Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 1640 (JHR)

Niwaran Mandal v. State of Jharkhand

2012-11-22

APARESH KUMAR SINGH

body2012
Judgment Heard learned counsel for the parties. 2. The petitioners have sought quashing of the order dated 12th September, 2007 passed in Certificate Case no. 71/vidhut/2002-03 by the respondent no.3, Certificate Officer, Dhanbad, whereby the petitioners have been directed to pay a sum of Rs. 89,283/- to the Respondent no.2, Jharkhand State Electricity Board by 19th October, 2007, failing which action, in accordance with law, would be taken against them. 3. The primary ground for assailing the impugned order on behalf of the petitioners is that the certificate, in question, which has been brought on record as Annexure-5 to the supplementary affidavit has not been signed by the Certificate Officer as per the requirement of Section 6 of the Bihar & Orissa Public Demand Recovery Act, 1914 and as such cannot be executed. 4. Learned counsel for the petitioners further submits by referring to the objection petition filed under Section 9 before Certificate Officer (Annexure-6) that the very issue was taken up as a preliminary issue before the Certificate Officer which he failed to decide and proceeded to pass the impugned order holding the petitioners liable to pay the certificate amount in question. It is further submitted that the issue raised by the petitioners goes to the very root of the jurisdiction of the Certificate Officer as unsigned certificate cannot be executed as it is in the nature of a decree. 5. Learned counsel for the petitioners has relied upon the Division Bench judgment of the Patna High Court reported in 1998(2) PLJR 498 to submit that signing of certificate by the Certificate Officer is not an empty formality as the Certificate Officer is expected to apply his mind and may sign the certificate on receipt of the requisition but only on being satisfied that the demand is recoverable and its recovery is not barred by any law. Learned counsel for the petitioner, therefore, submits that the omission to put the signature on the certificate goes to the root of the matter and as such unsigned certificate will be deemed to be no certificate in the eye of law. It is therefore submitted that in the said judgment the impugned proceedings were quashed by the Hon'ble Court. 6. Learned counsel for the petitioner, therefore, submits that the omission to put the signature on the certificate goes to the root of the matter and as such unsigned certificate will be deemed to be no certificate in the eye of law. It is therefore submitted that in the said judgment the impugned proceedings were quashed by the Hon'ble Court. 6. Learned counsel for the Respondents-J.S.E.B has appeared and filed their counter affidavit in which at paragraph 11, it has been categorically admitted that the certificate was not signed by the Certificate Officer but the notice was duly signed and sent to the petitioner. It is further submitted that the petitioner has statutory remedy of appeal if he is aggrieved by the order of the Certificate Officer. 7. Learned counsel for the Respondent no.3, District Certificate Officer, Dhanbad is represented through his counsel but no counter affidavit has been filed on his behalf. The respondents are not in a position to dispute that the certificate in question was not signed by the Certificate Officer whereupon the proceedings continued and the impugned order dated 12th September, 2007 was passed. 8. I have heard learned counsel for the parties at length. From mere perusal of the relevant provisions of the Bihar & Orissa Public Demand Recovery Act, especially Section 6 thereof, which is quoted hereinbelow: “Section 6: 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, subsection (2) and shall cause the certificate to be filed in his office.” It would appear that 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 sub section (2) of Section 5 and shall also cause the certificate to be filed in his officer. Issuance Notice under Section 7 is the consequence of the condition being fulfilled under Section 6 as discussed hereinabove. Issuance Notice under Section 7 is the consequence of the condition being fulfilled under Section 6 as discussed hereinabove. It further appears that similar issue arose in the judgment relied upon by the petitioners in the case of Jai Prakash Dwivedi vs. The State of Bihar & Ors. reported in 1998(2) PLJR 498 and the Division Bench of the Patna High Court was pleased to quash the certificate proceedings as the Certificate Officer had not signed the certificate while proceeding with the certificate proceeding. 9. Since the issue raised goes to the very root of the matter, the plea of alternative remedy is not legally tenable while invoking the jurisdiction of this Court under Article 226 of the Constitution of India. 10. In the wake of the aforesaid facts and circumstances, the impugned order arising out of the said certificate, in question, cannot be sustained in law the question goes to the root of the controversy which confers jurisdiction upon the Certificate Officer for recovery of the amount under requisition sent by the concerned authority, in this case respondent no.2, JSEB. Therefore, the impugned order is set aside and the writ petition is allowed. Petition allowed.