Babulal vs Collector

Samvatsar, J.—This is a petition under Article 226, Constitution of India.

The Respondent No. 2, the City Improvement Board Indore is a body corporate constituted under the City of Indore improvement Act, being Act No. 2 of 1926. On 16-6-1950 this Respondent No. 2 sold by public auction lease hold rights in plot No. 16 of scheme No. 15 Prince Yeshwant Road Indore, for the purpose of erecting a Petrol Pump. The lease was to be for a period of five years commencing from the date of the auction. The Petitioner offered the highest bid of Rs. 1,625-0-0 per year. The Petitioner''s bid was accepted and according to the terms of the auction he paid on the same day one year''s rent i.e., Rs. 1,625-0-0 in advance.

The Petitioner was then called upon to take the possession of the plot, but he failed to do so. He also failed to pay rent for the subsequent year though requested to do so several times.

On January 14, 1951 the Petitioner informed the Respondent No. 2 that petrol companies did not find tire plot suitable for erecting a petrol pump and he was therefore unwilling to continue the lease.

He requested die Respondent No. 2 to put an end to the lease forthwith. On 1st September 1951 the Respondent No. 2 agreed to put an end to the lease and to re-auction the plot provided that the loss if any was borne by the Petitioner. In reply to this letter the Petitioner refused to accept any responsibility for loss but repeated his request for termination of the lease.

Respondent No. 2 re-auctioned the plot on 21-10-1951 in which the highest bid was Rs. 1,025-0-0 per year and this was accepted by Respondent No. 2. The Respondent therefore -claimed from the Petitioner a sum of Rs. 2,300-0-0 for the loss suffered by it in re-auction and called upon the Petitioner to deposit this sum on or before 21-12-1951. The Petitioner did not comply with this demand and the Respondent No. 2 requested the Respondent No. 1, the Collector of Indore District to recover this sum from the Petitioner as a public demand and as arrears of land revenue.

The Respondent No. 1 directed die Tahsildar, Indore to proceed in the matter of recovering the sum and in obedience to this direction the Nayab Tehsildar, Indore issued a warrant of attachment of the property of die Petitioner on 20-8-1954. The Petitioner appeared before the Nayab Tehsildar on 20th September, 1954 and filed an application in which he contended that he was not liable to pay this sum, that the claim in this case was not a public demand and it could not be recovered as arrears of land revenue. He prayed that he may be heard in this matter and his objections be taken into consideration. The Nayab Tehsildar asked the Petitioner to approach the Collector and to raise his objections before him.

The Petitioner therefore filed an application to the Respondent No. 1 stating his objections in details to the claim against'' him and requested the Respondent No. 1 to stay proceedings until the objections were heard and disposed of. The Respondent No. 1 refused to stay the process but forwarded the petition to the Tehsildar for necessary action. The Petitioner appeared before the Tehsildar on 27-9-1954 and requested him to stay further proceedings, the objections raised were not considered by the Tehsildar but time was granted to the Petitioner up to 16th October, 1954.

On 4-10-1954 the Petitioner made a representation in writing to both the Respondents contending that, the sum claimed from him was for damages and could not be regarded as a public demand recoverable as arrears of land revenue. No reply to the representations was given nor was die Petitioner heard on the points raised by him in die representations, but the process for recovery was pressed. He has therefore filed this petition under Article 226 for a writ of mandamus or prohibition or any other suitable writ requiring the Respondent No. 2 to withdraw the requisition for recovery of the amount and prohibiting die Respondent No. 1 from taking steps against the Petitioner for realising the said sum.

The grounds on which the relief is sought by the Petitioner are: (i) that die sum of Rs. 2,300 claimed by the Respondent No. 2 is claimed on account of damages and is not covered by the definition of the word "public demand." and is also not recoverable as arrears of land revenue;

(ii) that the Petitioner was entitled to a notice u/s 6, M.B. Public Demands Recovery Act and that as this was not given the subsequent proceedings relating to the recovery ought to be quashed;

(iii) that die objections raised by the Petitioner in his representation had to be heard and disposed of on merits either by the collector or by officer or authority charged with the realisation of public demand and that the proceedings had to be stayed until this was done and the failure of the authorities to observe the mandatory provisos of Jaw in respect of these matters has rendered the proceedings illegal.

The claim is opposed by both the Respondents No. 1 and 2. In their return it is contended that the claim made by Respondent No. 2 against the Petitioner was a public demand and was recoverable as arrears of land revenue on a requisition being made to the effect, by the Respondent No. 1 or by Tehsildar if he was directed to do so by die Respondent No. 1. The Respondents admitted that the Petitioner had made representations. They have not alleged that the Petitioner''s objections were heard by them or that the representations were otherwise considered on merits and disposed of.

On these contentions, the most important question that arises for consideration is, whether Respondent No. 1 or the officer-in-charge of realisation could proceed to recover the demand without hearing the Petitioner and disposing of the objections raised by him in his representations.

The Madhya Bharat Public Demands Recovery Act, being Act No. 24 of 1954 came into force in Madhya Bharat on 26th August, 1954. Under this Act "public demand" means any arrears of money mentioned or referred to in the schedule annexed to this Act and includes any interest which may be chargeable thereon up to the date of die signing of a certificate in respect thereof u/s 4.

To appreciate the contentions raised by the Petitioner it is necessary to examine the provisions contained in part II (which includes Sections 3 to 9) of Act No. 24 of 1954.

Section 3 provides that when any public demand is due, the officer or authority charged with its realisation may send to the Collector having jurisdiction in the place where the defaulter resides or owns property a written requisition in the prescribed form. Section 4 then lays down, that on receipt of any such requisition as is referred to in Section 3, the Collector, if he is satisfied that the demand is recoverable under this Act and that its recovery by suit is not barred by any law for the time being in force, may sign a certificate to that effect in the prescribed form specifying therein the amount of demand, the account on which it is clue, the name of the defaulter and such other particulars as may be necessary for his identification and shall cause the certificate to be filed in his office.

The Collector is also empowered to transfer a copy of the certificate to any other Collector within whose jurisdiction the defaulter resides or owns property. Section 6 lays down that when a certificate is filed u/s 4 or transmitted u/s 5, the Collector in whose office it has been so filed or to whose office it has been so transferred shall cause to be served upon the defaulter in a prescribed manner a notice in the prescribed form with the copy of certificate. Section 8 which is a material section for the purpose of the decision of this petition is then as follows:

Section 8. (1) The defaulter may, within 30 days from the service of the notice u/s 6 or where the notice has not been duly served, within 30 days from the execution of any process for enforcing the certificate, present to the Collector issuing the notice a petition in the prescribed form signed and verified in the prescribed manner denying his liability in whole or in part.

(2) The Collector to whom a petition has been presented under Sub-section (1) shall forward such petition to the officer or authority charged with the realisation of the public demand, for disposal:

Provided that where the certificate was trans-milled to such collector u/s for (sic) he shall for-ward such petition to the officer or authority referred to above through the Collector in whose office the certificate was originally filed.

(3) Such officer or authority shall hear and determine toe petition as expeditiously as possible and shall communicate the result to the Collector in whose office the certificate was originally filed and where the petition was forwarded to such officer or authority by a Collector to whom the certificate has been transferred u/s 5; to such Collector also and the Collector in whose office the certificate was originally filed shall set aside, modify or vary the Certificate, if necessary, in accordance therewith.

(4) All proceedings under the certificate shall be stayed pending the determination of a petition presented under this section.

Section 9 which is the last section in this, part lays down that the Collector in whose office the certificate is originally filed shall hear and determine a petition presented u/s 8 if it proceeds on the ground that the demand is not recoverable under this Act or that its recovery by suit is barred by any law for the time being in force.

A perusal of Sections 3 to 9 thus shows that after a requisition is received by the Collector from the officer charged with the realisation of public demand due to the State, he has to apply his mind to the merits of the claim and to satisfy himself that prima facie the demand is a public demand and is recoverable under the Act and its recovery by suit is not barred by any law for the time being, in force.

After thus satisfying himself on merits, the Collector has to sign a certificate and to cause it to be filed in his office. It is then necessary that a notice of demand with a copy of the certificate is served upon the defaulter. The defaulter on whom such a notice is served may within 30 days of the service of the notice and where the notice has not been duly served within 30 days from the execution of any process for enforcing a certificate, present to the Collector issuing the notice, a petition in the prescribed form signed and verified in the prescribed manner denying his liability in whole or in part; and in case the petition of the defaulter u/s 8 proceeds on the ground that the demand is not recoverable under the Act or that its recovery by suit is barred by Any law for the time being in force, the petition shall be heard and disposed of by the Collector, himself, in other cases he may forward the Petition to such officer or authority as is charged with die realisation of public demand, for disposal.

It is further necessary for the Collector or the Authority or the officer to whom the petition has been transferred, to give a hearing to the defaulter before the petition is considered and disposed of. The intention of the legislature in providing these -various stages is obvious. The defaulter against whom tire process is issued should be afforded a reasonable opportunity of contesting tire demand and in case he objects to tire claim against him, the authorities should hear him and decide the objections raised. This is a statutory obligation and cannot be ignored either by the Collector or by the officer or ''Authority to whom the petition is transferred under'' Section 8, Clause (2).

In the present case the Petitioner had filed a petition u/s 8 to the Collector and it was forwarded by him to the Tehsildar who was in charge of the realisation. The Petitioner also submitted a representation stating therein his objections to the proceedings, to both the Respondents. It is not disputed that none of these Respondents have disposed of the objections.

The provisions of Section 8 and Section 9 have been altogether ignored. None of them gave a hearting to the Petitioner and applied his mind to the merits of the petition. This was contrary to die provisions of law. The Respondent No. 1 was also bound to stay further proceeding until the objections raised by the Petitioner were disposed of.

The Collector of a district, the Tehsildars and the Nayab Tehsildars are executive authorities, mainly concerned with the administrative duties assigned to them but in proceeding to make recoveries under the Madhya Bharat Public Demands Recovery Act, they are bound to act according to the provisions of the statute. It is specifically laid down in Section 8 that if the defaulter makes a petition objecting to the demand of the recovery, his objections shall be heard and decided judicially.

It is further, provided in Section 8(3), Madhya Bharat Public Demands Recovery Act that the Collector in whose office certificate was originally filed shall set aside, modify or vary the certificate, if necessary, in accordance with the decision of the objections raised by the defaulter. If the objections raised by the defaulter proceed on the ground, that the demand is not recoverable under this Act or that its recovery by suit is barred by any law for the time being in force, the objection has to be heard by the Collector, in other cases he has to transfer it to the officer or authority charged with the realisation of the public demand, for disposal.

It is mandatory u/s 8(4) for the authority concerned, to stay the proceedings for recovery pending determination of an objection presented by the defaulter u/s 8. In sprite of this mandatory provisions the process for recovery is being pressed and the Petitioner is refused a hearing.

It is well settled, that if administrative tribunals entrusted with judicial or quasi-judicial functions act in disregard of the mandatory provisions pf the law, it is open to the High Court to review their actions. This Court has taken this view in number of decisions and it is unnecessary to refer to all of them. Reference may however be made to the case of- Vallabhdas v. Appellate Authority MP LR 1952 Civil 42(A). The learned Judges of the Division Bench observed in that case as follows:

With the growing complexity of modern life and the general tendency to widen the sphere of Governmental action, authorities other than courts are by law invested with extensive powers the exercise of which vitally affects the rights of private individuals. There are many statutes which confer such powers, the exercise of which cannot properly be called, doing a judicial act.

Yet the language and the form of the statute shows an intention on the part of die Legislature that whenever a decision is to be taken with regard to any matter by an officer or authority invested with powers under the statute, the approach to such matter should be judicial. In all such cases the High Court shall review the administrative and the executive acts if in exercise of its powers the official or authority concerned has disregarded the intention of the Legislature and such disregard has resulted in an injustice to private rights.

In the present case the Respondent is pressing the demand and has declined to stay the execution of the warrant for recovery, in utter disregard of the provisions of Section 3.

The Collector is a public officer and is under the provisions of Madhya Bharat Public Demands Recovery Act, bound to hear the Petitioner and to decide the objections raised by him. He is also bound to set aside, modify or to vary the certificate in accordance with the decision of the objections, lie is further bound to slay proceedings against the Petitioner until the objections are decided. In this ease the objections proceed on the ground that the demand is not recoverable under this Act and in view of provisions of Section 9, it is obligatory on the Collector to hear the Petitioner and to decide die objections himself.

Whenever a statutory duty is cast on a public officer and he fails to discharge it a mandamus can be issued by this Court to compel him to perform his duties. I am therefore of the opinion that a mandamus should be issued directing the Collector to hear the Petitioner and to decide the objections raised by him. Until these objections are decided, he will also be bound to give effect to the provisions of, Section 8(4).

The other objections raised by the Petitioner are matters to be considered by the Collector. It is, therefore, unnecessary to express any opinion on them.

In the view I have taken as regards the provisions of Sections 8 and 9, Madhya Bharat Public Demands Recovery Act, I allow the petition, but considering the circumstances of this case, I leave the parties to bear their own costs.

Chaturvedi, J.

I agree.