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Union of India (Uoi) Vs. Jatindra Narayan Majumdar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 549 of 1965
Judge
Reported inAIR1967Cal613
ActsRevenue Recovery Act, 1890 - Section 3(1) and 3(3)
AppellantUnion of India (Uoi)
RespondentJatindra Narayan Majumdar and ors.
Appellant AdvocateAmiya Kumar Mukherjee, Adv.
Respondent AdvocateArun Kumar Dutta (Jr.), ;Rabindra Nath Mitra, ;N.K. Roy Choudhury, ;Kalijiban Mukherjee, ;Naresh Chandra Roy and ;Sushil Kumar Biswas, Advs.
DispositionAppeal allowed
Cases ReferredSm. Bulu Rani Seal v. Member
Excerpt:
- .....happened in this case appears to be quite clear. the collector, delhi through his authorised agent issued a certificate under the said act and transmitted it to the collector, 24 parganas. under the said act it was only a 'collector' as denned under the said act that could realise the amount of the certificate and the order of the collector, 24 parganas transferring the case to the certificate officer, who issued a fresh certificate and proceeded under the public demands recovery act to execute it, was a procedure not according to law. when the respondent no. 1 made the application on 11th july, 1962, this error was realised and so the correct procedure was taken by the collector, 24 parganas. he withdrew the case to his own file, renumbered it as a new case and proceeded to execute the.....
Judgment:

Sinha, C.J.

1. The facts in this case are shortly as follows.

2. In 1948 by Act 12 of 1948 was established the Rahahilitation Finance Adminstration, the main purpose of which was the giving of financial assistance to displaced persons, to enable them to settle in business or industry. The respondent No. 1, Shri Jatindra Narayan Majumdar claims to be a refugee from East Pakistan. Prior to 1952, he took a loan from the said Administration of a sum of Rs. 35,000 in connection with his cloth business carried on in Calcutta. Respondents Nos. 2 and 3 stood as sureties for the re-payment of the said loan. On the 29th of August. 1952 a fire broke out in the said shop and it is claim-ed that the entire stock was burnt out and destroyed The stock was insured with the Central Insurance Company Limited and as the laid Insurance Company failed to pay the claim, the respondent No. 1 filed a suit being suit No. 3284 of 1954 in the Original Side of this Court, claiming the value of the stock amounting to Rs. 66,050/13/6 pies, for damages and other reliefs. The amounts due to the said Administration are, under the said Act 12 of 1948, recoverable as a public demand. On or about the 24th of February, 1958 a certificate of recovery under Section 3(1) of the Revenue He recovery Act. 1890 (Act 1 of 1890) (hereinafter referred to as the 'said Act') was issued by the Collector, Delhi District and forwarded to the Collector, 24 Parganas, Alipore. A copy of this certificate is Annexure A to the petition at page 14 of the Paper Book. Section 3(1) of the said Act is in the following terms:

'Where an arrear of land-revenue, or a sum recoverable as an arrear of land-revenue, is payable to a collector by a defaulter being or having property in a district other than that in which the arrear accrued or the sum is payable, the collector may send to the collector of that other district a certificate in the form as nearly as may be of the schedule, stating--

(A) the name of the defaulter and such other particulars as may be necessary for his identification and

(b) the amount payable by him and the account on which it is due.'

Under Sub-section (2) of Section 2 of the said Act, collector' means the chief officer in charge of the Land-Revenue Administration of a District. Sub-section (2) of Section 3 provides that the certificate shall be signed by the collector making it or by any officer to whom such collector, may by order in writing, delegate this duty, and, save as otherwise provided by the said Act, shall be conclusive proof of the matters therein stated. Before us there was some dispute on the point as to whether this certificate had been signed by the Collector Delhi or by a person authorised under Section 3(2) as staled above. We, therefore, directed an affidavit to be filed on the point and it has now been proved to our satisfaction that the Collector of Delhi had authorised Shri S. C. Vajpaye, District Collection Officer to sign certificates of recovery on his behalf in terms of Section 3(2) of the said Act. The certificate in question has been signed by Shri Vajpaye. This certificate having been received by the Collector, 24 Parganas, he transferred the said certificate to Shri N. C. Dutta. Certificate Officer. Alipore for disposal and a certificate was issued by the Certificate Officer under the Public Demands Recovery Act and a case being case No. 894 (OPR)/1958-59 was started on the 5th of December, 1958 On the 23rd of April, 1958 the Rehabilitation Finance Administration was added as a party in the original suit No. 3284 of 1954 mentioned above and on the 24th of January 1961 the said suit filed by the respondent No. 1 against the Insurance Company was decreed for a sum of Rs. 60,000. On the 19th of May, 1961 the Rehabilitation Finance Administration filed an application before the certificate officer for attachment of the said decree in execution of the certificate issued as aforesaid. On the 23rd of May, 1961 the application was allowed and an attachment order made. On the 29th June, 1961 a further order was made for attachment of a sum of Rupees 3,863.07 P. On the 18th of February, 1962 an order was made by this Court directing the Accountant General to set apart a sum of Rupees 43,988.20 P. against the attachment made under certificate case No. 894 (OPR) 1958 59 and to pay the balance of the amount deposited by the Insurance Company to the Solicitor of the respondent No. 1. On the 23rd of February, 1962 the name of Union of India was substituted as the certificate holder. In the meanwhile, what had happened was that a similar matter had come up for decision in this Court and it was decided by me in Civil Revision No. 2310 of 1959. Sm. Bulu Rani Seal v. Member, Board of Revenue. West Bengal. : AIR1962Cal499 that where the said Act was applicable, the certificate that was to be realised was the certificate issued by the collector outside jurisdiction and transmitted to the collector within jurisdiction under the provisons of the said Act, and it was for the collector to whom it was transmitted to realise the amount and that he could not transfer it to the certificate officer On the 11th July, 1962 respondent No. 1 made an application to the Certificate Officer, Alipore praying that the certificate proceedings be quashed, in view of the decision of this Court. On the 2nd March, 1963 the Collector. 24 Parganas made the following order:

'The case is withdrawn to my file in view of the latest judgment of the Hon'ble High Court. Enter in Register X, and issue notice under Section 7 of the Public Demands Recovery Act. A proclamation under Section 6(1) of the R. Rule Act should also be issued A fresh attachment order should be issued in terms of the observation of the Certificate Officer in the order sheet on 5-6-62.'

On the 4th of March, 1963 notice was issued under Section 7 of the Public Demands Recovery Act in as much as, the procedure under that Act has to be followed where the procedure is not indicated by the said Act. On the 6th of March, 1963 a proclamation under Section 6(1) of the said Act was issued. Thereupon, the respondent No, 1 objected to the proceedings by applying under Article 226 of the Constitution before this Court and on the 17th June, 1963, a Rule was issued by Banerjee J., inter alia, asking the respondents to that application to show cause why the proceedings should not be quashed and why other reliefs should not be granted. I might mention here that after the withdrawal order as set out above, dated the 2nd March. 1963 was made, the case was renumbered as case No 1/OPR/1962-63. The matter came up before Banerjee. J. in the Court below and in a very short order, the learned Judge allowed the application and made the Rule absolute. The relevant part of the judgment is set out below:

'It is conceded by the learned Advocates for the Respondents that in view of the decision of this Court in : AIR1962Cal499 Certificate Case No. 894 (OPR) of 1958-59, subsequently re-numbered as Case No. 1/OPR/1962-63 cannot continue.

That being the position, the Certificate inthe above case is quashed. This is however,without prejudice to the rights of the Respondent Collector to start fresh Certificate proceedings according to law.

The Rule is made absolute as indicated above. There will be no order for costs.'

It is against this order that this appeal is directed

3. In our opinion, the learned Judge was in error in allowing the application although he was right in holding that the decision of this Court in Bulu Rani's case, : AIR1962Cal499 was applicable. What happened in this case appears to be quite clear. The Collector, Delhi through his authorised agent issued a certificate under the said Act and transmitted it to the Collector, 24 Parganas. Under the said Act it was only a 'collector' as denned under the said Act that could realise the amount of the certificate and the order of the Collector, 24 Parganas transferring the case to the Certificate Officer, who issued a fresh certificate and proceeded under the Public Demands Recovery Act to execute it, was a procedure not according to law. When the respondent No. 1 made the application on 11th July, 1962, this error was realised and so the correct procedure was taken by the Collector, 24 Parganas. He withdrew the case to his own file, renumbered it as a new case and proceeded to execute the certificate which had been issued by the Collector of Delhi. A proclamation was issued as required by the said Act, and further proceedings took place in accordance with the provisions of the Public Demands Recovery Act, as there is no procedure fixed under the said Act for the subsequent proceedings. The objection which is taken before us is as follows. It is said that when the certificate was put into execution here, and a wrong procedure followed, the certificate spent its force and the Collector, 24 Parganas could not continue realisation of the said certificate by re-numbering the case before him. It is suggested that what should be done now, if the appellant wishes to realise the amount is to issue a fresh certificate by the Collector, Delhi. In our opinion, this argument has no substance. The certificate had been issued by the Collector of Delhi and is subsisting until it is realised, and/or withdrawn or cancelled. All that had happened was that a wrong procedure was adopted which is not in accordance with law. Such a procedure is void in the eye of law and cannot affect the certificate. Now the Collector, 24 Parganas is proceeding correctly under the provisions of law The case number is, therefore, not a mere re-numbering of the case that has been commenced by the certificate officer but is an original proceeding, had in accordance with law. We see no defect in it. We are unable to agree that the only way of realising the amount of the certificate would be now to issue a fresh certificate. That being so, the order made by the Court below was not correct and must be set aside.

4. The result, therefore, is that this appeal is allowed. The order of the Court below is set aside and the Rule is discharged. All interim orders are vacated.

5. There will be no order for costs throughout.

6. Let the operation of this order remain stayed for six weeks from today and let the amount deposited in court remain in deposit until that time.

Arun K. Mukherjea, J.

7. I agree.


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