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Kapila Charan Rout and ors. Vs. Sub-divisional Officer, (Civil) and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case Nos. 1249, 1295 to 1298 and 1306 to 1310 of 1974
Judge
Reported inAIR1977Ori100; 44(1977)CLT354
ActsBihar and Orissa Public Demands Recovery Act, 1914 - Sections 5, 5(2) and 6; Constitution of India - Article 226
AppellantKapila Charan Rout and ors.
RespondentSub-divisional Officer, (Civil) and anr.
Appellant AdvocateP.K. Dhal, Adv.
Respondent AdvocateGovt. Adv.
Cases ReferredBaijnath Sahai v. Ramgut Singh
Excerpt:
.....stating that the demand is due. ' the requisition being a condition precedent, in its absence, the certificate officer, has no jurisdiction to file a certificate in his office, (2) before signing the certificate, the certificate officer has to be satisfied about two things, namely,-(i) the demand is recoverable and (ii) recovery by statute is not barred by law. ' the certificate officer had, therefore, no jurisdiction to sign the certificates when he was satisfied that recovery by statute was barred by law. we are alive to the fact that under the orissa act, the need for registration is not necessary and, therefore, the third ground is not available for the last of the certificate cases instituted on 20-2-1970, because the orissa act came into force with effect from 1-6-1964. 4. there..........record is put up today. three bidders as mentioned in the auction bid sheet participated in the auction sale.the highest bid went upto rs. 7,000/-(rupees seven thousand) only. the c.dr. is absent although he was served with a notice and sale proclamation notice was hung on the pole over the lands to be put to auction sale.the highest bid goes in favour of shri bipra charan raut of village deo pada this auction sale is hereby confirmed and the highest bidder shri bipra charan raut of village deopada is declared as purchaser of the lands. he is to deposit 2,5 per cent of the highest bid today and the rest within 15 (fifteen) days. case is adjourned to 15-12-74.later shri bipra charan raut deposited rs. 2,000/- inclusive of security deposit of the auction sale of rs. 7,000/-. issue.....
Judgment:

R.N. Misra, J.

1. As a part of the drought relief programme sometime before 1960, the Sub-Divisional Officer (Civil), Bhadrak, started several small improvement works within his jurisdiction and one Kapila Charan Rout was entrusted with some of these works. Plain paper agreements had been entered into between the public officer representing the State and the contractor and moneys had been advanced for such purpose. Early in 1960, at the instance of the said public officer, certificate proceedings under the Bihar and Orissa Public Demands Recovery Act, 4 of 1974, were initiated and seven cases came to be registered on 1st March, 19.60. In the year 1963, two more cases were instituted while in February, 1970, the last of the lot under consideration was registered. A chart showing the specifications of the cases is appended below for convenience.

The certificate-debtor filed objections in most of the cases but said objections were overruled and execution of the certificates was ordered. On 2-12-1074, immovable properties of the certificate-debtor were put to sale in all the cases excepting Certificate Case No. 9 Dev of 1959-60. In case No. 8 Dev of 1959-60, the following order was passed by the Certificate Officer:--

'2-12-74.-- Case record is put up today. Three bidders as mentioned in the auction bid sheet participated in the auction sale.

The highest bid went upto Rs. 7,000/-(Rupees Seven thousand) only. The C.Dr. is absent although he was served with a notice and sale proclamation notice was hung on the pole over the lands to be put to auction sale.

The highest bid goes in favour of Shri Bipra Charan Raut of village Deo pada This auction sale is hereby confirmed and the highest bidder Shri Bipra Charan Raut of village Deopada is declared as purchaser of the lands. He is to deposit 2,5 per cent of the highest bid today and the rest within 15 (fifteen) days. Case is adjourned to 15-12-74.

Later Shri Bipra Charan Raut deposited Rs. 2,000/- inclusive of security deposit of the auction sale of Rs. 7,000/-. Issue receipt in favour of him............''

In eight other connected cases, the substance of this order was reproduced. In Certificate Case No. 9 Dev of 1959-60, the following order was passed:--

'2-12-74-- Case record is put up today. The three bidders participated in the auction. The case was adjourned to 2-12-74 for auction sale in Cases No. 8/ Dev, etc. and others. The certificate-debtor's petition has to be considered on 5-12-74.

xx xx xxSince the bidders had come in other cases against the certificate' debtor, the auction sale cannot be adjourned. However, the objector's claim has to be finally decided on 5-12-74 as ordered.'

In the meantime, on 12-12-1074, O. J. C. No. 1249 of 1974 was filed before this Court while on 19-12-1974, O. J Cs. 1295, 1296, 1297 and 1298 were filed and on 20-12-1974, the other five cases were filed. On 20-12-1974, in the four cases instituted on 19-12-1974, stay of further proceedings in the certificate cases was directed by this Court while in the rest six cases, the order of stay was granted on 29-1-1975. The Certificate Officer received the stay orders granted on 20-12-1974 long before 2/-1-1975. On that date, he did not confirm the sale by making an order in the four connected certificate proceedings, but in the other case, he passed an order of confirmation of sale on the ground that there was no order of stay and directed delivery of possession to the auction purchaser.

Sl. No.Certificate case number.Date of initiation.Amount of Certificate debt.Connected to O. J- C. No.

1.8 Dev/59-601-3-1960Rs. 029.691249 of 19742.22 Dev/59.601-5-1960Rs. 60.441295 of 19743.21 Dev/59.601-3-1980Rs. 856.871296 of 19744.7 Dev/59-601-3-1960Rs. 207.561298 of 19745.4 Dev/59.601-3-1980Rs. 767.121307 of 19746.9 Dev/59-601-3-1960Rs. 894.751308 of 19747.19 Dev/59-601-3-1960Rs. 440.311809 of 19748.51 Dev/82.6328-3.1063

Rs. 452.501297 of 1974 14-10-1463 9.52 Dev/62-6314-10-1963Rs. 482.001306 of 197410.24 Dev/69-7020-2-1976Rs. 2171.091810 of 1974

The certificate-debtor in these writ applications asked for quashing of the connected certificate proceedings mainly on the ground that the demand in question, was not a public demand and the amount even if due to the requisitioning officer could not be collected as an arrear of land revenue under the provisions of the Bihar and Orissa Public Demands Recovery Act While these writ petitions were pending, the original certificate debtor died and he has been duly substituted by his legal representatives.

2. In a counter-affidavit the challenge against the certificate proceedings has been refuted. When the applications were being heard and reference became necessary to the records of the certificate proceedings, we directed them to be brought up and we have the advantage of seeing the records.

3. For the reasons which we shall presently indicate, we have absolutely no doubt that both the requisitioning officer as also the Certificate Officer have completely misdirected themselves and the proceedings are not sustainable in law:--

(1) Admittedly to the seven certificate proceedings initiated on 1-3-1960 and the other two initiated on 14-10-63, the provisions of the Orissa Public Demands Recovery Act of 1962 (l of 1963) have no application and that is the combined result of Sections 63 and 70 of that Act. Section 69 repeals the Bihar and Orissa Public Demands Recovery Act of 1914 and Section 70 provides:--

'All proceedings under any of the enactments repealed under Section 69 and pending on the date of commencement of this Act shall be continued and disposed of as if this Act had not been passed.' Admittedly the, amounts are due to an officer other than the Collector. Therefore, in terms of Section 5 of the Bihar and Orissa Act, the Sub-Divisional Officer (as the Requisitioning Officer) was required to send a written requisition in the prescribed form to the Certificate Officer. Sub-section (2) of Section 5 of the repealed Act required that the requisition has to be signed and verified in the prescribed manner and a statutory form has been prescribed for drawing up of the requisition. In none of these cases do we find a requisition answering the requirement of Section 5 (2) of the Act. In fact, there is no requisition at all in existence. Same is the position in regard to the only other case instituted subsequent to the repeal of the Bihar and Orissa Act and similar provision under Section 4 of the Orissa Act has not been complied with.

Section 6 of the repealed Act corresponds to Section 5 of the Orissa Act and the provision runs thus:--

'On receipt of any such requisition, the Certificate Officer, if he is satisfied that the demand is recoverable and that recovery by suit is not barred toy law, may sign a certificate, in the prescribed form, stating that the demand is due...... and shall cause the certificate to be filed in his office.' The requisition being a condition precedent, in its absence, the Certificate Officer, has no jurisdiction to file a certificate in his office,

(2) Before signing the certificate, the Certificate Officer has to be satisfied about two things, namely,-- (i) the demand is recoverable and (ii) recovery by statute is not barred by law. In each of the certificates, the Certificate Officer has certified that the recovery by statute is barred by law. The printed portion at the foot of the certificate in the prescribed form No. I is in Oriya language and when translated into English, the material portion of the certificate reads:--

'...... and that recovery by statute is barred by law.' The Certificate Officer had, therefore, no Jurisdiction to sign the certificates when he was satisfied that recovery by statute was barred by law.

(3) 'Public demand has a statutory definition both under the repealed Act as also the Orissa Act and the definition refers to arrear of money specified in Schedule T. In the repealed Act, a Schedule appeared, the relevant clause being to the following effect:-- 'Any money payable to a Government Officer or any local authority, in respect of which the person liable to pay the same has agreed, by a written instrument duly registered, that it shall be recoverable as a public demand.'

The certificate-debtor has throughout contended that there was no registered instrument recording the agreement of recovery as a public demand of any sum due in respect of the contracts with the Government Officer and no material has been placed either before the Certificate Officer or even before us to negative this stand of the certificate debtor. We are alive to the fact that under the Orissa Act, the need for registration is not necessary and, therefore, the third ground is not available for the last of the certificate cases instituted on 20-2-1970, because the Orissa Act came into force with effect from 1-6-1964.

4. There still remains a hurdle in the path of success for the petitioner. Though he was aware of the certificate sale and confirmation in favour of the highest bidder in some of the proceedings, he has not impleacted him as an opposite party. At one stage before looking into the certificate records, we were feeling inclined to dismiss these applications. We adjourned the proceedings for receiving the certificate records and the counsel for the certificate-debtor has now applied for impleading the said auction-purchaser as an opposite party. We are not inclined to entertain the belated application and accordingly we reject the same. We must say that the writ applications have not been properly drafted, appropriate points have not been raised and minimum care has not been taken to see that proper parties are impleaded. No attention was even given to properly present the case at the time of hearing.

5. In these circumstances, we have now to consider whether the writ applications should be dismissed for not impleading the auction-purchaser or we should proceed on the footing that the auction sale is a nullity and, therefore, the auction purchaser has no interest at all and need not be heard. We have already indicated grounds to hold that the certificate proceedings were not at all maintainable and the Certificate Officer had no jurisdiction to proceed against the certificate debtor. The Judicial Committee of the Privy Council in the case of Baijnath Sahai v. Ramgut Singh, (1896) 23 Ind App 45 (PC), pointed out:--

'...... If no such certificate (at the foot of the prescribed form) is given then the whole basis of the proceeding is gone. There is no judgment, there is nothing corresponding to a judgment or decree for payment of the amount, and there is no foundation for the sale. The authority to proceed to the sale is based on the certificate which has the effect, as has been already pointed out, of a judgment or decree, and if no judgment or decree is given, and no certificate is filed having the force or effect of a judgment or decree, there can be no valid sale at all.'

Again, the Certificate Officer seems to have confused the proceedings beyond repair by jumbling up all the ten cases. As it appears, there has been only one sale proclamation for all the cases as would appear from a copy of it available at page 28 of the certificate records in Case No. 8 Dev of 1959-60 and he also held only one single sale treating the same to be a sale in each of the cases, as would be found on the basis of the common order dated 2-12-1974. It was open to him to sell the properties in one case and any excess proceeds of the sale could be attached end adjusted for satisfaction in the connected cases.

6. The Certificate Officer has also misconducted himself in confirming the sale held by him on 2-12-1974 before the requisite period was over. Under the law, sixty days' time is available for asking for vacating the sale and when the sale was held on 2-12-1974, an application for vacating the sale could be made on or before 31-1-1975. On 27-1-1975, the Certificate Officer could not have confirmed the sales. He seems to have done so with a view to prejudicing the petitioner and avoiding interference by this Court. It appears that he had been communicated the orders of stay in four of these cases long before 27-1-75 and he was aware of such orders. Accordingly in the cases where there was stay, he did not confirm the sale, but with a view to avoiding any further order from this Court in the connected proceedings, he hastened to make the sale absolute by confirming it and even wanted to deliver possession to the auction-purchaser so that before any further order could be communicated from this Court, the sale could be taken as a fait accompli. At one stage we were feeling inclined to initiate a proceeding for contempt which, however, we have not followed up, but we must say that the Certificate Officer has shown unusual zeal and acted contrary to law which he should not have. He was administering a statute and he is certainly free to pass appropriate orders in exercise of statutory powers but it is not for him to take away rights of parties and exercise jurisdiction with any bias or motive.

7. For the reasons indicated, we are satisfied that the order of confirmation in favour of the auction purchaser is as much a nullity as the entire proceeding and as he has not acquired any right, no prejudice would be caused to him if he is not granted a hearing. There is no material, however, to hold that he was a party to any of the irregularities, or that he participated in the auction knowing the proceedings to be not tenable. In these circumstances, we are prepared to give him full compensation. He will be entitled to recovery of the amount of Rs. 7,000/- which is said to be in deposit in the certificate cases together with twelve per cent by way of interest to be paid by the petitioners. We direct that the petitioners do deposit the interest due at the rate of twelve per cent up to 31-12-1976 on or before the 7th of January, 1977 and the Certificate Officer is directed to immediately refund the sale money with interest to the auction-purchaser. The sale is quashed. From the record we find that though the Certificate Officer had requested the local Revenue Officer to deliver possession after he confirmed the sale, the Revenue Officer returned the writ saying that this Court had already stayed the proceedings. It follows that the auction-purchaser has not been put into possession.

8. The net result is that the certificate proceedings as also the sale held therein are quashed. The petitioners should normally have been entitled to costs. We are, however, not inclined to make any order therefore on account of the negligence shown in prosecuting these applications before this Court.

Panda, J.

9. I agree.


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