Dismissed

Arun Kumar v. The State Of Jharkhand And Ors.

Jharkhand HC19 Jul 2019WPC/7540/2017

Case brief

AI extract

What is this about?

This judgment dismissed a writ petition challenging the Certificate Officer's refusal to entertain a petition under Section 10 of the Bihar and Orissa Public Demands Recovery Act, 1914, as the debtor had failed to file an objection under Section 9, eliminating any dispute on liability for execution.

What did the court decide?

The writ petition was held to fail and was dismissed.

Arun Kumar Vs The State Of Jharkhand And Ors. — Public Procurement and Tenders | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No.7540 of 2017

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Arun Kumar, S/o Sri Mahesh Chandra Das ……… Petitioner

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Versus

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1. The State of Jharkhand

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2. Certificate Officer Cum District Co-operative Officer, Pakur

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3. Joint Registrar, Cooperative Committees, Santhal Paragana Division, Dumka

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4. Chairman, Alubera Lampus, P.O. Albera, P.S. Pakur (M), DistrictPakur

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5. Sri Rajesh Kumar Das, Member Secretary, Alubera, Lampus, P.O. ……….

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Albera, P.S. Pakur (M), District-Pakur Respondents

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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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--------For the Petitioner : Mr. Birendra Kumar, Advocate : Mr. Asadul Haque, Advocate For the Resp.-State : Mr. Krishna Shankar, S.C.(L&C)-II ---

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05/19.07.2019 This writ petition is under Article 226 of the Constitution of India, whereby and whereunder the order dated 19.05.2017 as contained in memo no.185 (annexure-5) passed by the Certificate Officer Cum District Co-operative Officer, Pakur in Certificate Case No.04/2016-17, has been assailed inter-alia on the ground that the Certificate Officer who has issued the order dated 19.05.2017 has refused to exercise its statutory duty by not dealing with the petition filed by the petitioner, after the certificate having been issued and transferred it before the District Co-operative Officer, Pakur in capacity of Certificate Officer for execution of the certificate, since the authority has rejected the petition filed by the petitioner by taking the ground that since the petitioner has not made any objection contemplated to be made under Section 9 of Bihar and Orissa Public Demands Recovery Act, 1914, therefore, the District Co-operative Officer, Pakur who has been authorized to act as Certificate Officer has got no jurisdiction to execute the certificate which has been transferred before him after passing an order in Surcharge Case No.03/2014.

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2. The admitted fact in this case is that a public demand has been raised within the meaning of Section 3 of the Bihar and Orissa Public Demands Recovery Act, 1914, in pursuance thereto, a notice under

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Section 7 of the Act, 1914 has been issued upon the petitioner as contained under Annexure-3 by the Certificate Officer Cum Sub Divisional Officer, Pakur, directing the petitioner to show the reason as to why liability of Rs.7,50,514.50/- has been casted upon him and to give reply.

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3. Admittedly, the petitioner has not filed any reply as contemplated to be filed under the provision of the Act, 1914, thereafter, the order has been passed by the authority in the aforesaid Surcharge Case No.03/2014, wherein the liability has been casted upon him and in consequence thereof, Certificate Case No.04/2016-17 has been initiated, therefore, the petitioner when not filed any objection under Section 9 of the Act, 1914, certificate of recovery of the said amount has been transferred for its execution before the District Co-operative Officer, Pakur who has been authorized to act as Certificate Officer, wherein the petitioner has filed a petition on 11.02.2017 but the same having not been considered on the ground that Certificate Officer has got no jurisdiction to deal with the petition since there is already adjudication in Surcharge Case No.03/2014 and admittedly the said order, the petitioner has not assailed.

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4. Mr. Birendra Kumar, assisted by Mr. Asadul Haque, learned counsel for the petitioner, has submitted that the order impugned dated 19.05.2017 suffer from infirmity since the said authority has refused to act in pursuance to the statutory power conferred under the provision of the Act, 1914 as Section 10 thereof which provides that the Certificate Officer before whom any certificate has been transferred is required to hear and determine such petition, having not done so, the said authority has failed in discharging the statutory duty and therefore, the order impugned is not sustainable in the eye of law. 5. Per contra, Mr. Krishna Shankar, learned S.C.(L&C)-II appearing for the State-Respondent, has submitted that it is the admitted case of the petitioner that the order passed in Surcharge Case No.03/2014 has not been assailed by the petitioner, therefore, the amount which is to be paid by the petitioner in pursuance to the adjudication made in the aforesaid certificate case since being not paid, the public demand within the meaning of Provision of the Act,

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1914, therefore, a requisition has been made by the concerned Joint Registrar, Co-operative Committee to recovery the said public demand upon which, a proceeding has been initiated by the Certificate Officer-Cum-Sub Divisional Officer, Pakur who is in the capacity of the Certificate Officer has issued notice under Section 7 of the Act, 1914 to that effect, the petitioner ought to have made an objection within the period of 30 days but he has chosen not to do so, therefore, the liability which has been casted upon the petitioner, since being not questioned, therefore, it is not available for him to again raise the issue before the Certificate Officer before whom the certificate has been transferred for its execution.

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6. Having heard the learned counsel for the parties and on appreciation of their rival submissions, this Court before looking into the legality and propriety of the impugned order, deem it fit and proper to refer the provision of Sections 7, 9 and 10 of the Bihar and Orissa Public Demands Recovery Act, 1914 which reads as hereunder:-

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“7. Service of notice and copy of certificate on certificate debtor .-When a certificate has been filed in the office of a Certificate Officer under Section 4 or Section 6, he shall cause to be served upon the certificate-debtor, in the prescribed manner, a notice in the prescribed form and a copy of the certificate

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9. Filing of petition denying liability .-(1) The certificatedebtor may within thirty days from the service of the notice required by Section 7, or where the notice has not been duly served then within thirty days from the execution of any process for enforcing the certificate. Present to the Certificate Officer in whose office the certificate is filed or to the Certificate Officer who is executing the certificate, a petition, in the prescribed from, signed and verified in the prescribed manner, denying his liability, in whose or in part.

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(2) If any such petition is presented to a Certificate Officer other than the Certificate Officer in whose office the original certificate is filed, it shall be sent to the latter officer for disposal.

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10. Hearing and determining of such petition .-The Certificate Officer in whose office the original certificate is filed shall hear the petition, take evidence (if necessary) and determine whether the certificate-debtor is liable for the whole or any part of the amount for which the certificate was signed; and may set aside, modify or vary the certificate accordingly:

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Provided that if the Certificate Officer is not the Collector, and considers that the petition involves a bona fide claim of right to property, he shall refer the petition to the Collector for orders and the Collector, if he is satisfied that a bona fide claim of right to property is involved, shall make an order cancelling the certificate.”

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7. It is evident from the provision of Section 3 that if any public demand having been declared, the public demand within the meaning of Section 3 of the Act, 1914, a requisition is to be made by the competent authority for its recovery and its onward deposit in the State Exchequer.

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If any reason would be made, the Certificate Officer duly been appointed under the provision of the Act, 1914 and the authority is to act as Certificate Officer, will issue notice as required under Section 7 of the Act, 1914 which provides that a certificate-debtor, if wants to dispute the said claim which will have an opportunity to make objection within the period of 30 days from the date of issuance of the notice, such notice requiring him to file an objection as required to be filed under Section 9 of the Act, 1914.

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When any objection would be filed under Section 9, the same would be considered by the Certificate Officer by taking a final decision. The Certificate Officer who will decide the objection filed under Section 9 of the Act, 1914, on adjudication may transfer the certificate before the Certificate Officer duly been appointed to act as Certificate Officer of the department.

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In view thereof, the certificate has been transferred before the District Co-operative Officer who has been authorized to act as Certificate Officer.

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Section 10 provides that Certificate Officer in whose office the original certificate is filed shall hear the petition, take evidence (if necessary) and determine whether the certificate-debtor is liable for the whole or any part of the amount for which the certificate was signed; and may set aside, modify or vary the certificate accordingly.

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The provision as contained under Section 10 does signify that there would be determination of a petition if filed by the certificatedebtor before the Certificate Officer.

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8. The backdrop of this legal position the fact in hand is that admittedly the petitioner has not filed any objection under Section 9, then the public demand has been made after the order passed by the authority under Surcharge Case No.03/2014, upon which, the certificate proceeding has been initiated being Certificate Case

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No.04/2016-17 before the Sub Divisional Officer-Cum-Certificate Officer who has issued notice on 29.04.2016 requiring the petitioner to give his reply but the petitioner has not submitting any reply/objection as required to be filed under Section 9 of the Act, 1914 and thereafter the liability has been casted upon the petitioner and he has been held to be certificate-debtor of an amount of Rs.7,50,514.50/-, the said certificate has been transferred under Section 5 of the Public Demand Recovery Act, 1914, wherein the petitioner has filed an application denying the claim and in that context when the application has not been considered by the Certificate Officer as contemplated under Section 10 of the Act, 1914, the same has been questioned by the petitioner by way of instant writ petition that it was incumbent upon the Certificate Officer to decide the application in terms of the provision of Section 10 of the Act, 1914, therefore, this Court is to answer as to whether when no objection has been made by the petitioner under Section 9 of the Public Demand Recovery Act, 1914, whether it is incumbent upon the Certificate Officer before whom the certificate has been transferred is to decide in exercise of power conferred under Section 10 of the Act, 1914.

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9. The petitioner admittedly has not filed any objection under Section 9 of the Act, 1914 and the ground is being taken that the notice has not duly been served but no substantive evidence to that effect or even no pleading has been made in the writ petition to that effect and whatever ground it may be, but the fact which is in admission is that there was no objection filed by the petitioner under Section 9 denying the liability and furthermore, the order passed by the authority in the aforesaid surcharge case, no appeal has been filed, meaning thereby, the liability which has been casted upon the petitioner in pursuance to the order passed in the Surcharge Case No.03/2014 has been accepted and the instant certificate proceeding in consequence of the said order and further in absence of any objection filed under Section 9 of the Act, 1914, nothing remains to be determined by the Certificate Officer, and therefore, there is no question of applicability of Section 10 of the Act, 1914.

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10. The same issue fell for consideration before this Court in the case of Bharat Nishad Vrs. State of Jharkhand , reported in 2007 (2) JLJR 57, wherein this Court has taken the view that in absence of objection filed under Section 9 when there is no dispute of liability, nothing remains to be determined under Section 10 of the Act, 1914 and therefore, the Certificate Officer has rightly passed the impugned order for executing the certificate.

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11. In that view of the matter and taking into consideration the aforesaid provision of law, this Court is of the view that the order passed by the authority as has been impugned in this writ petition suffers from no infirmity.

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12. Accordingly, this writ petition fails, hence it is dismissed.

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Rohit/-

Arun Kumar v. The State Of Jharkhand And Ors.

Case brief

What is this about?

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Arun Kumar v. The State Of Jharkhand And Ors.

Case brief

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