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2009 DIGILAW 315 (JHR)

Krishna Stone Company v. State of Jharkhand

2009-02-28

D.K.SINHA

body2009
Judgment This appeal has been preferred by the appellant against the order dated 3.12.2008 passed by the learned Single Judge in W.P.(C) No.1042 of 2008, by which the writ petition filed by the petitioner-appellant herein was dismissed on the ground that the petitioner-appellant had an alternative statutory remedy of filing an appeal under Section 60 of the Bihar & Orissa Public Demand Recovery Act,1914, which the petitioner-appellant had failed to avail and straightway filed the writ petition challenging the correctness of the order passed by the District Certificate Officer –cum-Deputy Commissioner (respondent no.2). The order which was challenged by the petitioner-appellant before the learned Single Judge had been passed by the District Certificate Officer under Section 9 of the Bihar & Orissa Public Demand Recovery Act directing him to pay the certificate amount in nine equal instalments commencing from the date of the order. The counsel for the appellant assailed the order passed by the learned Single Judge and sought to address this Court on the correctness of the order passed by the Certificate Officer which could not have been permitted obviously for the reason that the learned Single Judge had not gone into the merit of the matter and had dismissed the writ petition merely on the ground of availability of remedy to the petitioner-appellant. The submission on the merit of the matter therefore cannot be gone into by us while entertaining an appeal against the impugned order. In so far as the view taken by the learned Single Judge that the petitioner-appellant ought to have availed the alternative remedy is concerned, also requires no interference since the counsel for the appellant merely submitted that the appellant could not prefer an appeal as in that event it would have to deposit 40% of the certificate amount. This submission cannot be taken care of by this Court for if there is a statutory requirement under the Act to pay 40% before filing an appeal the same could not have been interfered with by the Court as that would be contrary to the statutory requirement which does not envisage discretion. This submission cannot be taken care of by this Court for if there is a statutory requirement under the Act to pay 40% before filing an appeal the same could not have been interfered with by the Court as that would be contrary to the statutory requirement which does not envisage discretion. However, we have noticed that although the statutory requirement to pay the amount before filing an appeal under Section 60 of the Bihar & Orissa Public Demand Recovery Act is 40% of the certificate amount, it further transpires that the Certificate Officer himself has passed an order that the amount be paid in nine equal instalments and the petitioner-appellant has already paid Rs.1,37,963/-which is less than two equal instalments. Since the Certificate Officer himself has directed the petitioner to make the payment in equal installments, requirement to pay 40% before filing the appeal can be construed to have been waived by the Certificate Officer himself. Nevertheless the right of appeal cannot be snatched from the appellant to contest the matter as to whether the amount of Rs.7.00 lac and odd, which is the certificate amount is at all required to be paid by the appellant or not. In that event, we deem it fit and appropriate to permit the appellant to file an appeal, provided he pays the balance amount of the second instalment, meaning thereby that if the appellant pays two instalments of the certificate amount, he will be at liberty to file an appeal before the appellate forum and if such an appeal is filed the same shall be considered on merit after hearing the contesting parties. Subject to the aforesaid observations, the appeal stands dismissed.