Union of India vs State Of Jharkhand And Ors

This writ petition is under Articles 226 and 227 of the Constitution of India whereby and whereunder the notice as contained in Memo No.1 dated

28.01.2013 issued by respondent No.2, directing the petitioner to deposit a sum of Rs.18,64,357.00/- towards interest for 12 years 10 months and 08

days @ 12% per annum having been passed in Certificate Case No.02 (ST) of 2000-01 has been sought to be quashed.

The brief facts of the case as per the pleading made in the writ petition is that the petitioner is running a canteen at Dhanbad Railway Station, by

which, as a condition precedent, the petitioner has got registration under the Commercial Taxes Department of Dhanbad under Urban Circle, Dhanbad

being Registration No.DV-603(R).

The sales tax has been paid to the Commercial Taxes Department from time to time, i.e., from the period from 1985-86 to 1996-97to the tune of

Rs.5,46,430.29/-. According to the petitioner, the Commercial Taxes Department has unilaterally assessed the liability of sales tax for the period from

1985-86 to 1996-97 assessing the amount to the tune of Rs.12,08,530.55/-.

The Commercial Taxes Department has filed certificate proceeding being Certificate Case No.02(ST) of 2000-01.

Notice was issued to the petitioner, in turn thereof, objection was filed on 03.05.2003 giving therein details of sales tax paid by the petitioner by giving

details of chalan number during the period, i.e., 1985-86 to 1996-97 but according to the petitioner without any determination as required to be

determined under the provision of Section 10 of the Bihar and Orissa Public Demand Recovery Act, 1914 (hereinafter referred to as the Act, 1914),

liability has been casted upon the petitioner by raising demand of Rs.12,08,530.55/-. The petitioner in order to save itself from coercive measures, paid

a sum of Rs.12,08,530.55/- vide Chalan No.42 dated 19.01.2013 as would be evident from Annexure-3.

The grievance of the petitioner is that without determination of the liability, the aforesaid amount ought not to have been casted as a liability upon

the petitioner and as such, the present writ petition has been filed questioning the decision of the Certificate Officer.

Counter affidavit has been filed by the respondent-State of Jharkhand.

Mr. Amrendra Pradhan, learned counsel appearing for the State of Jharkhand has submitted by referring to the stand taken in the counter affidavit

that under the provision of the Act, 1914 when a requisition has been made by the requisitioning authority treating the amount as a public demand,

notice under Section 7 of the Act, 1914 has been issued to the petitioner.

As per the provision of Section 7, an objection is to be filed as required to be filed under Section 9 of the Act, 1914 within 30 days from the date of

receipt of notice but according to the respondent-State, no such objection has been filed in spite of repeated notice having been issued since according

to them, the second notice was also issued on 08.06.2000 but the petitioner chosen not to file any response. The respondent-State of Jharkhand has

again issued warning notice on 25.10.2012 for depositing the demand on 16.11.2012 but not obeyed, therefore, last warning notice was issued on

08.12.2012, but even though, the amount has not been deposited which resulted into an order passing in the nature of taking coercive measure for

securing the deposit of the said amount.

It has been contended by the learned counsel that if the petitioner has not complied with the statutory provision by not filing objection as required to be

filed under Section 9 of the Act, 1914, there is no occasion for consideration of the claim as required to be considered under Section 10 of the Act,

1914.

It requires to refer herein that no reply to the counter affidavit has been filed by the petitioner.

This Court, after having heard the learned counsel for the parties and going across the pleading made in the respective affidavits filed on their

behalf, deem it fit and proper to refer the relevant provision which is necessary in the present context.

The Bihar and Orissa Public Demand Recovery Act, 1914 has been enacted for the purpose of recovery of public demand. The Certificate Officer is

to proceed in pursuance to the requisition, if, made by the requisitioning officer for recovery of the public demand. The Certificate Officer, after

receiving the requisition by the competent authority, will proceed by issuing notice under Section 7 of the Act, 1914.

Section 7 provides an opportunity to the concerned from whom the money is to be recovered by way of public demand to enable to file objection as

required to be filed under Section 9 of the Act, 1914. The statutory period to file objection under Section 9 is 30 days. If any objection would be filed,

the consideration of the said reply is to be made in view of the provision of Section 10 of the Act, 1914, while considering, the Certificate Officer is

required to provide an adequate and sufficient opportunity to the concerned.

The fact in hand is that admittedly the Certificate Officer has issued notice under Section 7 of the Act, 1914 which was received by the petitioner

on 05.05.2000 but no objection within the statutory period of 30 days was filed as required to be filed under Section 9 of the Act, 1914 which would be

evident from the counter affidavit, thereafter second notice was also issued on 08.06.2000, but despite receipt of the said notice, the petitioner had not

filed any objection rather he has chosen not to appear before the Certificate Officer and hence, a distress warrant was issued on 17.08.2000 against

the petitioner.

It further appears from the counter affidavit that due to non-appearance of the petitioner, the warning notice was also issued on 25.10.2012 for

depositing the demand on 16.11.2012 but the same was refused to be accepted and as such, the same was served upon the petitioner by pasting the

same in the office of the petitioner, thereafter, another warning notice was issued against the petitioner on 08.12.2012 for depositing the outstanding

dues by 18.12.2012 but again the petitioner refused to receive it. The last warning notice was issued to the petitioner on 18.12.2012 but has failed and

neglected to deposit the dues amount. In the last warning notice it has been stated that if the petitioner will fail to deposit the dues amount, steps shall

be taken by issuing a writ of attachment. The petitioner thereafter, had appeared before the Certificate Officer on 26.12.2012 and prayed for a

month’s time to deposit the dues amount. The petitioner, thereafter, had deposited the principle amount of Rs.12,08,530.55/- through chalan.

The dispute has been agitated by the petitioner that as per the provision under the Act, 1914 amount as provided under Section 17(a), the amount

of interest shall be recoverable from the date of initiation of the proceeding under the Act, 1914 till the date of realization.

Thus, according to the respondent-authorities, there is no illegality in the impugned action of the respondent authorities in issuing distress warrant for

securing the recovery of the amount of Rs.18,64,357.00/-.

Learned counsel for the State has contended by arguing that the occasion to consider as provided under Section 10 of the Act, 1914 has not come

since no objection under Section 9 of the Act, 1914 has been filed and further the petitioner deposited the principle amount and therefore, the petitioner

now cannot dispute the interest since the principle amount is not being disputed.

In view of the aforesaid undisputed fact as because the averment made in the counter affidavit has not been refuted since no reply to the said

affidavit has been filed by the petitioner, therefore, this Court is of the view that the statutory requirement as contained under Section 9 of the Act,

1914 has not been resorted to by the petitioner by not filing objection, therefore, there is no question of consideration of the objection as required to be

considered under Section 10 of the Act, 1914.

Learned counsel for the petitioner has contended that the interest is required to be inflicted from the date of making application before the Certificate

Officer, as such, the interest amount is in dispute that is the reason the principle amount has been paid.

This Court, is of the view that when the principle amount has not been disputed by the petitioner before the Certificate Officer, the contention as

has been agitated of non-consideration of the issue under Section 10 of the Act, 1914 is having no force, it is for the reason that Section 10 of the Act,

1914 provides for consideration after the stage of filing of the objection as provided under Section 9 of the Act, 1914 but the petitioner since has not

filed any objection, therefore, there is no question of consideration as required under Section 10 of the Act, 1914. Further also for one more reason

that consideration only in case of objection and where there is no objection, it will be presumed to be admission.

It would be evident from the action taken by the petitioner by depositing the principle amount and therefore, there is no question of consideration

under Section 10 of the Act, 1914. So far as the issue of interest amount is concerned, since the petitioner has not filed any objection rather deposited

the principle amount, therefore, this Court, is of the conscious view that the petitioner can agitate this before the appellate authority.

Reference in this regard be made to the Division Bench judgment passed by Hon’ble Patna High Court in the case ofM /s Ajanta Traders vs. The

State of Bihar and Ors., reported in 1996 (2) PLJR wherein at paragraph 22 it has been laid down, which reads hereunder as:-

“22. Mr. Giri lastly contended that in absence of a proper adjudication about actual dues or liability of the factory owner, it was not

proper for the Cane Officer to submit requisition for realization of the dues in question. In my view, this is not the stage to raise such

question particularly when the principle amount was already paid without any objection. That apart, adjudication of such disputed facts

depend upon verification of relevant materials and evidence of the parties which in my view is not possible for this Court while exercising a

writ jurisdiction. The petitioner, therefore, for such adjudication should have availed the remedy of appeal or revision etc. which was

already available to him.â€​

Such finding is being recorded herein reserving liberty to the petitioner to approach before the appellate authority for the reason that the question of

determination of interest depends upon the factual aspect and since the alternative remedy is available by filing appeal, in view thereof, this Court is

not interfering with the same.

This Court, therefore, is not inclined to interfere with the action as has been taken by the respondent authorities.

However, it is open for the petitioner to approach before the appellate authority by raising the issue about quantum of interest, if such appeal would be

filed within a period of three weeks from the date of receipt of copy of the order, the appellate authority will decide the same in accordance with law

within a further period of four weeks from the date of filing of such appeal.

Mr. Mahesh Tewari, learned counsel for the petitioner has also submitted that the question of limitation will also be an issue.

Mr. Amrendra Pradhan, learned AC to GP-V has submitted that appropriate order may be passed directing the appellate authority to consider the

issue of limitation in accordance with law.

In view thereof, if any issue of limitation will be a question, the same be decided in accordance with law.

It has further been submitted by Mr. Mahesh Tewari, learned counsel for the petitioner that since the petitioner has already deposited the

substantial amount, i.e., principle amount, to the tune of Rs.12,08,530.55/- and since there is distress warrant for attachment of the property, therefore,

the petitioner may be protected at least till filling of the appeal.

Such submission has not been objected by the learned counsel for the State.

This Court, after considering the rival submissions of the learned counsel for the parties in this regard, is of the view that the petitioner has shown

its bona fide by depositing the principle amount and now the interest amount is in dispute, therefore, the propriety demands that till filing of the appeal,

the petitioner is required to be protected.

In view thereof, for the period of three weeks from the date of receipt of copy of this order, period under which the liberty to file appeal has been

granted or till filing of the appeal, whichever is earlier, the respondent authorities shall not take any coercive measure against the petitioner.

The petitioner is at liberty to make an application for interim relief before the appellate authority and if such application would be filed, the appellate

authority will pass appropriate order in accordance with law.

Accordingly, the writ petition stands disposed of.