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Rijhumal Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 23 of 1956
Judge
Reported inAIR1958Raj17
ActsConstitution of India - Article 226; Rajasthan Public Demands Recovery Act, 1952 - Sections 3, 4, 4(2), 6 and 20
AppellantRijhumal
RespondentState of Rajasthan and anr.
Appellant Advocate M.M. Vyas, Adv.
Respondent Advocate L.N. Chhangani, Govt. Adv.
DispositionApplication allowed
Cases ReferredThakur Jai Singh v. Tahsildar
Excerpt:
.....authority signing the requisition. the necessity for this information would be clear for example for a demand like the income-tax which is of a recurring nature. it does not show clearly who the authority signing the requisition is, for the initials 'd. ' churu, may or may not convey the name of the authority clearly. section, 8 (4) clearly provides that all proceedings under the certificate shall be stayed pending the determinationof a petition presented under this section. we should, however, like to make it clear that it isopen to the collector to file a proper certificate in strict compliance with the law, and if he thinks that the circumstances justify the use of the proviso to section 12 to attach the money which he has to return in strict compliance with that proviso......neem-ka-thana, ilr 1954-4 raj 743: (air 1954 raj 200) (c), where it was held that service of notice on the defaulter under section 6 of the act was essential before taking proceedings for the actual realization of the amount, and that where such proceedings were taken without giving the notice, as required under section 6, the proceedings for realization must be prohibited.9. the conclusion, therefore, at which we arrive is that even though there is a provision for a suit under section 20, this court will issue an order in the nature of prohibition if the foundation has not been laid for proceeding under the act as given above.10. we now turn to the question whether in this case the foundation had been laid for the exercise of jurisdiction under the act.11. a form is prescribed.....
Judgment:

Wanchoo, C.J.

1. This is an application by Rijhumal under Article 226 of the Constitution against the State of Rajasthan, and the Collector of Churu praying for a writ or order prohibiting the Collector from realizing a certain sum of money from him under the Rajasthan Public Demands Recovery Act (No. 5) of 1952 (hereinafter called the Act).

2. The case of the applicant was that he was an authorised ration dealer of food grains for Sujangarh town. In that connection, some criminal proceedings were started against him in 1952 with respect to wheat and Juar worth, Rs. 34,079/1/3, which, it was alleged, he had taken away in collusion with a clerk of the Supplies Department. That case was still pending against him when he received a notice in August, 1954, under Section 6 of the Act, for payment of Rs. 34,079/1/3.

The applicant's contention is that the amount is not a public demand which could be recovered under the Act, and that, at any rate, no requisition of the D. S. O. or other competent authority, as required by Section 3 of the Act, was ever issued. It is further contended thatthe Collector did not comply with the provisions of Section 4 relating to filing of the certificate. Further, though a notice was issued under Section 6, a copy of the certificate, as required by that section, was not sent to the applicant. The applicant, therefore, contends that there w,as no foundation for taking proceedings under the Act in view of these defects, and the entire recovery proceedings should be quashed.

3. The application goes on to state that the applicant had presented a petition under Section 8 of the Act, but that petition was not decided by the Collector even up to February, 1956, when the present application was filed in this Court.

Though the Collector did not decide the petition under Section 8, and though all proceedings should have been Stopped under Section 8 (4) till that petition was decided, the Collector went on with the execution and realized the amount of Rs. 11,808/2/- which was lying in the Bank of Bikaner Ltd., Sujangarh to the applicant's credit. This was also against Section 12 of the Act. The applicant, therefore, prayed for a writ or order prohibiting the Collector from proceeding further under the Act, and for a direction to the Collector to return the amount of Rs. 11,808/2/- to the applicant.

4. We have not thought it necessary to give in detail the defects pointed out by the applicant in the certificate under Section 4, as we propose to mention them when we deal with the matter later.

5. The application has been opposed on behalf of the State, and it has been contended in reply that this was a case to which Section 3 had no application, and that what had happened was that the Collector had filed the certificate under Section 4 (2) of the Act. It was urged that the copy of the certificate had been sent as required by Section 6, and that, in any case, even if the copy of the notice had not been sent by mistake, it was a mere irregularity which did not invalidate the certificate.

It was also contended that the, defects, if any, pointed out in the certificate were of a minor nature and did not invalidate it. Lastly, it was urged that as there was a specific remedy provided under Section 20 of the Act, the applicant was not entitled to invoke the extraordinary jurisdiction of this Court.

6. We shall first take the question whether this Court should intervene in its extraordinary jurisdiction when there is a specific provision under Section 20 of the Act for a suit for cancellation or modification of a certificate. There is no doubt that if the certificate is invalid for any substantial defect in it, a suit under Section 20 can lie for its cancellation.

The question, therefore, that falls for consideration is whether this Court should drive a person to the remedy of a suit under Section 20 even in cases where it is clear that the provisions of Sections 3, 4 or 6 have not been strictly complied with, or the amount sought to berecovered is not a public demand as provided in the schedule of the Act, and refrain from giving relief under Article 226 by prohibiting the Collector to proceed with the recovery of the demand.

7. We are of opinion that there are four essentials which are the foundation for proceedings under the Public Demands Recovery Act. These essentials are :

1. that the demand should be one covered by the Schedule of the Act,

2. that there is a requisition as required under Section 3, unless the case is covered by Section 4 (2),

3. that there is a certificate in strict compliance with Section 4, and

4. that a notice has been served under Section 6 on the defaulter.

It is only when all these conditions are present that foundation is laid for the Collector to take action for recovery under the Act. If any of these conditions is not present there is a patent lack of jurisdiction in the Collector to proceed under the Act. We are of opinion that, in such a case, a defaulter should not be driven to the remedy of a suit under Section 20 for such a remedy would not be equally effective, beneficial and convenient.

It is only when these four conditions are complied with that the Collector gets jurisdiction to proceed under the Act, and it is but right that this Court should prohibit the Collector in its extraordinary jurisdiction from proceeding in a matter in which he has not laid the foundations of his jurisdiction. The remedy sought by the defaulter in such a case would be of the nature of prohibition, and it is well-settled that prohibition should be granted where the foundation has not been laid for the jurisdiction to be exercised.

We may in this connection refer to Baijnath Sahai v. Ramgut Singh, ILR 23 Cal 775 (PC) (A), where their Lordships of the Privy Council held that there was no foundation for a sale under the Bengal Public Demands Recovery Act until a certificate had been made by the Collector strictly in the manner prescribed thereby. In Abanindra Kumar Maity v. A. K. Biswas, AIR 1954 Cal 355 (B), the Calcutta High Court held that the existence of an alternative remedy like a suit did not preclude the Court from exercising its extraordinary powers for the alternative remedy was not equally effective, beneficial and convenient.

8. Lastly, we may refer to Thakur Jai Singh v. Tahsildar, Neem-ka-Thana, ILR 1954-4 Raj 743: (AIR 1954 Raj 200) (C), where it was held that service of notice on the defaulter under Section 6 of the Act was essential before taking proceedings for the actual realization of the amount, and that where such proceedings were taken without giving the notice, as required under Section 6, the proceedings for realization must be prohibited.

9. The conclusion, therefore, at which we arrive is that even though there is a provision for a suit under Section 20, this Court will issue an order in the nature of prohibition if the foundation has not been laid for proceeding under the Act as given above.

10. We now turn to the question whether in this case the foundation had been laid for the exercise of jurisdiction under the Act.

11. A form is prescribed under the Rules (Form No. 2) in which the certificate is to be made. This requires four things

(i) name and address of the authority signing the requisition.

(ii) name and address of the defaulter,

(iii) amount of public demand including interest if any, for which this certificate is signed, and period for which such demand is due.

(iv) further particulars of the public demand for which this certificate is signed.

In this case, D. S. O. Churu was shown in the certificate as the authority signing the requisition. We must say that it is not right to put down Initials like this without giving in full the name of the authority signing the requisition. The full designation of the authority should be mentioned as the initials may mean anything. In this case, we are told that the initials 'D. S. O.' mean the District Supply Officer.

That may be so, but it is, in our opinion, essential that the full designation of the authority signing the requisition should be mentioned so that the defaulter may know who is the person who is calling him a defaulter. The name and address of the defaulter was given correctly in this certificate. The amount due was also mentioned, and it was said that this represented the cost of Government grain issued to him, but the period for which the demand was due was not mentioned, and it was not shown when the grain was supplied.

It is urged that it was not necessary to show the period for which the demand was due. We are of opinion that to enable the defaulter to know exactly for what period the demand was being made from him, and whether he had already paid it, it is necessary to mention the period. The necessity for this information would be clear for example for a demand like the income-tax which is of a recurring nature.

If the period for which the demand is made is not shown, a person may not know which is the year for which the income-tax arrears are being demanded from him, and may not be able to point out that he had paid the arrears for that year. That is why the form provides that the period, for which the demand is due, should be mentioned. It is contended on behalf of the applicant that this defect is a very substantial defect, and invalidates the certificate.

We are of opinion that there is force in this argument, and the defect is of a serious nature. Then there is the provision in the form for further particulars of the public demand. These particulars are also necessary to enable the defaulter to know the exact nature of the demand against him. In this particular case, it was said with reference to this that Rs. 11,808/2/- were lying in the Bank of Bikaner Ltd., Sujangarh, to the credit of the dafaulter.

This was completely meaningless as it had nothing to do with the demand. But we find that though the further particulars were not specified at the proper place in the form, it was mentioned in another place in the form that the amount was due as cost of government grain issued to him, and therefore the further particulars necessary in this case were supplied. To sum up there are grave defects in the certificate in this case.

It does not show clearly who the authority signing the requisition is, for the initials 'D. S. O.' Churu, may or may not convey the name of the authority clearly. In Baijnath Sahai's case (A), referred to above, their Lordships of the Privy Council said that it was essential that any person who sees the certificate should be able to know who the judgment-creditor is, and what is the sum for which the judgment is given, for the certificate amounts to a decree.

The other defect is that the period for which this sum became due is not mentioned. Both these, in our opinion, are substantial defects which invalidate the certificate, and thus the foundation is not laid for proceeding under the Act.

12. Another contention on behalf of the applicant is that there was no requisition acquired under Section 3 of the Act. The name of the authority signing the requisition is shown as D. S. O. Churu in the certificate; but it is admitted by the State that there was in fact no such requisition under Section 3 of the Act by anybody known as D. S. O. Churu. What happened was that the Collector acted under Section 4 (2) of the Act.

If that was so, the name of the Collector should have appeared as the authority sending the requisition on this form. That would then have made clear that the Collector was acting under Section 4 (2). But if a person other than the Collector is sending a requisition as appears from the certificate in this case, there must be a requisition under Section 3 before the Collector, and no such requisition from D. S. O. Churu admittedly exists in this case.

In fact, therefore, though the name of the authority sending the requisition is shown as D. S. O. Churu in the certificate, that is really not so, and the real person who may be deemed to have made the requisition is the Collector himself. The result is that the name of the judgment-creditor which appeals in this certificate is a wrong name and as such ILR 23 Cal 775 (PC) (A) fully applies.

13. The next argument is that the copy of the certificate, as required under Section 6, has not been sent, and therefore also there was defect in laying the foundation of the jurisdiction under the Act. It has been urged on behalf of the State that the copy was sent. There is a form of notice provided in the 'Rules, namely Form No. 3. In this case, however, that form was not used (vide the notice Ex. A received by the applicant).

The form mentions that 'a copy of the certificate is annexed', but the notice sent by the Collector in this case does not say that a copy of the certificate was annexed to that notice. The letter of the Collector to the Tahsildar also merely says that the notice under Section 6 may be served upon the defaulter. The Tahsildar certainly says in his report of service that the recovery certificate had been served on the 30thof August 1954.

It seems to us that when the Tahsildar mentions that the recovery certificate had beenserved, he really refers to the notice under Section6 and not to the copy of the certificate, for in his reply he has not said anywhere that the notice under Section 6 had been served. So it is clear that a copy of the certificate was not sent to the applicant along with the notice.

This appears, however, to be a mere irregularity for the gist of the certificate is mentioned in the notice also, and a defaulter who has not received a copy of the certificate canapply for a copy before making his objections.There is, therefore, no force in this point.

14. Then there is the contention that the demand cannot be recovered under the Public Demands Recovery Act at all as it is not covered by the Schedule. So far as that is concerned, it is enough to say that the demand iscovered by item 6 of the Schedule, which provides for any money payable to the Government, or to a department, or an officer of the Government under or in pursuance of a written instrument or agreement.

In this case there was a written agreementbetween the applicant and the Government with respect to Sujangarh. The fact that thisgrain is said to have been taken not from Sujangarh godown, but from other godown nearby would make no difference so long as the grainwas given in view of the agreement between the applicant and the Government, and themoney is due under the agreement. As there is an agreement between the applicant and the Government with respect to his being an authorised ration dealer for Sujangarh, the demand can be recovered under the Public Demands Recovery Act.

15. Then we turn to the contention that the Collector, was not right in realising the amount lying to the credit of the applicant in the Bank at Sujangarh, and that he did so without jurisdiction and against the clear provisions of the Act. Section, 8 (4) clearly provides that all proceedings under the certificate shall be stayed pending the determinationof a petition presented under this section.The applicant had presented an applicationunder Section 8, and as such the Collector, shouldhave stayed further proceedings. The onlypower that the Collector has is under the proviso to Section 12 which lays down that the Collector may, for certain reasons, mentioned therein, direct at any time, for reasons to be recorded in writing, attachment of any property which is likely to be concealed, removed or disposed of by the defaulter.

The Collector, however, did not proceed under this proviso, and his action in getting the Bank to pay him the amount lying in the Bank to the credit of the applicant was also without jurisdiction.

16. We, therefore, allow the application and quash the proceedings resulting in the certificate dated the 13th of July 1955, and order the Collector to refund the amount taken from the Bank to the applicant. The applicant will get his costs from the State. We should, however, like to make it clear that it isopen to the Collector to file a proper certificate in strict compliance with the law, and if he thinks that the circumstances justify the use of the proviso to Section 12 to attach the money which he has to return in strict compliance with that proviso.


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