BRAHM DUTTA Vs. STATE

JUDGEMENT

(1.) THE circumstances that given rise to this appeal may briefly be stated thus Jugal Kishore Chejara of Pilani presented an application before the Collectore,jhunjhunu on 29-3-1952, praying that a Taccavi loan of Rs. 5,000/-sanctioned for the purposes of a pumping set be kindly issued to him. On that very day a security bond form II was executed giving out the names of surities, witnesses and the amount and date of repayment of instalments, and the money was paid out to Jugal Kishore on 31-3-1952. On 19-3-1953 a letter was issued from the office of the Collector to the Tehsildar Jhunjhunu mentioning the fact that as Jugal Kishore had paid the instalment of Rs. 500/-fixed for 1-1-1953 suitable steps should be taken against the defaulter and his sureties Brahm Dutta and Madanlal. It appears that in compliance with this letter the Tehsildar attached a residential house of the principal debtor,jugal Kishore, and was about to take some action against his surety. Braham Dutta, as well. Anticipating this move against him Brahm Dutta applied to the Collector, Jhunjhunu, that he never offered himself as a surety for the Taccavi loan to Jugal Kishore,that he was merely a witness to the execution of the Taccavi bound by Jugal Kishore and as such he was not liable as a surely. THE Collector by his decision, dated 31-5-1954,repelled this contention. Brahm Dutta went up in appeal before the Commissioner who also by his decision,dated 30-8-1954,upheld the decision of the Collector. Braham Dutta has, there, come up in appeal against this order of the Commissioner before the Board.

(2.) WE have heard the learned counsel appearing for the parties and have gone through the record as well. In view of the order that we are making in the case we consider it unnecessary to examine the question as to whether Brahm Dutta was surety or a witness or a motbir or anything else as far as the realisation of this outstanding loan against Jugal Kishore is concerned. It is an admitted fact that this loan was issued to Jugal Kishore on 31-3-1952 under the Government of Rajasthan Taccavi Rules 1950. Form II which is prescribed under the Rules was duly executed by Jugal Kishore. Item 5 of this form runs as follows: - " (5) that the loan shall be recoverable in accordance with law and rules that may have been or may be passed by the Government for the recovery of public demands. " The Rajasthan Public Demand Recovery Act, 1952 (No. V of 1952) which received the assent of the President on 25-1-1952, was made enforceable in the State of Rajasthan on 15-6-1952 vide notification No. F. 12 (52)A/rev. l-B/52, dated 14-6-1952, published in the Rajasthan Gazette, dated 21-6-1952. It has been admitted frankly by the learned counsel for the parties that the arrears in question can be record only under the provisions of this Act and in no other way. The procedure in this respect is laid down in parts II and III of the Act. As provided in sec. 3 of the Act when any public demand is due, the officer or authority charged with its realisation may send to the Collector, having jurisdiction in the place where the defaulter resides or owns property, a written requisition. On receipt of such requisition the Collector on being satisfied that the demand is recoverable under this Act and that its recovery by suit is not barred by any law for the time being in force may sign a certificate that to effect in the prescribed form specifying therein the amount of the demand, the account on which it is due he name of the defaulter,and such other particulars as may be necessary for his identification In case the Collector is himself the officer charged with the realisation of the deemed he shall cause a like certificate to be signed and filed in his officer. Sec. 6 lays down the mode of service and notice. The consequences that ensue upon the service of the notice are laid down in sec. 7. The defaulter may within 30 days from the service of the notice make petition to the Collector denying has liability. The procedure for deciding such petitions is contained in secs. 8 and 9. The mode of execution of a certificate is given in sec. 3 of the Act. As pointed out above in the present case the learned Collector did not take any steps to comply with the statutory requirements of this Act. The letter issued by his officer on 19-3-1953 cannot be regarded as being under secs. 10 and 11 of theact,for the obvious reasons that the question of execution of certificate by subordinate officers can arise only when the certificate itself has been prepared by the competent authority under the provisions of this Act. The provisions of sec. 4 of the Rajasthan Public Demands Recovery Act, 1952, are almost identical with those contained in sec. 4 of the Bihar and Orissa Public Demands Recovery Act. The observations made in A. I. R. 1955 Patna 49 are, therefore, fully applicable to the present case: - "it shows that the satisfaction of the certificate officer to the effect that some public demand payable to the Collector is due is a condition precedent to the exercise of the power given him under this section. In case, therefore, where an order is passed by the to certificate officer under this section without any satisfaction on his part to the effect stated above or on the to called satisfaction which is arbitrary and not based on any material, his order so passed will be one without jurisdiction. " The observations of the Calcutta High Court in A. I. R. 1954, Cal. 355,on the point may also be quoted with advantage; - "the certificate is to be made by the Collector in a certain form and filed,and when the certificate is filed it is to have the effect of a decree against the person named as debtor in binds their immovable property. It is unnecessary for their lordships to point out the necessity their is when the power is given to a public officer to sell the property of any of her Majesty's subjects that the forms required by the Act, which are matters of substance,should be complied with, and that if the certificate is to have the extra ordinary effect of a decree against the persons named in it as debtors, and to have the effect of binding their immovable property, at least it should be in a form such as provided by the Act, which enables any person who read it to see who the judgment creditor is, what is the sum for which the judgment is given, and that those particulars should be certified by the hand of the proper officer appointed by the Act for the purpose. If no such certificate is given the whole proceeding is gone. There is no judgment, there is nothing corresponding to a judgment or a decree for payment of the amount, and there is no foundation for a sale. The authority to proceed to sell is based on the certificate which has the effect of a judgment or decree and in no judgment or decree or given, and no certificate is filed having the force or effect of a judgment or decree, there can be no valid sale at all. "