Development Officer did not take the precaution of hearing the petitioner but seems to have made up his mind merely on the basis of that report and communicated the result to the Sub-Divisional Officer Such a procedure is completely contrary to the express wording and intendment of sub-sec. (3) of sec. 8 and must be struck down as illegal. We hold accordingly. The next objection raised by learned counsel for the petitioner before us is that the demand raised against his client does not fall within the scope of the Act, and, therefore, the entire proceedings taken against him by the requisitioning authority as well as the authority issuing the notice for the enforcement of the demand and collecting the same are void for want of jurisdiction. This contention also does not appear to us to be without force. The learned Deputy Government Advocate has urged before us that the present demand is covered by clause (8) of the Schedule, appended to the Act. The expression 'public demand' is defined by clause (5) of sec. 2 of the Act as follows: 'public demand' means any arrear of money mentioned or referred to in the Schedule to this Act, and includes any interest which may by law be chargeable thereon upto the date of the signing of a certificate in respect thereof under sec. 4. " The schedule to the Act gives the various categories of public demands which can be enforced under the provisions of the Act. Coming to clause (8) of the Schedule, it reads as follows: "any money payable to the Government or to a department or an officer of Government in consequence of loss, misappropriation, defalcation, or breach of trust by a public servant. " Assuming that the money that is sought to he recovered in the present case is in consequence of loss, misappropriation, defalcation or breach of trust or any of these, the important question that arises is whether it can be predicated of the demand raised in the present case that it is with respect to money which is payable to (1) the Government or (2) to a department or an officer of the Government. In other words, can it be said that the money which is due to a Gram Panchayat is money due to the Government or a Government department? Our answer to this question is in the negative. Now a Panchayat is a juristic person under the Rajasthan Panchayat Act, 1953 (Act No. 21 of 1953, hereinafter called the Act of 1953 ). Under sec. 2 (4) of this Act, 'panchayat' means a Panchayat established under the Act. Sec. 87 then lays down that: "every Panchayat shall, by the name notified in the Official Gazette, be a body corporate having perpetual succession and common seal and shall, subject to any restrictions and conditions imposed by or under this Act or any other law, have power to acquire by purchase, gift or otherwise, to hold, administer and transfer, property both movable and immovable and to enter into any contract, and shall, by the said name, sue and be sued. " By sec. 88 it is provided that subject to certain reservations made by the Government from time to time, the various kinds of properties mentioned in that section shall vest and belong to the Panchayat. Further, sec. 79, broadly speaking, lays down (1) that no suit, prosecution or other legal proceedings shall be maintainable against any Panchayat or against any Sarpanch, Panch, Officer or servant thereof in respect of anything lawfully and in good faith done under this Act or any rule or bye-law under that section and (2) that he suit against a Panchayat or against a Sarpanch, Panch, Officer or servant thereof for anything done or purporting to be done under this Act in its or his official capacity, shall be instituted until the expiration of two months next after notice in writing giving certain particulars specified in the section has been delivered to him or left at his office or usual place of abode and the plaint in such case shall contain a statement that such notice has been so delivered or left and (3) that no suit or other legal proceedings shall be commenced against a Panchayat otherwise than within six months next after the accrual of the alleged cause of action.
(3.) THESE provisions, in our opinion, abundantly make it clear that a Panchayat is a body corporate under the Act of 1953 and that it cannot be possibly equated with the Government. That being so, we do not see that there can be any escape from the conclusion that a sum of money payable to a Panchayat cannot be held to be payable to the Government. In this connection we should also like to refer to sec. 80 of the Act of 1953. This section reads as follows - "80. Liability of Panchas.- (1) The Sarpanch and every Panch shall be liable to the Panchayat for the loss, waste or mis-application of any money or other property belonging to the Panchayat if such loss, waste or mis-application is a direct consequence of his neglect or misconduct while a Sarpanch or Panch. (2) No suit shall be instituted by Panchayat under sub-sec. (1) against any Sarpanch or Panch except with the previous sanction of the officer incharge of Panchayats. (3) From the order of the officer-in-charge of Panchayat u/sub-sec. (2) sanctioning or refusing to sanction the institution of a suit the Sarpanch or Panch, or as the case may be, the Panchayat may appeal to the State Government within sixty days of such order exclusive of the time re quisite for obtaining a copy thereof. (4) Notwithstanding anything contained in sub-sec. (2) and (3) the State Government may institute a suit under this section on its own initiative. " In fact it is under sec. 80 (1) that the petitioner is sought to be made liable for the payment of the money which is in dispute in this case on the ground that grant-in-aid which was made to the Panchayat was mis-applied by the petitioner for certain other purposes. It will, however, be seen at once that for the enforcement of the liability under sub-sec. (1) of this section, the Legislature has provided a specific remedy and that is a remedy by way of a suit. It is correct that under sub-section (4) power has been reserved for the State Government to institute a suit under this section on its own initiative. But that seems to us to be a provision intended to safeguard the interest of a Panchayat where it may itself not be prepared or willing to do so. But, in any case, the point to be noted is that an appropriate remedy in the view of the Legislature for the enforcement of a liability under sec. 80 is a suit, whether by the Panchayat or by the Government, and this seems to us to be an additional ground which fortifies us in coming to the view that a demand under this section is not a public demand within the meaning of the Act concerned. In the view we have felt persuaded to take, we are definitely of the opinion that the amount which is sought to be realised from the petitioner does not fulfil the character of a "public demand" within the meaning of the Act and therefore the entire proceedings taken against the petitioner are without jurisdiction and illegal. We hold accordingly. For the reasons mentioned above, we allow this application and quash the requisition for the certificate under sec. 3 of the Act and all further proceedings taken in pursuance thereof. The petitioner shall have his costs from the State. .;