- (1.) This is a revision against an order of the Tehsildar Chaksu, dated 3.7.1956 in a case relating to recovery of District Board cess.
(2.) We have heard the learned counsel appearing for the parties and have gone through the record as well. The facts relevant to this revision are that on 13.9.1955 the Naib Tehsildar on coming to know that the entire amount of the District Board cess was lying in arrears in village Kushalpura, caused a notice to be served upon the Jagirdar requiring him to deposit the amount within 15 days. The Jagirdar, Rup Singh, did not put in appearance despite notice and hence the Tehsildar, by his report, dated 6.4.1956 forwarded the papers to the S.D.O. for sanctioning attachment of immovable property. The S. D. O. accorded this sanction on 17.4.1956. The first attachment of the property of the Jagirdar was made on 9.5.1956 in which two bullocks, one bullock cart and some other minor items were attached and given over in the custody of Jinsi Patel. It appears that Jinsi was required to execute an agreement for depositing the amount outstanding against the Jagirdar. But he made default in redeeming his pledge. Subsequent attachment was, therefore, carried out under orders of the Tehsildar on 29.6.1965 in which two bullocks and one camel were attached. On
(3.) 7.1956 Rameshwar Lal raised an objection before the Tehsildar to the effect that the attached property belonged to him and was not liable to be proceeded against. This was rejected by the Tehsildar on that very day with the following order : "This is an application presented by Shri Chiranjilal on behalf of the applicant (objector) Shri Rameshwarlal. This is an application in which the applicant has objected to the attachment of the property of Shri Roop Singh, Jagirdar. I find that this application has been submitted by the applicant to delay the proceedings and as such I do not consider any investigation necessary in this case. The proceedings have already been long delayed by the unnecessary interference of one Rameshwarlal. Hence this application is rejected." The applicant has come up in revision before us against this order. The revision petition was filed in the Board on 11 -7 1956. The applicant applied for grant of an interim stay order on 12.7.1956. This application was allowed and the Tehsildar was directed to refrain from taking further proceedings in the matter. The record of the lower court was also sent for. On 12.7.1956 and 13.7.1956 the auction proceedings of the camel and the bullocks were carried out by the Tehsildar in which Rs. 340 - were offered for the camel as the highest bid by Chhotudas Chela and the same person offered the highest bid of Rs. 301/ - for the bullocks. The Tehsildar by his order, dated 13.7.1956 required the purchaser to deposit the auction money. This appears to have been done on 20.7.1956. It has been alleged by the applicant that the stay order issued by the Board was handed over to the Tehsildar on 13.7.1956, and inspite of that the Tehsildar continued the auction proceedings. 3. The main contention put forth by the applicants counsel before us is that the proceedings taken out by the Tehsildar are all ultra vires and must be quashed. As conceded by the learned Government Advocate there is much substance in this contention. Rajasthan District Boards Act, 1954 which was enforced within the territory of the former Jaipur State on 26th January, 55, has to be examined in this connection. Chapter VI of the Act deals with taxation. Section 113 lays down the Boards power to levy cess. It runs as follows : - -? Boards power to levy cess. A Board shall levy with the pre\ious sanction of the State Government - - (a) in areas within its jurisdiction, whether settled or not where rent is wholly payable in cash, a cess of one anna per rupee of the rent so payable, and (b) such areas where rent is payable wholly in kind or party in kind and partly in cash, a cess equal to half of the cess mentioned in clause (a) calculated on the cash value of the share of the produce payable as such rents until such time as cash rents are introduced therein. Note. - -The cess in respect of lands held in khudkasht but cultivated by a tenant shall be leviable as specified in clauses (a) and (b) but where any khudkasht land is in the actual cultivation of an estate holder, the cess shall be calculated as in respect of similar land in the neighbourhood." The collection of cess is dealt with in sec.114. In cases where rent is payable directly to the State Government sums due as cess under sec. 113 shall be recovered by the Tehsildar along with such rent and remitted to the Board by which the cess shall have been imposed. When rent is payable to another person such other person shall be liable to the Board for the sums due as such cess but he shall be entitled to realise from the persons primarily liable therefor the sums due as such cess from the latter. In other words the Act authorises the Tehsildar to realise cess along with the rent from the tenants where rents are paid directly to the State Government. Where rents are realised by the Jagirdars the liability to pay the cess rests upon the Jagirdar himself. There is nothing in the Act to suggest the specific manner in which the amount payable by a Jagirdar is to be realised by the Board in case the Jagirdar makes default in payment of the same. Chapter VII dealing with the recovery of certain claims has no application to the present case. Section 135 is applicable to cases where any person becomes liable for payment of any sum or amount of a tax on circumstances and property or any other sum declared by this Act or by any rule or by law made thereunder to be recoverable in the manner provided by this Chapter. The Tehsildar, therefore, had no authority to take steps on his own accord in the manner in which he did for realising District Board cess from the Jagirdar. There being no specific provision in the Rajasthan District Boards Act, 1954 for recovery of cess payable by a Jagirdar it is obvious that the Board should take an action to bring a regular suit against the defaulter for recovery of this amount. This would be in conformity with the intention of the Legislature as may be gathered from sec. 145 of the Act This section, which is contained in Chapter VII, provides that instead of proceeding by distress and sale, or in case of failure to realise thereby the whole or any part of the demand, the Board may sue the person liable to pay the same in any court of competent jurisdiction It is doubtful if the Rajasthan Public Demands Recovery Act, 1952 can be invoked to their aid by the Board. As laid down in item 1 of the Schedule of the Act a money to be recoverable as an arrear of revenue or land revenue should be so declared by the Public Demands Recovery Act or by any other law for the time being in force. As stated above the Rajasthan District Boards Act does not declare the cess to be recoverable as an arrear of revenue or land revenue. A money payable to any local authority can be recovered as an arrear of land revenue only if the person has agreed by a written instrument duly registered that it shall be recoverable as a demand or public demand or as an arrear of revenue or land revenue (item 7 of the Schedule of the Public Demands Recovery Act.) Obviously none of these provision can help the District Board authorities in this connection. The obvious inference, therefore, is 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. We may also observe here for the guidance of the learned Tehsildar that even an arrear of land revenue has to be realised in a manner entirely different from that adopted by him. The provisions of Chapter X of the Rajasthan Land Revenue Act, 1956 shall govern such a case. It came into force in Rajasthan on 1st July, 1956. The authority to carry out sales of attached property has been vested only in the Collector or an Assistant Collector duly authorised in that behalf. Sec. 239 of the said Act runs as follows - - "Sale when and by whom to be made - -(1) Every sale under this chapter shall be made either by the Collector in person or by an Assistant Collector specially appointed by him in this behalf. (2) No such sale shall take place on a Sunday or other authorised holiday, or until after the expiration of at least thirty days from the date on which the proclamation thereof was issued. (3) The Collector may from time to time postpone the sale. The authority to attach has also been vested in Collector (Sec. 230). Every attachment and sale ordered under this section shall be made according to the law in force for the time being for the attachment and sale of immovable property under the decree of a civil court. It would mean that objections raised under Order 21, Rule 58, C. P. C. must be enquired into properly and no court can frivolously refuse to investigate the same. This is what has actually taken place in the case before us. We would, therefore, allow this revision and direct that all the proceedings carried out by the Tehsildar in the case shall stand quashed.;