NIRENDRA KUMAR BOSE Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) In this application under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for issuance of an appropriate writ quashing the order of attachment and sale of the house of the petitioners and other co-sharers of theirs as also the entire certificate proceeding registered as foreign certificate case No. 8 of 1969-70 pending in the court of the Collector of Santhal Parganas, Dumka, respondent No. 1.

(2.) The short facts giving rise to this application are these : Petitioner No. 1 is the son and petitioner No. 2, is the daughter of late Rajendra Kumar Bose and co-sharers in the house situate in Williams Town, Deoghar, in the district of Santhal Parganas. In the second week of June, 1973 the petitioners learnt that the aforesaid house had been attached by the Sub-divisional Officer, Deoghar, respondent No. 4. Having learnt the same, the petitioners went to the office of respondent No. 4 and on enquiry they came to know that the house had been attached in connection with some certificate proceeding, details of which could be known from the office of the Collector, Dumka. The petitioners after making enquiries at Dumka learnt that the house was attached in a certificate proceeding registered as foreign case No. 8 of 1969-70. On inspection of the case record through a lawyer, the petitioners found that a requisition had been sent by the Collector, Delhi, respondent No. 6, at the instance of the Administrator, Rehabilitation, Finance Administration Unit, Government of India in the Ministry of Finance, Department of Economic Affairs, New Delhi, respondent No. 3 under Section 3 of the Revenue Recovery Act, 1890 (Central Act I of 1890) hereinafter to be referred to as the Act.

(3.) The aforesaid requisition for certificate made by respondent No. 6 at the instance of respondent No. 5 was based on the following allegations. One Hemanga Nath Ghose was sanctioned Rs. 7,000 as loan from Rehabilitation, Finance Administration. Out of it Rs. 6,232.21 paise stood unpaid. The repayment of such loan was guaranteed by Rajendra Kumar Bose, the father of the petitioners. As such, Rajendra Kumar Bose stood guarantor or surety for the payment of the loan advanced to the principal debtor Hemanga Nath Ghose aforesaid. At the instance of respondent No. 5, the Collector of Delhi, respondent No. 6, sent the certificate to the Collector of Dumka, respondent No. 1, under the provisions of Section 3 (3) of the Act In the requisition, as the copy of the certificate requisition incorporated in annexure 1 shows, Hemanga Nath Ghose was described as the defaulter and Rajendra Kumar Bose as the surety. The requisition was for a total sum of Rs. 7,511.21 paise including interest up to the 31st Dec. 1963. It was further prayed in the petition tiled by respondent No. 5 before respondent No. 6 that Rajendra Kumar Bose owned a pucca house in Deoghar. Such a certificate was sent to the Collector of Dumka for realisation of the amount mentioned therein from the surety Rajendra Kumar Bose. The Collector of Dumka, respondent No. 1, having received the requisition of certificate from the Collector of Delhi, respondent No. 6, sent the same to the Certificate Officer, Deoghar, to execute the same. It seems objection was filed on behalf of the guarantor or surety abovenamed with regard to the maintainability of the certificate case. On legal advice having been sought by the Certificate Officer, Deoghar, respondent No. 3, he was instructed that he had no jurisdiction to execute the certificate as he could not be a delegate of respondent No. 1 under the provisions of the Act. On such legal advice having been received, the Certificate Officer, Deoghar, remitted back the records of the case to the Collector, Santhai Parganas, by his order dated 27-1-1968. On 27-11-1970 the records of the case were received in the office of the District Certificate Officer, Dumka, respondent No. 2, who, in his turn, by his order dated 21-8-1971, directed that the records be placed before respondent No. 1 himself. Accordingly, the records of the certificate case were placed before respondent No. 1 on 13-10-1971 who directed notices to be issued to the principal debtor as well as the guarantor to appear for a hearing of the case on 23-11-1971. On the 23rd November, 1971 the notices which had been issued were returned unserved with a report of the process-server that the guarantor Rajendra Kumar Bose was dead and the principal debtor Hemanga Nath Ghose could not be traced out. Respondent No. 1 by his order of the same day sent the report of the process-server to respondent No. 5 who was also asked to furnish the names of the legal heirs of Rajendra Kumar Bose aforesaid. Respondent No. 5 wrote back a letter requesting respondent No. 1 to take effective action for realisation of the dues by attachment and sale of the properties left by Rajendra Kumar Bose, the deceased guarantor. On further enquiries having been made by respondent No. 1, he by his order dated 13-7-1972 directed notices to be issued to two sons of late Rajendra Kumar Bose, namely, Manendra Kumar Bose and Atin Kumar Bose to deposit the amount by 28-8-1972. That notice was returned unserved. Respondent No. 1 by his order dated 2-8-1972 directed respondent No. 4, the Sub-divisional Officer, Deoghar, to attach the house in question and to send a compliance report. Shorn of all details, objections began to pour in from various legal heirs of Rajendra Kumar Bose, the deceased guarantor. The objections not having found favour with the respondents, the two petitioners came up with this application.