HAZI SIDDIQUE Vs. CERTIFICATE OFFICER BURDWAN

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution for a writ in the nature of Certiorari to quash certain orders made by the Certificate Officer, Burdwan, by the Collector and by the Commissioner, Burdwan, and by the Board of Revenue, West Bengal, in certificate proceedings taken under the Bengal Public Demands Recovery Act, 1913. The case of the petitioner is that the petitioner is one of the partners of a firm known as Haji Ibrahim Kasem Upletwalla. Certain certificate cases bearing Nos. 311, 312 and 313 of 1948-49 were started by the Certificate Officer of 24-Parganas against the petitioner and his partners for realisation of certain excess profit tax and sale tax. These certificate cases were transferred to the Certificate Officer, Burdwan, where the cases were numbered as Certificate Cases Nos. 35, 26, 37, 54 and 55 -- O. D. of 1949-50. The total amount in respect of which the certificate proceeding was taken was Rs. 1,97,096-12-9 after giving credit for a sum of Rs. 2,500 paid in the Office of the Certificate Officer, 24-Parga-nas, on the 5th February, 1951. The case of the petitioner further is that the business carried on by the firm of Haji Ibrahim Kasem Upletwalla had suilered considerable loss from time to time as a result whereof all the business of the firm except the business carried on under the name of Jilani Rice Mill at Memari, was completely closed down. As the petitioner had no means left to pay up the certificate dues the petitioner and his partners in order to make arrangement for payment in instalments of the certificate dues, leased out the said Jilani Rice Mill to the respondent No. 5, G. S. Rama Shett on the 31st of October 1950, for a term of 20 years terminating with the expiry of the month of October 1970, at an annual rental of Rs. 2,500 with the stipulation, that the lessee would deposit the annual rent every year in advance, before the expiry of the month of March, in the Government Income Tax Fund, towards part satisfaction of the certificate dues of the said firm of Haji Ibrahim Kasem Upletwalla. It is further alleged in the petition that upon the application of the respondent No. 5 the Certificate Officer, Burdwan, by a letter dated the 19th of January 1951, permitted the lessee to run the aforesaid rice mill on condition that the rent payable in terms of the lease would not be paid to the lessor. Thereupon the rent payable for the first year being the sum of Rs. 2,500 due for the period from the 1st of November 1950 to the 31st of October 1951, was deposited by the respondent No. 5 in the Office of the Collector of 24-Parganas on the 5th February 1951 and the said amount was appropriated towards part satisfaction of the certificate dues. But although the said amount was so deposited the Office of the Burdwan Collecto-rate called upon the respondent No. 5 by a letter dated the 18th April 1951 to deposit Rs. 2.500 towards the rent of the aforesaid lease as part payment of the certificate dues. The respondent No. 5 thereupon intimated to the Office of the Burdwan Collectorate that a sum of Rs. 2.500 had already been deposited in the Office of the Collector of 24-Parganas. But the Certificate Officer, Burdwan, on the 14th December 1951, wrongfully and in contravention of Rule 66 of the Certificate Manual, ordered the said mill to be put up to sale subject to the aforesaid lease in favour of respondent No. 5. A sale proclamation dated the 29th April 1952 was accordingly issued, at first fixing the date of sale on the 10th of June 1952, for realisation of the certificate dues. The sale was however subsequently adjourned from time to time on the application of the petitioner and it appears that the property has not yet been sold. It further appears that on the 10th June 1952, the petitioner filed an objection before the Certificate Officer under Section 37 of the Bengal Public De-mands Recovery Act, pointing out that the order directing sale of the mill was in contravention of Rule 66 and it was further pointed out in that petition that no notice under Section 7 of the Bengal Public Demands Recovery Act, was served upon the certificate debtor. It is further the case of the petitioner that the procedure prescribed for bringing the property to sale has not also been followed in the present case and the sale proclamation that was issued was in contravention of Rule 46 of the Certificate Manual and the service of the sale notice was also not in conformity with the Rules prescribed in the Certificate Manual. It appears further from the petition that on the 26th June 1952, the Certificate Officer had examined a process server who had served the sale notice and the Certificate Officer came to the conclusion that the service of the notice had been properly done. Against the said order of the Certificate Officer dated the 26th June 1952, the petitioner filed a petition of revision under Section 53 of the Public Demands Recovery Act. The said petition was filed on the 28th June 1952, before the Collector of Burdwan for revising the orders of the Certificate Officer, dated the 26th June 1952, and also an earlier order, dated the 14th December 1951. The said petition was registered as Certificate Revision Case No. 7 of 1952-53. The Collector of Burdwan however summarily rejected the petition of revision on the ground that as the petitioner had not filed any appeal in terms of Section 51 of the Public Demands Recovery Act, against the order of the Certificate Officer, the petition for revision was not maintainable. The Collector however considered the objection of the petitioner as to non-service of the notice and he was of the opinion that service had been properly effected. Against the said order of the Collector the petitioner filed a petition for revision before the Commissioner, Burdwan Division. The Commissioner, Burdwan Division, was also of the opinion that the order of the Collector rejecting the petition of revision filed by the petitioner before the Collector on the ground that the petitioner had not filed an appeal as contemplated by Section 51 of the Act was a reasonable order and the Commissioner also took the view that the petitioner had failed to make out any other ground for interference by the Commissioner in revision with the order made by the learned Collector. It appears that thereafter the petitioner moved the Board of Revenue, West Bengal, also by way of revision but the said petition for revision was also rejected by the Board by its order dated the 21st of September 1953.

(2.) The first point that has been urged on behalf of the petitioner by Mr. Hariprasanna Mukherjee, the learned Advocate for the petitioner, is that as no notice under Section 7 of the Bengal Public Demands Recovery Act was served on the certificate debtor or the petitioner the entire proceedings which were taken under the Bengal Public Demands Recovery Act, were without jurisdiction and should therefore be quashed. It appears from the counter-affidavit affirmed by one Chittaranjan Bhattacharjee, who was the Certificate Officer of Burdwan at the relevant time and who is respondent No. 1 in this application, that notice under Section 7 of the Public Demands Recovery Act, was duly served on the 3rd of March 1949 (para. 4 of the counter-affidavit). Further the records of the certificate cases which were directed to be produced by this Court at the time the Rule Nisi was issued and which have been produced at the hearing contain an acknowledgment receipt which shows that the notice under Section 7 was served on the 3rd of March 1949 as alleged in the said affidavit in opposition. It also appears from the order sheet of the Certificate Officer that the constituted attorney of the firm of Haji Ibrahim Kasem Upletwalla filed an objection under Section 9 of the Bengal Public Demands Recovery Act, denying the liability of the firm. But in this petition of objection no ground appears to have been taken as regards the non-service or any irregular service of notice under Section 7 of the Bengal Public Demands Recovery Act. It is thus clear that there is no substance in this point of Mr. Mukherjee that there was no service of notice under Section 7 as required by the provision of the Bengal Public Demands Recovery Act. Mr. Mukherjee has however Submitted that even if it is held that notice under Section 7 was served by the Certificate Officer, 24-Parganas, it Was incumbent under the provisions of the Act to serve a fresh notice under Section 7 of the Act after the certificate proceedings were transferred to the Certificate Officer, Burdwan, under the provisions of Section 12 of the Act. It appears to me that this contention of Mr. Mukherjee has also no force. Section 12 of the Act may be set out as follows:

(3.) It may he pointed out that in Clause (1) of Section 12 there were originally these words appended to the end of this clause, "in the same district or to the Collector of any other district"; but these words were omitted by Bengal Act III of 1934. It also appears that the proviso which now appears in Clause (2) of Section 12 was added for the first time by Bengal Act I of 1942 -- Section 2. So reading the section as a whole it appears that the object of the amendment was to clarify the position that once a notice under Section 7 of the Act had been served in connection with a certificate proceeding it was not necessary to serve a second notice under the said section when the certificate proceeding is transferred from one Certificate Officer to an-other Certificate Officer, whether belonging to the same district or to different districts, for the purpose of execution of such certificate. Mr. Mukherjee has drawn the attention of the Court to the words "situated in the district in which the certificate is filed" as appearing in Clause (a) of Section 8 of the Act. With reference to these words it is submitted by him that it is clear from these words that a notice issued or served under Section 7 would spend its force as soon as the proceeding is transferred from one district to another for execution. But as has been pointed out by me already the amendment of Section 12 now leaves no doubt about the correct position and in my view it is not necessary to serve any fresh notice under Section 7 simply because a certificate case is transferred from one district to another for execution. It may be noted that Mr. Majumdar, the learned Additional Government Pleader, who appears on behalf of the opposite parties has pointed out that non-service of a notice under Section 7 of the Bengal Public Demands Recovery Act, does not render a sale held under the provisions of the Act void but such a sale is merely voidable and the sale can be avoided in accordance with the provisions as laid down in Section 36 of the Act. Mr. Majumdar has also relied on a decision of this Court in the case of Banshi Gopal Jiu v. Udaychand Mahatab. But it may be pointed out that as no sale of the property has taken place in the case before me this question need not be considered any further.