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2017 DIGILAW 1005 (ORI)

Tarachand Agrawal v. State of Orissa

2017-09-08

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This matter involves the impugned orders under Annexures-3, 4 & 5 involving the Orissa Public Demand Recovery Act. 2. Short background involved in the case is that the petitioner being the Proprietor of M/s.Bhagabati Rice Mill was appointed as Storage Agent for the year, 1981-82 by the Collector, Bolangir following the provisions of the Orissa Rice and Paddy Control Order, 1956. While the petitioner was continuing as such, following the direction of the Collector, Bolangir, the Executive Magistrate, Titlagarh verified the stock in the godown of the petitioner with the help of the staff of Supply Department but without any prior notice to the petitioner. It is alleged that on the plea of investigation, the Executive Magistrate, the Assistant Civil Supply Inspector of Supply Department along with many other persons entered into the godown of the petitioner forcibly and lifted rice bags without caring to the protest of the watchman posted them. They also took away the Stock Register and Stock Cards maintained by the petitioner. Even the Supply Officer did not inform the petitioner as to what is the quantity of rice and what are the documents taken away in the said verification process. Based on lodging of a written report by the Executive Magistrate, the O.I.C., Kantabanji Police Station initiated G.R. Case No.212/1982 corresponding to T.R. No.742/1983 involving the petitioner in the Court of J.M.F.C., Kantabanji. Consequently, charges were framed under Sections 7 & 9 of the Essential Commodities Act and also under Sections 406 & 420 of I.P.C. For failure to establish the case against the petitioner, the G.R. Case was dismissed on 31.3.1994 thereby acquitting the petitioner from the charges. 3. While the matter stood thus, the Collector, Bolangir filed a requisition before the Certificate Officer, Titlagarh, O.P.3 under Sections 3 & 5 of the O.P.D.R. Act, 1962 (hereinafter called as “the Act, 1962”) for recovery of a sum of Rs.4,11,145.57/- as dues in addition with penalty of Rs.2,09,130.39/- from the petitioner. Based on a notice involving the OPDR proceeding along with the certificate of recovery, the petitioner appeared before the Certificate Officer and filed his application denying liability and challenging the proceeding on the premises of no ascertainment of the dues sought to be recovered involving any proceeding under any law. Based on a notice involving the OPDR proceeding along with the certificate of recovery, the petitioner appeared before the Certificate Officer and filed his application denying liability and challenging the proceeding on the premises of no ascertainment of the dues sought to be recovered involving any proceeding under any law. The proceeding initiated against the petitioner was allowed on rejection of the protest of the petitioner under Section 8 of the Act, 1962. 4. Being aggrieved the petitioner preferred an appeal before the A.D.M., Bolangir registered as Certificate Appeal No.5/83. The Appeal being dismissed, the petitioner preferred O.J.C. No.1606/1984 before this Court. Said writ petition was disposed of after hearing the parties on contest and while allowing the writ petition, this Court setting aside the judgment of the appellate authority, remanded the matter for fresh consideration but giving proper opportunity to both sides and taking into consideration the objection of the petitioner. The Appeal was reheard and by the impugned order under Annexure-7, the Appeal was again dismissed. The petitioner filed the present writ application being aggrieved by the order passed by the Appellate Authority in the remand proceeding. 5. Sri Sahoo, learned counsel for the petitioner assailing the impugned order submitted that firstly, the order passed in the Appeal has been decided ex parte and in absence of any opportunity to the petitioner to produce any material to establish his case and also in absence of consideration of the objection raised by the certificate debtor regarding maintainability of the proceeding following the direction of this Court in O.J.C. No.1606 of 1984. Sri Sahoo further submitted that for the criminal proceeding initiated against the petitioner being ended with an order of acquittal for no establishment of misappropriation by the petitioner, the petitioner should have been also exonerated in the certificate proceeding. Further the certificate issued by the Certificate Officer being not in conformity with the statutory provision, the certificate was not only incomplete but was also not in a position to be enforced. Lastly, Sri Sahoo submitted that in absence of ascertainment of the due involved, the petitioner in a duly constituted proceeding and involving the petitioner, no certificate for recovery of due is permissible in the eye of law. Producing a judgment of this Court in the case of Mahendra Prasad Rout vrs. Lastly, Sri Sahoo submitted that in absence of ascertainment of the due involved, the petitioner in a duly constituted proceeding and involving the petitioner, no certificate for recovery of due is permissible in the eye of law. Producing a judgment of this Court in the case of Mahendra Prasad Rout vrs. The Election Officer & others reported in AIR 1976 Orissa I, Sri Sahoo, learned counsel for the petitioner submitted that this decision has a clear bearing on the case of the petitioner. Sri Sahoo, therefore, contended that initiation of the certificate proceeding as well as the order passed therein and the order passed in the Appeal are all bad in law, which sought to be interfered with and set aside. 6. Sri Sahoo, learned Additional Standing Counsel for the O.Ps. referring to the impugned order, vide Annexure-7 submitted that this order having not been challenged in the writ application, the prayers made in the writ application become defective. Annexure-7 being the ultimate order, there is no question to challenge to the previous order of the authority, vide Annexure-5 and for no challenge to the subsequent appellate order, the writ application becomes ineffective and should be dismissed on this score alone. Coming to the grounds raised by Sri N.K.Sahoo, learned counsel for the petitioner, Sri Sahoo, learned Additional Standing Counsel for the O.Ps. submitted that acquittal of a person in a criminal case has nothing to do with the recovery proceeding involving O.P.D.R. Act since the procedures followed in both the cases are altogether different and further for the assessment of loss by the Department, the certificate proceeding following the provision of O.P.D.R. Act is very much maintainable. 7. Considering the rival contentions of the parties but however, leaving the unnecessary details involving the proceeding having no relevancy at this moment, this Court finds, there is no denial to the fact that the petitioner was undisputedly appointed as an Storage Agent following the provision under the Orissa Rice and Paddy Control Order, 1956 for the year 1981-82. There is also no dispute that involving the petitioner the G.R. Case No.212 of 1982 under the provisions of Sections 7 & 8 of the Essential Commodities Act and provisions of I.P.C. was initiated and the criminal proceeding ended with an order of acquittal in favour of the petitioner. There is also no dispute that involving the petitioner the G.R. Case No.212 of 1982 under the provisions of Sections 7 & 8 of the Essential Commodities Act and provisions of I.P.C. was initiated and the criminal proceeding ended with an order of acquittal in favour of the petitioner. It is also a fact that involving the shortage, a proceeding under Sections 3 & 5 of the Act, 1962 was also initiated following the provision of the Act, 1962. This proceeding was finally concluded, vide Annexure-4 being assailed the Appeal was dismissed, vide Annexure-5 with an order of dismissal against the petitioner. The writ application being moved vide, O.J.C. No.1606/1984 was disposed of setting the aside the order, vide Annexure-5 and remanding the matter to the appellate authority for considering the same afresh giving opportunity of supplement materials and argument of both the sides. Perusing the judgment of this Court appearing at Annexure-6, this Court finds, the writ application was disposed of with the following observation :- “7. We therefore, allow the writ application, quash the order dated 30.4.84 of the Addl. Dist. Magistrate (L.R.) Balangir in Certificate Appeal No.5 of 1982 and remit the case to him for fresh disposal in accordance with law. He will give opportunity to both the parties, that is, the certificate debtor and the certificate creditor is produce materials to establish their respective cases, carefully consider the objections raised by the certificate debtor and dispose of the matter by passing a freshed order within four months from the date of receipt of writ from this court. There will however be no order for costs of this proceeding.” As a consequence, the Certificate Appeal No.5 of 1983 was reopened and was dismissed, vide Annexure-7 by order dated 7.2.2000. Even though there is a technical defect in mentioning the impugned order in prayer portion but for the date of the order involved, this Court rejects the contention of Sri Sahoo, learned Additional Standing Counsel that for no challenge to the Annexure7 in the writ application, the writ application should be dismissed and this Court thus proceeds to decide on the merit involved in the order at Annexure-7. 8. 8. The order, vide Annexure-7 was passed with a clear indication that in spite of several adjournments the petitioner did not avail the opportunity granted by this Court and the matter was thus decided in absence of any additional evidence, the submission of the petitioner and only taking into consideration the materials available on record before disposal of the writ application. Looking to the direction of this Court in the disposed of writ application bearing O.J.C. No.1606 of 1984, this Court finds, the High Court had a clear direction to the O.Ps., particularly the Appellate Authority while remitting the matter back for re-disposal of the Appeal to give opportunity to both the parties. Reading of the entire impugned order nowhere discloses that opportunity as directed by the High Court involving Annexure-6 has been granted in favour of the petitioner or not ? In absence of which, the Appellate Authority is wrong to observe that the appellant did not take any interest and continuously found absent. Since the proceeding involved recovery of a huge amount under the provision of the Act, 1962 in the interest of justice, this Court feels it appropriate to afford one more opportunity to the petitioner before the Appellate Authority and the Appeal be disposed of afresh. This Court, therefore, interfering with the impugned order, vide Annexure-7 sets aside the same. To save time since the proceeding is pending long since, this Court directs the petitioner to appear before the Appellate Authority with document to support his case and objection, if any, also along with a copy of this judgment within a period of four weeks hence. It will also be open to the petitioner to raise all contentions raised herein for consideration of the Appellate Authority. In such event, the Authority shall do well to re-dispose of the Appeal within a period of two months thereafter but however giving opportunity of hearing to the parties concerned and taking into consideration the objection of the petitioner if filed along with his appearance. Further since a huge amount is involved and the Appeal could not be finalised for non-cooperation of the petitioner, the order of remand of this Court is subject to however the petitioner’s depositing a sum of Rs.2,00,000/-(rupees two lakhs) in the court below also at the time of his appearance pursuant to direction of this Court. 9. Further since a huge amount is involved and the Appeal could not be finalised for non-cooperation of the petitioner, the order of remand of this Court is subject to however the petitioner’s depositing a sum of Rs.2,00,000/-(rupees two lakhs) in the court below also at the time of his appearance pursuant to direction of this Court. 9. The writ application stands allowed but with an order of remand. No cost.