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1992 Supreme(Ori) 104
High Court Of Orissa
B. L. HANSARIA, S. C. MOHAPATRA, ARIJIT PASAYAT
ADWAIT CHARAN SAHU - Appellant
Versus
DIVISIONAL FOREST OFFICER - Respondent
ORIGINAL JURDN. CASE 1364 Of 1986
Decided On : 08/25/1992
A.K.MANDA, B.K.DAS, B.N.MISHRA, P.K.MISHRA
A certificate proceeding under the Orissa Public Demands Recovery Act, 1962 cannot be quashed merely because the certificate-holder's name is not correctly given in the certificate, unless the mistake or defect in the form has prejudiced the concerned person.
Headnote:
ORISSA PUBLIC DEMANDS RECOVERY ACT, 1962 - CERTIFICATE PROCEEDING - CERTIFICATE HOLDER - WRONG NAME - EFFECT - CERTIFICATE PROCEEDING NOT TO BE QUASHED UNLESS PREJUDICE CAUSED - CERTIFICATE HOLDER NEED NOT NECESSARILY BE CERTIFICATE CREDITOR - CERTIFICATE TO BE CONSTRUED TO MAKE IT EXECUTABLE - CERTIFICATE PROCEEDING NOT TO BE QUASHED ON INSIGNIFICANT GROUNDS.
Fact of the Case:
The petitioner, a forest contractor, took part in an auction for selling a forest coupe. His bid was successful, but he fled away from the auction hall without depositing the security money. The Divisional Forest Officer, in pursuance of the General Conditions of Sale, quashed the auction sale and resold the coupe in a fresh auction. The shortfall was sought to be realised from the petitioner by initiating a certificate proceeding under the Orissa Public Demands Recovery Act, 1962. The petitioner filed an objection that the certificate proceeding was not maintainable as the Divisional Forest Officer was described as the certificate-holder, whereas the amount was payable to the Government. The Certificate Officer rejected the objection and ordered to proceed with execution to realise the dues. The petitioner filed an appeal, which was dismissed by the Additional District Magistrate. The petitioner filed a writ petition in the High Court.
Finding of the Court:
The High Court held that the naming of the Divisional Forest Officer as the certificate-holder in the present case cannot be said to have introduced such an infirmity in the proceedings which would warrant setting aside of the same. The Divisional Forest Officer had the authority in law to set the Act in motion by signing and verifying the requisition in Form No. 1 inasmuch as the dues are relatable to short-fall occurring because of re-sale of a forest coupe which was put in auction by him. The Divisional Forest Officer can well be said to be an agent of the State Government in a case of the present nature inasmuch as the agreement which has to be signed in case of concluded contract relating to sale of a forest coupe has to be so done by a Forest Officer acting for and on behalf of the Governor of Orissa, the Divisional Forest Officer is such an officer. The naming of the Divisional Forest Officer as certificate-holder in Form No. 1 can be said to be a mistake on the part of the Certificate Officer for which act no prejudice should be caused to the right person. The wrong description being an act of mistake on the part of the Certificate Officer, it could be corrected suo motu at any time without requiring the concerned person to invoke Section 10 of the Act which attracts the provisions of limitations. So, not much importance should be given to the mistake. The naming of the Divisional Forest Officer as the certificate-holder has not denied any right to the petitioner inasmuch as no grievance about the same was raised by him in his objection Annexure 3 running into four typed pages which he had filed before the Certificate Officer after the notice of the certificate was served on him. The defect in question is one of form and not of substance, to put it differently, the defect is not material. The particulars of the dues having been fully given in the certificate, the right available to the petitioner under Section 8 of the Act was in no way affected because of the naming of the Divisional Forest Officer as the certificate holder. It would be not in consonance with larger public interest to stand in the way of realisation of legitimate Government dues which form part of public exchequer on insubstantial pleas. If the certificate has to be regarded as a decree, it must be so construed as to make it executable; but this would not be so, if minor defects are given prominence, which would impede or stultify the execution. A certificate-holder need not necessarily be a 'certificate-creditor'. Even in case of dues payable to the Government, requisition has to be by a 'person'. The word 'person' as defined in Section 2 (33) of the Orissa General Clauses Act, 1937 includes only any company or association or body of individuals, whether incorporated or not. Government would not come within the fold of this definition. Of all the decisions of this Court, only in two, namely, (1) Orissa Corporation Ltd., 1974 (1) CWR 642 and Madan Mohan Mohanty (First Appeal No. 166 of 1975 disposed of on 23-7-1990), the proceeding was quashed on the ground that the certificate-holder's name was not correctly given in the certificate. In Kapileswar (1972) 38 CLT 948, the proceeding had been set aside mainly on the ground that the certificate did not give a clear picture of the particulars of the public demand. The fact that in the certificate the name of the Divisional Forest Officer was given was not the main reason. In all other decisions, whose number is as large as 13, the proceedings had been quashed (in those cases where it was so done) either on the ground of vital omission in the certificate, ILR 1958 Cuttack 315, or the dues sought to be realised through the certificate proceeding was not "public demand", ILR 1959 Cuttack 365 and (1960) 26 CLT 592, or initiation of the certificate proceeding itself being bad because of the requisition by incompetent person (1971) (2) CWR 541, or absence of essential step, like lack of requisition or valid requisition, AIR 1977 Orissa 100 and 1991 (1) OLR 525, or omission of material particulars in the certificate, 1985 (1) OLR 27, or absolute casual ness in sending the requisition and non-awareness of the provisions of law by the Certificate Officer (1988) 65 CLT 505, or vital omissions or defects in the certificates (1989) 68 CLT 556 and 656. This shows the interference was on strong and substantial reasons, and not on shallow, meaningless and insignificant grounds. No injustice, far less substantial injustice, was caused to the petitioner because of the naming of the Divisional Forest Officer as certificate-holder.
Issues: Whether the certificate proceeding was maintainable despite the Divisional Forest Officer being described as the certificate-holder, whereas the amount was payable to the Government.
Ratio Decidendi: A certificate proceeding under the Orissa Public Demands Recovery Act, 1962 cannot be quashed merely because the certificate-holder's name is not correctly given in the certificate, unless the mistake or defect in the form has prejudiced the concerned person. The certificate-holder need not necessarily be the certificate-creditor. Even in case of dues payable to the Government, requisition has to be by a 'person'. The word 'person' as defined in Section 2 (33) of the Orissa General Clauses Act, 1937 includes only any company or association or body of individuals, whether incorporated or not. Government would not come within the fold of this definition.
Final Decision: The High Court held that the certificate proceeding was maintainable and dismissed the writ petition.
HANSARIA, C. J.
( 1 ) A proceeding under the Orissa Public Demands Recovery Act, 1962 (hereinafter, "the Act") was initiated against the petitioner for realising a sum of Rs. 8,000/- said to be due as per Rule 34 of the Orissa Forest Contract Rules, 1966 (hereinafter, "the Rules'. This sum was sought to be realised on these facts :-the petitioner, who is a forest contractor, took part in an auction which was held for selling West Baruni Coppice Coupe No. 5 of Divisional Lot No. 17, His bid was of Ra. 12,100/ -. The sale was knocked down in his favour, and he was called upon to deposit the security money. But instead of depositing the amount, he fled away from the auction hall and thus made the sale ineffective. The Divisional Forest Officer, Athmallik, thereafter, in pursuance of paragraph 10 (a) of General Conditions of Sale, quashed the auction sale and resold the coupe in a fresh auction which fetched Rs. 4,100/- only. The shortfall, therefore, came to Rs. 8,000/-, and it is this amount for realisation of which the aforesaid proceeding was initiated against the petitioner. In his objection filed, as at Annexure 3, the petitioner took various grounds, but the Certificate Officer rejected the contentions by his order dated 26-10-83 and ordered to proceed with execution to realise the dues. Feeling aggrieved, an appeal was preferred and the learned Additional District Magistrate by his impugned order dismissed the same after having observed that the case of the appellant might not fall under Rule 34 of the Rules but the action of the Divisional Forest Officer to realise the amount under the terms of the sale notice came under the purview of Section 87 of the Orissa Forest Act, 1972. Feeling aggrieved, this petition has been filed.
( 2 ) THE petition was once finally heard on 3-5-91. During the course of the hearing, Shri Misra raised various objections to the initiation of the certificate proceeding, one of which was that the amount, if any, was payable to the Government, and so, the Divisional Forest Officer could not have been described as the certificate-holder, as it appeared from the certificate issued by the Certificate Officer, Athmallik, a copy of which is as at Annexure 2. In support of this objection, the learned counsel referred to some decisions of this Court, which we shall note later. To counter the submission advanced by Shri Misra, learned Government Advocate referred to some other decisions of this Court, and the Bench which heard the case observed in paragraph 5 of the judgement as below :-". . . . . . . . THAT for every defect, a proceeding (meaning a certificate proceeding) would not be invalid unless the mistake be such as can be said to have caused any prejudice to the certificate-debtor. . . . . . . . Speaking for ourselves, we would state that a formal defect like description of a certificate-holder should not invalidate the proceeding unless the same causes prejudice. But this view runs counter to the one expressed in the afore-noted Bench decisions of this Court, more particularly in Orissa Corporation Limited's case. "as the point raised was thought to be important and as this Court was being confronted with such a question off and on, the Bench felt that the same should be decided by a larger Bench to resolve the conflicting views (which, as it appears now, are more apparent than real) expressed by this Court in the decisions noted in the order passed in that case on 16-5-91. It is because of this that the matter has been placed before this Bench.
( 3 ) BEFORE we advert to the decisions of this Court cited earlier and now, it would be in the fitness of things to know what was held by the Privy Council in Baijnath v. Ramgut, 23 IA 45, which decision has set the trend to be followed by this Court or, for that matter, by other High Courts which have dealt with a similar matter.
( 4 ) IN Baijnath, what had happened was that a suit had been filed to set aside a sale on the ground of non-compliance wi
