HARI PRASAD AGARWALLA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under Articles 226 and 227 of the Constitu- tion of India has been filed by the certificate debtor in Certificate Case No. 7 of 1971-72 pending in the court of the District Certificate Officer, Monghyr, respondent No. 4, praying to quash the proceedings in the aforesaid certificate case. The notices and orders in the aforesaid case issued to the petitioner have been marked Annexures 1 to 4 to this application. The aforesaid certificate case is said to have been initiated against the petitioner by respondent No. 4 on a requisition purported to have been made by the Divisional Forest Officer, Monghyr, respondent No. 2.

(2.) The facts relevant for the dis-posal of this application may be shortly stated. There was an agreement for the purchase of Kendu leaf from lot No. 179 for a period of three years at an annual price of Rs. 13,600. The petitioner has asserted that the aforesaid agreement was subject to a provision that the Forest Department of the State of Bihar, respondent No. 1, would not allow anyone else to cut Kendu trees from the aforesaid lot. During the period of settlement, the petitioner deposited a sum of Rs. 3,400 by way of security and also paid one year's price for the settlement, the sum being Rs. 13,600. The petitioner enjoyed usufructs of the subject-matter of settlement peacefully and uninterruptedly during the year 1967-68. It is alleged in the petition that for the years 1968-69 and 1969-70 the Forest Department accorded sanction to Messre. Bengal Paper Mills to cut timber from the lot in question including this timber of the trees yielding Kendu leaves. The aforesaid Mills, under such illegal sanction, started cutting the trees with the result that no Kendu leaves were left for exploitation by the petitioner. The petitioner thereafter requested the Divisional Forest Officer, respondent No. 2, for a refund of the security money deposited by Mm to the tune of Rs. 3,400 aforesaid. His request was not acceded to. The petitioner alleges that, without any notice to him by the D.F.O. the Certificate Officer, Monghyr, respondent No. 4, presumably, at the instance of the Divisional Forest Officer, respondent No. 2, issued a notice to the petitioner which he duly received and by which he was asked to pay a sum of Rs. 12,275. When the petitioner came to know about the certificate case, he filed an objection on the 23rd of June, 1971 that there has been no service of notice on him under Section 7 of the Bihar and Orissa Public Demands Recovery Act, 1914 (hereinafter to be referred to as the Act). The petitioner has also asserted in his writ petition that no requisition under Section 5 of the Act had been made by the Divisional Forest Offi-cer and as such the issuance of a notice under Sections 4 and 6 under the signature of the Certificate Officer, respondent No. 4, a copy whereof has been marked Annexure 2 to the application, was wholly illegal. Of course, in the writ petition the petitioner has also denied his liability for any payment on ground, inter alia, that, since the Forest Department represented by respondent No. 2 had committed breach of agreement and the petitioner had not been allowed to appropriate the usufructs during the balance two years of the period of settlement, he could not be fastened with any liability for those two years. We were, however, not invited by learned counsel for the parties to go into this question. In a counter-affidavit filed on behalf of the respondents, there is, of course, a denial with regard to the petitioner's plea of breach of agreement and of his non-liability to pay. It has also been stated in paragraph 12 of the counter-affidavit that the necessary requisition for instituting the certificate case against the petitioner by respondent No. 2 was duly filled up and signed and was sent along with letter No. 1622 dated 12-4-71. It has, however, been submitted in paragraph 12 aforesaid that the Divisional Forest Officer was a representative of the Collector and the requisition was sent under Section 4 of the Act and as such the requisition was proper and the certificate proceeding was valid, since a requisition was made by a representative of the Collector. The only point on which our decision was invited by learned counsel for the parties was as to whether a requisition duly filled up and signed by the requisitioning officer, namely, respondent No. 2, had been sent to the Certificate Officer, respondent No. 4, and, if not so, then whether it can be held that the certificate issued against the petitioner under Section 4 (Annexure 2) could be said to be legal and valid or not.

(3.) While the question aforesaid was debated at the Bar, learned counsel for the petitioner asserted with vehemence, as was the statement of the petitioner in the writ petition, that no requisition under Section 5 of the Act in Form 2 appended to the Act was at all sent to the Certificate Officer. On the contrary, on the basis of the statement, somewhat vague as it is, in paragraph 12 of the counter-affidavit, it was submitted by learned Government Advocate that the records of the case would bear it out that a requisition was duly filled up and signed in Form 2 under Section 5 of the Act by the requisitioning authority, namely, the Divisional Forest Officer and was sent to respondent No. 4. When the case was heard last on the 14th of July, 1975, learned Government Advocate requested this Court to adjourn the case so that he could show to us from the original records of the certificate proceedings that such a requisition under Section 5 had been signed and sent by respondent No. 2. Learned counsel for the petitioner not having objected to such a course and rather insisting that that would be doing substantial justice between the parties, the Court adjourned the case for today. As was requested by the learned Government Advocate, on which request the case was adjourned for today, before the hearing began, he (learned Government Advocate) very fairly produced for the perusal of this Court the entire original record of the certificate proceedings. From a perusal of the entire record, we have not been able to find out any requisition in Form 2 of the appendix to the Act under Section 5 thereof either filled up and/ or signed by the requisitioning officer --the Divisional Forest Officer, respondent No. 2. The letter bearing No. 1622 referred to in para. 12 of the counter-affidavit, to which I have made a mention hereinbefore, is a letter from the Divisional Forest Officer to the Certificate Officer, Mon-ghyr, dated the 12th of April, 1971. The relevant portion of the letter reads thus :