MINA ONGDI LEPCHA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) By filing this Writ Petition, the Petitioner Shri Nima Ongdi Lepcha, a loanee of the State Bank of Sikkim (Respondent No. 2), has prayed for quashing the impugned Certificate of Public Demand dated 13-9-2004 issued by the Certificate Officer, East District for recovery of O.D. loan of Rs. 5,62,365.17 from him.

(2.) Before proceeding with the narration of the respective cases of the parties, it is convenient to bear in mind, that the law relating to recovery of public demands in erstwhile Sikkim was not comprehensive. The relevant law as contained in Notification No. 405 of 1950 was sketchy and inadequate. It mainly lacked provision for giving due opportunity to the debtor for making representations against the realisations of public demands. Hence, with a view to make a comprehensive law with detailed provisions on the subject, the State Legislature enacted a law called the Sikkim Public Demands Recovery Act, 1988 (hereinafter referred to as Act 1 of 1988). This Act received the assent of the Governor on 27-2-1988 and came into force in the State. In the meantime, a Central Act called the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the Recovery Act 1993), also came into force in the State in the year 1993. After this Act came into force, the State Government obtained the assent of the President to the above Act No. 1 of 1988 in the year 2003 and published it in the extraordinary Sikkim Government Gazette dated 22-4-2003, as Act No. 4 of 2003. This Act is hereinafter referred to as Act No. 4 of 2003. The Petitioner, who is a registered Class III contractor, had availed of over-draft loan facilities from the State Bank of Sikkim. In the year 2004, a Certificate of Public Demand, which is impugned herein, was issued under the provisions of the above Act No. 4 of 2003 by the Ld. Certificate Officer, East District against the Petitioner, for recovery of the O.D. Loan. It is this Certificate of Public Demand that has been impugned by the Petitioner in the present proceedings.

(3.) It is the case of the Petitioner, that the Act No. 1 of 1988 stood impliedly repealed by the application of the decision of this Court reported in AIR 1999 Sikkim Page 16 relied on and reiterated by a later decision dated 8th July 2002 rendered in Writ Petition No. 10 of 2002. Over and above, this Act also stood impliedly repealed by the application of Article 254 of the Constitution of India, as it has suffered for want of Presidential assent. The subsequent assent obtained in the year 2003, after a lapse of 14 years, without the above two decisions of this Court being taken into consideration, cannot be sustained on the touchstone of Article 255 of the Constitution of India, and as such, the subsequent assent cannot revive and revalidate the Act in question, which stood impliedly repealed as aforesaid. As regards Act No. 4 of 2003, the case of the Petitioner, is that, even though the said 'Act' was published in the Government Gazette after obtaining the Presidential assent, subsequently on the 5th day of March, 2003 as Act No. 4 of 2003, no Notification in terms of Section 1 (3) thereof had been issued to bring the said Act into force. Therefore, this Act not yet come into force in the State. Consequently, the 'Act No. 1 of 1988' having been impliedly repealed, and the Act No. 4 of 2003 having not been enforced in the State of Sikkim, the issuance of the impugned certificate of public demand dated 13-9-2004, in application case No. 209 of 2004, was completely illegal, wholly without jurisdiction and was thus liable to be quashed.