D. Basu, J.
1. The petitioner, an assessee of income tax, defaulted in payment of tax upon which a certificate was issued by Shri N. M. Majumdar purporting to act as a Tax Recovery Officer, 24 Parganas, which is at annexure A to the petition in case No. 356/IB /63-64. The petitioner challenged the jurisdiction of the Tax Recovery Officer on certain grounds but the objections were rejected by the order dated 3rd October, 1063 which is at annexure B to the petition. The petitioner has challenged the validity of the entire proceeding leading upto the impugned order of the 3rd October, 1963 on the primary ground that Shri Majumdar was not duly appointed as a Tax Recovery Officer and had, therefore, no jurisdiction to Issue the certificate in question and to proceed upon its basis. Though the matter involves a probe into the ways and means of official practice and procedure the matter cannot be lightly viewed Inasmuch as it were statutory functions which were sought to be exercised by Shri Majumdar and in particular, powers which imposed fiscal liability upon the petitioner.
2. The question which we have to decide arises as follows. Under Section 2(44) of the Income Tax Act, 1961 in order to exercise jurisdiction as a Tax Recovery Officer a person must be either a Collector or an Additional Collector or an officer empowered to act as a Certificate Officer to effect recovery of arrears of land revenue or other public demand, or any gazetted officer of the Central or the State Government who may be authorised by the Central Government by general or special notification to exercise the powers of the Tax Recovery Officer. In this case there is no dispute that Shri Majumdar's jurisdiction is sought to be supported on the ground that he was a 'certificate officer' within the meaning of the Bengal Public Demands Recovery Act. Section 3(3) of the Bengal Public Demands Recovery Act, 1913 defines a certificate officer. Primarily it is only a collector who can be a certificate officer, the other categories not being relevant in this case. But the term 'collector' has again been defined in Clause (3a) of the section as follows:
' 'Collector' means the Chief officer in charge of the revenue administration of a district and includes an Additional District Magistrate appointed under sub-Section (2) of Section 10 of the Code of Criminal Procedure. 1898.'
It is with this definition of a collector that we are concerned in this case. It is urged on behalf of the opposite parties that Shri Majumdar was appointed an Additional District Magistrate within the meaning of Section 10(2) of the Code of Criminal Procedure, to that ipso facto he was entitled to act as a certificate officer under the Public Demands Recovery Act, 1913. The matter, however, has assumed a more serious shape because of the fact that Shri Majumdar's regular appointment as Additional District Magistrate had terminated by superannuation as from the end of May, 1960. The impugned certificate having been issued in June, 1963, we are to determine whether he was validly appointed as an Additional District Magistrate in June, 1963. Before the termination of the service of Shri Majumdar by superannuation, two orders were issued bearing the same date, namely, the 28th March. 1960, and being Nos. 1189GA and 1190GA, both of which were published in the Calcutta Gazette on April 7. 1960. By the first mentioned order, Shri Majumdar was appointed Additional District Magistrate for a period upto the 28th February 1961 reciting that he was, on the date of the order, still on leave and by the second mentioned order he was vested with the powers of a Magistrate, first class. The learned Advocate for the petitioner urges that this was an invalid appointment with reference to the terms of Section 10 of the Code of Criminal Procedure. Section 12(1) of the Code empowers the State Government to appoint a Magistrate of the first, second or third class in any district besides the District Magistrate and Sub-section (2) of Section 10 relates to the appointment of an Additional District Magistrate. It runs as follows:
'The State Government may appoint any Magistrate of the first class to be an Additional District Magistrate. ...' It is evident that a person cannot be appointed an Additional District Magistrate direct from the field. The first condition for his appointment is that he must be a Magistrate of the first class and as we have already seen, a person may be appointed as a Magistrate of the first class only under Section 12 (1). Unless, therefore, a person is first appointed as a Magistrate of the first class, he cannot be validly appointed as an Additional District Magistrate. In all probability, Shri Majumdar, being a member of the Indian Administrative Service, had powers of a first class Magistrate during the regular terms of his office. Those, however, must terminate with the termination of his service on superannuation and that is why he required to be vested with the powers of a first class Magistrate for the term for which he was appointed by the order dated the 28th March, 1960, that is upto 28th February, 1961. It is, however, contended on behalf of the petitioner that the notification conferring the powers of a first class Magistrate having been published in the Calcutta Gazette subsequent to the publication of the notification appointing him as an Additional District Magistrate must be held to be invalid in view of the express provision of Section 10 (2) of the Code. The notification of vesting of first class powers was not only printed subsequent to the other notification but it also bore a number which was arithemetically subsequent to the other one. In this situation, reliance has been placed on a Division Bench decision of this Court, Ladhuram Taparia v. D. K. Ghosh : AIR1957Cal667 . In that case, there were two notifications reappointing Shri Ghosh as an Additional District Magistrate in somewhat similar circumstances. The first notification was held invalid by the Court but the second one was upheld. In the second notification Shrf Ghosh was first vested with the powers of a Magistrate of the first class and on the same date there was another order appointing him as an Additional District Magistrate and this was uphold by the Court as a valid appointment as an Additional District Magistrate. But though the second notification was valid, the Court made certain observations regarding the first one and on these observations reliance has been made by the petitioner, even though they were in the nature of obiter. The peculiar defect of the first notification was that it was only an order of re-employment as an Additional District Magistrate without conferring any power as a first class Magistrate Patently this was not a compliance with the terms of Section 10 (2) because it is only Magistrate of the first class who can be appointed as a first class magistrate. On this background the Court observed:'Under Section 10 (2) of the Criminal Procedure, Code, the State Government can only appoint 'any magistrate of the first class' to be an Additional District Magistrate, so that the person appointed an Additional District Magistrate is required to be already a Magistrate of the first class at the date of his appointment. Even assuming that Mr. Ghosh's appointment as an Additional District Magistrate carried the implication for which Mr. Meyer contended, the appointment would at best be a case of simultaneous appointment as a magistrate of the first class and an Additional District Magistrate which would not satisfy the statute.'
It is these latter words on which emphasis is laid on behalf of the petitioner urging that even simultaneous appointment as a first class magistrate and as an Additional District Magistrate would not make a valid appointment of Additional District Magistrate under Section 10 (2). It is obvious that this observation was made in a case where there was no appointment as a magistrate of the first class at all and that was sought to be drawn by implication, but the case before me is otherwise
3. Whether the appointment which is before me is valid or not has to be answered with reference to the fact that there were in fact two notifications made on the same date and published in the same Gazette. The only defect is that in the matter of printing and publication, the initial order, namely, the order vesting the powers of a Magistrate of the first class was printed subsequently to the printing of the order of appointment as Additional District Magistrate The petitioner it is conceded, would not have had any complaint If the order of printing would have been reversed The question is whether the legal consequences would depend upon these technical vagaries of the printing establishment of the Calcutta Gazette. In fact, there appears to be some sort of explanation as to why 'the cart was put before the horse' as it has been described on behalf of the petitioner. The reason is apparent from the heading of the notifications themselves. The order of appointment as Additional District Magistrate appears under the Home Department (General Administration) column while the order vesting the power? of the magistrate, first class, was issued by the Law (Judicial) Department of the Government of West Bengal. As a matter of practice, orders issued by the Home Department have a natural precedence over the transaction of the other departments and that is how the order of appointment as an Additional District Magistrate, which should have come after the appointment of the gentleman as a magistrate of the first class Rot an undesirable precedence, which has caused all these litigations. Those who were responsible for this abnormal consequence probably never imagined what they were doing. But when we look at the substance of the matter, the fact remains that the Government of West Bengal sought to appoint Shri Majumdar as a Magistrate, first class, for the period of re-employment and then appoint him as an Additional District Magistrate, as is required by the Code. The technical vegaries of the departments, due to carelessness, indifference or otherwise, cannot efface this patent fact, and I cannot declare the appointment dated the 28th March, 1960 to be invalid.
4. This finding, however, carries us up-to the 28th February, 1961 only. We have yet to reach October, 1963 which is a long way off and in order to reach that target we have to pass through further intervening stages which are also beset with further difficulties. The first difficulty is that by the 28th February, 1961 no formal order making a re-appointment or extending the existing re-appointment of Shri Majumdar was available and that is why on the 28th February, 1961 the Deputy Secretary of the Government of West Bengal in the Land and Land Revenue Department issued a letter to the Collector of 24 Parganas, being No. 2651 L. R., in which it was stated that he along with some other officers was 'allowed to continue in their present posts up-to the 31st March, 1961' or, in other words, this was intended to be a stop-gap arrangement until a formal order of appointment was ready. Another extension upto the 30th April, 1961 was similarly made by letter no- 4643 L. R. of 28th March, 1961 and it was on the 30th March, 1961 that the formal order was issued in the name of the Governor by no 4865 L. R. stating as follows:
'In continuation of this Department letter No. 5640 L. R. dated the 26th April, 1960. I am directed by order of the Governor to say that the Governor is pleased to sanction extension of the term of re-employment of Shri N. M. Majumdar, I. A. S. (retired) as Second Certificate Officer and Additional District Magistrate, 24 Parganas for the period upto the 28th February, 1962 from the 1st March, 1961 on the existing terms and conditions.'
We have to stop here for a moment inasmuch as the validity of such extension has been questioned on behalf of the petitioner on a number of grounds Though, I must say, the procedure adopted does not come to the credit of the Administrative Department in the matter of exercise of statutory powers and, in particular, of appointment under Section 10 of the Code of Criminal Procedure. -- it cannot be struck down as legally invalid, for other cogent reasons. The first ground on which the validity of this order is impeached is that the two stop-gap letters Issued by the Deputy Secretary could have no legal validity to continue the appointment as it was not made by the Governor. It is patent that the Governor's name was not used in the letters and it was not formally couched in the form of an order of the Governor. Patently, therefore, it cannot be claimed to be an order expressly to be taken in the name of the Governor within the meaning of Article 166(1) of the Constitution; but, as has been equally established, the provision in Clause (1) is only directory and the fact that a particular document constitutes the order of the State Government may also be proved by circumstances or materials aliunde Dattatreya v. State of Bombay : 1952CriLJ955 ; Chitralekha v. State of Mysore : 6SCR368 . It is true of course that the records of the file in which the re-employment or the extension was granted has not been produced before me. In fact, the plea under Article 166 could not be taken in the pleading on behalf of the petitioner because the documents in question were produced at a later stage. But the formal order of the Governor which was made on the 30th March. 1961 (4865 L. R.) itself constitutes evidence of the fact that the two previous letters issued by the Deputy Secretary were, in fact, executive action taken by the State Government within the meaning of Article 166(1). The reason is that the formal order not only gave express sanction to the continuation of the employment of Shri Majumdar without a break from the date of expiry of the previous re-employment but it made specific reference to the initial order by which the re-employment was made, and thus acknowledged the continuation of the re-employment upto the issue of the formal order of the 30th March as an order of the State Government expressed through the Governor But then, it is contended that the power being statutory could not be given retrospective effect in the absence of express power in that behalf being conferred by the relevant provision of Section 10 of the Code of Criminal Procedure, and in support of this proposition reference has been made on behalf of the petitioner to the Full Bench decision of the Punjab High Court in Shivdev Singh v. State of Punjab There is no doubt that a retrospective exercise of a subordinate statutory power cannot be made in the absence of a power being conferred by the governing statute to make the subordinate legislation retrospective in operation. But in the instant case there has been no retrospective effect given by the formal order of the 30th March if it be held that the previous two letters issued by the Deputy Secretary of the relevant department of the Government of West Bengal were also orders of the State Government, though of course they were not couched in the proper form which is envisaged by Article 166(1).
5. It has next been contended that even though the re-employment might be taken as to have been validly extended without a gap by the formal order No. 4866 dated 30th March, 1961, in the absence of a fresh conferment of the power of the magistrate, first class on the second occasion, a mere extension of the order of appointment of the Additional District Magistrate would not suffice to make the incumbent an Additional District. Magistrate within the meaning of Section 10 (2) of the Code of Criminal Procedure. Apparently there is some force in this contention but the order of the 30th March, 1961 does not seek to give a re-employment to the person concerned but merely extends the re-employment which was initially granted on the 26th April, 1960, read with the formal notification of the 28th March, 1960. It is true that at the time of an initial appointment an order merely appointing a person as an Additional District Magistrate is of no effect under Section 10 (2) of the Code inasmuch as it is only a magistrate of the first class who is competent to be appointed as Additional District Magistrate. But once the initial requirement has been satisfied and the person has been duly appointed as an Additional District Magistrate, if his appointment as such is extended by a proper order of the State Government, I do not agree that a conferment of the powers of the magistrate of the first class is needed afresh at the time of such extension. The reason is that the holding of the powers of a first class magistrate is only a qualification to be appointed as an Additional District Magistrate. Two things are not really separate. But as I have already stated, if a person is already qualified as a magistrate of the first class and has been appointed as such and if his powers of a first class magistrate have not been taken away by a proper order to that effect, an extension of his appointment as Additional District Magistrate does not incur the defect which is sought to be imputed on behalf of the petitioner.
6. If we are correct in this conclusion the rest of the story does not create further difficulty, because curiously the same story has been repeated by the State Government On the next occasion too the formal order was not available readily and the gap had to be bridged by another letter of the Deputy Secretary dated the 22nd February. 1962 and the formal Governor's order No. 3382 L. R. came only on the 22nd March, 1962. It requires similar steps on two other occasions to bring us to the relevant period of October, 1963. If my preceding conclusion be correct, there is no further ground to vitiate the orders of appointment bringing Shri Majumdar to the relevant point of time functioning as an Additional District Magistrate and as such the Tax Recovery Officer or Certificate Officer ah may be relevant under the statutory provisions.
7. This being the only point as to the jurisdiction of Shri Majumdar raised on behalf of the petitioner in the case before me, the Rules have to be discharged. I would not, however, burden the petitioner with costs. On the other hand, having regard to the fact that this litigation has resulted from the indifference with which the appointment of Shri Majumdar as a statutory authority has been dealt with by the administrative departments of the Government of West Bengal, the petitioner's costs shall be borne by the opposite party No. 3, the State of West Bengal, which is assessed at five gold mohurs.
8. As prayed for by the learned Advocate for the petitioner, let the operation of this order be stayed for two months from this date.