MODI, J. - (1.) THIS is a writ petition under Art. 226 of the Constitution.
(2.) THE material facts are these. According to the petitioners, sometime in 1953 the Collector, Jhunjhunu, respondent No. 1 served upon the petitioners a notice under sec. 6 of the Rajasthan Public Demands Recovery Act, 1952 (Act No. V. of 1952, hereinafter referred to as the Act of 1952) calling upon them to pay a sum of Rs. 4236/9/- to the State failing which their property would be attached and auctioned. THE petitioners denied their liability contending, inter alia, that no money was outstanding against them at all, and that the Collector had no jurisdiction to take any proceedings in the matter in the absence of a certificate under sec. 4 of the Act of 1952. THE Collector paid no heed to decide some of these objections himself or have the remaining ones decided by the requisitioning department in accordance with the provisions of the Act. Consequently the petitioners filed a writ application in this Court in D B. Civil writ No. 344 of 1953. By its judgment dated the 23rd December, 1954 a Division Bench of this Court held that the proceedings taken by the Collector for the recovery of the amount for which a requisition had been sent by the Civil Supplies Department by its letter dated the 22nd July, 1953, were altogether illegal and, therefore, the Tehsildar Jhunjhunu was prohibited from taking proceedings for recovery of the amount in question under the said order of the Collector. It is alleged that nothing further was done until 1958 for a period of about three years, when the Collector again served a notice upon the petitioners repeating his demand to deposit the sum of Rs 4236/9/- and to show cause why the same should not be recovered from them. (See Ex. 2 ). This action was taken by the Collector acting under sec. 6 of the Act. of 1952. THE petitioners again submitted their objections in which they stoutly denied their liability to pay anything to the State. THEir case was that they had not entered into any contract whatever with the State nor was the amount in question otherwise payable by them. THEy also urged that the -contract or agreement on the basis of which the State's claim was based should have been and should still be disclosed to them. Somehow nothing further transpired and the matter was allowed to remain in cold storage until the 6th September, 1962, when the Naib-Tehsildar Jhunjhunu served a further notice on the petitioners so deposit the amount in question (See Ex. 4 ). THE petitioners referred to the earlier proceedings and submitted that they were being unnecessarily harassed without the objections, which had been raised by them, being dealt with and disposed of according to law, and, therefore, they prayed that the recovery proceedings be withdrawn. This bring us to the 6th March, 1963, when the Collector, Jhunjhunu, passed an order that as the objections of the petitioners dated the 5th August, 1958, had not been decided up to that time, these be sent to the department of Civil Supplies for decision. The order of the Collector is Ex. 6. It is alleged by the petitioners that these objections were not heard or decided by the authority concerned, and, once again, they were informed that the Collector Jhunjhunu had reviewed the matter and ordered that the petitioners should be asked to first deposit the amount allegedly due from them, and it is only thereafter that their objections could be heard and decided. This order dated the 8th November, 1963, is Ex. 7 and has obviously been passed under Sec. 257-B of the Rajasthan Land Revenue and Public Demands Recovery (Amendment) Act, 1960 (Act No. 42 of 1960, hereinafter called the Act of 1960 ). This Act came into force with effect from the 1st January, 1961. vide notifi-cation dated the 22nd December, 1960, published in the Rajasthan Rajpatra dated the 29th December, 1960. It is this order which is assailed by the petitioners before us, and along with it the proceedings for the recovery of the amount in question from the petitioners by the Naib-Tehsildar, Jhunjhunu, Ex 8. It is very much to be regretted that the State has not chosen to file any reply to the petitioners' writ application. Learned counsel for the petitioners has assailed the order of the Collector which is the principal order in this case on a number of grounds; but we do not propose to deal with all of them, as, in our opinion, his contention that the present case cannot possibly be governed by Sec. 256 of the Rajasthan Land Revenue Act, 1956 (Act No. 15 of 1956, hereinafter referred to as the Act of 1956) goes to the root of the case and would be sufficient to dispose of this writ application conclusively. 6. Sec. 256 reads as follows : "256. Recovery of miscellaneous revenue and other moneys:the following moneys may be recovered under this Act in the same manner as an arrear of revenue: - (a) All sums of money declared by this Act or by any law for the time being in force other than the Rajasthan Public Demands Recovery Act, 1952, (Rajasthan Act 5 of 1952) - (i) to be recoverable or realisable as an arrear of revenue or land revenue or rent, or (ii) to be a demand or a public demand or to be recoverable or realisable as a demand or a public demand or as an arrear or a demand or a public demand; (b) All sums of money payable to the State Government or to a department or an officer of the State Government or to a local authority on account or rates, duties, taxes, charges or other dues under any law or rule having the force of law, notwithstanding that such law or rule does not declare the same to be recoverable or realisable as an arrear of revenue or land revenue or rent or to be a demand or a public demand or to be recoverable or realisable as an arrear of a demand or a public demand; (c) All sums of money payable to the State Government or to a department or an officer of the State Government or to a local authority: - (i) by way of fees, fines, penalties, compensation or costs imposed or awarded by any authority, not being a civil or criminal court, under this Act or under any other law for the time being in force, or (ii) on account of pasturage, forest rights, fisheries, mills, natural products of land, water-rates irrigation charges, maintenance and management of irrigation works and the like; (d) All rents, premia, cesses, rates, fees and royalties due to the State Government on account of the use or occupation of land or water or other immovable property, whether belonging to the State Government or not, or on account of any products thereof of proceeds therefrom or any other account. (e) All sums of money due to the State Government under any grant, lease or contract which provides that they shall be recoverable as arrears of revenue or land revenue. " Now, before we proceed further, we may point out that there is not an iota of material on this record to show on what account the sum of Rs. 4236/9/- was payable by the petitioners to the State. The learned Deputy Government Advocate who appears for the State before us has frankly expressed his inability to give us any information on this basic question even at the time of the hearing. In these circumstances, it is impossible for us to hold with any approximation to exactitude that the claim in question falls within Cls. (b), (c), (d) and (e) of sec. 256. These clauses are, therefore, ruled out of application. This much can certainly be said however that this was a sum of money which was sought to be recovered by the State as a public demand under the Act of 1952. But clause (a) of sec. 256 expressly excludes such public demand from the purview of this section. That being so, it cannot fall under that clause either. Again, sec. 257 deals with recoveries of State dues from sureties and can have no application to the instant case. Now, if that is the correct position in law so far as the applicability of Secs. 256 and 257 is concerned, as we think it doubtless is, then it must inevitably follow that no proceedings for the recovery of such an amount as an arrear of revenue under Chapter X of the Act of 1956 could possibly be employed against the petitioners in which sec. 256 and the cognate sections upto 257-C happen to be incorporated, including sec. 257-B. Sec. 257-B (l) lays down that if proceedings are taken under this chapter against any person for the recovery of any sum of money referred to in sec. 256 or sec. 257, such person may, at any time, before any property attached in such proceedings is knocked down at a sale thereof, pay the amount claimed and at the same time deliver a protest signed by himself or by his authorised agent to the revenue officer taking such proceedings. By sub-sec. 3 of this section, it is further provided that : "subject to the provision contained in subsec. (4), the person making a payment under protest in accordance with sub-sec. (1), shall have the right to institute a suit for the recovery of the whole or a part of the sum so paid under protest. " Sub-sec. (4) then provides that : "no suit under sub-sec. (3) shall lie or be instituted if any law under which the sum of protest is due, provides a remedy, whether by way of suit, appeal, application or other proceedings, to the person from money paid under whom such sum was recovered. " The effect of sec. 257-B undoubtedly in cases which properly fall under Chapter X of the Act of 1956 is that where a proceeding is lawfully initiated against a person under sec. 256 or under Sec. 257 of the Act, he must make the payment, even though it be under protest, and then it should be open to him to file a suit for the refund of the amount so paid under protest provided that such a suit would be competent under sub-sec. (4) of that section. It is equally true, however, that before the stringent provisions of this section can be properly called into application, the particular demand must fall within the four walls of sec. 256 or sec. 257, and where such a foundation is lacking, the provisions of sec. 257-B cannot possibly be availed of. As we have already held that it is impossible to hold on the material which has been placed on this record that the demand notice issued against the petitioners falls under any clause of sec. 256 we have no alternative but to allow this application and quash the order of the Collector and the further proceedings taken by the Naib-Tehsildar Jhunjhunu by which the petitioners' objection repudiating their liability was turned down and a further proceeding for the recovery of the amount in question was thereafter taken in pursuance of that order. We may make it clear that nothing in this judgment shall prevent the State from taking appropriate proceedings against the petitioners under the provisions of the Act of 1952, if the State should still think that the amount in question is lawfully due from the petitioners. The petitioners shall have one set of costs from the State. .;