( 1 ) BY this petition under Article 226 of the Constitution the petitioner seeks a writ in the nature of certiorari to quash the orders of assessment, the orders of the Central and the State Governments holding that the petitioner is liable to pay royalty on limestone according to use the notices of demand for recovery of additional royalty and the recovery proceedings pending before the Tahsildar, maihar. He further seeks a writ of mandamus or prohibition to restrain the respondents from recovering the amounts of additional royalty in accordance with the impugned assessment and the notices of demand by coercive process, and further to direct respondents 1 and 2 to assess the petitioner properly,

( 2 ) THE respondents, while resisting the petition, raised a preliminary objection at the hearing before the Division Bench. The preliminary objection is based on section 150 of the M. P. Land Revenue Code. It was urged that an alternative remedy by way of a suit being available under that section, this petition abated by force of Section 58 (2) of the Constitution (42nd Amendment) Act, 1976. The Division Bench has referred this preliminary question for decision by a larger Bench. That is how the matter is before us.

( 3 ) THE recovery proceedings are in respect of royalty on limestone. It is common ground that the proceedings have been taken under Chapter XI of the m. P. Land Revenue Code, inasmuch as by virtue of Section 155 of the Code moneys are recoverable in the same manner as an arrear of land revenue. That section enacts that moneys may be recovered, as far as may be, under the provisions of that Chapter in the same manner as an arrear of land revenue. Now. Section 150 runs thus :-

" 150. Payment under protest and suit for recovery.--- (1) If proceedings are taken under this Chapter against any person for the recovery of an arrear of land revenue, he may, at any time before the property is knocked down at a sale, pay the amount claimed and may, at the same time, deliver a protest signed by himself or by his authorised agent to the Revenue Officer taking such proceedings, and thereupon they shall be stayed. (2) Any person complying with the provisions of Sub-section (1) may, notwithstanding anything contained in Section 145, apply to the Sub-Divisional Officer that nothing was due or that the amount due was less than the amount for the recovery of which proceedings were taken and the Sub-Divisional Officer shall decide the objection so raised. (3) No appeal shall lie against the order of the Sub-Divisional Officer passed under Sub-section (2) but the person concerned may institute a civil suit for the recovery of the sum or Dart thereof paid under protest. "

( 4 ) THE preliminary objection raised for the respondents is that the defaulter may deposit the amount and get his liability determined by the Sub-Divisional officer. In case he is not satisfied with that decision, he can file a civil suit. Thus a civil suit being an alternative remedy within the meaning of Section 58 (2) of the Constitution (42nd Amendment) Act, 1976, this petition under Article 226 of the Constitution is barred.

( 5 ) IN order to appreciate the applicability of Section 150 of the Code, the scheme of Chapter XI has to be seen. This Chapter was primarily enacted for realisation of land revenue. That is the title of the Chapter. Land revenue is the first charge on land and on the rents and profits thereof (vide Section 137 ). However, Section 155 enables recovery of certain other moneys enumerated and classified in that section, in the same manner as an arrear of land revenue. It must, however, be noted that a clear distinction has been maintained throughout the Chapter between an "arrear of land revenue" and "dues recoverable as an arrear of land revenue". Once that distinction is appreciated, it will be clearly seen that Section 150 applies to the former and not to the latter. Section 139 speaks of arrears of land revenue, pure and simple