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2012 DIGILAW 1149 (PAT)

Md. Rizwan Ansari v. State of Bihar

2012-08-22

CHAKRADHARI SHARAN SINGH

body2012
ORAL JUDGMENT 1. This is an application under Article 226 of the Constitution of India for quashing the proceeding of Miscellaneous Case No. 97 of 1998-99, initiated for realization of a sum of Rs. 12,35,860/- against the petitioner, as land revenue under Bihar and Orissa Public Demand Recovery Act, 1914 ( hereinafter referred to as the Act) with the issuance of the notice dated 17.9.2000(Annexure-1) under section 7 of the Act. 2. There are certain facts which are admitted and are not in dispute. Petitioner, Md. Rizwan Ansari had filed an application for taking settlement of a vacant piece of land of Bus stand in front of Patna Railway Station, before the District Magistrate, Patna on 4.2.1997 for the purpose of organizing an exhibition of Handloom and Handicraft on the said land. The District Magistrate, Patna temporarily settled the land by his order issued vide memo no. 346 dated 14.2.1997 (Annexure-2) with the petitioner with the “condition” that the petitioner would pay Rs.1000/- only per month for the said land admeasuring 10,000 square feet, for the period 7.2.1997 to 6.5.1997. This is also not in dispute that the petitioner, as was directed by the said order dated 14.2.1997 (Annexure-2), deposited a sum of Rs. 3000/- in the District Nazarat at Patna. The Handloom and Handicraft exhibition was organized thereafter. Before expiry of three months, on 24.4.1997 the petitioner filed another petition for extension of period of settlement. On such application, vide memo no. 742 dated 8.5.1997 ( Annexure-3)issued by the District Magistrate, Patna the period for holding exhibition was extended, for the period 7.5.1997 to 8.8.1997, with the same “condition” as existed as per the original settlement. For the total period of 94 days the petitioner, was asked to deposit a sum of Rs. 3140/- being the “condition” for extension of settlement. 3. Subsequently, by an order issued by the District Magistrate, Patna vide memo no. 1218 dated 30.7.1997 (Annexure-4) the period for settlement was extended for further period of seven months and 23 days i.e. from 8.8.1997 to 31.3.1998 with the “condition” that the petitioner would deposit 8000/- in the District Nazarat for the extended period. The rate of rent for holding the exhibition was again indicated in the order as Rs. 1000/- per month for the land admeasuring 10,000 Sq ft. 4. The rate of rent for holding the exhibition was again indicated in the order as Rs. 1000/- per month for the land admeasuring 10,000 Sq ft. 4. During the continuance of the settlement with the petitioner for the extended period i.e. 8.8.1997 to 31.3.1997, the Collector, Patna vide his order dated 25.10.1997 asked the petitioner to vacate 5000 sq. ft. of land out of total 10,000 sq. ft., so as to allot the said 5000 sq. feet of land to Tibetan Refugee Soham Topfal for organizing Lahasa Market. This is also not in dispute that the petitioner vacated 5000 sq. feet of land, though he had deposited the rent for total period of eight months for the area admeasuring 10,000 Sq.ft. as per the condition of extended settlement contained in the order dated 30.7.1997 (Annexure-4). 5. It appears that against the last order of extension of period of settlement dated 30.7.1997 (Annexure-4), by which the period of settlement was extended up to 31.3.1998, one Nawal Kishore Sharma approached this Court by filing CWJC No. 3551 of 1997. The writ application was, however, permitted to be withdrawn by an order dated 27.8.1997 (Annexure-6) passed by this Court, so as to enable him to move Divisional Commissioner, Patna by filing an appeal against the order dated 30.7.1997 passed by the District Collector, Patna. This Court observed that if such an appeal was filed, the Divisional commissioner shall dispose of the same expeditiously by a reasoned order, 6. Pursuant to this Court’s order, an appeal was preferred before the Commissioner’s Court, Patna vide case No. 106 of 1997. On 10.11.1997, the Commissioner, Patna passed the following interim order in case No. 106 of 1997, on his prima facie belief that the said piece of land was settled during the previous years for Rs. 8, Rs.9, and Rs. 10 per sq.ft. per month, whereas in the present case it has been settled at the rate of only 10 paise per sq. ft. per month:- “No settlement will be made at any rate less than the maximum rate which was achieved in the previous years nor will any settlement made at the lesser rate be renewed till the disposal of the case. The loss of revenue to the State on account of the present settlement be computed by the District office and recovered from the lessees. The loss of revenue to the State on account of the present settlement be computed by the District office and recovered from the lessees. Further settlement if any will be made according to the rules governing such settlement by open auction. The nature of the land be also indicated in the rejoinder to be filed by the State.” The interim order is an ex parte order as the order itself indicates issuance of notice through special messenger to the petitioner. 7. It appears that on the basis of interim order dated 10.11.1997, the Collector issued a notice to the petitioner to deposit a sum of Rs. 12,35,860/- in the district Nazarat calculating the rate of rent at Rs. 10/- per sq. ft. per month right from the first settlement i.e. 7.2.1997. It is indicated here itself that while withdrawing CWJC No. 3551 of 1997, the said Nawal Kishore Sharma had intended to challenge the order dated 30.7.1997 (Annexure-4) passed by the Collector, Patna by which the settlement was extended for the period 8.8.1997 to 31.3.1998. However, from the calculation indicated in the order dated 29.1.1998 (Annexure-8), it appears that the Collector calculated the arrears of rent at the rate of Rs. 10/- sq.ft. per month right from 7.2.1997 itself; said to have been done in the light of the interim order dated 10.11.1997 passed by the Commissioner, Patna in Misc. Case No. 106 of 1997. 8. The petitioner thereafter, approached the Court of Commissioner, Patna for stay of the proceeding initiated by the Collector, Patna vide order dated 29.1.1998 ( Annexure-8) for realization of the amount in question. The Commissioner, Patna on the said application passed an order dated 9.2.1998 (Annexure-9) observing that if any coercive measure was taken by the Collector, Patna, the petitioner would be free to come to the Court of Commissioner for seeking immediate relief. 9. The said appeal filed by Nawal Kishore Sharma was finally decided by the Commissioner, Patna in the following terms by an order dated 27.4.1998 (Annexure-10):- “Having gone through the submissions made by all the parties and the record of the case it is apparent that the settlement made at the rate of 10 paise per sq. ft. per month is very low and that established procedure of settling such lands through open auction was not followed in this case. ft. per month is very low and that established procedure of settling such lands through open auction was not followed in this case. It is directed that as the current period of settlement is already over, no further settlement will be made with any individual without following the established procedure for settlement through open auction. Regarding loss of revenue to the State exchequer it has been submitted by AGP that the DM was not aware of settlement made at higher rates ( Rs. 10/ per Sqf.). However, it remains a fact there has been substantial loss of revenue to the State Govt. The Collector, Patna is directed to find out what should have been the fair rate for this land when the settlement was made and who is the person responsible for this loss. Expeditious action should be taken by her for recovery of this amount”. In the final order, thus, there is no finding nor direction by the Commissioner that the rate of rent should have been calculated at Rs. 10/- per sq. ft. per month and should have been realized from the petitioner. On the other hand, the Commissioner directed the Collector, Patna to find out what should have been fair rate for the land when the settlement was made and who is the person responsible for the loss. 10. It appears that on the strength of the interim order of the Commissioner, Patna dated 10.11.1997 (Annexure-7), calculations were made for realization of rent at the rate of Rs. 10/- per sq. ft. per month by notice dated 29.1.1998 (Annexure-8) was issued even during the pendency of the appeal. On the basis of this calculation the impugned notice dated 17.9.2000 ( Annexure-1) has been issued under Section 7 of the Act for realization of a sum of dRs. 12,35,860/- which is under challenge in the present writ application. 11. Mr. Bidhanesh Misra, learned counsel appearing on behalf of the petitioner contends that whatever amount was due to be paid by the petitioner as per the terms of the settlement of land for organizing Handloom and Handicraft exhibition had been paid by the petitioner. The terms of the settlement, according to him, could not be altered unilaterally behind his back in an appeal proceeding by way of an interim measure. The terms of the settlement, according to him, could not be altered unilaterally behind his back in an appeal proceeding by way of an interim measure. Questioning the propriety of the interim order dated 10.11.1997, learned counsel for the petitioner submits that there was no such urgency for the Commissioner to pass an ex parte interim order without there being any record that the land was settled at higher rate of Rs. 8, Rs.9 and Rs.10 per sq. ft. per month during the previous years. In any event, he submits that the interim order merged into the final order dated 27.4.1998 passed by the Commissioner, Patna, wherein there is no such finding that the rate of rent should be realized from the petitioner at Rs.10/- per sq. ft. per month. On the contrary the Commissioner in his final order directed the Collector to find out as to what should have been fair rent of the land. In his submission, in view of the final order passed by the Commissioner, the notice as contained in Annexure-8 dated 29.1.1998 asking the petitioner to deposit a sum of Rs. 12,35,860/- on the basis of the interim order passed by the Commissioner dated 10.11.1997 (Annexure-7) became redundant. In that view of the matter, he submits that the impugned notice under Section 7 of the Act dated 17.9.2000 as contained in Annexure-1 is wholly unjustified and the proceeding deserves to be quashed. In his submission, the demand as contained in Annexure-8 dated 29.1.1998 and Annexure-1 dated 17.9.2000 cannot be termed as public demand within the meaning of Section 3(6) of the Act read with Schedule I appended to the said Act. 12. Mr. Rai Shivaji Nath, learned Additional Advocate General appearing on behalf of the State of Bihar and its official respondents, on the other hand, contends that the writ petition is not maintainable as the petitioner had the remedy of filing objection under Section 9 of the Act. He submits that the petitioner should have first availed the statutory remedy before coming to this Court under extraordinary remedy under Article 226 of the Constitution of India. He submits that the interim order operated even after passing of the final order by the Commissioner, Patna as in the final order there is no clarification with regard to the interim order passed by the Court of Commissioner. He submits that the interim order operated even after passing of the final order by the Commissioner, Patna as in the final order there is no clarification with regard to the interim order passed by the Court of Commissioner. He contends, referring to the stand of the State of Bihar before the Court of Commissioner, Patna to the effect that guidelines given by the Court of Commissioner dated 10.11.1997 were being complied, that the Commissioner passed the order in that light and under presumption that the Collector, Patna was taking steps for realization of the amount as per the interim order dated 10.11.1997 (Annexure-7) passed by the Commissioner’s Court. 13. After having heard the parties, I am of the view that the first aspect which requires to be decided in the present case is as to whether the demand as contained in the notice dated 29.1.1998 (Annexure-8) made on the basis of the interim order dated 10.11.1997 (Annexure-7) passed by the Commissioner, Patna can be treated to be a public demand within the meaning of Section 3(6) of the Act. Accordingly, this requires to be decided as to whether the notice under Section 7 of the Act dated 17.9.2000 has been validly issued. The definition of “public demand” as contained in Section 3(6) of the Act reads thus:- “3(6). “Public demand” means any arrear or money mentioned or referred to in Schedule I, and includes any interest which may, by law, be chargeable thereon upto the date on which a certificate is signed under part II;---” 14. There are 15 items enlisted in Schedule I which are public demands within the meaning of Section 3(6) of the Act. For the purpose of present dispute Item no.7 is relevant which is being quoted hereinbelow:- “7. Any demand payable to the collector by a person holding any interest in land, pasturage, forest-rights, fisheries or the like, whether such interest is or is not transferable, when such demand is a condition of the use and enjoyment of such land, pasturage; forest-right, fisheries or other things”. 15. In order to constitute a demand to be a public demand within the meaning of item 7 of Schedule I, such demand should be a “condition” of the use and enjoyment of such land. 15. In order to constitute a demand to be a public demand within the meaning of item 7 of Schedule I, such demand should be a “condition” of the use and enjoyment of such land. In the present case the “condition” of use of the land in question is mentioned in the orders issued by the Collector as contained in Annexures 2, 3 and 4 of the writ application, according to which, the petitioner was required to deposit rent at the rate of 1000/- per month for the use of the land in question. It is not the case of the State that the petitioner defaulted in any manner in fulfilling “condition” for use of the land settled in his favour. The entire demand which is under challenge is based on the interim order dated 10.11.1997 (Annexure-7) passed by the Commissioner. The demand created by an interim order passed by the Commissioner, on his, prima facie opinion that the land ought to have been settled at higher rate of rent cannot constitute a public demand within the meaning of Item 7 of Schedule I of the Act. In my opinion only those demands which are covered by Schedule I can be recovered as public demand under the Act. 16. I am, thus, of the view that the demand as raised by notice dated 29.1.1998 (Annexure-8) and notice under Section 7 of the Act being not a demand against “condition” of the use of the land in question is not a public demand within the meaning of Public Demand Recovery Act and for this reason, the notice dated 17.9.2000 (Annexure-1) cannot be sustained. 17. There is another aspect of the matter. The notice dated 29.1.1998 (Annexure-8) demanding a sum of Rs. 12,35,860/- was issued on the basis of interim order dated 10.11.1997 (Annexure-7). Learned Additional Advocate General appearing on behalf of the State of Bihar justifying the demand, specifically contended that the demand was raised with the issuance of notice under the Public Demand Recovery Act, on the strength of the interim order passed by the Commissioner as there was no clarification in the final order passed by the Commissioner, Patna. 18. In the counter affidavit filed on behalf of the Respondent nos. 2 and 3 a different story has been narrated. It is the case of the respondent nos. 18. In the counter affidavit filed on behalf of the Respondent nos. 2 and 3 a different story has been narrated. It is the case of the respondent nos. 2 and 3 that Commissioner, Patna Division delivered his judgment dated 27.4.1998, (Annexure-10) wherein he had observed that the settlement made at the rate of 10 paise per sq.ft. per month was very low and established procedure for settling the land through open auction was not followed. He had directed the respondent Collector to settle the land in future with any individual following the established procedure tthrough open auction as the current period of settlement was already over. For the loss to the State Government, the Collector Patna had been directed to find out the fair rent of the land when settlement was made and as to who was responsible for the loss. The Collector, Patna, as per the counter affidavit worked out the land rent at the rate of Rs. 10/ per sq.ft. per month and revised the demand from the petitioner accordingly. 19. The law is well settled that an interim order of a Court merges in a final order. In the final order dated 27.4.1998 (Annexure-10) passed by the Commissioner, it was specifically mentioned, taking into account the fact that the current period of settlement was already over, that no further settlement would be made with any individual without following the established procedure. The Collector, Patna by the said order was directed to find out the fair rent of land and was also required to find out the person responsible for this loss. 20. There is no pleading in the counter affidavit to the effect that it was the petitioner who was found responsible for the loss if any caused to the public exchequer. It is not the case of the respondents that the petitioner in any manner mis-represented or committed any fraud to obtain settlement in his favour at the rate quoted in Annexures 2, 3 and 4. It is not the case of the respondents that he quoted this rate for settlement of the land in his favour. There is no pleading that there was any inducement made or undue influence exercised by or on behalf of the petitioner for settlement of the land in his favour with the rate it was settled. 21. It is not the case of the respondents that he quoted this rate for settlement of the land in his favour. There is no pleading that there was any inducement made or undue influence exercised by or on behalf of the petitioner for settlement of the land in his favour with the rate it was settled. 21. In the interim order the Commissioner, Patna has mentioned that prima facie, it appeared to him that the land in question was settled at much higher rate during the previous years. No material has been brought on record nor any specific pleading has been made to support the fact that the land in question in fact was settled at higher rate during the previous years prior to the settlement in question. In the present case on the basis of the orders as contained in Annexures 2, 3 and 4 passed by the Collector, Patna the petitioner acted upon which constituted a binding contract between the parties for the consideration and the “condition” mentioned in these orders. Such terms and conditions could not be altered unilaterally. The ex parte interim order passed by the Commission, Patna Division by no stretch of imagination could validly alter the terms of a binding contract. The Commissioner, Patna in his final order dated 27.4.1998 (Annexure-10) did not chose to pass any order for realization of amount from the petitioner calculating the higher rate of rent than the rate agreed upon and simply issued guidelines for the future keeping in view the fact that the current period of settlement was already over. 22. As regards the plea against maintainability of this writ application taken by the learned Additional Advocate General, I am of the view that as the demand in question, in my opinion is not a public demand, the plea of availability of alternative remedy is unfounded. I am also of the view that availability of alternative remedy is not a bar to proceeding under Article 226 of the Constitution of India and in an appropriate case when the State action is found to be completely without jurisdiction, the writ jurisdiction can be exercised even when alternative remedy is available. Exclusion of writ jurisdiction in such circumstance is a rule of discretion and not compulsion. 23. In view of the above, I hold that the initiation of proceeding for realization of a sum of Rs. Exclusion of writ jurisdiction in such circumstance is a rule of discretion and not compulsion. 23. In view of the above, I hold that the initiation of proceeding for realization of a sum of Rs. 12,35,860/- under the Bihar and Orissa Public Demand Recovery Act, 1914 is wholly without jurisdiction; firstly for the reason that it cannot be termed to be “public demand” within the meaning of the Act; secondly, the terms of contract between the parties could not be altered in the facts and circumstances of the case and thirdly, there is no basis, even in the final order of the Commissioner, on which the certificate Officer could have proceeded for realization amount as public demand. 24. The notice dated 17.9.2000 as contained in Annexure-1 is accordingly, set aside. The writ application is allowed. No order as to costs.