The requirement of law to deposit 40% of the certificate dues is a condition precedent for entertainment of appeal under the Bihar & Orissa Public Demands Recovery Act, 1914, regardless of whether the subject matter has been disposed of on merit or on technical ground.

1. This appeal is directed against the order dated 1.7.2004 passed by the learned Single Judge dismissing the writ application being CWJC No. 2980 of 2000 filed by the appellant challenging the order of the appellate authority under the Bihar & Orissa Public Demands Recovery Act, 1914 (hereinafter referred to as the Act) dismissing the appeal filed under section 60 of the Act on two grounds, firstly that the appeal was barred by limitation and secondly 40% of the certificate demand has not been deposited as provided under proviso to subsection (1) of Section 60 of the Act.

2. Admitted fact is that a certificate proceeding has been initiated against the appellant. He challenged the proceeding before this Court. This Court permitted him to withdraw the writ application vide Annexure-3 to the writ application with a liberty to raise objection under section 9 of the Act with a further direction that the authority will dispose of the same by a reasoned order. Thereafter, the Certificate Officer by order dated 6.7.1999 dismissed the certificate case on the ground that the objection was barred by limitation and the appeal filed against the same has met with the result as indicated above.

3. Learned counsel appearing for the appellant submitted that as the original authority (Certificate Officer) did not dispose of the petition on merit, there is no requirement in law to deposit 40% of the certificate dues in terms of proviso to Section 60(1) of the Act. In this connection, he has relied upon a judgment of a learned Single Judge of this Court in the case of Birendra Kumar Mehta vs. The State of Bihar & others, reported in 1999 (1) PLJR 877, wherein his Lordship has held that if the debtor disputes the certificate claim and the Certificate Officer does not determine the certificate dues, the debtor is not required to make the deposit 40% of the certificate dues as per the first proviso to Section 62 of the Act.

4. Requirement of law to deposit 40% of the certificate dues is a condition precedent for entertainment of appeal under Section 60 of the Act with regard to order passed under section 10 of the Act and with regard to all orders so far revision under Section 62 of the Act is concerned. It provides that the appeal or revision shall not be entertained unless 40% of the certificate dues is deposited at the time of filing of the appeal or revision. The provision does not make any distinction as to whether the subject matter of appeal or revision has been disposed of on merit or on technical ground. Any such distinction will be in violation of the requirements of the provisions as contained under sections 60 and 62 of the Act. Once the matter is placed before the authority to decide under the provisions of the Act, he may decide the matter rightly, he may decide the matter wrongly, he may decide the matter on merit or he may decide the matter on technical ground. That will not make any distinction so far as filing of appeal/revision is concerned and requirement of law as provided under Sections 60 and 62 of the Act to deposit 40% of the certificate dues has to be complied with.

5. Accordingly, the view taken by the learned Single Judge in the aforesaid case, in our view, does not lay down the correct law so far interpretation of first proviso to Section 62 of the Act is concerned.

6. Coming to the facts of the case it appears that two grounds have been given for rejecting the appeal filed by the appellant, firstly, it was barred by limitation. After having considered the assertions made in the objection and after hearing counsel for the appellant, we are of the view that sufficient ground has been made out to condone the delay in filing the appeal. Accordingly, the delay in filing the appeal is condoned.

7. If the appellant deposits 40% of the certificate dues within one month, then the appeal shall be disposed of on merit, otherwise the order of dismissal of appeal shall remain stand.

8. With the aforesaid observation, the ap