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2019 DIGILAW 668 (JHR)

Mahadev Prasad Yadav v. State of Jharkhand

2019-03-07

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : 1. This writ petition is under Article 226 of the Constitution of India, whereby and whereunder the order dated 25.11.2009, passed by the Respondent No. 3 in Certificate Case No. 07 of 2007-08, has been assailed by which distress warrant has been issued against the petitioner as also for quashing the orders dated 22.05.2012, 03.06.2013, 24.09.2013 and 13.06.2015, passed by the respondents-authorities by which the distress warrant has been issued against the petitioner and arrest warrant has been issued against him. 2. It is the case of the petitioner that in terms of the notice issued under the Bihar and Orissa Public Demand Recovery Act, 1914 (hereinafter to be referred to as the ‘Act’, 1914) in pursuance to the provision contained under Section 7 of the Act, 1914, he has put his appearance and filed an objection under the provision of Section 9 of the Act, 1914, but, without deciding the said objection, the Certificate Officer has confirmed the certificate and issued arrest warrant for recovery of the said amount and therefore, the issuance of the distress warrant or the arrest warrant is per se illegal, being not in consonance with the provisions of law, as contained under the provision of the Act, 1914. 3. The contention of the petitioner is that, since he has put his appearance and filed an appearance under Section 9 of the Act, 1914, even though there is no appearance on his behalf, the authority before issuing the certificate ought to have decided the objection made under Section 9 of the Act, 1914, but the said objection having been on record and without adjudicating it, the authorities has proceeded by taking coercive measures for recovery of the said amount, therefore, the entire action is not in consonance with the provisions of the Act, 1914. 4. The State Respondent has filed counter affidavit, wherein, the stand has been taken at paragraph 12 by admitting the fact about filing of an objection under Section 9 of the Act, 1914, the same was forwarded to the Mining Officer to give parawise comments and in pursuance thereto, the parawise comment has been furnished and the Certificate Officer after going through the said parawise comment, has proceeded by taking coercive measure to recover the said amount. In para 14, the stand has been taken that there is provision of law, as provided under Section 60 of the Bihar and Orissa Public Demand Recovery Act, 1914, therefore, the writ petition may not be entertained on the ground of availability of alternative remedy of appeal. 5. Mr. Amit Kumar Das, learned counsel for the petitioner in response, has submitted that although no response to the counter affidavit has been filed, but, there is no dispute about the fact that in case of availability of alternative remedy of appeal, the writ petition is least to be entertained, but there is no complete embargo in the same, but, herein, the facts and circumstances, the petitioner cannot be asked to go before the alternative Forum of appeal, since, there is no order for adjudication by deciding the objection filed by the petitioner in terms of the provision of Section 9 of the Act, 1914 and he submits that if any provision has been made under the Statute, the authorities are duty bound to act upon in pursuance to the provision of law but there cannot be any deviation from the statutory provision and in view thereof, the plea taken by the respondents-authorities at para 14 to avail the opportunity of alternative remedy is not fit to be considered. 6. Having heard the learned counsel for the parties and after appreciating the rival submissions, it is evident from the materials available on record that a Certificate proceeding has been initiated against the petitioner under the provision of the Bihar and Orissa Public Demand Recovery Act, 1914 on the basis of requisition made by the Assistant Mining Officer, Koderma. The Certificate Officer after receipt of the said requisition has acted by issuing notice under section 7 of the Act, 1914 calling upon the petitioner either to deposit the amount or to file objection, the petitioner has not raised that objection, as provided under the provision of Section 9 of the Act, 1914 and the said aspect of the matter is not in dispute, as would be evident from the statement made by the respondents in the counter affidavit at paragraph no. 12. 12. It is evident from the entire order-sheet of the aforesaid Certificate proceeding, more particularly, the order dated 02.12.2007 that the Certificate Officer after receipt of the objection made in pursuance to the provision of Section 9 of the Act, 1914 has posted the matter on 20.12.2007 for hearing the matter, but it is evident from the order dated 06.06.2009 that the certificate debtor was found to be absent and therefore, on the basis of the parawise comment submitted by the Requisition Officer, the certificate has been confirmed. 7. Now the question herein, is that even accepting that the certificate debtor was absent subsequent to the filing of the objection under Section 9 of the Act, 1914, can the Certificate Officer proceed by taking coercive measure without considering the objection filed by him. 8. There is no dispute upon the position of law that the proceeding is to be conducted strictly in pursuance to the provision contained under the Statute. The certificate proceeding has been initiated under the provision of the Bihar and Orissa Public Demand Recovery Act, 1914, which contains a provision that after receiving requisition from the authority about recovery of a public demand, if comes under the provision of Section 3 of the Act, 1914, a notice is to be issued against the debtor in view of the provision of Section 7 of the aforesaid Act, calling upon the debtor either to pay the amount or to make objection. 9. The objection is to be made under the provision of Section 9 of the Act, 1914. Admittedly, the provision of Section 7 and Section 9 of the Act, 1914, if read together, there will be no confusion about the position of law that if any objection has been called upon as to the provision of law, it is incumbent upon the authority to take decision upon the said objection by adjudicating it. 10. Herein, the instant case, the petitioner after receiving the notice in terms of Section 7 of the Act, 1914, has filed an objection under Section 9 of the aforesaid Act, although after filing of the objection, he has chosen, not to appear before the Certificate Officer. 10. Herein, the instant case, the petitioner after receiving the notice in terms of Section 7 of the Act, 1914, has filed an objection under Section 9 of the aforesaid Act, although after filing of the objection, he has chosen, not to appear before the Certificate Officer. However, it is the contention of the petitioner that the date was fixed vide order dated 22.11.2007 as of 20th December, 2007, but from the entire order-sheet, it cannot be evident that the proceeding of the date of 20th December, 2007 is there and therefore, the petitioner due to that reason could not be able to appear before the Certificate Officer. Be, as it may, the question herein is that the objection filed under Section 9 of the Act, 1914 was already available on record, even accepting the fact that the petitioner has not appeared before the Certificate Officer, it does not mean that there will be no adjudication on the objection filed by the petitioner and the Certificate Officer will proceed merely on the basis of the parawise comment of the Requisition Officer, called upon by the Certificate Officer on the basis of the said objection, filed by the petitioner in pursuance to the provision of Section 9 of the Act, 1914. 11. So far as the contention of the Respondents that there is availability of alternative remedy of appeal, but the appeal can only be filed against an order, passed by the authority on consideration of objection but herein since there is no order after consideration of objection as such there is no question of preferring appeal. 12. In view thereof, according to the considered view taken by this Court, the Certificate Officer has failed in discharging his duties in terms of the provision as contained in Bihar and Orissa Public Demand Recovery Act, 1914 and proceeded by taking coercive steps i.e by issuing an arrest warrant for recovery of the said amount. In view of the aforesaid fact and taking into consideration that the Certificate Officer has proceeded without adjudicating the objection filed by the petitioner within the provision of Section 9 of the Act, 1914, entire facts taken by the said authority will be said to be nullity in consonance with the provision of law. 13. In view thereof, the writ petition is allowed. The orders dated 25.11.2009, 22.05.2012, 03.06.2013, 24.09.2013 and 13.06.2015, passed by the respondents-authorities are quashed. 13. In view thereof, the writ petition is allowed. The orders dated 25.11.2009, 22.05.2012, 03.06.2013, 24.09.2013 and 13.06.2015, passed by the respondents-authorities are quashed. The matter is remitted before the Certificate Officer to take decision on the basis of the plea taken by the petitioner under the objection filed within the meaning of Section 9 of the Act, 1914 within a period of three weeks from the date of receipt/production of a copy of the order and thereafter, consequence will follow.