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PATNA HIGH COURT
Aftab Alam, J.
Vidya Devi Sinha
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 11458 of 1992 ;
Decided On : NOVEMBER 20, 1998
PUBLIC DEMANDS RECOVERY ACT - CERTIFICATE CASE - SERVICE OF NOTICE - AUCTION SALE - IRREGULARITIES - SETTING ASIDE OF SALE: 1. Service of notice under Sec. 7 of the Bihar and Orissa Public Demands Recovery Act, 1914 (hereinafter referred to as the Act) is the pre-condition for application of Sec. 129-A which provides that any arrear of municipal tax would be recoverable as a public demand. 2. In the absence of service of Sec. 7 notice on the certificate debtor, the action of the Certificate Officer in initiating steps for the sale of the house was contrary to the mandate of Sec. 14 of the Act and was wholly without jurisdiction. 3. The order rejecting the certificate debtor's objection on the ground that it was submitted after delay and directing her to pay the entire certificate amount within two days was wholly arbitrary, unreasonable and contrary to the provisions of the Act. 4. The order passed on the petition filed by the certificate debtor under Sec. 29 of the Act asking her to deposit the entire sale money of the house and making it a condition precedent to consider the petition was contrary to Sec. 29 of the Act and was, therefore, wholly illegal and without jurisdiction. 5. The order rejecting the certificate debtor's application under Sec. 29 of the Act on her failure to deposit the sale money was wholly bad and illegal. 6. The auction sale of the petitioner's house and its confirmation were wholly bad and illegal. The sale of the house in favor of the Gaya Municipal Corporation is completely unsustainable in the eye of law.
Fact of the Case:
The petitioner's house was auctioned in a proceeding under the Bihar and Orissa Public Demands Recovery Act for the recovery of municipal taxes. The petitioner claimed that she was not served with any notice or information regarding the enhancement of municipal taxes, the institution of the certificate case, or the proclamation for the attachment and sale of her house. She also alleged that the house was sold at a ridiculously low price to the Municipal Corporation.
Finding of the Court:
The court found that the service reports of the notices issued under Sec. 115(2) and Section 123 of the Bihar & Orissa Municipal Act concerning the enhancement of the house tax and the payment of the arrears of municipal taxes do not inspire confidence and there is no evidence to suggest that those notices were in fact served on the house owner. The court also found that in the certificate case no notice under Sec. 7 was served upon the certificate debtor as is evident from the order sheet of the case itself. The court further found that the circumstances that there was no one excepting the representative of the Municipal Corporation for the auction of the house and that the house was sold for the amount exactly equal to the certificate dues and for less than half the value fixed in the sale proclamation give rise to a suspicion that the recovery proceeding was not held in a judicial manner.
Issues: 1. Whether the service of notice under Sec. 7 of the Act is a pre-condition for application of Sec. 129-A? 2. Whether the action of the Certificate Officer in initiating steps for the sale of the house in the absence of service of Sec. 7 notice on the certificate debtor was contrary to the mandate of Sec. 14 of the Act? 3. Whether the order rejecting the certificate debtor's objection on the ground that it was submitted after delay and directing her to pay the entire certificate amount within two days was wholly arbitrary, unreasonable and contrary to the provisions of the Act? 4. Whether the order passed on the petition filed by the certificate debtor under Sec. 29 of the Act asking her to deposit the entire sale money of the house and making it a condition precedent to consider the petition was contrary to Sec. 29 of the Act? 5. Whether the order rejecting the certificate debtor's application under Sec. 29 of the Act on her failure to deposit the sale money was wholly bad and illegal? 6. Whether the auction sale of the petitioner's house and its confirmation were wholly bad and illegal?
Ratio Decidendi: 1. Service of notice under Sec. 7 of the Act is the pre-condition for application of Sec. 129-A which provides that any arrear of municipal tax would be recoverable as a public demand. 2. In the absence of service of Sec. 7 notice on the certificate debtor, the action of the Certificate Officer in initiating steps for the sale of the house was contrary to the mandate of Sec. 14 of the Act and was wholly without jurisdiction. 3. The order rejecting the certificate debtor's objection on the ground that it was submitted after delay and directing her to pay the entire certificate amount within two days was wholly arbitrary, unreasonable and contrary to the provisions of the Act. 4. The order passed on the petition filed by the certificate debtor under Sec. 29 of the Act asking her to deposit the entire sale money of the house and making it a condition precedent to consider the petition was contrary to Sec. 29 of the Act and was, therefore, wholly illegal and without jurisdiction. 5. The order rejecting the certificate debtor's application under Sec. 29 of the Act on her failure to deposit the sale money was wholly bad and illegal. 6. The auction sale of the petitioner's house and its confirmation were wholly bad and illegal. The sale of the house in favor of the Gaya Municipal Corporation is completely unsustainable in the eye of law.
Final Decision: The court allowed the writ petition, quashed all orders commencing from the order dated 30.9.1986/3.1.1987 passed in Certificate Case No. 1/1983-84, and directed the Gaya Municipal Corporation to vacate the house and hand over its possession to the petitioner within one month.
Aftab Alam, J.
1. This writ petition was filed by one Vidya Devi Sinha and her husband Sisir Kumar Sinha as petitioners 1 and 2. Vidya Devi Sinha died during the pendency of this writ petition. After her death her heirs and legal representatives got themselves substituted in her place and now it is the sons and daughters of the deceased Vidya Devi Sinha who along with their father seek the reliefs that were earlier claimed by the deceased petitioner No. 1.
2. This writ petition seeks reclamation of a house situate in Gaya and belonging to the deceased Vidya Devi Sinha (hereinafter referred to as the house owner) which was auction sold in a proceeding under the Bihar and Orissa Public Demands Recovery Act. The certificate proceeding was initiated for the recovery of a sum of Rs. 22,840.28, claimed by the Gaya Municipal Corporation as arrears of Municipal taxes; adding to this sum, the Court fee amount, the interest pendente lite and various other charges, the certificate amount on the date of auction accumulated to a sum of Rs. 35,341.83 palse. Though the sale is said to be made on the basis of auction, there was but one bidder present (the representative of the Corporation) who made a single bid of an amount exactly equal to the certificate dues. The Municipal Corporation was thus able to purchase and secure the house for itself at a ridiculously low price.
3. The house commonly known as Sinha Bhawan is assigned holding No. 63 within Ward No. 1/A of Gaya Municipal Corporation and is situate at Chowk Road, Tutwari In the town of Gaya. A photograph of the house is one of the record from which it appears to be a three storeyed (ground + two), fully pucca building. The building is so designed that it has two identical wings on either sides of the stairs which are placed in the centre. It has also come on the record that there were 14 flats in the building. As it appears to me from the photograph, at the time of the auction sale in the year 1987, the house should have fetched a price of several lacs of rupees if sold in the market at arms length.
4. According to the deceased house owner who had originally filed this writ petition, all the developments beginning from the enhancement of the municipal taxes of the house, the institution of the certificate case for the recovery of the municipal dues and the proclamation for the attachment and sale of her house took place behind her back and without any notice or information to her. She came to learn about the house being put up for auction sale only at the last minute and when she approached the Certificate Officer at that stage she was not allowed any opportunity to file her objections or to put forth her case.
5. It was stated in the writ petition that during the period the developments took place leading to the sale of her house she was not living at Gaya but was living with her husband who was an employee of the Oriental Insurance Company Limited. According to her case in that period her husband, petitioner No. 2 was posted at several places. He was initially transferred from Gaya to Patna and from Patna to Guwahati and from Guwahati to Calcutta and from Calcutta again to Patna. All this while she was living with her husband, petitioner No. 2 and was, therefore, unaware of the developments concerning her house at Gaya.
6. Having thus noted in brief the case of the petitioners I now propose to turn to the counter affidavit filed on behalf of the Administrator, Gaya Municipal Corporation, respondent No. 4 to see the material facts of the case as stated by him. Here I would like to make it clear that henceforth all the facts and circumstances stated in this judgment are taken either from the counter affidavit filed by respondent No. 4 or from the records of the certificate case. In other words, the judgment proceeds not on the basis of any allegations of fact made by the petitioners but on the basis of the facts and circumstances as stated in the counter affidavit of responden
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