1. The facts in this case are shortly as follows:- The respondent No. 8, Messrs. Allied Pharmacy, a partnership firm, took a loan from the Rehabilitation Finance Administration, a statutory body constituted under the 'Rehabilitation of Finance Administration Act 1948 (Central Act No. XII of 1948)' and the respondents Nos. 6 and 7, Sachindra Kumar Roy and Satindra Prosad Das Gupta, stood as surety for the repayment of the loan. Under the said Act, such loans are recoverable as arrears of revenue. The loans not having seen repaid, proceedings were taken under the provisions of the Revenue Recovery Act, 1890 (Act 1 of 1890) and the Additional Collector, Delhi, issued a certificate under Section 3(1) ofthe said Act, a copy whereof is annexure 'A' to the petition. This certificate was sent to the Collector 24-Parganas at Alipore (West Bengal), stating that the said guarantors had properties within the jurisdiction of the Collector of 24-Parganas and the amount due as loan mentioned therein amounting to RS. 9161/5/- with interest should he recovered as if it were an arrear of revenue, which occurred in his district, and he was to recover it and remit the same, to the Collector, Delhi. This certificate having been received in the office of the Collector, 24-parganas at Alipore, some one made an endorsement to the effect 'start a case and realise the demand.' Thereupon, the Certificate Officer of 24-Parganas at Alipore commenced proceedings by issuing a fresh certificate under the Public Demands Recovery Act (Bengal Act III of 1913) showing that the certificate-holder was the Union of India, and the dues were shown as, 'R. F. A. Loang for L. A. 2209 due to the Collector of Delhi District.' After filing the said certificate, the Certificate Officer issued notice under Section 7 of the Bengal Act, which was sought to be served on the opposite party No. 6 on 15-5-53. The service of this notice is disputed. The petitioner before me claims to have purchased the premises No. 41/6, Narkeldangs North Road, Calcutta, which belonged to the respondent No. 6 and his wife, each having a moiety share thereto, by a registered deed of sale dated the 1st March, 1954. The share of the respondent No. a in the said property was going to be put up for sale and the petitioner having come to know of it, preferred a claim before the Certificate Officer, on Or about the 11th May, 1955. On the 22nd March, 1956, this claim was heard and the petitioner adduced evidence about her being a bona fide purchaser without notice. Various objections were taken and I shall presently refer to some of them. The objections were overruled by the Certificate Officer by his order dated the 7th May, 1956. The petitioner thereupon filed an appeal before the Collector of 24-Parganas, being Appeal No. 31 of 1956-57. This was heard by the Additional Collector of 24-Parganas, who by his order dated 9-10-56 allowed the appeal, holding inter alia that the notice under Section 7 of the Bengal Public Demands Recovery Act was not a valid notice, and accordingly the purchase of the petitioner could not be held as void. Against this order, the Union of India preferred an appeal to the Commissioner of the presidency Division which was registered as Case No. 82-F of 1956-57. The Commissioner held that he was going to treat this as an application for revision, and he set aside the order of the Collector. Against this order, an appeal was taken to the Board of Revenue but the appeal has failed. Thereupon this application has been made.
2. Various points have been taken before me, but three points which have been pressed are as follows: The first point to be considered is as to whether, and how far, the provisions of the public Demands Recovery Act, Bengal, could be utilised in such a case. The certificate was issued under the provisions of the RevenueRecovery Act 1890, which is a Central Act. Section 2(2) of the said Act defines the word 'Collector' as meaning the chief officer in charge of the land revenue administration of a district. Under Section 3, the Collector of a district may send to the Collector of another district a certificate in the form as prescribed in the schedule to the said Act. This certificate may be signed by the Collector making it, or by any officer to whom he may, by an order in writing, delegate this duty (Sub-section (2) of Section 3). Under Sub-section (3), the Collector of the other district, shall on receiving a certificate, proceed to recover the amount stated therein as if it was an arrear of land revenue which has occurred in his own district. In such a case. there is no prevision for delegation. As I have mentioned, the Collector under this Act means the chief officer in charge of the land revenue administration of a district. In this particular case, the matter was sent to the Certificate Officer 24-Parganas, who is not the Collector as defined by the Revenue Recovery ACT, and was dealt with by the Certificate Officer as if it was an application under the Public Demands Recovery Act, Bengal. Under the provisions of the Revenue Recovery Act, a certificate is issued by the Collector of one district and sent to the Collector of another district for execution. There is no provision by which the Collector of the other district is to issue a fresh certificate. The certificate so sent should be executed, and the question arises as to whether in its execution the provisions of the Bengal Act, in this case the Public Demands Recovery Act Bengal, could be utilised, in my opinion, this is a point of some difficulty, because the provisions of the Revenue Recovery Act and the provisions of the Public Demands Recovery Act, Bengal, are not the same, and in many respects are conflicting. For example, under the Revenue Recovery Act, a certificate issued is conclusive and there is no provision for issuing notices and asking for objections to be preferred and of deciding such objections. Under the local Act, after issuing a certificate, notice is given under Section 7 and when such notice is given, then any subsequent transfer to a private person would be invalid so far as the execution of a certificate is concerned. Under the Revenue Recovery Act, there is no such provision. On the other hand, there is express provision for issuing a proclamation under Section 6. It is Only when the proclamation in terms of Section 6 has been issued that any transfer subsequent thereto becomes invalid. Unless there is such a proclamation private transfers are valid. The question then arises as to whether the provisions of the Public Demands Recovery Act Bengal, in so far as they are not in conflict can be utilised. As I said, this is a difficult point. But at the present moment, I find it to be covered by authority. In Ram Ranjan Rakshit v. The Chief Administrator, Rehabilitation Finance Administration, New Delhi, : AIR1960Cal416 , P. B. Mukherjee, J., has held that in such a case the certificate must be deemed to be a certificate issued under the Revenue Recovery Act and its provisions must be I followed. The provisions of the Public Demands Recovery Act may provide the auxiliary machinery but not the substantive rights. The facts in that case were as follows: A similar certificate as in this present case was issued by the Collector, Delhi, and sent to the Collector of Nadia who then proceeded to execute the same. The question arose as to whether the certificate debtor was entitled to prefer objections as he is entitled to do under the provisions of the Public Demands Recovery Act. It was held that he could not. The learned Judge stated as follows:
''In other words, the machinery of realisation under the Public Demands Recovery Act could be invoked but without derogating from special provisions contained in the Revenue Recovery Act of 1890. The primary Act that governs realisation of this demand as a land revenue in the Revenue Recovery Act of 1890 and what the Public Demands Recovery Act does is to provide only the auxiliary machinery and not the substantive rights such as reopening a conclusive certificate by objections'.
3. It is true that Section 7 of the Revenue Recovery Act keeps alive the provisions of other enactments for the recovery of the land revenue or sums recoverable as arrears of land revenue, but the learned Judge pointed out that this does of mean that the express provisions of the Revenue Recovery Act should be ignored. That being so, I find that the certificate proceeding in this case is subject to various infirmities, The first infirmity is that the certificate issued by the Collector, New Delhi, should have been executed, instead of that, a new certificate was issued by the Certificate Officer, 24-Parganas, in the name of the Union of India and the subsequent procedure adopted was wholly that of the local Act. In my opinion, this is not permissible. Firstly, a fresh certificate should not have been issued, and secondly, the matter could not be dealt with by the Certificate Officer. 24-Parganas who is not the 'Collector' as defined under the Revenue Recovery Act. He could not issue a notice under Section 7 of the local Act, and the issuing of such a Notice is incompetent and contrary to law. That being so, the entire certificate proceedings have become invalid and must be set aside and/or quashed by an appropriate Writ nO proclamation under Section 6 of the Revenue Recovery Act having been issued, subsequent transfers are not invalid.
4. The result, therefore, is that this Rule is made absolute and the certificate issued by the Certificate Officer, 24-Parganas, dated the 16th April, 1953, copy whereof is annexure 'B' to the petition and all proceedings had there under, including the Order of the Certificate Officer dated the 7th May, 1955, the order of the Collector dated the 9th October, 1956, the order of the Commissioner dated the 4th February, 1957, and the order of the Board of Revenue dated the 18th May, 1959, are all quashed by a Writ in the nature of Certiorari. The position will be as if the Collector, New Delhi, has sent a certificate to the Collector of 24-Parganas under the Revenue Recovery Act, and further proceedings may be commenced fromthat stage, and continued in accordance withlaw. The petitioner will be entitled to thecosts of this application, Hearing fee assessedat two gold mohurs.