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1998 Supreme(Pat) 94
PATNA HIGH COURT
B.N. AGRAWAL, J.
M/s. Murlidhar Sohanlal – Petitioner
Vs.
State of Bihar and others - Respondents
C.W.J.C. No. 2627 of 1987
Decided on : 5.2.1998
For the Petitioner: M/s. Ramesh Kumar Agrawal, Jitendra Kumar Sinha and Raj Kumar Bhargav.
For the State : Sri Sailesh Kumar Sinha.
The central legal point established in the judgment is that the absence of the required agreement as per the law rendered the dues of the Corporation not treatable as public demand, leading to the quashing of the certificate case and related orders.
Headnote:
Public Demand - Certificate Case - The court quashed the certificate case and related orders as the dues of the respondent Corporation could not be treated as public demand within the meaning of the Act due to the absence of the required agreement.
Fact of the Case:
The writ application was filed to quash Certificate Case No. 1 of 1982-83 and related orders passed by the District Certificate Officer for non-payment of the certificate dues by the petitioner.
Finding of the Court:
The court found that the dues of the respondent Corporation could not be treated as public demand as there was no agreement as required under the law, and therefore, the certificate case and related orders were invalid and liable to be quashed.
Issues: The main issue was whether the dues of the respondent Corporation could be treated as public demand within the meaning of the Act, based on the agreement between the parties.
Ratio Decidendi: The court held that in the absence of the required agreement as per the law, the dues of the Corporation could not be treated as public demand, leading to the quashing of the certificate case and related orders.
Final Decision: The court allowed the application, quashed the impugned orders and Certificate Case No. 1 of 1982-83, and directed that the parties shall bear their own costs.
Heard the parties.
2. This writ application has been filed for quashing Certificate Case No. 1 of 1982-83, pending before District Certificate Officer, Saharsa, respondent no. 3, and orders contained in annexures 5, 7 and 8 passed by him in the said certificate case. By order contained in annexure 5, petitioner's objection under Section 9 of the Bihar and Orissa Public Demands Recovery Act, 1914 (hereinafter to be referred to as 'Act') has been rejected and by order contained in annexure 7 petition for review of the aforesaid order has been rejected. By order contained in annexure 8 order has been passed for issuing distress warrant and body warrant against the petitioner for non-payment of the certificate dues.
3. As this writ application is bound to succeed on a short question, as such, it is not necessary to state the facts in detail. Learned counsel appearing on behalf of the petitioner submitted that certificate proceeding has been initiated in relation to dues of Bihar State Food and Civil Supplies Corporation and dues of such a Corporation can be treated to be a public demand if it fulfils the requirement of Item No. 15 of Schedule I appended to the Act, which reads thus :
"15. Any money payable to—
(i) State Bank of India constituted under the State Bank of India Act, 1955 (No. 23 of 1955); or
(ii) a Bank specified in column (2) of the first schedule to the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 (Act V of 1970); or
(iii) a company or a corporation or a statutory body, including a registered society carrying on financial transactions, owned by or in which Government has a majority of shares or which is managed by an authority appointed under any law for the time being in force; or
(iv) the Bihar State Electricity Board, in respect of which the person liable to pay the same has agreed, by a written instrument that it shall be recoverable as public demand."
4. From a bare perusal of the aforesaid provision, it would appear that dues of the respondent Corporation can be realised through a certificate proceeding and treated as public demand if the person liable to pay the same has agreed by a written instrument that it shall be recoverable as public demand. In the present case, the petitioner has categorically stated in the writ application that no such agreement has been entered into by the petitioner with the respondent Corporation.
5. A counter affidavit has been filed on behalf of the respondent Corporation, paragraph 10 whereof reads thus : -
"10. That in reply to the statement made in paragraph 12 of the writ application, it is submitted that it is not correct that there was no agreement all together. In this regard Clause 23 of the agreement is referable, "all sums due to the Corporation can be realised by any manner the Corporation deems fit." Hence the claim to this effect enlarges scope for jurisdiction under the Act and impliedly there is an agreement to recover the dues by any mode including as public demand."
From a bare perusal of paragraph 10 of the counter affidavit, wherein relevant clause of agreement has been quoted, it would appear that the Corporation could realise its dues in the manner it deemed fit and proper. It has nowhere been stated in the agreement that the dues shall be recoverable as public demand.
6. This being the position, in my view, in absence of any agreement as required under law the dues of the Corporation against the petitioner could not be treated a public demand within the meaning of the Act and realised thereunder. Therefore, action for realisation of the same through a certificate proceeding initiated by the District Certificate Officer, Saharsa and impugned orders passed therein are per se invalid and liable to be quashed.
7. Accordingly, this application is allowed, impugned orders contained in annexures 5, 7 and 8 and Certificate Case No. 1 of 1982-83, pending before District Certificate Officer, Saharsa, are hereby quashed.
8. In the circumstances of
