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2017 DIGILAW 920 (ORI)

Bijaya Kumar Agrawal v. State of Orissa

2017-08-22

BISWANATH RATH

body2017
JUDGMENT BISWANATH RATH, J. - This writ petition involves challenge to the order passed by the revisional authority involving Annexure-2. 2. Short background involved in the case is that a certificate proceeding was initiated against the petitioner involving some outstanding against the petitioner as a matter of public revenue. The certificate proceeding appears from the pleading and submission of the learned counsel for the petitioner to have been ended with an order dropping the certificate issued against the petitioner. The opposite party No.5 being aggrieved with the order preferred a Review Application under Section 62 of the Orissa Public Demands Recovery Act, 1962. The review petition appears to have been disposed of confirming the dropping of the certificate proceeding. In the meantime, the Sales Tax Officer preferred an application under Order 9 Rule 9 of C.P.C. for restoration of the certificate proceeding to recalling the ex parte order involving the certificate proceeding. The proceeding under Order 9 Rule 9 of C.P.C. having been allowed an appeal was filed. Considering the objection raised by the present petitioner involving the appeal and being satisfied with the provisions referred to therein, the appellate authority vide order at Annexure-1 allowed the appeal. Being aggrieved the Sales Tax Officer preferred a revision vide R.C. Case No.20 of 1997 before the revisional authority as appearing at Annexure-2. to this petition. The revision case was disposed of on contest thereby, setting aside the order passed by the appellate authority giving rise filing of this writ petition. 3. Assailing the impugned order, Sri Routray, learned Senior Advocate appearing for the petitioner referring to the provision contained in Section 58 of the Orissa Public Demands Recovery Act contended that for the limited purpose of exercise of power of a Civil Court by the Collector, Certificate Officer, Assistant Collector, Deputy Collector and Sub Deputy Collector under the Act, there is no application of provision of Order 9 Rule 9 of the CPC involving a proceeding under the Orissa Public Demands Recovery Act. Further, referring to the provisions contained in Section 62 of O.P.D.R. Act learned Senior Advocate further contended that once a party has already availed the remedy of review the only course left with the party aggrieved by the order passed in review to prefer appeal and there was no scope for undertaking the proposes of Order 9 Rule 9 of C.P.C. It is under the above circumstances, Sri Routray, learned Senior Advocate appearing for the petitioner contended that the revisional authority has failed in appreciating the provisions contained in Sections 58, 65 as well as rule making provision under the Act and thus, has arrived at a wrong and erroneous impugned judgment, which needs to be interfered with. 4. Sri Sahoo, learned Additional Standing Counsel in his attempt to justify the impugned order, referring to the observations made therein, contended that there is no infirmity in the impugned order. 5. Even though the notice on opposite party No.5 has been duly served but there is no appearance on behalf of him as yet. Therefore, the matter is decided only hearing the learned Senior Advocate appearing for the petitioner and learned Additional Standing Counsel for the State-opposite parties. 6. Perusal of the order vide Annexure-1, this Court finds in filing the appeal the petitioner has raised all the grounds taken here in this proceeding and considering the provisions contained in Section 47, 58, 60 and 65 of the O.P.D.R. Act, the appellate authority in a well reasoned order decided the questions of maintainability of a proceeding under Order 9 Rule 9 of C.P.C. involving a O.P.D.R. proceeding and held the application of such provision is clearly a misconception. 7. Considering the above, this Court now proceeds to examine the provisions contained in Section 47, 58, 60 & 65, which reads as follows : “47. Power of Board of Revenue to make rules as to procedure – (1) The Board of Revenue may, after previous publication and with the previous sanction of the State Government, make rules regulating the procedure to be followed by persons making requisitions under Section 4 and by Collectors and Certificate Officer acting under this Act; and may, by such rules, after, add to or annul any of the rules in Schedule II. (2) Such rules shall not be inconsistent with the provisions of this Act, but, subject thereto, may, in particular and without prejudice to the generality of the power conferred by Sub-section (1), provide for all or any of the following matter, namely; (a) the signature and verification of requisitions made under Section 4; (b) the Certificate Officers to whom such requisition should be addressed; (c) the cases in which such requisitions shall not be chargeable with a fee; (d) the service of notices issued under Section 6 the service of other notices or process issued under this act and the manner in which such service may be proved; (e) the signing and verification of petitioners, under Section 8 denying liability. (f) the transfer of such petitions to other offices for disposal; (g) the scale of charges to be recovered under Clause (c) of Section 14. (h) the procedure to be followed in attachment of property, movable or immovable; (i) the maintenance and custody, while under attachment, of live-stock and other movable property, the fees to be charged for such maintenance and custody, the sale of such livestock and property, and the disposal of the proceeds of such sale; (j) the registers, books and accounts to be kept by Certificate Officers, and the inspection thereof by the public; (k) the fee to be charged for the inspection of the register of certificates maintained under Rule 55 in Schedule II, (l) the recovery of expenditure on the certificate establishment by the levy of costs under Clause (b) of Section 14 and Section 53; (m) the recovery of poundage fees; and (n) the forms to be used under this Act. “58. Officers to have powers of Civil Court of certain purposes – Every Collector, Certificate Officer, Assistant Collector, Deputy Collector, Sub-Deputy Collector acting under this Act, shall have the powers of a Civil Court for the purpose of receiving evidence administering oaths, enforcing the attendance of witnesses and compelling the production of documents. 60. “58. Officers to have powers of Civil Court of certain purposes – Every Collector, Certificate Officer, Assistant Collector, Deputy Collector, Sub-Deputy Collector acting under this Act, shall have the powers of a Civil Court for the purpose of receiving evidence administering oaths, enforcing the attendance of witnesses and compelling the production of documents. 60. Appeal – (1) An appeal from any original order made under this Act shall lie – (a) If the order was made by a Certificate Officer below the rank of an Additional District Magistrate, to the Additional District Magistrate; (b) if the order was made by an Additional District Magistrate to the Collector; (c) if the order was made by a Collector, to the Revenue Divisional Commissioner; Provided that no appeal shall lie from an order setting aside the sale on an application made under Section 27. 65. Certificate Officer deemed to be a Court.- A Certificate Officer shall be deemed to be a Court and any proceeding, before him shall be deemed to be a civil proceeding within the meaning of Section 14 of the Limitation Act, 1963 (36 of 1963). 8. Reading of the provisions at Section 58 leaves no doubt that the competent authority has the powers of a Civil Court for the limited purpose of receiving evidence administering oaths, enforcing the attendance of witnesses and compelling the production of documents. Similarly, provision at Section 65 of the Act enlarges the scope of the Certificate Officer in the matter of application of provision at Section 14 of the Limitation Act. Looking to the provision at Section 60 and for the provisions referred to hereinabove, this Court has no hesitation to hold that there was no scope of application of provision at Order 9 Rule 9 of C.P.C. in the matters involving O.P.D.R. Act, and there has been wrong application of the Order 9 Rule 9 of C.P.C. by the Forums below. 9. For the observations made hereinabove, and for a clear provision at Section 60 of the O.P.D.R. Act providing forum of appeal against any order passed by the Certificate Officer, this Court observes, nothing prevented the party aggrieved to prefer an appeal against the order passed involving the review petition. 10. 9. For the observations made hereinabove, and for a clear provision at Section 60 of the O.P.D.R. Act providing forum of appeal against any order passed by the Certificate Officer, this Court observes, nothing prevented the party aggrieved to prefer an appeal against the order passed involving the review petition. 10. Under the circumstances and as this Court finds, there is no application of provision at Order 9 Rule 9 of C.P.C. to the proceedings under the O.P.D.R. Act, the findings and observations of the revisional authority found to be erroneous being contrary to the provisions of law. Consequently, while interfering with the impugned order vide Annexure-2, this Court sets aside the same. 11. The writ petition succeeds. In the circumstances, there is no order as to cost. Petition Succeeds.