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TMI Blog1969 (6) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 721,6, indeed a very small part of the total amount charged against him. Ultimately, at the end of the trial it was found that the plaintiff had misappropriated the amount of ₹ 19. 50 only. He was sentenced to suffer rigorous imprisonment for one year. The plaintiff came to this Court in appeal, which was heard and his conviction and sentence were confirmed. Later on, forty criminal cases were lodged against the plaintiff in the Court of the Judicial Magistrate, First Class, Latur. But, no further action was taken against him as these charge-sheets were withdrawn as he had already been convicted in the test case. (2.)Thereafter , the Superintendent of the Post Offices, Nanded wrote to the Superintendent of Posts and Telegraphs, Ahmed-nagar saying that an amount of ₹ 2116. 31 was due from the plaintiff and it should be recovered as arrears of land revenue, as the plaintiff had properties in that District, The Superintendent apparently sent this letter to the Mamlatdar on June 20, 1961 requiring him to make the payment by realisation of the said amount. The Mamlatdar called upon the plaintiff to pay the amount intimating that if the amount was not paid his propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tambe, for the appellant, is that the learned Joint Judge was in error in holding that the Trial Court had no jurisdiction to try the suit and returning the plaint for presentation to the proper Court. In this connection, it has been pointed out to me that originally the Trial Court had returned the plaint holding that it had no territorial Jurisdiction to deal with the matter and that the plaintiff had appealed to the District Court, which reversed the finding of the trial Court and held that the Court of the Civil Judge, Senior Division, Ahmednagar, had jurisdiction to deal with the matter. Mr. Tambe rightly argues that this finding was conclusive so far as the learned Judge was concerned and ho would not be entitled to reopen the finding and hold that the Trial Court had no territorial jurisdiction. Mr. Pratap, Assistant Government Pleader, for the State, fairly conceded that that would be so. Apart from this, in every case where the question of territorial jurisdiction arises the Court cannot lose sight of Section 21 of the Code of Civil Procedure and unless it is shown that by reason of the suit having been instituted in a forum which has no territorial or pecuniary jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt has as nearly as may be the same duties and powers as the trial Court. This section applies notwithstanding that the appeal is from an order returning the plaint. I do not see why the ambit of this section must be reduced to a nullity, when the Appellate Court had heard all the arguments on merits and determined the issues before it. The only result of the remand would be that the learned Judge will hear the arguments and rewrite the same judgment with the consequences of another appeal. I am clearly of the opinion that sitting as a Court of appeal I would be entitled to decide the matter finally. (7.)Mr.Tambe then on merits raised quite a few points. Firstly, he contended that even if the certificate (Ex. 31) is proved it is invalid as it is issued by an authority which was not entitled to issue a certificate of this type under Section 3 (1) of the Revenue Recovery Act; secondly, that the certificate is not proved; thirdly, that the certificate is invalid for the reason that no inquiry was held before issuing the certificate; fourthly, that the plaintiff was not a defaulter as defined by the Act and no proclamation could be issued; fifthly, that the Mamlatdar had no authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no inquiry was held. These two aspects are entirely different and have nothing to do with each other, Evidently, Section 5 of the Revenue Recovery Act does not require that before the Collector issues a certificate he must give notice to the defaulting officer and hold an inquiry and thereafter issue the certificate. This is for an understandable reason. In a case, where the amount is due and claimed by the Union, the defaulting officer is entitled to question that amount by a suit as provided by Section 4 of the said Act. He would then have a full-fledged trial. No doubt, the condition is that he must deposit the amount. That also is understandable. A suit may take years together for trial and the Government would be kept out of the money for a considerably long time as has happened in the present case. (10.)The third contention is that the certificate is invalid because the rules of natural justice are violated, in that no inquiry was held. The answer is as in the above paragraph. Moreover, the learned Joint Judge Gas pointed out that when the demand was made by the Mamlatdar from the appellant, he applied to the Mamlatdar to stay the proceedings. The Mamlatdar intimated to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a defaulter. (12.)Rule 103 of the said Manual refers to the provisions of the Public Accountants' Default Act, 1850 and provides that a postal officer shall be bound by the provisions of that Act. By Section 4 of the said Act of 1850 it is provided that the person or persons at the head of the office to which any public accountant belongs may proceed against any such public accountant and his sureties, for any loss or defalcation in his accounts, as if the amount thereof were an arrear of land revenue due to Government. Clearly, therefore, the loss caused to the Union is recoverable as an arrear of land revenue, The appellant, therefore, would clearly fall within the terms of this section. On his undertaking he is clearly a defaulter. (13.)It is then argued that the proclamation issued by the Mamlatdar is illegal and void, Reliance for this contention is placed on Section 6 of the Revenue Recovery Act, which reads as follows: (1) When the Collector of a district receives a certificate under this Act, he may issue a proclamation prohibiting the transfer or charging of any immovable property belonging to the defaulter in the district. In this connection, Section 7 is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in my view, does not support Mr. Tambe, but in a large measure supports the conclusion to which I have reached, though, of course, I hold that the provisions of the Revenue Recovery Act do not impair the provisions of the Land Revenue Code for recovery of land revenue by reason of Section 7. Since the amount is to be recovered as land revenue, those provisions will apply. (14.) In this connection, I may observe that the proclamation itself shows that an order directing auction was made by the concerned Prant Officer, who would have the power to issue orders of recovery tinder administrative Order VIII. It is, therefore, clear that it is under this authority that the Mamlatdar derived the power to issue the proclamation. (15.)The Trial Court held that the proclamation was bad and invalid on the ground that the certificate itself was bad as it was issued without holding an inquiry. No other ground was urged before the Trial Court. In appeal Court, the learned Appellate Judge held that the proclamation was valid because he came to the conclusion that the certificate was good. Even if, therefore, the appellant was allowed to raise this point, in my view, the proclamation is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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