- (1.) THIS is a revision against an appellate order of the Additional Collector, Jaipur, dated 2.11.55, upholding the original order of the Tehsildar, Lalsot dated 17.7.54 in a case relating to recovery of District Board cess.
(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. At the very outset our attention was drawn by the learned Government Advocate to a decision of the Board in case No. 133 Jaipur of 1956 (Rameshwar vs. State) decided on 16.10.56 wherein it was held that the Tehsildar had no legal authority to realise the District Board cess arrears as arrears of land revenue under the District Boards Act or the Public Demands Recovery Act. This case is clearly distinguishable from the present one on the ground that in that case action was commenced by the Naib Tehsildar on 13.9.55, i.e. after the enforcement of the Rajasthan District Boards Act, 1954 on 26.1.55, and hence the validity of the actions taken by the Tehsil authorities in that case were examined with reference to the provisions of the Rajasthan District Boards Act, 1954. In that context it was decided by a Division Bench of the Board to which one of us was a party, that the Tehsildar had no authority to realise the District Board cess as arrears of land revenue. In the present case, the action by the Tehsildar commenced in 1953 and on 10.7.54, he issued a Hindi Kafiyat to the Assistant Collector which when rendered in English would run as follows - Sub : Recovery of cess from Thikana Jhapda. In the above case, I write to state that Jagirdar Khet Singh of Thikana Jhapda owes cess amounting to Rs. 112/12/- in respect of village Anoppura. In respect of village Jhapda about Rs. 1000/-, are outstanding. No Jama has been assessed for the last 9 harvests. Notice was issued to the Thikana to arrange for the settlement of jama and payment of the same till 10.7.54, failing which action under sec. 107 of the Jaipur Land Revenue Act shall be taken against him. Notice was served, Thikana did not arrange for the deposit of the matalba. Hence sanction may be accorded for attachment of immovable and movable property of the Thikana and realising the arrears from the same. When this letter reached the office of the Assistant Collector, a note was put up by the office as follows : - "If approved, attachment may be allowed." The Assistant Collector wrote out the word 'Yes' and returned the papers after putting down his signatures. When the papers reached the Tehsildar, he on 17.7.54 directed the issue of a warrant of attachment and appointed a Girdawar to execute the same, assisted by five peons of the Tehsil. Thus it is clear that the propriety or otherwise of the proceedings carried out by the Tehsildar will have to be determined with reference to the law existing on that date. This brings us to the Jaipur District Boards Act, 1947. Its relevant sections are to be found in Chapter V of the Act dealing with taxation and contributions. Sec.31 lays down the Board's power to levy cess. It gives the details of the cesses to be paid in khalsa and non-khalsa areas with due regard to the fact whether the area is cash rented or kind rented or whether it is settled or unsettled. Collection of taxes is dealt with in sec.32. In runs as follows - 32. (a) All sums due from tenants in khalsa areas shall be realised by the Tehsildars along with the land revenue. (b) All sums due from tenants in areas other than khalsa including the tenants of sub-grantees shall be recoverable from the grantees and remitted by them to the Government. The grantees shall be entitled to realise from their tenants and the sub-grantees from their tenants, the sums due under clause 2 of sec.3 Sec. 36 lays down that all cesses and taxes imposed under this Act and all arrears of such cesses and taxes and any other sums due to a Board shall be recoverable under this Act or the rules there under, as if they were arrears of land revenue. These are the provisions of the Jaipur District Boards Act, 1947 which land revenue. There are the provisions of the Jaipur District Boards Act, 1947 which distinguish the case to which our attention was drawn by the Government Advocate. No such corresponding provisions are to be found in the Rajasthan District Boards Act, 1954. Hence there can be no two opinions on the point that by virtue of these provisions the arrears Jaipur Government known as the Jaipur District Boards (Recovery of Cases) Rules, 1948, also lead to the same inference Rule 7 (a) may be examined in this connection. It lays down that in the non-khalsa villages and areas under zabti matmi and any other kind of zabti in which rent is collected by the Thikanedar, the District Board cess will be realised by the Tehsildar direct from the tenants and the contribution paid by the Tehsildar out of the income of the State grantee or the sub-grantee. Thus we are of the opinion that in this paricular case by virtue of the provisions of the Jaipur District Boards Act, 1947 being applicable to it, the arrears of District Board's cesses could be realised as arrears of land revenue. Having answered the question as to the validity of the recovery of the arrears of District Board's cesses as arrears of land revenue, we now proceed to examine the validity of the procedure followed by the learned Tehsildar in the case. The learned Tehsildar has referred to sec.107 of the Jaipur Land Revenue Act in his Hindi letter, dated 10.7.54, which we have referred to above. This section lays down the various process by which an arrear of land revenue may be recovered. But the learned Tehsildar omitted to examine the provisions of sec. 106 of the Act which comes prior to sec. 107. Section 106 lays down that a statement of account certified by the Tehsildar shall for the purpose of this chapter be defaulter, provided that nothing in this section shall prejudice the right of such person to make payment under protest and to question the correctness of the account in separate independent proceedings before the Nazim. Before any finality can be legally attached to the amount shown as outstanding arrears, it is essential that there ought to exist a statement of account certified by the Tehsildar. The reasons for such a statement of accounts is not far to seek. Section 108 of the Act lays down that when an arrear of revenue becomes due, the Tehsildar may issue a writ of demand calling on the defaulters to pay the amount within a time therein stated. If the amount itself has not been ascertained, evidently there can be no sense in demanding amount he is actually required to pay and only after that amount stands properly ascertained can legal consequences ensue against the defaulter in case he makes default in payment as demanded of him. In the present case, we have on the first page of the file a statement which is the very negation of what a statement ought to be in such cases. The beading in the statement is as below - "Naksha Bakaya Matalba Cess Sahayata Moja Jhapda Unhalu 2005 Lagayat Unhalu 2010." Column 3 of this statement is headed as "Jamna Vasul Bakaya". The entry the in column is as below - "Syalu 2006 Lagayat Unhalu 2010 - 8 Fasal Jama Kaymi Nahi Hui. Chukti Matalba Baki Hai." This clearly means that as the amount of rent to be paid for these harvests has not been determined as yet, the amount of cess can, therefore, be not determined accordingly. It appears that some feeble attempts were made by the Tehsildar to ascertain the amount of arrears but he met with no success whatsoever. On the reverse of page 14/1 of the Tehsil file there is a report of the cess clerk in which it is pointed cut that the arrear in respect of Anoppura is Rs. 28/15;-but as regards village Jhapda the Jama has not been determined and hence the entire cess is outstanding. No conjecture was made by the clerk in this report. A similar report was made by the cess clerk on 18.1.54. The amount in respect of Anoppura was deposited. It appears that the Tehsildar guessed the amount outstanding in respect of village Jhapda for the first time on 10.7.54 as Rs. 1,000/. and the same was mentioned by him in his letter addressed to the Assistant Collector. This was confirmed by the cess clerk as below on 24.7.54 - "Fasal Syalu 2006 Ta Hul Unhalu 2011 ke Rs. 1000/-se bhi adhik rupeea deh jhapda ke." We have mentioned these facts at length to show that the Tehsil authorities made no serious efforts to ascertain the amount of outstanding cess dues against the applicant. It appears that the Tehsil authorities were more anxious to attach the property of the applicant rather than recovering the cess dues outstanding against him. The Tehsildar ought to have applied his mind to the question as to how much amount was actually due from the jagirdar. It has been stated by the Jagirdar that village Jhapda was under zabti management from Svt. 2006 to Svt. 2009. The Tehsildar should have ascertained as to whether any action was taken by the Tehsil under rule 7 (a) of the rules framed under the Jaipur District Boards Act, 1947. It is apparent from the record that nothing of the sort was even attempted and a figure which ought to have been arrived at after a proper examination of the old accounts was merely presumed on sheer conjectures just to give an apparent justification for taking distress proceedings against the applicant. This is highly irregular. Before an action can be taken for recovery of arrears as arrears of land revenue, the first and foremost ingredient is that the amount which has to be realised must be validly ascertained. This presupposes a full and comprehensive consideration of the objections that may be raised by the defaulter with regard to any payments that may have been made by him or any valid set offs with regard to some amount. This means some sort of inquiry for examining the Question in a proper manner. After this enquiry is completed then only can the Tehsildar be in a position to state that a particular amount is outstanding and only on the basis of that preliminary investigation can he verify a statement of account to which law attaches conclusive value. The manner in which the proceedings were conducted by the Tehsildar are, therefore, in flagrant violation of the prescribed procedure. We would, therefore, allow this revision, set aside the order of the lower courts and remand the case back to the court of the Tehsildar Lalsoth with the direction that action may be taken afresh in the light of the observations made above, as this case would be governed by the Jaipur District Boards Act, 1947 read with see. 6 of the General Clauses Act.;