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PETITIONER: INDU BHUSHAN GUPTA

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT01/08/1979

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) UNTWALIA, N.L.

CITATION:  1979 AIR 1857            1980 SCR  (1) 179  1979 SCC  (4)  47

ACT:      U.P. Zamindari  & Land  Reforms Act 1950 Ss. 6, 289(1), 291(3)-Scope of-Taccavi loan taken by agriculturist-If could be deducted  from compensation  payable to him for abolition of Zamindaris.

HEADNOTE:      The  appellant  and  the  sixth  respondent,  who  were brothers, constituted  a joint  Hindu family. Though younger in age than the sixth respondent, the appellant by virtue of a settlement,  became Karta. Of the joint family. The family owned vast  Zamindari properties.  One of  which was  a Farm known as Mukundpur Farm. For the improvement of the Farm the appellant took  taccavi loan  by offering  his half share in the joint  family property  as security.  On his  failure to repay  the  loan  the  Collector  of  the  District  ordered attachment of  the hypothecated property under s. 150 of the U.P. Land Revenue Act, 1901. The appellant alleged that as a result of  the partition  of properties  between him and his brother the  hypothecated property  fell to the share of his brother,  that  under  the  compromise  decree  his  brother undertook to discharge the loan and that therefore it was he who  was   responsible  for  repayment  of  the  loan.  (The Government, however was not impleaded as a party to the suit in which compromise was arrived at between the brothers.)      Sometime later  the sixth  respondent resiled  from the compromise decree and stated that he was not liable to repay the loan  because it  was not  taken by the appellant in his capacity as  Karta of the joint family but that it was taken only  in  his  (appellant’s)  personal  capacity  and  that, therefore, he  alone was  liable to  repay it. The Collector made enquiries  and held  that the  loan was  taken  by  the appellant in his individual capacity and not as Karta of the joint family and held that he was personally liable to repay the loan.  Eventually it was decided that the realisation of the dues  should be  made from  the hypothecated property as well as  from his  person and  accordingly  proceedings  for realisation of  the principal  and interest on the loan were started.      The High  Court rejected the appellant’s writ petition. In appeal  the following  three questions were raised. ( I ) whether the taccavi loan was taken by the appellant as Karta

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of the  joint family,  and, therefore,  had to  be recovered from the  sixth respondent  to whose  share the hypothecated property had  fallen in  the partition  of the property; (2) Whether the  Collector was  precluded from  taking resort to any one  of other  modes prescribed  by s.  7(1) of the land Improvement  Loans   Act,  1883  for  recovery  of  the  sum remaining unrealised  towards the  taccavi loan; (3) Whether the Government  had no  right  to  recover  the  outstanding amount due  except from  the compensation amount in terms of s. 6 (e ) thereof ? ^      HELD:  1.  The  loan  in  question  was  taken  by  the appellant in his individual capacity and not as Karta of the joint family. By the terms of the taccavi bond the appellant had bound  himself  to  discharge  the  liability  from  his property. Even 180 assuming that  he took  the loan as Karta, he was personally and severally  liable to  pay. In  the compromise  suit  the Government was  not made a part and therefore, was not bound by  the   terms  of  the  compromise  decree;  nor  was  the Government bound  by the  alleged partition effected between the. appellant and the sixth respondent. [185-D-E; 186C]      2.(a) Section  7(1) of  the Land  Improvement Loans Act empowers the  Collector to  recover taccavi  dues  from  the defaulter as arrears of land revenue and the Collector could have  taken   resort  to  s.289(1)  of  the  U.P.  Zamindari Abolition and  Land Reforms  Act, 1950,  for the recovery of the unrealised  amount of  taccavi loan  by  attachment  and sales of  properties belonging to the appellant. Section 289 applies only  to those  cases in  which the  provision of s. 243(1) have  been made  applicable and  it is  nobody’s case that a  notification contemplated  by  s.  243(2)  was  ever issued. The  question of s. 289(2) operating as a bar to the recovery proceedings  upon expiry  of period of three years, therefore, does  not arise.  If s.  289(2) is  read  in  the context of  sub-s. (1) it will be clear that upon the expiry of the  period of three years the village has to be restored free of  claim on  the part of the Government for any arrear of land revenue due in respect thereof. The consequence that ensures is  that liability  for payment  of land  revenue in respect of  the village  or any  area therein  in respect of which arrears  are due  stands discharged.  But in regard to other Sums  of money  recoverable as arrears of land revenue the liability continues. [186D; G, 187E-F]      (b) As  s. 291(3)  contemplates that upon expiry of the period of  lease, the  holding  shall  be  restored  to  the tenure-holder concerned free of any claim on the part of the State Government for any arrears in respect of such holding. In this  case the  period of  the lease had not expired when the recovery proceedings were initiated. [188A-B]      3. Section 6(c) provides that all amounts due under the Land Improvement  Loans Act  shall become due forthwith upon the vesting  of the  Zamindari right.  It also provides that such dues  may, without  prejudice  to  any  other  mode  of recovery provided  therefor, be  realised by  deducting  the amount  from   the  compensation   money  payable   to  such intermediary. What  it provides  is an  additional  mode  of recovery for  realisation of  the dues. Under the scheme the Government has  the option  and the  mode indicated  in  the section is  not the  one and  the only  mode available.  The recovery proceedings  pending before  the Collector were for the remainder  of the  loan after  such adjustment  together with interest. [188F-G]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2371 of 1969.      From the  Judgment and  order dated  23-5-1968  of  the Allahabad High Court in Special Appeal No. 247/66.      G. L. Sanghi, Mrs. S. Bagga for the Appellant.      G. N. Dikshit and O. P. Rana for Respondents 1-5.      S. K. Bagga for Respondent No. 6      The Judgment of the Court was delivered by 181      SEN J.-This appeal, by certificate, is directed against a judgment  of the  Allahabad High Court dated May 23, 1968, whereby it upheld a judgment of a Single Judge of that Court dated  March   16,  1966,  dismissing  the  applicants  writ petition to  quash recovery  proceedings  initiated  by  the Collector, Azamgarh for realisation of the sum remaining due on account  of a  taccavi loan  under s.7  (1) of  the  Land Improvement Loans Act, 1883.      The facts  leading to  this appeal,  in brief,  are  as follows: The  appellant and his brother Shashi Bhushan Gupta the sixth  respondent,  constituted  a  joint  Hindu  family owning  extensive   zamindari   properties,   over   several districts in  United Provinces  including Azamgarh zamindari comprising of  34 villages.  They owned an agricultural farm known as  Mukundpur Farm  situated in Azamgarh zamindari. It is alleged  that by  virtue of  a family settlement in 1940, the appellant  even though  younger in age, became the karta of the joint family.      By  his   application  dated   February  25,  1947  the appellant applied  for a taccavi loan of Rs. 1,22,000 in the prescribed form  for improvement  of Mukundpur  Farm, to the Director  of   Agriculture,  United  Provinces  through  the Collector, Azamgarh.  The property  offered as  security for advance of  the loan  was the  zamindari rights  in Azamgarh zamindari comprising  of the aforesaid 34 villages bearing a land  revenue  of  Rs.  11,000/-.  During  the  verification proceedings, the appellant by his application dated February 22, 1948,  offered a  security of his half share in Azamgarh zamindari, which  on enquiry  by the Collector for the grant of sanction for the loan, was evaluated at Rs. 1,43,869.66p. The taccavi  loan was  duly sanctioned  by the Government on September 23, 1948.      The appellant  having defaulted in payment of the loan, the Collector,  Azamgarh by  his order  dated March 24, 1952 directed that  the  entire  ilaqa  lying  in  Tahsil  Sagri, district Azamgarh  forming part of the hypothecated property be attached under s. 150 of the U.P. Land Revenue Act, 1901. It, however,  seems that  no attachment of any land situated in Tahsil  Sagri forming  part of  the hypothecated property had, in  fact’, been effected either under s.150 of the U.P. Land Revenue  Act or  s.  289  (1)  of  the  U.P.  Zamindari Abolition and  Land Reforms  Act, 1950. It appears that some plots at the Mukundpur Farm lying in two villages, Mahnajpur and Ghaibipur,  were later taken under the management of the Collector under  s. 290  of that  Act and half share ’hereof let out  to tenants,  and the proceeds were adjusted towards the 182 outstanding taccavi  dues. It also appears that a sum of Rs. 38,951.8P representing  the appellant’s  half share  of  the compensation money  due ,,  and payable to him were adjusted under s.6 (e) of the Act towards the loan.      It is  the appellant’s  case that there was a partition

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between the  appellant and his brother, the sixth respondent in 1951,  and the hypothecated property was allocated to the share of the sixth respondent. This resulted in a compromise decree between  the appellant  and his  brother,  the  sixth respondent, in  Civil Suit No. 72 of 1952 under the terms of which, the  sixth  respondent  undertook  upon  himself  the liability to  discharge the  loan as the property offered in security had fallen to his share. In compliance thereof, the sixth  respondent   actually  paid   Rs.   16,012.50P.   The Government was  admittedly not  impleaded as a party to, the suit.      On July 15, 1952, the sixth respondent resiled from the terms of compromise and objected to the recovery proceedings being taken  against him  on the  ground that  the  loan  in question had  not been  taken by  him nor  had the appellant borrowed it  in the  capacity as  karta of the joint family. He, indeed, denied the factum of partition. These objections were, however,  over-ruled by the Sales officer, Azamgarh on October 22, 1952.      On May  15, 1953,  the appellant  applied to  the State Government for expunging his name from the debtor-sheet. The application  was   forwarded  by   the  Government   to  the Collector, Azamgarh  for enquiry  and report.  The appellant raised an  objection alleging  inter alia  that the loan had been incurred  by him  in his capacity as karta of the joint Hindu family  and that  since the  hypothecated property had fallen to . to the share of the sixth respondent, he was not personally liable  to repay  the loan.  The Collector by his order dated  January 18, 1955, after holding an enquiry held that the  appellant  had  taken  the  taccavi  loan  in  his individual capacity and not as karta of the joint family and accordingly he  was personally liable to repay the loan. He, however, directed  the Sales  officer that  the recovery  be made, in  the  first  ..  instance,  from  the  hypothecated property before proceeding against the appellant personally. The action  taken by  the Collector was duly endorsed by the Land Reforms Commissioner by his letter dated April 7, 1955, and approved of the State Government by its order dated July 22,  1955.   The  recovery   proceedings  were   accordingly initiated against the appellant.      lt appears  that the  appellant was  a  Member  of  the Legislative Assembly  and  apparently  wielded  considerable influence. He appears 183 to have  addressed a representation to the Chief Minister on April 1(),  A 1956. The State Government referred the matter to the  Commissioner, Gorakhpur  Division, Gorakhpur  who by his letter  dated October  19, 1956 stated that he was fully in agreement  with the  Collector that the appellant must be treated as  having taken the loan in his individual capacity and proceedings for its recovery had to be taken against the hypothecated property as well as against him personally. The latter also  mentioned that the Collector had been asked, if necessary, to  explain the  case  personally  to  the  Chief Minister.      Evidently, the  State Government  after  reviewing  the matter at  all levels,  by its  order dated  August 13, 1957 directed  that   the  realisation   of  the   taccavi   dues outstanding against  the appellant  should be  made from the hypothecated  property   as  well   as   from   his   person immediately. It  further directed  that ’all  the modes  for recovery legally  permissible should  be adopted against him simultaneously and pursued vigorously’.      Despite all  this, the  appellant has  not paid  a  pie towards  the   outstanding  debt   except  through  coercive

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process. On  December 17, 1) 1957, the appellant addressed a representation to  the Board  of Revenue  although under the taccavi rules  no appeal or revision lay to the Board. It is somewhat strange  that the  Addl. Land Reforms Commissioner, contrary  to   the  Government’s   orders  in  that  behalf, submitted a  report, on  his own,  upholding the appellant’s contention that  he had borrowed the loan in his capacity as karta of the joint family, and recommending that the loan in question should be recovered from the hypothecated property. The  state  Government  naturally  did  not  act  upon  this gratuitous advice.  On June  19,  1959,  the  appellant  has informed  of  the  Government’s  decision.  Thereafter,  the Collector  started   proceedings  for   realisation  of  Rs. 72,152.50P as principal and Rs. 23,689.81P as interest.      Thereupon, the  appellant on  August 4,  1959 moved the Allahabad High  Court under  Art. 226.  The appellant’s writ petition was dismissed by a learned Single Judge. It appears that the  contention that  the loan  was incurred  by him as karta of  the joint  Hindu family  was not raised before the learned Single  Judge,  as  he  observes  "It  appears  that recovery proceedings  were taken against the Mukundpur Farm, which, it  is  not  disputed,  belongs  exclusively  to  the petitioner". He  negatived the contention that the Collector had let  out a  part of  the  Mukundpur  Farm  in  1952  and therefore,  after  expiry  of  a  period  often  years,  the Government was  precluded by reason of s.291 (3) of the U.P. Zamindari  Abolition  and  Land  Reforms  Act  from  further continuing the  recovery  proceedings.  He  held  that  this involved a 13-475 SCI/79 184 disputed question  of fact  as according  to the  Government certain plots of Munkundpur Farm were first let out in 1959- 60 and  not in 1952, and therefore, the bar of s.291 (3) was not applicable.  As regards  the contention based on s.6 (e) of the  Act that  the Government  had no  power to  make the recovery except from out of the compensation amount, he held that  the  provision  did  not  debar  the  Government  from proceeding otherwise.  On the question of accounting he held that the  submission calls  for an  accounting of the amount received by  such letting out and there was no material upon which the decision of the Court could rest.      On appeal,  the appellant  for the first time raised an objection as  to his  personal liability  alleging that  the loan in  question was  incurred by  him in  the capacity  of karta, and,  therefore, recoverable  from  the  hypothecated property alone.  There was  a difference  of opinion  on the question between  the learned  Judges constituting the Bench as to  whether he  had taken  the loan as karta of the joint family or  in his  individual capacity,  but nonetheless the appeal failed because they repelled all other contentions.      Four questions  arise in  this appeal:  1. Whether  the taccavi loan was incurred by the appellant as a karta of the joint Hindu  family and  not in his individual capacity and, therefore, the loan in question has to be recovered from the sixth respondent,  inasmuch as the hypothecated property had fallen to  his share  in a  family partition  ?  2.  Is  the Collector precluded  from taking  resort to any one or other modes prescribed  by s.7  (1) of  the Land Improvement Loans Act, 1883,  for recovery  of the  sum  remaining  unrealised towards the  taccavi loan,  by reason  of s.289 (2) or s.291 (3) of  the U.P.  Zamindari Abolition  and Land Reforms Act, 1950? 3.  Have  the  Government  no  right  to  recover  the outstanding amount  due except  from the compensation amount in terms  of s.6 (e) thereof? 4. Was the Government bound to render an  account of  the rents  and profits  derived  from

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letting out of the plots of Mukundpur Farm?      Section 7  (1) of the Land Improvement Loans Act, 1883, reads as follows:           "7 (1)  Subject to such rules as may be made under      section ten,  all loans  granted under  this  Act,  all      interest (if  any) chargeable  thereon, and  costs  (if      any) incurred  in making  the same,  shall,  when  they      become due,  be recoverable  by the Collector in all or      any of the following modes, namely:-           (a)  from the  borrower-as if they were arrears of                land-revenue due by him; 185           (b)  from his  surety (if  any)-as  if  they  were                arrears of land- A revenue due by him; (c)           (c)  out of  the land for the benefit of which the                loan has been granted-as if they were arrears                of land-revenue due in respect of that land;           (d)  out  of   the  property   comprised  in   the                collateral security (if any)-according to the                procedure for the realization of land-revenue                by the  sale of immovable property other than                the land on which that revenue is due."      on the  first point,  we agree  with one of the learned Judges (Uniyal  J.). The  conclusion reached  by the learned Judge that  ’the taccavi  loan was taken by the appellant in his individual  capacity’ is  the only  conclusion possible. The appellant  maintained that  the loan  was  incurred  for family purposes  i.e., for improvement of Munkundpur Farm by the appellant  in his  capacity as  the karta  and it having fallen to  the share  of the  sixth respondent in the family partition, the  recovery proceedings  against the  appellant under s. 7 were not maintainable. We fail to see how can the appellant escape  liability on  this account. The Government was not  a party  to Civil  Suit No.  72 of  1952  and  was, therefore, not  bound by the terms of the compromise decree. Nor was  the  Government  bound  by  the  alleged  partition effected between the appellant and the sixth respondent.      It matters  little whether there was a partition or not in 1951;  and if  so, whether  the hypothecated property had fallen to the share of the sixth respondent.  The appellant had bound himself by the terms of the taccavi bond to  discharge  the  liability  from  his  property  The instrument is  not on  record. The  document  was,  however, before the  High Court.  Uniyal J.  in  the  course  of  his judgment, with  regard to  appellant’s  personal  liability, observes:           "He pledged  his half  share  in  34  villages  of      Tahsil Sagri.  After verification  of  the  proprietary      rights of  the appellant  in the hypothecated property,      the Collector  issued a  certificate declaring that the      same as sufficient to cover the amount of taccavi loan.      Thereupon a  formal document  in the  nature of taccavi      bond was  executed by the appellant of the one part and      the  Collector   of  the   other  part  evidencing  the      transaction of  loan. A  list containing particulars of      the immovable  property was annexed to the bond, and it      was stated  therein that  a half share of the appellant      in the  said zamindari property had been pledged by way      of security." (Emphasis supplied)      The correctness  of this  observation is  not  open  to question. The learned Judge then goes on to say: 186           "The naqsha  maliyat attached  to the taccavi bond      clearly  mentioned  the  details  of  the  hypothecated      property in  tahsil Saygri consisting of one half share

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    of the appellant."      He then rightly concludes, saying:           "It is  of no consequence if the creditor proceeds      against the  share of  the Karta  alone  in  the  joint      family property  hypothecated as security for the loan,      or from his person, or both."      We concur  in the  conclusion reached  by  the  learned Judge that  the loan  in question was taken by the appellant in his  individual capacity  and not as a karta of the joint Hindu family. Even assuming he took the loan as karta, still he would be personally and severally liable to repay it.      The remaining  points are  equally devoid of substance. The contention  based on  s. 289  (2) of  the U.P. Zamindari Abolition and  Land Reforms  Act, 1950  does not  arise.  No doubt, the  Collector is  em powered  under s.  7 (1) of the Land Improvement  Loans Act  to recover all the taccavi dues from the defaulter as arrears of land revenue, and by reason of s. 288, the provisions of s. 289 are attracted. By s. 288 it is provided that the provisions of the Act with regard to the recovery  of arrears  of land revenue shall apply to all arrears of  land revenue  and’ ’sums of money recoverable as arrears of land revenue’ due at the commencement of the Act. The Collector  could, therefore, have taken resort to s. 289 (1) for the recovery of the unrealised amount of the taccavi loan by  attachment and  sale of properties belonging to the appellant. But,  the ilaka of Tahsil Sagri was not, in fact, ever attached  under s.  289 (1).  In the  instant case,  no previous sanction of the Board of Revenue was obtained under s. 272(2). Consequently, the attachment could not be said to be one  made under  s. 289 (1). Further, s. 289 applies only to those  cases in  which the  provisions of  s. 243(1) have been made  applicable by the Government under a notification issued under  s. 243  (2) .  It  is  nobody’s  case  that  a notification contemplated by s. 243 (2) was ever issued. The question of  s. 289  (2) operating  as a bar to the recovery proceedings  after  expiry  of  a  period  of  three  years, therefore, does not arise.      There is also a fallacy in the argument. The provisions of s. 289 run thus.           "289. Attachment  of village  for arrears  of land           revenue.- (1)  At any time after an arrear of land           revenue has  accrued, the Collector may attach the           village or any area therein 187      in respect  of which  the arrear  is due  and place  it      under  his  own  A  management  or  that  of  an  agent      appointed by him for that purpose for such period as he      may consider necessary:           Provided that  the period for which any village or      any area  therein may  be so attached, shall not exceed      three years  from the  commencement of the agricultural      year next  following the  date of  attachment, and  the      attachment shall be cancelled if the arrears are sooner      liquidated.           (2) Upon  the expiry  of the period of attachment,      the village  shall be restored free of any claim on the      part of  the Government  for any arrear of land revenue      due in respect thereof."      When  an  arrear  of  land  revenue  has  accrued,  the Collector may  under s.  289(1) attach a village or any area therein in  respect of  which the arrear is due and place it under his  own management  or that  of an agent appointed by him for  that purpose.  The proviso  to s. 289 (1), however, interdicts that the period for which any village or any area therein may  be so  attached, shall  not exceed  three years

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from  the   commencement  of   the  agricultural  year  next following the  date of  attachment, and the attachment shall be cancelled if the arrears are sooner liquidated.      If s.  289 (2) is read in the context of sub-s. (1), it will be  clear that  upon the  expiry of the period of three years the  village has  to be  restored free of any claim on the part  of the  Government for  any arrear of land revenue due in  respect thereof. The consequence that ensues is that liability for  payment of  land revenue  in respect  of  the village or  any area therein in respect of which arrears are due  stands  discharged.  There  is  a  distinction  between arrears  of   land  revenue   and  other   government   dues recoverable as  if they  were arrears  of land  Revenue.  In respect of  other sums  of money  recoverable as  arrears of land revenue,  the debtor is not discharged of his liability for payment of such dues even after three years.      The next  question is  whether by virtue of s. 291 (3), the appellant stood relieved of all liability for payment of arrears of taccavi due after the expiry of ten years. We may here read s. 291 (3). It is in these terms:           "291 (3)  Upon the  expiry of  the period of lease      the holding  shall be  restored  to  the  tenure-holder      concerned free  of any  claim on  the part of the State      Government for any arrears in respect of such holding." 188      The High  Court has  relied upon  the affidavit  of the Chief Revenue  Accountant, Collectorate stating that certain plots of  Mukundpur Farm  were for the first time let out in the year  1959-60. It  would,  therefore,  appear  that  the period of  ten years  had  not  expired  when  the  recovery proceedings were initiated.      There remains  the question  whether the  Government is bound to recover the unrealised sum of taccavi loan from the amount of  compensation money  and relying  upon s. 6 (e) of the U.P.  Zamindari Abolition  and Land  Reforms Act  it  is urged that  is the  only remedy left. The contention, we are afraid, proceeds  on a  misconception  of  the  purport  and effect of s. 6 (e) of the Act, which reads:           "6(e). all  amounts  ordered  to  be  paid  by  an      intermediary to  the State Government under Sections 27      and 28 of the U.P. Encumbered states Act, 1934, and all      amounts due  from him  under the Land Improvement Loans      Act, 1883,  or the Agricultural Loans Act, 1884, shall,      notwithstanding  anything   contained   in   the   said      enactments,  become  due  forthwith  and  may,  without      prejudice  to  any  other  mode  of  recovery  provided      therefor, be  realized by deducting the amount from the      compensation money  payable to  such intermediary under      Chapter III."      It is  plain upon  its terms, that the provisions of s. 6(e) are  not obligatory.  It is  an enabling  provision. It provides that  all amounts  due under  the Land  Improvement Loans Act, shall notwithstanding anything contained therein, become due  ’forthwith’, upon  the vesting  of the zamindari rights. It  then lays  down that  such dues  may,  with  out prejudice to  any other  mode of recovery provided therefor, be realised  by deducting  the amount  from the compensation money payable  to such intermediary. It, therefore, provides an additional  mode of recovery for realisation of the dues. The word  ’may’  in  s.  6(e)  clearly  indicates  that  the Government has the option to fall back upon the compensation amount. It  does not entail in the consequence that the mode indicated in s. 6(e) is the one and the only mode available. The High  Court has  observed  that  the  entire  amount  of compensation money  which  fell  to  the  appellant’s  share

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amounting to  Rs. 38,951.8P  had been  adjusted towards  the loan, on  the basis  that the half share of the appellant in the zamindari property had been hypothecated as security for the loan.  The recovery  proceedings now  pending before the Collector is for the balance remaining after such adjustment together with interest.      It was  faintly  argued  by  learned  counsel  for  the appellant that the Government was bound to render an account of the rents and profits 189 realised from the letting of plots of Mukundpur Farm, but he did not  A pursue  the argument  any further and rightly so. The High  Court has  observed that  it had  scrutinized  the accounts maintained by the Government and the same have been maintained as  required by the taccavi rules as per appendix ’A’ to Form VII. It was certainly not open to the High Court to grant  any such relief under Art. 226 of the Constitution particularly when  it  involved  consideration  of  disputed question of fact.      The result,  therefore, is that the appeal fails and is dismissed with costs. P.B.R.                                     Appeal dismissed. 190