Case: Indu Bhushan Gupta Vs. State Of U.P. &amp; Ors

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 jointhis 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 afore said 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,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 p lots 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 outstanding taccavi dues. It also appears that a sum of Rs. 38, 951.8P representing the appellants 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 appellants case t hat there was a partition 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, th e sixth respondent actually paid Rs. 16, 012.50P. The Government was admittedly not impleaded as a party to, theJuly 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,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.It appears that the appellant was a Member of the Legislative Assembly and apparently wielded considerable influence. He appears 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 take n 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 p ersonally to the Chiefthe 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 s hould 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 pursuedall this, the appellant has not paid a pie towards the outstanding debt except through coercive 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 Governments orders in that behalf, submitted a report, on his own, upholding the appellants 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 Governments 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 appellants 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 M ukundpur 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 disputed question of fact as according to the Government certain plots of Munkundpur Farm w ere 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 couldappeal, 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.

Court's reasoning:
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 appellants personal liability,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." (Emphasiscorrectness of this observation is not open to question. The learned Judge then goes on tonaqsha maliyat attached to the taccavi bond clearly mentioned the details of the hypothecated property in tahsil Saygri consisting of one half share of thethen rightly concludes,f 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, orconcur 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 repayremaining 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 empowered 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 re venue 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 nobodys 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 thes. 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 landis plain upon its terms, that the provisions of s. 6(e) a re 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 therefore, 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 appellants share 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 withwas faintly argued by learned counsel for the appellant that the Government was bound to render an account of the rents and profits 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.