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2018 DIGILAW 228 (JHR)

Dinesh Chandra Gupta v. State of Jharkhand

2018-01-29

ANUBHA RAWAT CHOUDHARY

body2018
ORDER : Heard Mr. B.B. Sinha, advocate appearing for the petitioner in both the cases. 2. Heard Mr. Prabhash Kumar Advocate appearing on behalf of the respondent Nos. 4 to 7 in both the cases. 3. Heard Mr. Sarvendra Kumar J.C. to S.C. (L&C) appearing on behalf of respondent Nos. 1 to 4 in both the cases. 4. These two writ petitions have been filed by the petitioner challenging the entire certificate proceeding being Certificate Case Nos. 1/F and 2/F of 1985-86 including orders disposing of the objection filed by the writ petitioner under Section 9 of Bihar and Orissa Public Demand Recovery Act, 1914 (hereinafter referred to as the Act) dated 5.4.2005 and 7.4.2005 respectively. WPC No. 541/2007 relates to Certificate Case No. 1/F of 1985-86 in which order dated 5.4.2005 has been passed and WPC No. 510 of 2007 relates to Certificate Case No. 2/F of 1985-86 in which order dated 7.4.2005 has been passed. The petitioner has also challenged the appellate orders both dated 20.10.2006 passed in certificate appeal Nos. 1 and 2 of 2005-06 whereby the appeals relating to the aforesaid two certificate cases have been dismissed on account of non-deposit of the mandatory pre-deposit amount of 40% of the certificate amount as per the mandate of Section 60(b) of the aforesaid Act. The petitioner has further challenged the orders passed in revision cases being revision cases bearing numbers 35 of 2006 and 36 of 2006 both dated 14.12.2006 arising out of aforesaid two certificate appeals bearing Nos. 1 and 2 of 2005-06 whereby the revisions against the appellate orders were also dismissed. The learned counsel for the petitioner submitted as under :- (a) The petitioner was appointed as Agent, Unit 363 Bera under Divisional Forest Offices Porahat Division in the district of 3 years 1976, 1977 and 1978. (b) The appointment of the petitioner as an agent was on behalf of the State Government for the purpose of collection, purchase and sale of Kendu Leaves in its behalf from the said unit. (c) After execution of the agreement in that regard an order was issued to the petitioners by the respondent-Divisional Forest Officer to work as an agent vide letter No. 1363 dated 26.4.1976 and letter No. 1353 dated 26.04.1976 under the provision of Kendu Leaves Act. (c) After execution of the agreement in that regard an order was issued to the petitioners by the respondent-Divisional Forest Officer to work as an agent vide letter No. 1363 dated 26.4.1976 and letter No. 1353 dated 26.04.1976 under the provision of Kendu Leaves Act. (d) It has been specifically mentioned in para-10 of the writ petitions that in the year 1976 due to certain difficulties caused by recession in trade of Kendu Leaves causing losses in business, the petitioner was unable to deposit 1 % of the Royalty in time. (e) Accordingly, the petitioner requested the respondents for some time to deposit the outstanding royalty. (f) The grievance of the petitioner is that instead of granting time to the petitioner to pay 1 % of Royalty, Divisional Forest Officer vide its letter No. 594 dated 4.2.1977 (in WPC No.510 of 2007) and letter No.2103 dated 1.06.1977 (in WPC No. 541 of 2007) cancelled the appointment of the petitioner as Collecting Agent and decided ex parte to invite tender for remaining two years. (g) Later on respondents instituted a proceeding under the aforesaid Act in the Court of the respondent Certificate Officer for recovery of Rs. 99,300/- pertaining to the year 1977 as forest dues and the case was registered as C.C Case No. 2 (F) of 1985-86 (in WPC No. 510 of 2007) and for recovery of Rs. 64,881.27 pertaining to the year 1978 as forest dues and the case was registered as C.C Case No. 1(F) of 1985-86 (in WPC No. 541 of 2007). (h) Earlier the petitioner had filed writ application before this Court being CWJC No. 1926 of 1995(R) and CWJC No. 1890/1990(R) challenging the orders of the certificate proceedings. The said writ application being CWJC No. 1926 of 1995(R) was disposed of this Court order dated 4.7.1996 and relevant paragraph of the said order is quoted hereinbelow for ready reference :- "Accordingly, the impugned order dated 29th May, 1995 (Annexure-8) passed in Certificate Case No. 2(F) 1985-86 passed by the, Certificate Court, Chakradharpur is set aside. However, it will be open to the Court concerned to pass appropriate order after hearing the petitioner and to decide the same by a reasoned order. It is expected that the matter will be decided expeditiously. In any case, the same should be decided within a period of six months. The -petitioner should co-operate in the proceeding. However, it will be open to the Court concerned to pass appropriate order after hearing the petitioner and to decide the same by a reasoned order. It is expected that the matter will be decided expeditiously. In any case, the same should be decided within a period of six months. The -petitioner should co-operate in the proceeding. It is made clear that if the petitioner does not co-operate in the proceeding in that case it will be open to the authorities to pass order but even in that case, he should pass a reasoned order." (i) The said writ application being CWJC No. 1890 of 1995(R) was also disposed of this Court vide order dated 23.2.1996 and relevant paragraph of the said order is quoted herein-below for ready reference :- "Having considered the submissions made by the learned counsel for the parties and in the facts and circumstances of the case, the impugned order dated 29.5.1995 (Annexure-8) is quashed and the Certificate Officer, Chakradharpur. District-Singhbhum (West), respondent No.6 is directed to consider the objections of the petitioner (Annexure 7) on its own merit and pass appropriate order after giving an opportunity of personal hearing to the petitioner or his representative. The petitioner is directed to file a certified copy of this order before the Certificate Officer, respondent No. 6 on or before 15.3.1996 and the Certificate Officer shall thereafter fix a date of hearing in the presence of the petitioner on that date or such other date as is convenient to the Certificate Officer and the objection of the petitioner shall be considered and the petitioner shall be heard in person. It is clarified that the petitioner shall cooperate and shall not delay the disposal of the objection. In case the petitioner is aggrieved by the order passed by the Certificate Officer on his objection, it shall be open for him to seek redress in accordance with the provision contained in the Bihar and Orissa Public Demand Recovery Act, 1949." (j) Pursuant to the aforesaid orders of this Hon'ble Court order the Certificate Officer passed final orders and rejected the objections of the petitioner in both the certificate proceedings by a speaking orders which are also impugned in these two writ petitions. (k) The petitioner being aggrieved by the final order passed by the Certificate Officer filed appeals which in turn were dismissed on account of non-deposit of 40% as provided under Section 60(b) of the aforesaid Act. Against the appellate orders the petitioner filed revision petitions which were also dismissed. The appellate orders as well as the revisional orders are also under challenge before this Court. (l) The petitioner has assailed all the three impugned orders i.e. order passed by the certificate officer; order passed by the appellate authority and the orders passed by the revisional authority in the aforesaid two certificate proceedings by filing these two writ petitions. (m) The counsel for the petitioner has argued that all the impugned orders are fit to be set -aside as the certificate proceedings themselves were not maintainable as there was no agreement for recovery of alleged demand through Public Demand under the aforesaid Act. He further submits that in absence of expressing agreement, certificate proceedings were itself not maintainable and therefore, the entire certificate proceedings as well as the appellate orders and the revisional orders are fit to be set aside. The learned counsel for the petitioner submits that even if there is any agreement entered into between the petitioner and respondents, then in absence of the amount mentioned in the agreement the alleged dues cannot be recovered under the aforesaid Act. (n) The learned counsel for the petitioner has relied upon the judgments reported in 1994 (1) PLJR 484 (Ranchi Bench) 1999 (1) PLJR 877 (PATNA); 2000 (1) PLJR 102 (PATNA); 1980 PLJR 567 (PATNA); AIR 1971 All 200 AIR 1963 MP 205 9. Mr. Prabhash Kumar counsel for the respondent Nos. 5 and 6 submits that the respondent Nos. 5 and 6 have unnecessarily made party and have accordingly filed counter-affidavit submitting that no relief has been sought for against these respondents and the respondents No. 5 and 6 have no role to play in awarding contract to petitioner as back as in the year 1976. He further submits that Jharkhand State Forest Development Corporation Ltd., Ranchi has been constituted in the year 2002 by the Government of Jharkhand and it started its operation w.e.f. 1.4.2002 within the territorial jurisdiction of Jharkhand State and therefore, the respondent Nos. 5 and 6 have no concern with the matter. 10. Counsel for the respondent Nos. He further submits that Jharkhand State Forest Development Corporation Ltd., Ranchi has been constituted in the year 2002 by the Government of Jharkhand and it started its operation w.e.f. 1.4.2002 within the territorial jurisdiction of Jharkhand State and therefore, the respondent Nos. 5 and 6 have no concern with the matter. 10. Counsel for the respondent Nos. 1, 2, 3, 4, 7 and 8 opposed the prayer made by this writ petitioner and submits that these two writ petitions are fit to be dismissed and the impugned orders have been rightly passed. 11. After hearing the learned counsel for the parties, I see no reason to interfere with the impugned orders in these two writ petitions on the ground of following facts and reasons: (a) The specific case of the petitioner is that the petitioner had executed an agreement with the respondents for the purpose of collection, purchase and sale of Kendu Leaves and after his appointment as an agent of Unit 363 Bera under Divisional Forest Offices Porahat Division in the district of Chaibasa for three years 1976, 1977 and 1978. The entire case of the petitioner as argued by the counsel for the petitioner is based on the allegation that- (i) the certificate proceedings themselves were not maintainable as there was no agreement for recovery of alleged demand through Public Demand under the aforesaid Act. (ii) in absence of expressing agreement, certificate proceedings were themselves not maintainable and therefore the entire certificate proceedings as well as the appellate orders and the revisional orders are fit to be set aside. (iii) The learned counsel for the petitioner has also raised a point that even if there is any agreement entered into between the petitioner and respondents, then also in absence of the amount mentioned in the agreement the alleged dues cannot be recovered under the aforesaid Act. Thus, the entire arguments of the petitioner revolves around the interpretation of the agreement which was admittedly entered into between the petitioner and the concerned authority. Surprisingly, this agreement has not been filed by the petitioner and the petitioner neither could provide a copy of the said agreement during the course of hearing nor could show it from the documents available in the writ records. However he submitted that the relevant clause of the agreement is quoted in the impugned order passed by the Certificate Officer. 12. However he submitted that the relevant clause of the agreement is quoted in the impugned order passed by the Certificate Officer. 12. This Court is of the considered view that the agreement is the basic document which ought to have been filed by the writ petitioner in the writ records when the entire arguments of the writ petitioner is based on the agreement which has admittedly been entered into by the petitioner. 13. In absence of the agreement it is not possible for this Court to interpret the agreement and to give any finding as to whether the aforesaid Act would be applicable to the petitioner or not. 14. In absence of the agreement, which ought to have been filed by the writ petitioner, this Court cannot be called upon to interpret the clauses of the agreement merely on the basis of some quotations in the impugned order. In the entire writ petition there is no such averment that the petitioner is not in possession of the agreement or the agreement has been misplaced. 15. Otherwise also the judgment reported in AIR 1963 MP 205 does not help the petitioner in any manner as the same relates to interpretation of Section 82 of Forest Act, 1927 and on the point as to whether loss arising out of re-auction could be recovered as an arrear of land revenue. In the instant case the entire arguments of the petitioner is on the point that the amount sought to be recovered is not recoverable as public demand in absence of any agreement to that effect. AIR 1971 All 200 also does not help the petitioner in any manner as the said judgment also relates to interpretation of Section 82 of Forest Act, 1927 and on the point as to whether loss arising out of re-auction could be recovered as an arrear of land revenue. In the said judgement the agreement entered into between the parties was also considered. In absence of the agreement this Court is not in a position to apply the ratio of the said case in the facts and circumstances of this case. The judgment reported in 1980 PLJR 567 (Patna) also does not help the petitioner in any manner. In the said judgement the agreement entered into between the parties was also considered. In absence of the agreement this Court is not in a position to apply the ratio of the said case in the facts and circumstances of this case. The judgment reported in 1980 PLJR 567 (Patna) also does not help the petitioner in any manner. The petitioner has referred to para 8 of the said judgment which is quoted herein below for ready reference :- "According to item No.9, any money payable to a servant of the Government or to any local authority in respect of which a person liable to pay the same has agreed by a written instrument that it shall be recoverable as a public demand, will come within the definition of 'public demand' as occurring in Section 3(6) of the said Act. The money in question is not payable to a servant of the Government or any local authority but to the Governor of Bihar. This apart the Public Demands Recovery Act lays down summary procedure for realization of money and it requires strict compliance with the provisions of the Act and the Rules. A certificate is in the nature of decree. This is why Section 4 of the Act necessitates the satisfaction of the Certificate Officer that money sought to be realised is due. It is in this context that the terms 'any money in respect of which the person liable to pay the same has agreed' have to be considered. The loss mentioned in para 5 of the agreement in question is in the nature of damages and not an ascertained sum of money nor can it be said that amount is ascertainable on the face of the terms of the agreement. This being the position, the respondents cannot take advantage of the provisions of item No.9 of Schedule I of the Act, I may, however, observe that the respondents shall be within their rights to proceed against the petitioner for recovery of the loss after it is duly ascertained in accordance with law." 16. From perusal of the paragraph 8 of this judgment it appears that the Court had considered the terms of the agreement and recorded the finding. In the instant case, the petitioner have failed to produce the agreement itself and this Court is not in a position to consider and appreciate the terms of the agreement. From perusal of the paragraph 8 of this judgment it appears that the Court had considered the terms of the agreement and recorded the finding. In the instant case, the petitioner have failed to produce the agreement itself and this Court is not in a position to consider and appreciate the terms of the agreement. 17. Moreover the specific case of the petitioner is that the amount sought to be recovered is not mentioned in the agreement but it is not their case that the amount sought to be recovered is also not ascertainable from the terms of the agreement. 18. The judgment reported in 2000 (1) PLJR 102 (Patna) also does not help the petitioner as the same has been passed following the ratio of judgment reported in 1980 PLJR 567 (Pat) and after interpreting the terms of the agreement which is not available in this case. 19. The judgment reported in 1994 (1) PLJR 484 (Ranchi Bench) also does not help the petitioner as in the said case admittedly no agreement was entered in spite of directions issued by the concerned authority and the amount was sought to be recovered on the basis of conditions of the tender. In the instant case admittedly the agreement was entered but the same is not on record for perusal and appreciation by this Court. 20. The judgment reported in 1999 (1) PLJR 877 (Patna) also does not help the petitioner as in the said case the grievance of the petitioner was that the interim order was passed by the certificate officer directing the petitioner to deposit certain amount without deciding the objection of the petitioner under Section 10 of the aforesaid Act. It was held that the statutory amount of pre-deposit was not payable against such order when appeal is preferred as the certificate officer has not yet determined the certificate dues. In the instant case the Certificate Officer has determined the certificate dues against which the petitioner filed appeal without pre-deposit, accordingly the said judgment relied upon by the petitioner has no applicability to the facts of this case. (b) Earlier the petitioner had filed writ petitions being C.W.J.C. No. 1926 of 1995(R) and C.W.J.C No. 1890 of 1995(R) challenge the orders passed by the Certificate Officer which were disposed by remitting the matter back to the Certificate Officer with a direction to pass fresh order after hearing the parties. (b) Earlier the petitioner had filed writ petitions being C.W.J.C. No. 1926 of 1995(R) and C.W.J.C No. 1890 of 1995(R) challenge the orders passed by the Certificate Officer which were disposed by remitting the matter back to the Certificate Officer with a direction to pass fresh order after hearing the parties. Pursuant to the orders of this Court, the petitioner appeared before the Certificate Officer who by a reasoned orders rejected the objection filed by the petitioner. Against these orders the petitioner filed statutory appeal under Section 60 of the Act but on account of non-deposit of the statutory amount of 40% of certificate amount the appeals were rejected against which the revisions were also rejected. 21. Relevant provisions of Section 60 of the Act are as follows :- "Section 60. Appeal.-(1) An appeal from any original order made under this Act shall lie— (a) if the order was made by an Assistant Collector or a Deputy Collector or by a Certificate Officer not being the Collector,-to the Collector; or (b) if the order was made by the Collector,-to the Commissioner : Provided that no appeal shall lie from any order setting aside a sale on an application made under Section 28 : [Provided further that no appeal against an order passed under Section 10 shall be entertained unless the appellate authority is satisfied that the appellant has paid forty per cent of the amount determined under that section or such amount as the appellant admits to be due from him, whichever is greater.] 22. Right to appeal is a creature of the Act which is a statutory right and accordingly the conditions prescribed for entertaining the appeal has to be satisfied. Appeals filed by the petitioner being statutory appeals under Section 60 of the said Act which provides mandatory for pre-deposit of 40% of the certificate amount and accordingly the amount having not been deposited by the petitioner, the appears were rightly dismissed and the revision petitions against the appellate orders were also rightly dismissed. 23. Accordingly, these writ petitions are dismissed. Petitions dismissed.