NIROD BARAN BANERJEE Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ application the petitioner Nirod Baran Banerjee has prayed for the quashing of Annexures 2 to 5 to this application in the following circumstances. A certificate proceeding was initiated against the petitioner for recovery of royalty amounting to Rs. 1,36,135.32. The main contention of Shri Sreenath Singh, in spite of several pleas being taken in the application, is that for non-compliance of the mandatory provisions of Bihar and Orissa Public Demands Recovery Act, 1914 (hereinafter referred to as 'the Act'), the initiation of the certificate proceeding in Certificate Case No. 15 of 1976-77 against the petitioner is wholly illegal and without jurisdiction and as such the decisions to the contrary, as evidenced by Annexures 2 to 5 is unsupportable and liable to be quashed in this writ application. This contention was refuted by Shri Chunni Lal, learned counsel for the State.

(2.) 'Public Demand' as defined in Section 3 (6) of the Act refers to Schedule I to the Act. It contains several items. It is undisputed that Item No. 3 of the said schedule covers the instant case. Item No. 3 states as follows:-- "Any money which is declared by any law for the time being in force to be recoverable or realisable as an arrear of revenue or land-revenue, or by the process authorised for the recovery of arrears of revenue or of the public revenue or of the Government revenue." Though the Mining Department is one of the departments of the Government of Bihar it is further undisputed that the amount in question, the subject matter of the instant certificate proceeding, was payable to the District Mining Officer. According to Section 26 (1) of the Mines and Minerals (Regulation and Development) Act, 1957 any royalty as involved in the instant case is to be recovered in the manner as an arrear of land revenue. The distinction, between the terms 'recoverable or realisable as an arrear of revenue' and 'by the process authorised for the recovery of the arrear of revenue or the public revenue or the Government revenue' as used in Item No. 3 of Schedule I has also to be noted. The order passed under Section 4 of the Act by the certificate officer has the force of a decree. The Act rather provides a summary way for the realisation of the certificate dues. It may be emphasised that the Act is an extremely stringent one and the summary manner of recovery of the certificate dues necessitates rigid compliance with the formalities prescribed by the Legislature in this respect. Obviously, therefore, non-compliance with the mandatory provisions of the Act or the Rules or non-observance of the formalities envisaged will result in the invalidation of the action taken. The initiation of a certificate proceeding as contemplated in the Act can take the place in two ways, one to be found in Section 4 read with Form No. I and the other in Section 5 read with Form No. II. The contention of Sri Sreenath Singh was that the form filled in the instant case, though it purported to be in Form No. I was, in fact, not so. His further submission was that even if Section 5 of the Act be held to be applicable in the instant case, the Form filled in the instant case fell far short of the requirements as prescribed by law. The stand taken by Shri Chunni Lal, learned counsel for the State, however, was that the Form in question was in conformity with the requirements as envisaged in Section 4 and the details of Form No. I were also there, it not being his submission before this court that the Form in question fulfilled the requirement of Section 5 or Form No. II.

(3.) It may be useful to refer to the two verifications (Tashdik) and one certificate appended to the Form in question. They run as follows:-- "Mian Iski Ru Se Tasdik Karta Hun Ki Uper Bataye Hue Rs. 1,36,135.32 Rupaye Upar Bataye Hue C. Dr Se Upar Bataye Hue C. Mr. Ka Pawna Hai. (Jo Certificate Par Dafe 5 Ka Bik Bheji Hui Darkhast Par Daskhat Kiya Gaya Hai To Yah Jod do--) Sd. Illegible Dist. Mining Officer, Hazaribagh, 14-5-76. Mai Yah Bhi Tasdik Karta Hun Ki Upar Bataye Hue......... Kiya Jane Layak Hai Aur Uske Nalish Karke Wasul Karne Me Yain Ki Bagawat Nahi Hai. Aaj Tarikh...... Mahina...... San 197 Sd. Illegible Certificate Officer Mines, Hazaribagh." "Certified that the dues have not been realised and it is not time barred." Sd. Illegible. District Mining Officer, Hazaribagh, 17-5-76. "Certificate Officer" as defined in Section 3 (3) of the Act means a Collector, Sub-divisional Officer and any Officer appointed by the Collector, with the sanction of the Commissioner, to perform the functions of a Certificate Officer. In the hierarchy of the officials of the Mining Department, there are posts of District Mining Officer and the Deputy Director of Mines. It is undisputed that the Deputy Director of Mines is bestowed with the powers of the Certificate Officer as defined in Section 3 (3) of the Act, though no such power stands bestowed on the District Mining Officer. Strict compliance with the legal requirements being necessary, a reference to Form No. I would be essential. There is a certificate to be appended according to Form No. I which is to be signed by the Certificate Officer. This Certificate has to state as follows:-- "I hereby certify that the above-mentioned sum of Rs............is due to abovementioned............... from the above-named............". Section 4 of the Act states that when the Certificate Officer is satisfied that any public demand payable to the Collector is due, he may sign a certificate in the prescribed form, obviously referring to Form No. I stating that the demand is due and shall cause the certificate to be filled in his office, thus before initiating the certificate proceeding the Certificate Officer has to be satisfied that the public demand is payable to the Collector He is also to certify specifically that the 'demand is due'. In column No. 2 the certificate-holder has been described as the District Mining Officer, Hazaribagh and not the Collector. Even assuming that the verification (Tasdik) mentioned in the Form in question amounts to a certificate, any certificate by the District Mining Officer, who is not vested with the powers of a Certificate Officer, cannot take the place of a Certificate by the Certificate Officer as envisaged in Form No. I of Schedule II. It is true that the Deputy Director of Mines is a Certificate Officer but the verification (Tasdik) signed by him too falls short of the requirements of Section 4 read with Form No. I inasmuch as it does not even indicate about his satisfaction about the demand being payable to the Collector or about the same being due. As contended it does not also state about the amount being payable, the relevant space having been left blank. There is another certificate by the District Mining Officer on the said Form which states that demand notice was served on the lessee prior to the date of filing of the requisition and that the dues are not time barred. The term 'due' used in Section 4 of the Act suggests that it must be legally due but it is for the Certificate Officer to so certify and not for the District Mining Officer, who, undisputedly appears to have signed this certificate. Surplusages or unnecessary additions in the relevant form, unless it adversely affects the right of the party, may in the appropriate circumstanres be overlooked but if the form falls short of the requirement of the provisions made in the Act, as in the instant case, the action taken has to be invalidated.