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Jharkhand High Court · body

2009 DIGILAW 11 (JHR)

Bimal Wire Nail Industries v. State of Jharkhand

2009-01-06

R.R.PRASAD

body2009
ORDER :- This writ application has been filed for quashing of the order dated 27-122007 passed by the Deputy Commissioner, Koderma, respondent No.2. in Certificate Appeal No.1 of 2007 as contained in Annexure 4 whereby and whereunder the order-dated 3-1-2001 passed by the Certificate Officer. Koderma, respondent No.3 in Certificate Case No.56 of 1990-91 dismissing the certificate case itself was set aside. Further prayer is to quash the notice issued under Section 7 of the Public Demand Recovery Act calling upon the petitioner to show cause as to why not a sum of Rs.1.31.707.60, which is due to be paid to the State Bank of India, be realized. 2. It is the case of the petitioner that the Branch Manager of the State Bank of India. Jhumri Tilaiya Branch submitted a requisition to the Certificate Officer, Koderma for recovery of a sum of Rs.1.31,707.60 under the Public Demand Recovery Act (hereinafter referred to as 'the Act'). Upon which Certificate Case No.56 of 1990-91 was instituted. Thereupon a notice dated 15-10-1990 in terms of Section 7 of the said Act was issued by the respondent No.3 along with Form-I showing demand of Rs.1.36,358.60 but said Form-I never bore the signature of the Certificate Officer. On getting the said notice, the petitioner filed an objection under Section 9 of the said Act but the Certificate Officer, respondent No.3 did hold, vide order dated 22-12-1993, that the petitioner is defaulter and hence, directed the petitioner to deposit the said amount immediately. 3. Being aggrieved with that order the petitioner filed a review petition under Section 63 of the said Act on the ground that the proceeding is barred by limitation and is also bad on account of non-observance of the mandatory provision of law. 4. The plea taken by the petitioner was accepted by the Certificate Officer and hence, he dropped the proceeding, vide its order dated 3-1-2001 (Annexure 3). 5. Being aggrieved with that order. respondent No.4 State Bank of India preferred an appeal, bearing No.1 of 2001 before the Deputy Commissioner, Koderma, respondent No.2 and the respondent No.2 after hearing the parties, set aside the order dated 3-1-200 I whereby Certificate Officer had dropped the certificate case on the ground that review petition was not maintainable before the Certificate Officer. 6. respondent No.4 State Bank of India preferred an appeal, bearing No.1 of 2001 before the Deputy Commissioner, Koderma, respondent No.2 and the respondent No.2 after hearing the parties, set aside the order dated 3-1-200 I whereby Certificate Officer had dropped the certificate case on the ground that review petition was not maintainable before the Certificate Officer. 6. Being aggrieved with that order, this writ application has been filed for setting aside the order passed by the Deputy Commissioner, Koderma and also for quashing the notice under which the petitioner was called upon to show cause as to why a sum of Rs. 1,31,707.60 be realized. 7. Learned counsel appearing for the petitioner submits that Certificate Officer while dealing with the application for review has come to the finding categorically that the certificate in Form-I accompanied by the notice issued under Section 7 of the said Act was never signed by the Certificate Officer and hence, the entire proceeding gets vitiated and is without jurisdiction which proposition of law has already been laid down by the Patna High Court in a case of Jai Prakash Dwivedi v. State of Bihar and others (1998 (2) PWR 498) and also by this Court in a case of Sita Ram Agrawal and others v. State of Jharkhand and others, (2005 (1) JWR 247) : (2005 AIR Jhar HCR 667). 8. Learned counsel appearing for the State Bank of India as also learned counsel appearing for the State of Jharkhand would submit that if the certificate in Form-I has' been issued with notice without bearing the signature of the Certificate Officer, that is a procedural error which will never vitiate the certificate proceeding and that when the petitioner had filed an objection under Section 9 persuant to notice issued under Section 7 of the Act, it was rejected by holding that the petitioner being defaulter is liable to pay the amount and against .that order, review was preferred, though review application was never maintainable and hence, when the order was passed against the respondent No.4, an appeal was preferred and the appellate Court set aside the order of the Certificate Officer and under this situation, this writ application is fit to be dismissed. 9. 9. The point for consideration is as to whether Certificate Officer has got any authority or jurisdiction to issue notice under Section 7 of the said Act without complying the mandatory requirement of law? 10. It be stated that it is the stand of the petitioner that certificate as contained in Form-l accompanied by the notice issued under Section 7 of the Act never bore the signature of the Certificate Officer. The assertion of the petitioner gets reflected from the order dated 3-1-2001 passed by the Certificate Officer himself while dealing with the matter of review. Thus, the assertion of the petitioner of certificate being unsigned gets established. But the question does arise as to whether putting a signature over the certificate is an empty formality? 11. The provision as enshrined in Section 6 of the Bihar Public Demand Recovery Act renders the answer in negative. The said provision reads as follows: "Filing of certificate on requisition :- On receipt of any such requisition, the Certificate Officer if he is satisfied that the demand is recoverable and that recovery is not barred by law, may sign a certificate, in the prescribed form, stating that the demand is due and shall include in the certificate the fee if any paid under Section 5, sub-section (2) and shall cause the certificate to be filed in his office." 12. From perusal of the above provision, it would appear that the Certificate Officer may sign the certificate on receipt of the requisition but only on being satisfied that the 'demand' is recoverable and that its recovery is not barred by any law. 13. In that view of the matter, the Certificate Officer is expected to apply his mind and then sign the certificate. Thus, the omission to put the signature on the certificate is not an empty formality, rather it goes to the root of the matter and hence, any such certificate without having any signature of the Certificate Officer would be deemed to be no certificate in the eye of law. This proposition of law has been laid down in a case of Jai Prakash Dwivedi v. State of Bihar and another (supra) and also in a case of Sita Ram Agrawal and others v. State of Jharkhand and others, (2005 A1RJhar HCR 667) (supra). 14. This proposition of law has been laid down in a case of Jai Prakash Dwivedi v. State of Bihar and another (supra) and also in a case of Sita Ram Agrawal and others v. State of Jharkhand and others, (2005 A1RJhar HCR 667) (supra). 14. Accordingly, for the reason as aforesaid, this writ application is allowed and the impugned notice is hereby quashed. However, the Certificate Officer may act on the requisition sent by the concerned respondent only after complying the mandatory requirement of the provisions of the said Act. Application allowed.