NARAYAN PRASAD MISRA v. SECRETARY TO GOVT. OF ORISSA REVENUE DEPARTMENT
1984-10-30
J.K.MOHANTY, K.P.MOHAPATRA
body1984
DigiLaw.ai
JUDGMENT : J.K. Mohanty, J. - These two cases were taken up together as identical questions of law and fact are raised in these cases and this judgment will govern both of them. 2. The Collector, Raigarh (Madhya Pradesh) (opp. party No. 5) sent certificates purporting to be under section 3(1) of the Revenue Recovery Act, 1890 (hereinafter called the 'Act of 1890') addressed to the Deputy Commissioner, Sambalpur, Orissa, for recovery of Rs. 24,554,69 p. (O. J. C. No. 289/78) and Rs. 4,434.81 p. (O. J. C. No. 290/78) against N.B. Misra (name of the petitioner is N.P. Misra) on account of forest dues and requested that the amount should be recovered and remitted to the D. F. O., Jashpur Division (M. P.). The aforesaid certificates, were sent by the Collector, Sambalpur (opp. party no. 6) to the Special Certificate Officer (opp. party no 2). Opp. party no. 2 started certificate Cases Nos. 7 and 4 of 1970 respectively under the Orissa Public Demands Recovery Act, 1962 (Act I of 1963) (hereinafter called the 'Act'). Opp party no. 2 clubbed together those certificate cases with another Certicate Case No. 1 of 1966-67 regarding forest dues payable to D.F.O., Bamra and also five cases relating to Agricultural Income Tax dues (Cases No. 2 of 1969, No. 6 of 1970, No. 5 of 1971, No. 9 of 1971 and No. 7 of 1974), three cases relating to Orissa Sales Tax dues (Case No. 32/1-22 of 1964-65, No. 32/1-49 of 1964-65 (subject-matter of O. J. Cs. 339, 340 and 342 of 1978), two cases relating to Central Sales Tax dues (Case No 32/1-19 of 1964-65 and No. 56 of 1967) (subject matter of O. J. Cs. Nos. 337 and 341 of 1978) and three cases relating to dues under Orissa Taxes (On Goods Carried by Road or Inland Waterways) Act, 1968 (Case No. 31/1-20 of 1964-65, No 32/1-37 of 1965-66 and No. 1 of 1967) (subject matter of O. J. Cs. Nos. 335, 336 and 338 of 1978) and issued notices to the petitioner under section 6 of the Act after signing the certificate under section 5 of the Act. Petitioner filed objection under section 8 of the Act, but the same was rejected by opp. party no. 2. Thereafter petitioner went up in appeal before the Addl. District Magistrate, Sambalpur (opp.
335, 336 and 338 of 1978) and issued notices to the petitioner under section 6 of the Act after signing the certificate under section 5 of the Act. Petitioner filed objection under section 8 of the Act, but the same was rejected by opp. party no. 2. Thereafter petitioner went up in appeal before the Addl. District Magistrate, Sambalpur (opp. party no 3) in one of the certificate cases No. 1 of 1966-67). The appeal was dismissed. Against that the petitioner preferred a revision before the Revenue Divisional Commissioner (opp. party no. 4) which was also dismissed. Thereafter opp. party no. 2 issued a sale proclamation (in respect of the aforesaid cases clubbed together) for realisation of the consolidated amount of Rs. 4,09,711.59 p. with costs and other incidental expenses. Petitioner filed a consolidated objection against the aforesaid sale proclamation on the ground that the requisitions were not in proper form and have not been verified and that the same were not in conformity with the Act of 1890 and the Rules in Schedule II of the Act. Opp. party no. 2 by his common order dated 24-10-1975 rejected the objection of the petitioner vide Annexure-3). Thereafter petitioner preferred Certificate Appeal Nos. 66 and 69 of 1975 before opp. party no. 3 and the same were rejected by order dated 10-11-1975 vide Annexure-4. Against the petitioner preferred Certificate Revisions Nos. 2 and 3 of 1976 before opp. party no. 4, who dismissed the same by order dated 7-2-77 vide Annexure-5. Thereafter opp. party no. 2 has issued a fresh sale proclamation for realisation of the aforesaid amount in respect of all the cases clubbed together. Petitioner has, therefore, come up with these petitions to quash orders in Annexures-1 to 5 passed by the authorities in the aforesaid Certificate Cases Nos. 7 and 4 of 1970 respectively. 3. Opp. parties 1, 2, 4 and 6 have filed their counter. In their counter it is stated that the Certificate Officer has the authority to deal with all types of certificate requisitions filed before him as the cases were transferred by the Collector, Sambalpur for execution by the Special Certificate Officer. Petitioner s case has been considered in appeals and revisions filed against the orders of the Certificate Officer.
In their counter it is stated that the Certificate Officer has the authority to deal with all types of certificate requisitions filed before him as the cases were transferred by the Collector, Sambalpur for execution by the Special Certificate Officer. Petitioner s case has been considered in appeals and revisions filed against the orders of the Certificate Officer. Objections under section 8 of the Act denying his liability in all the cases having been consired and rejected by the Certificate Officer which were also confirmed in appeals and revisions, the very same objections cannot be raised now after the issue of sale proclamation. There is nothing wrong in clubbing together all the cases for realisation of the consolidated amount. The petitioner filed consolidated objection to the aforesaid proclamation which was duly considered and disposed of Regarding the address, it is stated that the petitioner has taken notice of the proceedings and has filed objection, so the question of proper address not being supplied does not arise. It is, therefore, prayed that the writ petitions have no merit and should be dismissed. 4. Petitioner mainly raises the following questions amongst others :- (1) That opp. party no. 2, the Special Certificate Officer committed serious error of law and procedure in clubbing together three certificate cases relating to forest dues and eight certificate cases relating to Central Sales Tax, cases under Orissa Sales Tax, Orissa Taxes (on Goods Carried by Roads or Inland Waterways), five certificate cases relating to Agricultural Income Tax dues and in issuing a sale proclamation with respect to consolidated amount of Rs. 4.09,718.59 p. (2) That under section 3 of the Act of 1890 the Collector of a district may send to the Collector of another district a certificate and on receiving the certificate the latter will proceed to recover the amount stated therein as if it is an arrear of land revenue which has accrued in his own district. In such a case there is no provision for delegation, and therefore, the matter cannot be dealt with by the Certificate Officer, who is not a Collector as defined in the Revenue Recovery Act. (3) That the requisition has been sent in the name of Shri N.B. Misra whereas the petitioner's name is Narayan Prasad Misra (in short N.P. Misra) and the name of his father nor the details of his address were given. 5.
(3) That the requisition has been sent in the name of Shri N.B. Misra whereas the petitioner's name is Narayan Prasad Misra (in short N.P. Misra) and the name of his father nor the details of his address were given. 5. The first contention of the petitioner is that opp. party no. 2, the Special Certificate Officer committed a serious error of law and procedure in clubbing up together all the certificate cases relating to forest dues, Central Sales Tax dues, Agricultural Income Tax dues and dues under Orissa Taxes (on Goods Carried by Roads or Inland Water Ways) Act. There is no dispute that the certificate cases have been clubbed up together and one sale proclamation has been issued for realisation of the consolidated amount of Rs. 4,09.718.59 p. with costs and other incidental expenses. The provisions of the Act required to be complied with are mandatory as the certificate procedures are in the nature of execution proceedings and, therefore, the provisions thereof have to be strictly complied with like the corresponding provisions under Order 21 of the C. P. C. have to be complied with in execution of decrees against the judgment-debtor. The provisions contained in the rules in Schedule II of the Act are skin to Order 21 of the C. P. C. Various dues not only of the Government of Orissa but also the Government of Madhya Pradesh regarding Forest dues, Orissa Sales Tax dues, Central Sales Tax dues, Agricultural Income Tax dues and dues under Orissa Taxes (on Goods Carried by Roads or Inland Waterways) Act have been clubbed up together for realisation of a consolidated amount of Rs. 4,09,718.59 P. It is absolutely clear that the certificate officer appears to have confused the proceedings beyond repair by consolidating the dues of all the 16 demands and by issuing a sale proclamation. There is only one sale proclamation for all the cases. This procedure adopted by the Certificate Officer is absolutely illegal and is not sanctioned by the provisions of law. The Certificate Officer should not have consolidated all the demands and this evidently has caused serious prejudice to the petitioner. Even if the petitioner is able to establish that in any of the certificate cases he is not liable to pay, yet he cannot get any relief as one sale proclamation has been issued with respect to all the immovable properties.
Even if the petitioner is able to establish that in any of the certificate cases he is not liable to pay, yet he cannot get any relief as one sale proclamation has been issued with respect to all the immovable properties. So on a consideration of the facts and circumstances of the case, we are of the view that the opp. party no. 2, the Special Certificate Officer committed serious illegality in clubbing up together all the demands in 16 cases and in issuing one sale proclamation. So we are of the opinion that the writ petitions should be allowed on this ground alone and the sale proclamation issued with respect to the consolidated amount of Rs 4,09,718.59 P. and Annexures 3,4 and 5 are liable to be quashed and are hereby quashed. In View of the above finding, the other points raised by the petitioner need not be gone into. 6. In the result, therefore, the writ petitions are allowed. However, it may be made clear that it is open to the authorities to proceed for the realisation of the dues in respect of these cases according to law. There shall be no order as to costs. K.P. Mohapatra, J. - I agree, but would like to add a few words. There were as many as II Certificate cases against the petitioner on account of various demands such as Forest dues, Sales Tax dues and Agricultural Income Tax dues amounting to Rs. 409,718.59 P. for realisation of which, a single sale proclamation was issued. Although he objected for issuance of a single sale proclamation in respect of different demands, his objection was overruled not only by the Certificate Officer, but also by the Appellate and Revisional authorities (Annexures-3, 4 and 5). The moot point for consideration is whether the Certificate Officer was justified according to law to club all the Certificate cases and to issue a single sale proclamation for realisation of the consolidated amount of Rs. 409,718.59 P 8. The illegality committed will be apparent if, by way of analogy, a question is posed as to whether a Civil Court while executing separate decrees in respect of distinct and separate decretal dues against the same judgment-debtor can club all the decrees and issue a single sale proclamation for realisation of the consolidated decretal dues ? The answer to this question will be bound to be in the negative.
The answer to this question will be bound to be in the negative. The case before us is no better. There is no such provision in the Act. If separate sale proclamation shall be issued in respect of different Certificate dues, different considerations will arise and the Certificate-debtor shall get opportunity to meet each case separately. If on the other hand, all the proceedings are clubbed and a single sale proclamation is issued for realisation of the consolidated certificate dues as in this case, the Certificate-debtor shall no doubt be precluded in raising separate objections, if any, and thereby prejudice shall be caused to him. On the aforesaid considerations the sale proclamation, as well as, the orders contained in Annexures-3, 4 and 5 are liable to be quashed. Final Result : Allowed