PAWAN KUMAR SINGH, S/O LATE KAMESHWAR PRASAD SINGH Vs. STATE OF BIHAR THROUGH SECRETARY FOOD AND CONSUMER DEPARTMENT

JUDGEMENT

(1.) Petitioner, in the present case, has questioned the very initiation of the certificate proceeding giving rise to Certificate Case No.561/2014-15. He has challenged the recovery of certificate amount from the petitioner without following the procedure established by law. By filing I.A. No.5537 of 2018, the petitioner has challenged the order dated 10.05.2016 passed by the Certificate Officer-cum-Sub-Divisional Officer, Muzaffarpur in the said Certificate Case in exercise of his power under Section 10 of the Bihar and Orrisa Public Demand Recovery Act, 1914 (hereinafter referred to as the 'Act of 1914')

(2.) In the aforesaid I.A., the petitioner has also brought on record an order passed by Hon'ble the Chief Justice in Request Case No.89 of 2017 under the provisions of the Arbitration and Conciliation Act, 1996 on 04.08.2017 (Annexure-9 to the I.A.) to submit that now Hon'ble Mr. Justice R.K. Datta, a retired Judge of this Court, has been appointed as Arbitrator to settle the dispute between the petitioner and the respondent. It is also stated that the petitioner has filed one petition under Section 23 of the Act of 1996 before the Hon'ble Arbitrator and the case is pending for disposal, but in the meantime certificate officer has again issued warrant of arrest against the petitioner which is wholly illegal and unjustified.

(3.) Learned counsel for the petitioner has relied upon a learned coordinate Bench judgment of this Court in the case of Brij Mohan Prasad Vs. the State of Bihar, 2009 2 PLJR 25, 2008(1) BBCJ 525, wherein the learned Writ Court was considering the challenge to initiation of a certificate proceeding for recovery of unascertained dues from the petitioner who had retired from government service as Head Clerk. After considering the provisions of sub-section(6) of Section 3 which refers to Schedule 1 of the Act of 1914 and the provisions of the Public Accountants Default Act, 1850 which provides that any money recoverable from "public accountants" as defined therein for loss caused by them or on account of defalcation in their accounts is recoverable as arrears of land revenue, though the learned Writ Court rejected the contention of the petitioner in the said case that the amounts sought to be recovered are not 'public demand' as is contemplated under the provisions of the Act of 1914, at the same time after considering the Boards Instruction 10 in respect of implementation of the Act saying that "Certificate procedure not to be used where there is any doubt of debtors liability,-Requiring -officers should bear in mind that the certificate procedure is intended only for the recovery of sums regarding which there is no doubt of the liability of the debtor. Cases in which the debtor is likely with some show of reason to deny his liability should be reported with a view to institution of civil suits. No such certificate shall be made in respect of any demand the recovery of which is barred by any law of limitation for the time being in force. In the case of rent due to Wards and Government estate the period of limitation depends upon the Tenancy Act applicable and is determined by Schedule III part I. of the Bihar Tenancy Act or Section 234 of the Chota Nagpur Tenancy Act, as the case may be. The period of limitation for certificate filed by the examiner of Local Account under the Local Fund Audit is three years from the date of the order of surcharge", the Court held that where the liability of the petitioner has not been ascertained by any competent authority, it cannot be said that the petitioner is guilty of defalcation and that too to the amount as indicated above. The learned coordinate Bench clearly held that "Certificate proceedings are proceedings for recovery of ascertained dues. It is not a proceeding where the certificate officer is to act like a Civil Court and determine the liability. The liability is, prima facie, predetermined and the proceedings are only for recovery of those predetermined liability."