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Judgment
Ramesh Kumar Datta, J.—Heard learned counsel for the petitioners and learned counsels for the State in all the writ applications. All the 14 writ applications raise common issues and they have accordingly been heard together and are being disposed of by this common order.
The petitioners seek quashing of the entire certificate proceedings in different certificate cases filed against them including the order dated 19.9.2006 and similar orders passed on two other dates separately in the different cases in exercise of powers under Section 10 of the Bihar and Orissa Public Demands Recovery Act, 1914 by which the objections filed by the petitioners under Section 9 of the said Act have been rejected and directions have been issued to them to deposit the various amounts payable towards interest on the arrears of purchase tax for different periods in different cases, the earliest being of the year 1984-85 and the last year being 2001-02, the periods however, are not common to all the cases but in different matters the certificate cases are for different years.
The facts of the first case, namely, CWJC No. 13121/2006 are being delineated here as representative of the facts of the other cases. Under the provisions of Section 49(1) of the Cane Act each Sugar Factory is obliged to pay tax at the rate of Re. 1/- per quintal of Sugarcane which was subsequently enhanced to Rs. 1.75 per quintal with effect from 9.11.2000 by notification issued in that regard by the State Government. The failure to pay the taxes entails recovery of the same as arrears of land revenue or public demand under Section 51 of the Act. There is further provision for interest on failure to pay such purchase taxes at the rate of 11% per annum. It is not in dispute that principal amount of tax on purchase of sugarcane has been paid in all the cases including in the first writ petition for the period from 1985-86 to 1989-90. The interest not having been paid, the Cane Officer, Gopalganj by his letter dated 8.7.2002 addressed to the District Certificate Officer, Gopalganj sought recovery of interest on arrears of purchase tax for the period 1985-86 to 1989-90 payable under Section 49(3) of the Cane Act to the extent of Rs. 3,74,552/-. Similarly, demands were raised for different periods with respect to the other writ applications also. The petitioners on receipt of, notice from the Certificate Officer filed their respective objections under Section 9 of the Act in which one of the grounds taken was that interest has wrongly been calculated in excess whereas under Section 51 of the Cane Act it is chargeable only at the rate of 11% per annum. Thereafter by letter dated 28.5.2003 the Cane Officer intimated to the District Certificate Officer that the interest on principal dues have been wrongly calculated at the rate of 15% in the requisition and therefore calculation in terms of the correct rate of interest at the rate of 11% with calculation chart was forwarded, the certificate amount thereby getting reduced to Rs. 1,89,702.44 and a request for correction of the previous calculation was made. Thereafter the petitioners filed a composite written statement in addition to the separate objections taken under Section 9 of the Act raising various points. By the impugned order dated 19.9.2006 and other orders separately in each case the District Certificate Officer rejected the objection petition and directed the petitioners to deposit the amount of Rs. 1,89,702/- within three weeks. Similar directions were issued in all the other cases on the same date as also on two other dates.
Learned counsel for the parties in support of their respective stand have made various submissions but it may not be necessary to deal with them all in the given circumstances of the case.
The principal submission of learned counsel for the petitioners is that the certificate proceedings are violative of Sections 4, 5 and 6 of the Bihar and Orissa Public Demands Recovery Act as neither the requisition is in accordance with Form No. 2 nor the certificate is in Form No. 1. It is submitted that signing of the requisition by the Cane Officer and the Certificate Officer on the same form amounts to non-compliance of Section 4.
It is the stand of learned counsel for the petitioner that the law relating to recovery of public demand is a special and technical law and while construing such technical and special law, the Court should insist upon following the requirement strictly. In support of the same learned counsel relies upon a decision of this Court in the case of Hari Prasad Agarwalla Vs. The State of Bihar and Others, : Hari Prasad Agarwalla Vs. The State of Bihar and Others, of which it has been laid down as follows:--
"4. It was next contended by the learned Government Advocate that, although no requisition in the prescribed form and manner may have been sent by respondent No. 2 to respondent No. 4, the certificate, a notice with regard to which had been issued by respondent No. 4 and duly served on the petitioner, should be deemed to be in form 1 as envisaged by Sections 4 and 6 and should be deemed to be a substantial compliance with the statutory requirement under Sec. 5 of the Act. There is no force in this argument of learned counsel for the respondents. In the case of Gujraj Sahai Vs. Secretary of State for India in Council and Another, it was observed by the Judicial Committee of the Privy Council as follows:--
"The Act (The Public Demands Recovery Act) is an extremely stringent one; the policy of it we do not of course discuss. But we suppose it to be that, as a matter of executive convenience, demands of a public nature, the justice of which has been enquired into and certified by officials of high rank and unquestionable integrity, may properly enjoy for the enforcement of them, the very exceptional privileges accorded to them by this Act; but subject to whatever safeguards are provided by the Act by the procedure laid down in it."
And, again, at page 430 it was observed:--
"We think it absolutely incumbent on the Courts, when considering the validity of sales under this Act, to rigidly require an exact compliance with the formalities prescribed by the Legislature: to do so at least as rigidly as the Courts at home have, for instance, in copyright case and in many others, insisted on exact obedience to prescribed formalities."
In the case of Gujraj Sahai, with which the Judicial Committee was seized the certificate did not bear the signature, and it was held that in such kind of cases the matter is of infinitely greater importance, for the non-compliance with the provision prescribed by the Act prevented the Collector from being clothed with the powers conferred on him by the Act and the sale in such cases cannot be said to be under execution of a certificate duly made under the provisions of the Act and such sales would have to be struck down as absolutely void.
This case has been referred to and relied on by a Bench of this Court in Nageshwar Prasad Singh vs. Rai Bahadur Kashinath Singh (1958 BLJR 820). In Nageshwar Prasad''s case the argument put forward on behalf of the certificate debtor was that it was only the matter of substance which, if not filled in, would be fatal to the certificate. That means, it was suggested, that it had no reference to such blanks in the form which had no material bearing upon the merits of any certificate issued. Such an argument was held to be untenable by this Court, and it was held that the term ''matters of substance'' refers to form prescribed by the Act and that remark cannot be limited to only certain items in the form. It will be noticed from the facts of those two cases that there it was merely the failure to put in signature at its due place in the form. Even so, both the Judicial Committee as well as the Bench of this Court held that in construing the provisions of the Act such omission or failure would not amount to a mere irregularity but would be fatal to the certificate proceedings which would be deemed to be void ab initio. The instant case with which we are concerned stands on a footing much worse for the respondents. What to talk of no signature or verification being appended to the form, as I have already stated above, no requisition in Form 2 under Sec. 5 of the Act was at all sent by respondent No. 2 to respondent No. 4. The notice in Form 1 read with Sections 4 and 6 of the Act, which was sent to the petitioner by the Certificate Officer, respondent No. 4 states at the end of the certificate (Annexure-2), after all the columns had been filled up, that the Certificate Officer was satisfied that the above mentioned sum of Rs. 12,275/- was payable by the petitioner to the Divisional Forest Officer, Monghyr. This satisfaction of the Certificate Officer, even treating the matter as of form only, is without any foundation, for the satisfaction of the Certificate Officer must be based initially upon the satisfaction of the requisitioning officer, namely, respondent No. 2 in the present case, who must have verified the requisition in Form 2 under Sec. 5 of the Act. In that view of the matter, I have no hesitation in holding that the certificate proceedings started against the petitioner were wholly without jurisdiction."
Learned counsel further relies upon para-7 of a division Bench decision of this Court in the case of Nirod Baran Banerjee Vs. State of Bihar and Others, . It may however be necessary to quote last part of para-3 of the said judgment also. Both of which are, accordingly quoted below:--
"3. .... ................. ................
"Section 4 of the Act states that when the Certificate Officer is satisfied that any Public demand payable to the Collector is due, he may sign a certificate in the prescribed form, obviously referring to Form No. 1 stating that the demand is due and shall cause the certificate to be filled in his office, thus before initiating the certificate proceeding the Certificate Officer has to be satisfied that the public demand is payable to the Collector. He is also to certify specifically that the demand is due. In column No. 2 the certificate-holder has been described as the District Mining Officer, Hazaribagh and not the Collector. Even assuming that the verification (Tasdik) mentioned in the Form in question amounts to a certificate, any certificate by the District Mining Officer, who is not vested with the powers of a Certificate Officer, cannot take the place of a Certificate by the Certificate Officer as envisaged in Form No. 1 of Schedule II. It is true that the Deputy Director of Mines is a Certificate Officer but the verification (Tasdik) signed by him too falls short of the requirements of Sec. 4 read with Form No. 1 inasmuch as it does not even indicate about his satisfaction about the demand being payable to the Collector or about the same being due. As contended it does not also state about the amount being payable, the relevant space having been left blank. There is another certificate by the District Mining Officer on the said Form which states that demand notice was served on the lessee prior to the date of filing of the requisition and that the dues are not time barred. The term due used in Sec. 4 of the Act suggests that it must be legally due but it is for the Certificate Officer to so certify and not for the District Mining Officer, who, undisputedly appears to have signed this certificate. Surplusages or unnecessary additions in the relevant form, unless it adversely affects the right of the party, may in the appropriate circumstances be overlooked but if the form falls short of the requirement of the provisions made in the Act, as in the instant case, the action taken has to be invalidated."
The next point, for consideration is: Whether the certificate has been issued under Sec. 4 and in Form No. 1 of Schedule II of the Bihar and Orissa Public Demands Recovery Act (hereinafter referred to as the Act)? The Deputy Director of Mines was the certificate officer within the purview of Sec. 3(3) of the Act. The Certificate Officer is entitled to issue a certificate in Form No. 1 of Schedule II both under Sec. 4 as well as under Sec. 5 of the Act. If the Certificate Officer issues a certificate under Sec. 4 then the following certificate is required to be signed by him:
"I hereby certify that the abovementioned sum of Rs......... is due to the abovenamed."
If the certificate is issued under Sec. 5 then the Certificate Officer is required to give another certificate over and above as mentioned above in the following manner:
"I further certify that the abovementioned sum of Rs................ is justly recoverable, and that its recovery by suit is not barred by law."
Under Rule 8 of the Rules framed by the Board of Revenue the Collector or his representative can prepare the draft in Form No. 1 of Schedule II of the Act. The contention of the learned Government Pleader V was that the District Mining Officer being a representative of the Collector could prepare the draft in Form No. 1. Accepting the argument of Government Pleader V as correct it is clear that the District Mining Officer being the representative of the Collector can prepare the draft in Form No. 1 but in the present case the certificate has also been signed by the District Mining Officer to the following effect:
"I hereby certify that the abovementioned sum of Rs. 1,36,135.32 is due to the Government from the above-named."
This certificate has been signed by the District Mining Officer, Hazaribagh. This certificate can be signed only by the Certificate Officer i.e., the Deputy Director of Mines. Hazaribagh. In this circumstance I hold that the signature made by the District Mining Officer is illegal and without jurisdiction. This certificate should have been signed by the Deputy Director of Mines who was the Certificate Officer of Mines. In the instant case he had signed the certificate after it was signed by the District Mining Officer. There is another certificate below the signature of the Certificate Officer which was made by the District Mining Officer, Hazaribagh. In that certificate he has mentioned:
"Certified that the dues have not been realized and it is not time barred."
This certificate was not at all required to be given by the District Mining Officer and it is not in consonance with Form No. 1. In other words there are three certificates by three different Officers in Annexure-1. First there is a certificate of the District Mining Officer, there is another certificate by the Certificate Officer and the third certificate is again by the District Mining Officer. This fact clearly shows that the certificates were not issued in accordance with Form No. 1 of Schedule II. It is the case of the State that the certificate was issued under Section 4 of the Act. In that case there should be only one certificate and that is by the Certificate Officer, who should have stated in the following manner:--
"I hereby certify that the above amount of Rs. 1,36,135.32 is due to the Government from the above-named."
This certificate should have been signed by the Certificate Officer and not by the District Mining Officer. The certificate given by the District Mining Officer is illegal and without jurisdiction and it is not in consonance with Form No. 1 of Schedule II. In the circumstances my learned brother is correct in quashing Annexures 2 to 5. The authorities are directed to proceed in accordance with law."
He also relies upon a Division Bench decision of this Court in the case of Sasamusa Sugar Works Ltd. Vs. State of Bihar and Others, , in relevant part of para-18 of which it has been held as follows;--
"18. In this case action was taken by the Certificate Officer against the petitioner for the realization of money under Sec. 4, Public Demands Recovery Act, 1914. That section reads:--
"When the Certificate Officer is satisfied that any public demand payable to the Collector is due, he may sign certificate in the prescribed form, stating that the demand is due and shall cause the certificate to be filed in his office."
It shows that the satisfaction of the Certificate Officer to the effect that some public demand payable to the Collector is due is a condition precedent to the exercise of the power given to him under this section. In case, therefore, where an order is passed by the Certificate Officer under this section without any satisfaction on his part to the effect stated above or on the so-called satisfaction which, is arbitrary and not based on any material, his order so passed will be one without jurisdiction. It is evident from the facts of this case that the proceeding against the petitioner was started by the Certificate Officer on the basis of form No. 1 filed in his office by the Sub-divisional Officer of Gopalganj and that form was filled in accordance with the direction given to the Sub-divisional Officer by the Government in its letter dated 20.2.1954. That order by the Government, as already held above, being without jurisdiction, there could not be in law any basis for the satisfaction of the Certificate Officer that any public demand payable to the Collector was due and, therefore, the proceeding started by him under the Public Demands Recovery Act on the basis of that order is undoubtedly void."
Learned counsel also relies upon a Division Bench judgment in the case of Nageshwar Prasad Singh vs. R.B. Kashinath Singh 1958 BLJR 820 : (1958) ILR 37 Patna 1375 in para 13 of which it has been held as follows:--
"13. The net result of having considered all these cases is that the Certificate Officer must meticulously apply his mind to filling the certificate and filling in the columns and blanks correctly and in appending his certificate in the form prescribed, and that the filling in of the forms is a matter of substance and is imperative, to give the certificate the force of a decree of court of law, and if it is found that the Certificate Officer had not applied his mind at all and that some of the blank spaces were not filled up, or were incorrectly filled up, the document so prepared and filed is not a certificate under the Public Demands Recovery Act. In the present case, the name of the certificate-holder is given as "Emperor", and it is obvious that the debt due, namely, the arrears of cess (collected by the Collector and payable to the District Board) were not debts due to the Emperor, and, therefore, the Emperor was not the certificate holder. The Certificate Officer did not fill up the blanks in the certificate portion of the form, and the name of the certificate-debtor did not at all appear in the certificate or in the tabular form above the certificate. The name of the certificate-debtor is, however, found on the back of the page, and one does not know as to when that name was written out on the back of the page. Even if it is supposed that the name of the certificate-debtor was given on the back of the certificate form that would show without any doubt that the Certificate-Officer, while giving his certificate under his signature on the first page, did not at all apply his mind as to whether the form was properly and correctly filled up. In that view of the matter, in my opinion, it must be held as was held in the Privy Council Case (I.L.R. 23 Calcutta 775) that the certificate proceedings in this case were wholly invalid and that the Court below has rightly held that the sale held in execution of such a certificate was bad in law and must be set aside. The Courts must exact from the Collector or the Certificate Officer, under the Public Demands Recovery Act, due performance of his duties under the Act and forms must be duly filled in and not in a slovenly fashion, and if the forms are not properly filled up, the officer concerned acts without jurisdiction. It must, therefore, be held that the sale was invalid and must be set aside."
Learned counsel for the State, on the other hand, submits that the certificate in question is not vague and all the details are to be found therein. It is submitted that from perusal of the certificate it is evident that it contains all the details that are required.
From a perusal of the provisions of the Bihar & Orissa Public Demands Recovery Act read with the aforesaid provisions of the Cane Act, it is evident from Section 49(3) of the Bihar Sugarcane Act that the tax payable is to be paid by the occupier of the factory to the Collector of the District concerned together with interest which has been declared recoverable as a public demand as arrear of land revenue. That being the position, in my view, the case is squarely covered by Section 4 and not by Section 5 of the Public Demands Recovery Act. Where any public demand payable to the Collector is to be recovered then satisfaction is to be recorded by the Certificate Officer that the same is due to the Collector and he is required to sign a certificate in the prescribed form stating that the demand is due and certificate is filed in his office. Since the statutory provisions make it-clear that the public demand concerned was payable to the Collector hence it is not a case covered by Section 5 which requires written requisition in prescribed form to be filed in case of public demand payable to another person than the Collector before the Certificate Officer. The procedure adopted by the Cane Officer, Gopalganj in the present matter by first sending the requisition under Section 5 appears to be wholly misconceived.
However, the more serious lacuna which is to be found in the certificate dated 23.12.2009 in the first case and the corresponding certificates in the other cases, is that although the requirements of Form-I are otherwise fulfilled so far as the other details are concerned, but there is no certificate by the Certificate Officer stating that the demand is due. Moreover, I find that the certificate has also been signed by the Cane Officer, Gopalganj which is certainly not permissible in terms of the provisions of the PDR Act.
Hence, the present case is squarely covered by the aforesaid catena of Division Bench decisions of this Court. As laid down in the aforesaid decisions itself the duty of the Certificate Officer is to ensure that all the requirements in Form-I are duly complied with and nothing is left blank. Moreover, it is an essential precondition that the Certificate Officer has to record his satisfaction that the demand is due and thereafter the certificate can be signed by the Certificate Officer and the certificate filed in his office for recovery of the certificate dues. That not having been done in the present matter, it cannot be said that any jurisdiction was acquired by the District Certificate Officer to proceed in the matter and pass any orders.
The entire certificate proceedings are, therefore, held to be without jurisdiction. The certificate proceedings as also the orders passed therein under Section 10 of the Act are, accordingly, quashed. The respondents, however, shall have liberty to initiate fresh certificate proceedings in accordance with law.
In view of the fact that I have held that there was no proper certificate filed in accordance with Section 4 of the Act and the requisition in the prescribed forms, there is no necessity to deal with the, other submissions of learned counsels for the parties. The writ applications are, accordingly, allowed.