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Sk. Mahammed HussaIn Vs. Deputy Collector and Magistrate, 1st Class and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 494 of 1972
Judge
Reported inAIR1975Ori36
ActsPost Office Act, 1898 - Sections 12 and 34
AppellantSk. Mahammed Hussain
RespondentDeputy Collector and Magistrate, 1st Class and ors.
Appellant AdvocateK.C.J. Ray and ;C.R. Das, Advs.
Respondent AdvocateGovt. Adv.
DispositionApplication allowed
Cases ReferredDelhi v. P. M. Eathod
Excerpt:
.....provisions of that code as to execution of decree shall apply accordingly :provided that no such warrant shall be executed by the arrest or detention in prison of the offender. inspector of post offices, bala-sore made an inquiry in this connection and was satisfied that the v......referred to as the act) by the post master general, orissa empowering the superintendent of post office, balasore to realise the sum of rs. 509.98 p. from the petitioner and the subsequent proceedings with effect from 2-7-1969 in misc. case no. 1 of 1969 on the file of opposite party no. 1.2. the petitioner was the addressee in respect of a value payable letter (hereinafter referred to as v.p.l.) for an amount of rs. 509.98 p. it is his case that the said v.p.l. was delivered to him on 13-6-1966 at goradpur post office on payment by him of the .amount of rupees 509.98 p. on 4-9-1969 he was informed by a police constable of bhadrak police station that a distress warrant was received from the postal authorities by the officer-in-charge, bhadrak police station to realise from him the.....
Judgment:

Patra, J.

1. This is an application under Articles 226 and 227 of the Constitution praying for the issue of a writ of certiorari quashing Annexure 1 which is an order issued under Section 12 of the Indian Post Office Act, 1898 (Act VI of 1898) (hereinafter referred to as the Act) by the Post Master General, Orissa empowering the Superintendent of Post Office, Balasore to realise the sum of Rs. 509.98 P. from the petitioner and the subsequent proceedings with effect from 2-7-1969 in Misc. Case No. 1 of 1969 on the file of opposite party No. 1.

2. The petitioner was the addressee in respect of a value payable letter (hereinafter referred to as V.P.L.) for an amount of Rs. 509.98 P. It is his case that the said V.P.L. was delivered to him on 13-6-1966 at Goradpur Post Office on payment by him of the .amount of Rupees 509.98 P. On 4-9-1969 he was informed by a Police Constable of Bhadrak Police Station that a Distress Warrant was received from the postal authorities by the officer-in-charge, Bhadrak Police Station to realise from him the sum of rupees five hundred and nine and odd. The petitioner made necessary inquiries and came to learn that on receiving a requisition from the Post Master General, Orissa, for realising a sum of Rs. 599.98 P. from the petitioner, the Sub-Divisional Officer, Bhadrak initiated a proceeding under Section 386, Criminal Procedure Code and transferred it for disposal to Shri B. C. Panda, Magistrate, 1st Class, Bhadrak who registered it as Misc. Case No. 1 of 1969 and that the Magistrate had issued a warrant of attachment to the officer-in-charge Bhadrak Police Station for realisation of the amount from the petitioner.

The petitioner further states that on 15-7-66 he had received a letter from the Superintendent of Post Offices, Balasore, asking him to deposit the said amount of Rs. 509.98 being the value indicated In the V.P.L, and the petitioner forthwith replied to the said letter saying that it is only on payment of Rs. 509.98 that the V.P.L. was delivered to him and that therefore he was surprised that a further demand was being made from him, Thereafter, no inquiry whatsoever was made in the matter either by the Superintendent of Post Offices or by any other authority and the petitioner was not given any opportunity to establish that it is only after making the payment that he received the V.P.L.

3. The petitioner filed an objection petition before Sri B. C. Panda, Magistrate, First Class, Bhadrak (opposite party No. 1) denying his liability to pay the amount and questioning the jurisdiction of the said Court to recover the said amount under the provisions of Section 386, Cr. P. C. opposite party No. 1 having decided the preliminary issue on the question of jurisdiction against the petitioner the latter filed a criminal revision before the Sessions Judge which also was dismissed.

4. After the matter came back to opposite party No. I the petitioner canvassed before him that the amount in question was not recoverable from him and that no inquiry had ever been made before determining the liability against him. Opposite party No. 1 was satisfied about the contention raised by the peti-tioner and made a reference to the District Magistrate, Balasore in the matter for necessary order (Annexure 3). The District Magistrate decided that since the postal authorities are competent under Section 12 of the Act and requisition having been sent to the District Magistrate, Balasore, which was ultimately sent to opposite party No. 1, the latter had . no other alternative but to realise the amount under Section 386, Cr. P. C. Thereafter on 17-6-1972, opposite party No. 1 issued a notice to the petitioner requiring him to deposit the amount by 13-7-72 (Annexure 5). It is submitted by the petitioner that the Post Master General having fixed a financial liability on the petitioner without due inquiry and without affording an opportunity to the petitioner to show cause against such fixture, the order Annexure 1 is bad being viola-tive of principles of natural justice and that even otherwise the amount sought to be recovered from him is not recover-able under Section 12 of the Act.

5. A counter-affidavit has been filed on behalf of the Post Master General (opposite party No. 2). It is stated therein that the V.P.L. was delivered on 13-6-1966 to the petitioner inadvertently as a registered letter without recovery of any amount from him. That being so, the amount of Rs. 509.98 which was to be recovered from the petitioner, but which due to inadvertence was not recovered is recoverable under Section 12 of the Act. He further stated that Sri B. Palo, Inspector of Post Offices, Bhadrak personally contacted the petitioner on 20-6-66 and demanded the amount from him. But the petitioner refused to pay the amount. The said Inspector made necessary inquiries and came to the conclusion that the addressee of the V.P.L. has not paid the amount as alleged at the time the letter was delivered to him. Subsequently the Superintendent of Post Offices, in his letter dated 1-7-66 addressed to the petitioner requested him to credit the value of the V.P.L. but this request was not complied with. The correctness of the contention of the petitioner that the amount in question is not recoverable under Section 12 of the Act is denied. It is finally stated that the order Annexure 1 passed in this case is legal and the amount stated therein is recoverable according to the provisions of Section 386, Cr. P. C.

6. In a rejoinder filed by the petitioner, he denied the allegations made in the counter-affidavit by opposite party No. 2, that although as a rule, value payable articles are delivered after realisation of the amount specified for remittance to the sender, instances are not rare when V. P. articles are delivered as ordinary registered articles through in-advertence and the value of the V. P. articles is subsequently recovered from the addressee either by persuasion or by resorting to legal proceedings as required by Section 12 of the Act. In regard to the allegation made in the counter-affidavit that by his letter dated 1-7-66 the Superintendent of Post Offices called upon the petitioner to pay the amount but that the latter had not sent any reply to the letter. It is stated in the rejoinder that as already mentioned in para 1 of the writ application, the petitioner had replied back immediately denying his liability and stated that he had received the V.P.L. only after payment of the money payable thereunder.

7. Section 12 of the Act on which the opposite party No. 2 relies in support of the validity of the order Annexure 1 runs thus

'Recovery of postage and other sums due in respect of postal articles :-- If any person refuses to pay any postage or other sum due from him under this Act in respect of any postal article the sum so due may on application made by the officer of the Post Office authorised in this behalf by the written order of the Post Master General, be recovered for the use of the Post Office from the person so refusing, as if it were a fine imposed under this Act by any Magistrate having jurisdic-tion where that person may for the time being be resident; and the Post Master-General may further direct that any other postal article not being on Government service, addressed to that person shall be withheld from him until the sum so due is paid or recovered as aforesaid.' Section 386, Criminal Procedure Code may also be extracted

'386. Warrant for levy of fine-- (1) Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) Issue a warrant to the Collectorof the District authorising him to realisethe amount by execution according tocivil process against the movable, or immovable property, or both, of the defaulter;

Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reasons to be recorded in writing, if it considers it necessary to do so.

(2) The State Government may make rules regulating the manner in which warrants under Sub-section (1), Clause (a) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.

(3) Where the Court issues a warrant to the Collector under Sub-section (1), Clause (b) such warrant shall be deemed to be a decree, and the Collector, the decree-holder, within the meaning of the Code of Civil Procedure, 1908 (Act V of 1908) and the nearest Civil Court by which any decree for a like amount could be executed shall for the purposes of the said Code be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decree shall apply accordingly :

Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.'

8. It is argued on behalf of the petitioner that the amount of 'postage' and 'other sum due' referred to in Section 12 of the Act and which are recoverable under a requisition made by an Officer of the Post Office as if it were a fine imposed by a Magistrate refers only to those sums of money which are to be recovered only for the use of the poet office and not for being remitted to the sender and as the amount indicated on a V.P.L. is recovered from the addressee not for use in the post office, but for being sent to the sender of the article, such an amount is not recoverable under Section 12 of the Act. In support of this contention reference is made to Section 34 of the Act which may be extracted :

'34. Transmission by post of value-payable postal articles.-- The Central Government may, by notification in the official gazette, direct that, subject to the other provisions of this Act and to the payment of fees at such rates as may be fixed by the notification a sum of money specified in writing at the time of posting by the sender of a postal article shall be recoverable on the delivery thereof from the addressee, and that sum so recovered shall be paid to the sender :

Provided that the Central Government shall not incur any liability in respect of the sum specified for recovery unless and until that sum has been received from the addressee.

Explanation :-- Postal articles sent in accordance with the provisions of this section may be described as Value-payable' postal articles.'

It is argued that by virtue of the proviso to Section 34 the Central Government does not incur any liability in respect ofany sum specified for recovery on a value payable letter unless the amount is actually recovered from the addressee and, as in the present case the contention of the opposite party is that the amount of Rs. 509,98 has not been recovered from the petitioner, the Central Government has not incurred any liability to pay this amount to the sender and therefore, if and when this amount is recovered from the petitioner it will not be for the purpose of the poet office within the meaning of Section 12 of the Act, ,but for being sent to the sender and therefore Section 12 has no application. We are unable to accept this contention. When the post office accepts a value payable article, it enters into a contract with the sender to deliver that article only against payment by the addressee of the sums specified by the sender and the proviso to Section 34 does not absolve the post office from the liability to pay damages if in contravention of this contract it neglects to collect the specified amount on delivery. The sender is entitled to recover this amount from the post office. If the post office had delivered the V.P.L. without demanding payment from the addressee, it is liable for breach of contract as laid down by the Supreme Court in Commissioner of Income-tax, Delhi v. P. M. Eathod & Co., (AIR 1959 SC 1394). In the present case, it is specifically stated in para 10 of the counter-affidavit that the amount in question has already been sent to the sender of the V.P.L. in pursuance of the obligation the post office incurred when it accepted the V.P.L. from the latter. If and when the post office would recover this amount from the petitioner, it will not be for the purpose of sending it to the sender of the V.P.L. but the post office would get itself reimbursed for the amount it has already paid to the sender in discharge of its obligation. In that view of the matter, the amount would be recovered for the use of the post office within the meaning of Section 12 of the Act. It cannot, therefore, be said that Section 12 is not applicable to the facts of this case and that the Post Master-General had no jurisdiction to issue an order in the nature of Anne-xure 1.

9. It is not disputed that a value payable letter is not to be delivered to the addressee without receiving from him the amounts specified in that letter. That is the normal rule. If, as is now stated by the opposite parties, a value payable letter is due to inadvertence delivered without receiving from the addressee the amount mentioned therein the onus is undoubtedly heavy on the postal authorities to establish it. Any inquiry made in this connection by the postal authorities should be with due notice to the personsought to be made liable and he should be afforded all opportunities to prove that in his case there was no deviation from the normal course and that the V.P.L was delivered to him only after payment of the amount by him. It is stated in the counter-affidavit filed on behalf of the Post Master-General that one B. Palo. Inspector of Post Offices, Bala-sore made an inquiry in this connection and was satisfied that the V.P.L. was delivered to the petitioner inadvertently without recovering from him the amount due on it. Palp himself had not chosen to file an affidavit in this case. If he at all made any inquiry no such record has been placed before us. There is not a scrap of paper filed in this case to satisfy us that before fixing the liability on the petitioner, the postal authorities made any inquiry and if at all any inquiry was made that a reasonable opportunity was afforded to the petitioner to have his say in the matter. In the circumstances, the order Annexure 1 passed by the Post-Master-General is vitiated as violative of the principles of natural justice and must therefore be quashed.

10. It is only where the Post-Master-General passes a valid order under Section 12, that the amount mentioned therein can be recovered as a fine. As our finding is that Annexure 1 is invalid, the subsequent proceedings in Misc. Case No. 1 of 1969 on the file of Magistrate, First Class, Bhadrak (Annexure 4) cannot be valid and consequently the order dated 17-6-1972 passed by the 'Magistrate calling upon the petitioner to deposit the amount is also quashed.

11. In the result, we would allow this application and direct issue of a writ of certiorari quashing Annexure 1 and the orders passed by opposite party No. 1 in Misc. Case No. 1 of 1969. The petitioner shall be entitled to recover the costs of this proceeding from opposite party No, 2. Hearing fee is assessed at Rs. 100 (Rupees one hundred only).

G.K. Misra, C.J.

12. I agree.


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