Nirendra Kumar Bose v. District Magistrate

S.K Jha, J.:— 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 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 at 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, Rehabititation. 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. 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 S. 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 filed 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, as 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 hawing 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, Santhal 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 regards 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 28-11-1971. On the 23rd November, 1971 the notices which had been issued were returned unsaved 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. 3 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 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.

3. Two points were urged by learned Counsel for the petitioners in support of this application. It was submitted in the first instance that the certificate proceedings were void as the Collector of Dumka was not competent to substitute the names of the legal heirs and representatives of Rajendra Kumar Bose who was mentioned as a surety in the requisition for certificate sent by the Collector of Delhi, respondent No. 6. In the next place, it was argued, the attachment and sale proclamation made by either the District Certificate Officer or the Sub-divisional Officer, Deoghar, were not legal as the Collector of Dumka had no authority under the Act to delegate any of his powers to any one of them.

4. Apropos the second point, suffice it to say that the counter-affidavit filed on behalf of respondent No. 1 asserts that the order of attachment had been made by the Collector respondent No. 1, himself and it was that order of the Collector which was being carried out by the subordinate officials. In such circumstances, it cannot be said that there was any question of delegation of powers. It is not essential that each and every physical act in pursuance of the order of attachment must also be performed by the Collector himself. Once it be held, as is the case here, that the Collector had brought his mind to bear upon the facts of the case and ordered attachment, any step in aid following such an order of attachment cannot be indicative of the abdication by the Collector of his power in any essential and material regard. I am reinforced in his view by a Bench decision of the Calcutta High Court in the case of Union of India v. Jatindra Narayan, (AIR 1967 Cal 613). In that case it has been held that if a proclamation was issued by the Collector as required by the Act and further proceedings took place in accordance with the provisions of the Public Demands Recovery Act (a local Act), it could not be said that it was illegal as there is no procedure provided under the Act for the subsequent proceedings. In that view of the matter, if the order of attachment had been made by the Collector of Santhal Parganas himself and the consequential steps were taken by the officials under the Bihar and Orissa Public Demands Recovery Act, it cannot be said to be fatal to the certificate case by itself.

5. There seems, however, to be great substance in the first point urged on behalf of the petitioners. Section 2(3) of the Act define a ‘defaulter’ as meaning—

“a person from whom an arrear of land revenue, or a sum recoverable as an arrear of land-revenue, is due, and includes a person who is responsible as surety for the payment of any such arrear or sum.”

6. Section 3 of the Act reads thus—

“(1) Where an arrear of land-revenue or a sum recoverable as an arrear of land-revenue, is payable to a Collector by a defaulter being or having property in a district other than that in which the arrear accrued or the sum is payable, the Collector may send to the Collector of that other district a certificate in the form as nearly as may be of the schedule, stating—

(a) the name of the defaulter and such other particulars as may be necessary for his identification, and

(b) the amount payable by him and the account on which it is due,

(2) The certificate shall be signed by the Collector making it, or by any officer to whom such Collector may, by order in writing, delegate this duty, and save as otherwise provided by this Act, shall be conclusive proof of the matters therein stated.

(3) The Collector of the other district shall, on receiving the certificate, proceed to recover the amount stated therein as if it were an arrear of land-revenue which had accrued in his own district.”

7. Section 4(1) lays down that when proceedings are taken against a person under S. 3

“for the recovery of an amount stated in a certificate, that person may, if he denies his liability to pay the amount or any part thereof and pays the same under protest…. …., institute a suit for the repayment of the amount or the part thereof so paid”.

8. Section 6(1) provides that when the Collector of a district receives a certificate under the Act, he will issue a proclamation prohibiting the transfer or charging of any immovable property belonging to the defaulter in the district and S. 6(3) lays down that any private alienation of the property or of any interest of the defaulter therein, whether by sale, gift, mortgage or otherwise, made after the issue of the proclamation and before the withdrawal thereof, shall be void as against the Government and any person who may purchase the property at a sale held for the recovery of the amount stated in the certificate. Section 6(4) enjoins that subject to the foregoing provisions of that section when proceedings are taken against any immovable property under the Act for the recovery of an amount stated in a certificate, the interests of the defaulter alone therein shall be so proceeded against and no encumbrances created, grants made or contracts entered into by him in good faith shall be rendered invalid by reason only of proceedings being taken against those interests.

9. From the provisions of the Act extracted above, it may well be seen that a person responsible as surety for the payment of any sum due as arrears of land-revenue is a defaulter within the meaning of the Act. There can be no doubt, therefore, that Rajendra Kumar Bose was a defaulter within the meaning of the Act. From the provisions of Section 3, it may be seen that the sum recoverable from a defaulter having a property in another district may be so recovered by issuing of a certificate by the Collector of the district in which the arrears accrued or the sum was payable. Such a certificate must be in the form as nearly as may be set out in the schedule to the Act and it must state the name of the defaulter and such other particulars as may be sufficient for identifying such a defaulter and the amount payable by him and the account on which it is due. The requisitioning Collector of a district has to send the certificate to the Collector of the district in which the property of the defaulter is situate. The certificate, again, must be signed by the Collector of the district wherein the arrear accrued or the sum is payable or by any of his delagates authorised in that behalf by an order in writing. Such a certificate has also been laid down to be conclusive proof of the matters stated therein. The schedule appended to the Act gives the form of the certificate. The form may usefully be quoted here—

The Schedule

Certificate

[See S. 3, sub-sec. (1)]

The Collector of

The Collector of

Dated theof 19 ….

The sum of Rs.is payable on account ofbyson ofresident ofwho is believed (to be at) to have property consisting ofatin your district.

Subject to the provisions of the Revenue Recovery Act, 1890, the said sum is recoverable by you as if it were an arrear of land-revenue which had accrued in your own district, and you are hereby desired so to recover it and to remit it to my office at

Collector ofA.B”

10. Section 4 gives a right to the person named as a defaulter in the certificate, who is denying his liability to pay the amount or has made a payment under protest, to institute a suit The provisions of S. 6 empower the Collector of the district, within which the properly is situate, to issue a proclamation prohibiting the transfer or charging of an immovable property belonging to the defaulter in the district. Private alienation of the property or of any of the defaulter's interests therein between the dates of issue of the proclamation and withdrawal thereof in pursuance of sub-section (2) of S. 6 has been declared to be void as against the Government or any person purchasing at the auction sale. Sub-sec. (4) of S. 6 emphasises that the interests of the defaulter alone in any property shall be proceeded against.

11. On a careful scrutiny of the aforesaid provisions it may be seen that the Act is concerned primarily with procedural law; it does not confer any substantive right to the State or to any of the public authorities exercising power under the Act. The requirements to be fulfilled under the Act an really not empty formalities. The procedure must, according to the formal rule for construing and applying enactments of this nature, be strictly followed. The exceptional privileges accorded to the public officials as a matter of executive convenience, as it were, must be subject to the safeguards as provided by the Act by the procedure laid down in it. Slovenly disregard of the formalities enjoined by the Legislature to be followed cannot be treated as immaterial and must be held to invalidate the acts done under the colour of authority. In the certificate or requisition sent by the Collector, Delhi, respondent No. 6, to the Collector of Santhal Parganas, the defaulter is mentioned as Hemanga Nath Ghose, the principal debtor with whom we are not concerned in this application. The only other defaulter mentioned is Rajendra Kumar Bose described as surety of the principal debtor. It is the admitted position that a certificate in strict compliance with the form prescribed in the schedule to the Act was sent by respondent No. 6 to respondent No. 1. From the facts set out above, it would further appear that when respondent No. 1 issued notice against Rajendra Kumar Bose, he was already dead. The certificate proceedings subsequently, in substance, are being pursued against the heirs and legal representatives of Rajendra Kumar Bose. Can it be said that the heirs and legal representatives of a defaulter are embraced within the definition of that term in S. 2 (3)? Can it be said that the provisions of S. 3 read with Section 4(1) and the relevant provision of Section 6 of the Act empower the Collector of the other district, namely, Santhal Parganas to proceed against persons who are not mentioned as defaulters in the certificate sent by the Collector of Delhi? The answer, in my view, to the questions posed must obviously be in the negative. The changing of the name of the defaulter in the certificate would amount, to say the least, to the issuance of a fresh certificate which is not warranted by the provisions of S. 3, as the Collector of the other district, namely, respondent No. 1 in this case had absolutely no jurisdiction to add to, or subtract from, or alter, any of the three essential particulars in the certificate, namely, the name and identity of the defaulter, the amount payable and the account on which it is due. To hold to the contrary in the instant case would mean that the Collector of Santhal Parganas could be competent to change the name of the defaulter as well as the account on which the amount payable is due, for it cannot be said that any of the heirs or legal representatives of late Rajendra Kumar Bose is a surety. For this there is no authority either under S. 3 or in any of the other provisions of the Act. Nor is it possible to hold that the provisions in the Code of Civil Procedure for substitution of heirs and legal representatives can be pressed into aid as being auxiliary or ancillary to the power of execution vested under Section 3 of the Act in the Collector of the other district. In effect, to hold otherwise would be holding that respondent No. 1 was invested with the power to change the certificate by himself, which, as already stated above, is not warranted by the provisions of the Act. A certificate issued by the Collector of one district and sent to the Collector of another district for execution has to be executed as it is. There is no provision under which the Collector of the other district can issue a fresh certificate. Making material changes in the different particulars of the certificate as sent by the Collector of Delhi would amount to issuance of a fresh certificate by respondent No. 1, which cannot be countenanced by the provisions of the Act.

12. I may merely refer to the decisions in the cases of Gujraj Sahai v. Secy. of State for India in Council, (1890) ILR 17 Cal 414, Nageshwar Prasad Singh v. Kashinath Singh, 1958 BLJR 820 and Hari Prasad Agrawalla v. The State of Bihar, (1975) BBCJ 723 : (AIR 1976 Pat 217) which were all cases under the local Public Demands Recovery Act wherein it has been held that such Acts being extremely stringent ones brought on the Statute Book as a matter of executive convenience, the demand of a public nature, the justice of which has been enquired into and certified by officials of high rank and unquestionable integrity, may properly enjoy, for the enforcement of them, the very exceptional privileges accorded to them by such Acts but subject always to whatever safeguards are provided in the Statute by the procedure laid down in it.

13. On the facts of the instant case, I do not propose to express any opinion as to what would have been the effect if Rajendra Kumar Bose had died after the attachment had taken effect for the purpose of decision of this case.

14. All that is to be borne in mind is that he died long before the notice was issued to him - longer still before the attachment was purported to be ordered by the Collector of Santhal Parganas, respondent No. 1. In such circumstances, the order of attachment must also be held to be void.

15. In the result, therefore, this application succeeds and the order of attachment and sale of the house in question as also the entire certificate proceeding being foreign certificate case No. 8 of 1969–70 from the date of death of Rajendra Kumar Bose is quashed. There shall, however, be no order as to costs.

16. S. Ali Ahmed, J.:— I agree.

17. Application allowed.