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State of West Bengal and ors. Vs. National Rubber Manufacturers Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 772 of 1961
Judge
Reported inAIR1971Cal301,76CWN888,[1973]32STC24(Cal)
ActsWest Bengal Public Demands Recovery (Validation of Certificates and Notices) Act, 1961 - Section 2; ;Bengal Public Demands Recovery Act, 1913 - Section 7
AppellantState of West Bengal and ors.
RespondentNational Rubber Manufacturers Ltd.
Appellant AdvocateS.C. Das Gupta and ;Sudhindra Kumar Kar, Advs.
Respondent AdvocateJ.C. Pal and ;Amarnath Banerjee, Advs.
DispositionAppeal allowed
Cases ReferredS. C. Prashar v. Vasantsen
Excerpt:
- .....is of the old date, namely, 29th august 1953. there is a prescribed form for this notice and the form (form no. 3) has been prescribed under rule 84 of the rules framed under the public demands recovery act. according to this form the notice would read as follows:--'you are hereby informed that a certificate against you for rs. ...............due from you on account of ...............hasthis day been filed in my office .........' and ends thus dated this ...... day of............19 a. b. certificate officer.' the notice issued in this case on the whole complied with this form (ext 1 (a)).7. it is obvious that the date of the signing of the notice and the date of the affixation of the certificate are different. the learned judge on this aspect has also relied on satish chandra's case.....
Judgment:

S.K. Chakravarti, J.

1. This is anappeal at the instance of the State of West Bengal and some of its Officers. A certificate case was instituted in the 24 Parganas Collectorate under the Bengal Public Demands Recovery Act for realisation of a sum of Rs. 14723 and 11 annas alleged to be due from the present respondent on account of arrears of Sales Tax for 4 Quarters ending with December 1950. The respondent received a notice purporting to be under Section 7 of the aforesaid Act on the 24th October 1952 and the respondent protested thereto and the matter was taken up to the Commissioner, Presidency Division and he quashed the certificate proceedings up to the stage of the service of notice under Section 7 of the Act. Thereafter on the 10th March 1955 the respondent received another notice purporting to have been issued under Section 7 of the Act and this notice is dated the 26th February 1955. The respondent again moved the appropriate authorities against the same but ultimately failed. It thereafter instituted the present suit for a declaration that the certificate proceedings were illegal, ultra vires etc. On certain grounds which will appear in course of this judgment. The suit was contested by the State of West Bengal and the Collector of 24 Parganas as also the Certificate Officer. The learned Judge accepted the contentions of the plaintiff Company to the effect that the notice dated the 26th February 1955 was bad inasmuch as it was not signed on the same date as the certificate which bears the date the 29th August 1953 and further that the certificate was not in accordance with the prescribed form. He,therefore, decreed the suit. Hence this appeal by the defendants.

2. The first point that is pressed by Mr. S. C. Das Gupta the learned Government Pleader is to the effect that the learned Judge erred in holding that the certificate proceedings were bad inasmuch as the certificate was not in accordance with the prescribed form. It is a fact that the certificate is not exactly in accordance with the prescribed form. Wording of the certificate issued in the instant case (Ext. 2) is as follows:--

'I certify that the sums mentioned overleaf are due to the certificate-holder by the certificate debtor(s) and that they are justly recoverable, the recovery by suit not being barred by law.' The form of the certificate prescribed at the relevant time by form No. 1 is as follows:--

'I hereby certify that the above named sum of Rs. ...............is due to theabove named .................. from theabove named (if the certificate is signed on requisition sent under Section 5, add) 'I further certify that the above named sum of Rs. .................. is justly recoverable, and that its recovery by suit is not barred by law. Dated this...............dayof ......... 19

A. B.

Certificate Officer.'

The learned judge, on the authority of the decision in the case of Satish Chandra Bhowmick v. Union of India, (1961) 65 Cal WN 324, held that the Notice not being in the prescribed form, is bad in law.

3. Mr. Das Gupta draws our attention to a later decision of this Court in N. C. Mukherjee and Co. v. Union of India, : [1964]51ITR366(Cal) . In that case also the certificate was granted in the form as in the instant suit and not in accordance with the prescribed form. This court held that 'a certificate is not rendered invalid by a mere defect of form and even by an omission to fill up a blank' and further that 'a certificate cannot be pronounced to be invalid merely on the ground that it does not repeat the exact formula prescribed by the standard form' and dissociated itself from the decision in Satish Chandra's case. It thus appears that there are two contrary decisions on the same point by this Court, and the matter is at large. Speaking for overselves, we would prefer to follow the later decision and would not like to be too technical. Moreover, as has been pointed in the later decision and as urged by Mr. Das Gupta 'the matter is now set at rest by West Bengal Act XI of 1961.' Section 2 of this Act runs as follows :--

'Notwithstanding any decision of any Court and notwithstanding anything to the contrary contained in the BengalPublic Demands Recovery Act, 1913 (hereinafter referred to as the said Act) or in the rules made or forms prescribed thereunder, no certificate filed under Section 4 or Section 6 of the said Act and no notice served under Section 7 of the said Act shall be deemed to be invalid or shall be called in question merely on the ground of any defect, error or irregularity in the form thereof.'

Mr. Das Gupta, therefore, contends that the defect in form cannot invalidate the proceedings.

4. Mr. J. C. Pal learned Advocate appearing on behalf of the respondent however contends that this Act XI of 1961 has no application to the facts of 'the instant suit. He draws our attention to the Object of the Act The statement of Objects and Reasons would show that this provision, was enacted because

'The High Court of Calcutta has invalidated certain certificate proceedings on the ground of a defect in the certificate and notice forms : objections are being filed against the large number of pending certificates challenging their validity on the basis of the decision of the High Court, It is therefore necessary to validate such certificate proceedings,'

Mr. Pal contends that the present suit was instituted long before the decision in Satish Chandra's case and therefore, would not come within the amendment made by Act XI of 1961. According to him. this amending Act would be confined only to those cases where the proceedings are challenged to be invalid after the decision of Satish Chandra's case, (1961) 65 Cal WN 324.

5. We are not in a position however, to accept the contention of Mr. Pal. It is no doubt permissible to look into the Statement of Objects and Reasons for the purpose of finding out its history or in other words, why it came to be enacted. That would also appear from the decision of the Supreme Court in S. C. Prashar v. Vasantsen, : [1963]49ITR1(SC) relied on by Mr. Pal. That decision does not lay down that the Objects and Reasons would control the provisions of the enactment. As a matter of fact in that decision it has been clearly laid down

'that the Statement of Objects and Reasons for introducing a particular piece of legislation cannot be used for interpreting the legislation if the words used therein are clear enough.'

In this particular case, the words used are quite clear and unambiguous and it is therefore, not necessary to travel beyond the Act itself to find out the meaning. The Act itself would show that it was 'An act to validate certain certificates filed and notices served under the Bengal Public Demands Recovery Act,1913'. The preamble also runs to this effect After this Act the defect in the form cannot invalidate the certificate. To hold in line with Mr. Pal would be to hold that the Statement of Objects and Reasons would control a main provision. It may be noted that the Statement of Objects and Reasons forms no part of an enactment. In this view of the matter this contention of Mr. Pal must fail.

6. The second ground on which the learned Judge has found the certificate proceedings to be bad is that according to him the certificate and the notice must be signed on the same date, and, in this particular case, as we have already pointed out, the second notice is dated the 26th February 1955 whereas the copy of the certificate which has sent along with it as required by the law is of the old date, namely, 29th August 1953. There is a prescribed Form for this notice and the Form (Form No. 3) has been prescribed under Rule 84 of the Rules framed under the Public Demands Recovery Act. According to this Form the notice would read as follows:--

'You are hereby informed that a certificate against you for Rs. ...............due from you on account of ...............hasthis day been filed in my office .........'

and ends thus

Dated this ...... day of............19

A. B.

Certificate Officer.'

The Notice issued in this case on the whole complied with this Form (Ext 1 (a)).

7. It is obvious that the date of the signing of the notice and the date of the affixation of the certificate are different. The learned judge on this aspect has also relied on Satish Chandra's case (1961) 65 Cal WN 324, where Their Lordships have held that the notice and the certificate must bear the same date. Mr. Dasgupta however relied on the later decision in M/s. N. C. Mukherjee and Co., : [1964]51ITR366(Cal) wherein this aspect of the matter has also been considered and it has been held that

'It is plain enough that a fresh notice issued under Section 7 after the first notice is set aside cannot be signed on the date on which the certificate was filed and cannot bear that date. If the notice under Section 7 is signed on the same day on which the certificate is filed the date given at the foot of the notice does not conflict with the statement in the body that the certificate has been filed in the office on the same date. But the notice under Section 7 need not be signed on the day on which the certificate is filed. If the notice is signed on a later date a recital in the body of the notice that the certificate has this day been filed in the office would be incorrect and the circumstance of the case therefore require that the body of the printed notice should be amended by giving the date on which the certificate was filed in the office. The absence of such amendment does not invalidate the notices issued in the instant case. 'The true principle is that no certificate filed under Section 4 or Section 6 of the Bengal Public Demands Recovery Act, 1913 and no notice issued under Section 7 of that Act should be pronounced to be invalid merely on the ground of a defect, error or irregularity in the form thereof. The State Legislature has now intervened in the matter and by the Bengal Public Demands Recovery (Validation of Certificates and Notices) Act, 1961 (West Bengal Act XI of 1961) passed on April 28, 1961, provided that notwithstanding any decision of any Court and notwithstanding anything to the contrary contained in the Bengal Public Demands Recovery Act, 1913 or in the rules made or forms prescribed thereunder no certificate filed under Section 4 or Section 6 of the Act and no notice served under Section 7 of the Act shall be deemed to be invalid or shall be called in question merely on the ground of defect, error or irregularity in the form thereof. The certificates filed in the instant case cannot therefore be pronounced to be invalid merely on the ground that they are not in the prescribed form nor can the notices issued under Section 7 be pronounced to be invalid merely on the ground that they were not signed on and do not bear the date on which the certificates were filed. West Bengal Act XI of 1961 now supersedes the decisions of this Court which held that such certificates and notices could be pronounced to be invalid on those grounds and consequently though we are differing from those decisions we do not consider it necessary to refer this matter to a larger Bench.'

8. Mr. Pal however contends that the amendment by the Act of 1961 will have no bearing on this case as this requirement regarding the signing of the notice and of the filing of the certificate on the same date is no defect or irregularity in the Form. We again are not in a position to accept this contention of Mr. Pal. The defect would be a defect in the Form of the notice in the broader sense and therefore, attract the operation of this amendment Act. There is also another ground on which we would like to follow the later decision. There may be thousand and one reasons, for which a notice sent along with a copy of the certificate, both signed on the same date, may prove infructuous. To take an instance, as is happening now-a-days, the bundle containing the notices might be destroyed by fire, or otherwise by some miscreants. The notice mightbe lost or might be stolen even while in the custody of the post office, A second notice in the circumstances would be necessary. But to hold that the second notice must bear the same date as the certificate is to ask for the impossible, After all we have to import some amount of common sense in interpreting the law. A too technical view may lead to an impossible situation as we have indicated above. In our view, therefore, the filing of the certificate and the signing of the notice both on the same date would refer to the first notice, but if for some unforeseen circumstances a second notice has to be issued, it must bear a different date and that would not invalidate the notice. We would, therefore, respectfully agree with the later decision, and hold that even though the notice in this case has been signed on a date much later than the date of the certificate, it has not invalidated the proceedings. The defect, if any, is also cured by the amendment Act.

9. The result, therefore, is that both the grounds on which the suit was decreed by the learned Subordinate Judge fail, and in the circumstances this judgment and decree cannot stand.

10. No other point was seriously pressed on behalf of the respondent in support of the judgment also.

11. We accordingly allow this appeal and set aside the judgment and decree passed by the learned Subordinate Judge and dismiss the suit.

12. Each party will bear its own costs all through,F. A. No. 772 of 1961.

Salil Kumar Datta, J.

13. I agree that the appeal should be allowed and the plaintiff's suit should be dismissed. I would, however, like to state my views on the issues involved.

14. This is an appeal by the State of West Bengal against the judgment and decree declaring that the proceedings in Certificate Case No. 1438 (A) of 1953-54 are illegal and without jurisdiction.

15. The facts, which are not disputed, are that a Certificate Case No. 1438 (A) of 1953-54 dated August 29, 1953 with the Commercial Tax Officer, Taltala Charge, as the certificate holder and with the respondent as the certificate debtor, was filed on the same day in the Office of the Certificate Officer, 24 Parganas (Exhibit 2). A notice under Section 7 of the Public Demands Recovery Act bearing date the August 29. 1953 was issued and served on the plaintiff respondent. An objection was filed by the plaintiff respondent which was rejected and affirmed on appeal by the Additional Collector. The plaintiff respondent moved against the said order before the Divisional Commissioner, who by his order set aside the certificate proceedings fromthe stage of issue of notice under Section 7 and directed issue of fresh notice. Accordingly fresh notice under Section 7 was issued on February 26, 1955 (Exhibit 1 (a)) along with certificate dated August 29, 1953 and was duly served on the plaintiff respondent. An objection was filed by the plaintiff respondent denying his liability but the same was rejected and the order was affirmed by the Additional Collector on appeal. According to the State Government the plaintiff respondent paid about Rs. 3000/- towards the certificate on sundry debts for recall of the distress warrant. Instead of moving against the order of the Additional Collector, the plaintiff respondent instituted the present suit on January 4, 1957, against the State Government and its officers, for a declaration that the certificate proceeding based on the certificate dated August 29, 1953 was not 'duly filed' and for cancellation of all orders passed by the Revenue Officers in connection therewith. The main allegations were that the certificate was not drawn up and filed in compliance with the statutory provisions and forms prescribed, that the certificate and notice were signed on diverse dates by two certificate officers and the original notice bearing lithographic signature was not duly signed as required in law. Accordingly it was contended that the certificate proceeding was void and without jurisdiction.

16. The State Government, the Collector of 24 Parganas and the Certificate Officer filed one joint written statement denying the contentions in the plaint and averred that the certificate and the notice were valid and legal and there was no violation of the statutory provisions. It was further contended that the proceeding was not void, illegal or without jurisdiction and the grounds taken by the plaintiff were not maintainable in law. The suit in the premises was liable to be dismissed.

17. The learned Judge was of the view that the form of the impugned certificate varied considerably from the statutory form prescribed. Relying on the decision in (1961) 65 Cal WN 324, it was held that the impugned certificate was not in the statutory form prescribed. As to the notice, it was held, again relying on the said decision, that the notice was not signed on the day the certificate was filed in the office of the Certificate Officer. By his judgment and decree dated February 23, 1961, the learned Judge held that the certificate was not duly filed and all orders passed in the said proceedings were illegal, inoperative and without jurisdiction. The suit was decreed accordingly and the present appeal against the said decree has been preferred by the State of West Bengal.

18. On April 28, 1961, The Bengal Public Demands Recovery (Validation of Certificates and Notices) Act 1961 (West Bengal Act XI of 1961), passed by the West Bengal Legislature came into force. It will be convenient to set out the provisions of the Act:

West Bengal Act XI of 1961.

An Act to validate certain certificates filed and notices served under the Bengal Public Demands Recovery Act, 1913.

'Whereas it is expedient to validate certain certificates filed and notices served under the Bengal Public Demands Recovery Act, 1913 (Ben. Act III of 1913).

It is hereby enacted in the Twelfth year of the Republic of India, by the Legislature of West Bengal, as follows :--

1. Short title.-- This Act may be called the Bengal Public Demands Recovery (Validation of Certificates and Notices) Act, 1961.

2. Validation of Certificates filed under Sections 4 and 6 and notices served under Section 7 of Ben. Act III of 1913.-

Notwithstanding any decision of any Court and notwithstanding anything to the contrary contained in the Bengal Public Demands Recovery Act, 1913 (hereinafter referred to as the said Act) or in the rules made or forms prescribed thereunder, no certificate filed under Section 4 or Section 6 of the said Act and no notice served under Section 7 of the said Act shall be deemed to be invalid or shall be called in question merely on the ground of any defect, error or irregularity in the form thereof. The object for promulgation of the said Act, as stated in its Objects and Reasons are as follows:

'The High Court of Calcutta has invalidated certain certificate proceedings on the ground of a defect in the certificate and notice forms. Objections are being filed against the large number of pending certificates challenging their validity on the basis of the decision of the High Court. It is, therefore, necessary to validate such certificate proceedings.' (Vide Statement of Objects and Reasons printed in the Calcutta Gazette, Extraordinary, Part IVA, dated February 17, 1961).

19. Mr. Sachindra Chandra Das Gupta, the Government pleader, has contended that in view of the subsequent decision of this Court in : [1964]51ITR366(Cal) , the objections against the certificate and notice on formal defects are not sustainable in law. In any event in view of the West Bengal Act XI of 1961 objection could no longer be taken against the certificate and notice on ground of formal defects therein and the certificate and the notice impugned must be deemed to be valid.

20. Mr. Jyotish Chandra Pal. the learned counsel appearing for the respondent has contended that the Amending Act XI of 1961 could not be invoked to decide a certificate which was impugned long before the High Court decision in 1961-65 Cal WN 324 (supra), the judgment in that case being delivered on September 16. 1960. The Amending Act, as its Objects and Reasons indicated, was intended to protect those cases where objections to the legal validity certificates were filed on the basis of the said decision of the High Court It could not affect cases, like the present one, where the objection to the legal validity of the certificate was taken long prior to the High Court decision and not on its basis.

21. Even though the Objects and Reasons of the Amending Act appear to confine the application to cases where objections were filed on the basis of the High Court's decision, the terras of the Act however are sweeping enough to include within its purview, certificates and notices which may contain any defect, error or irregularity in the form thereof and to validate such certificates and notices notwithstanding such formal defects therein. It is a cardinal rule of interpretation as laid down in : [1963]49ITR1(SC) .

'......... that the statement ofObjects and Reasons for introducing a particular piece of legislation cannot be used for interpreting the legislation if the words therein are clear enough. But the statement of Objects and Reasons can be referred to for the purpose of ascertaining the circumstances which led to the legislation in order to find put what was the mischief which the legislation aimed at.'

In view of the clear and unambiguous provisions in the Amending Act, it must be held that the Act validated the mere formal defects in the certificate and the notice which would otherwise be governed by the said High Court decision. In the instant case, the same objections as were upheld in 1961-65 Cal WN 324 (supra) were taken against the validity of the impugned certificate and notice and the Amending Act was intended to cure such defects, which as the trial court found, invalidated the certificate and the notice on the basis of the said decision. It must therefore be held that in view of the West Bengal Amending Act XI of 1961, the certificate filed in the instant case cannot be pronounced to be invalid merely on the ground that it is not in the prescribed form. Further the notice issued under Section 7 cannot also be pronounced as invalid merely on the ground that it was not signed on the date the certificate is filed and bears a wrong date of the filing of the certificate. It has not been disputed that if AmendingAct applies to the instant case, which we hold so, there is no further scope for challenging the certificate and the notice notwithstanding the High Court's decision relied on by the trial court or anything contained in the Public Demands Recovery Act. 1913, its rules and forms.

22. As was held by another Division Bench of this Court in : [1964]51ITR366(Cal) (supra) the decision in 1961-65 Cal WN 324, was superseded by West Bengal Act XI of 1961. It was further observed therein that in view of the change in law thus effected, it was not considered necessary to refer the matter to a larger Bench even though the said Bench expressly differed from the earlier decision.

23. A point was taken by Mr. Pal that the second notice Exhibit A1 dated February 26, 1955 was defective, which is not merely a formal defect, in that it stated that the certificate was filed 'this day', which was not correct, as as it appears from notice dated August 29, 1953. (Exhibit 1) that it was filed on the same day i. e. August 29, 1053. This invalidated the notice and proceeding initiated on its basis, it was contended, was thus without jurisdiction The mistake alleged was undoubtedly there and it should have been stated in the second notice that the certificate was filed on an earlier day i. e. on August 29, 1953, which I think, is permissible under Rule 84 of Schedule II enjoining that the forms set forth in the Appendix shall be used with such variations as circumstances require. In any event such misstatement is too technical to warrant interference and did not create any prejudice to the respondent which was aware of the required particulars of the demand and repudiated its liability. The West Bengal Act XI of 1961 also cures this defect. The other objection that the certificate Exhibit 1 and Notice Exhibit 1 (a) are invalid as they have been signed by two officers has no substance as by its definition in Section 3(3) of the Public Demands Recovery Act, 1913, 'Certificate Officer' means, apart from a Collector or Sub-divisional Officer, any officer appointed to perform the functions of a certificate officer under the Act and there is no challenge that the signatories of the certificate and notice were not so appointed.

24. Mr. Pal also contended that the appeal has not been properly filed as the authority of the person as 'representing' the State of West Bengal has not been properly described in the cause title of the memorandum of appeal. Under Article 300(1) of the Constitution, the Government of a State is to sue or to be sued in the name of the State. In this appeal the appellant has been described in the memorandum of appeal asthe 'State of West Bengal' and the other words therein are unnecessary surplusage and may be ignored.

25. In view of the position created by the Amending Act of 1961 the appeal must be and is allowed without any order as to costs in this Court and the respondent's suit is dismissed, as proposed.


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