The arrest and detention of a certificate debtor under the Bihar and Orissa Public Demands Recovery Act, 1914 must be carried out in accordance with the procedure laid down in the Act and Rules, including service of notice, hearing of objections, and issuance of a show-cause notice before issuing an arrest warrant. Failure to follow this procedure renders the arrest and detention illegal and malafide, and the court can award exemplary costs to the aggrieved persons.

G. C. Bharuka, J. - These writ applications have been filed by the petitioners for issuance of a writ of habeas corpus commanding upon the respondents District Certificate Officer, Patna (in short D.C.O.) to release them by quashing their orders of arrest and detention, which have been passed under purported exercise of the powers contained under the provisions of Bihar and Orissa Public Demands Recovery Act, 1914 (hereinafter referred to as 'the Act' only).

2. The petitioners in these writ applications are owners of public carrier Truck bearing registration Nos. BIA 8898 and BIA 9298 respectively. The District Transport Officer sent requisitions dated 28-10-92 (Annexure 3) to the respondent District Certificate Officer, for filing certificates against the petitioners as per the provisions of Sections 5 and 6 of the Act for the realisation of the alleged arrears of tax amounting to Rs. 45,854/63 against each of the petitioner for the period 1-10-89 to 309-92. The respondent D.C.O., on receipt of the said requisition, registered two certificate cases against each of the petitioners, order-sheet whereof have been filed as Annexure-4 which are identical in both the cases.

3. From the order-sheet it appears that after the receipt of the said requisition; the Certificate Officer by stamped stereo-type order dated 27-1-93 directed for issuance of notice and attachment order under Section 7/14 of the Act against the judgment debtors requiring compliance by 27-2-93. But strangley much before the date so fixed, on 5-2-1993 the respondent D. C. O. passed another order directing issuance of warrant of arrest against the petitioners just in view of the request made by the District Transport Officer to the said effect. Pursuant to these orders, the petitioners were arrested by the police and produced before the D. C. O. on 3-12-93 and 4-12-93 respectively. The D. C. O. thereupon remanded them to civil jail on the ground that they were not ready to immediately pay the alleged dues. He ordered for their detention till they payoff the certificated dues. The detentions have been continued by subsequent orders dated 6-12-93 and 20/23-12-93 on the ground that they have failed to pay the amount alleged to be due against them. The petitioners have challenged the validity of these detentions.

4. The validity of the impugned detentions in civil jail has to be adjudged keeping in view the provisions of the Act and the fundamental right guaranteed under Article 21 of the Constitution of India. Therefore, I would first like to refer to the relevant provisions of the Act and the Rules framed thereunder. The Act intends to make provisions for the recovery of public demand as defined under Section 3(6) of the Act in the State of Bihar. Section 3 (3) of the Act defines the Certificate officer in the following terms :

3. Definitions. - In this Act, unless there is anything repugnant in the subject or context:

(1) ..

(2) ..

(3) "Certificate Officer" means a Collector, a Sub-Divisional Officer and any officer appointed by a Collector, with the sanction of the Commissioner, to perform the functions of a Certificate Officer.

Part II of the Act provides for filing, service and effect of certificates and hearing of objections thereto. Sections 4, 5, and 6 provides for signing of certificate by the Certificate Officer on the basis of requisition made in this behalf, whereupon a Certificate case is instituted. Thereafter, as provided under Section 7 of the Act, the Certificate Officer is required to serve a notice upon the Certificate Debtor intimating him about the filing of the Certificate and inviting his objections to the process of realisation of the certificate dues. Section 9 of the Act entitles the Certificate Debtor to file his objection denying the liability which has to be heard and disposed of in the manner provided under Section 10 of the Act.

5. Part III of the Act provides for execution of the Certificate. Sections 14 and 15 and Rule 53 as contained i