Chaudhary Sia Saran Sinha, J.:— In this writ application the petitioner Nirod Baran Banerjee has prayed for the quashing of Annexures 2 to 5 to this application in the following circumstances. A certificate proceeding was initiated against the petitioner for recovery of royalty amounting to Rs. 1,36,135.32. The main contention of Shri Sreenath Singh, in spite of several pleas being taken in the application, is that for non-compliance of the mandatory provisions of Bihar and Orissa Public Demands Recovery Act, 1914 (hereinafter referred to as ‘the Act’), the initiation of the certificate proceeding in Certificate Case No. 15 of 1976-1977 against the petitioner is wholly illegal and without jurisdiction and as such the decisions to the contrary as evidenced by Annexures 2 to 5 is unsupportable and liable to be quashed in this writ application. This contention was refuted by Shri Chunni Lal, learned counsel for the State.
2. ‘Public Demand’ as defined in Section 3(6) of the Act refers to Sch. I to the Act. It contains several items. It is undisputed that Item No. 3 of the said schedule covers the instant case. Item No. 3 states as follows:—
“Any money which is declared by any law for the time being in force to be recoverable or realisable as an arrear of revenue or land-revenue, or by the process authorised for the recovery of arrears of revenue or of the public revenue or of the Government revenue.”
Though the Mining Department is one of the departments of the Government of Bihar it is further undisputed that the amount in question, the subject matter of the instant certificate proceeding, was payable to the District Mining Officer. According to Section 26(1) of the Mines and Minerals (Regulation and Development) Act, 1957 any royalty as involved in the instant case is to be recovered in the manner as an arrear of land revenue. The distinction, between the terms ‘recoverable or realisable as an arrear of revenue’ and ‘by the process authorised for the recovery of the arrear of revenue or the public revenue or the Government revenue’ as used in Item No. 3 of Schedule I has also to be noted. The order passed under Section 4 of the Act by the certificate officer has the force of a decree. The Act rather provides a summary way for the realisation of the certificate dues. It may be emphasised that the Act is an extremely stringent one and the summary manner of recovery of the certificate dues necessitates rigid compliance with the formalities prescribed by the Legislature in this respect. Obviously, therefore, non-compliance with the mandatory provisions of the Act or the Rules or non-observance of the formalities envisaged will result in the invalidation of the action taken. The initiation of a certificate proceeding as contemplated in the Act can take the place in two ways, one to be found in Section 4 read with Form No. I and the other in Section 5 read with Form No. II. The contention of Sri Sreenath Singh was that the form filled in the instant case, though it purported to be in Form No. I was, in fact, not so. His further submission was that even if Section 5 of the Act be held to be applicable in the instant case, the Form filled in the instant case fell far short of the requirements as prescribed by law. The stand taken by Shri Chunni Lal, learned counsel for the State, however, was that the Form in question was in conformity with the requirements as envisaged in Sec. 4 and the details of Form No. I were also there, it not being his submission before this court that the Form in question fulfilled the requirement of Section 5 or Form No. II.
3. It may be useful to refer to the two verifications (Tashdik) and one certificate appended to the form in question. They run as follows:—
“Mian Iski Ru Se Tasdik Karta Hun Ki Uper Bataye Hue Rs. 1,36,135.32 Rupaye Upar Bataye Hue C. Dr. Se Upar Bataye Hue C. Mr. Ka Pawna Hai. (Jo Certificate Par Dafe 5 Ka Bik Bheji Hui Darkhast Par Daskhat Kiya Gaya Hai To Yah Jod do—)
Sd. Illegible
Dist. Mining Officer,
Hazaribagh, 14-5-76.
Mai Yah Bhi Tasdik Karta Hun Ki Upar Bataye Hue……… Kiya Jane Layak Hai Aur Uske Nalish Karke Wasul Karne Me Yain Ki Bagawat Nahi Hai.
Aaj Tarikh…… Mahina…… San 197
…………………
…………………
Sd. Illegible
Certificate Officer Mines,
Hazaribagh.”
“Certified that the dues have not been realised and it is not time barred.”
Sd. Illegible.
District Mining Officer,
Hazaribagh, 17-5-76.
“Certificate Officer” as defined in Section 3(3) of the Act means a Collector, Sub-divisional Officer and any Officer appointed by the Collector, with the sanction of the Commissioner, to perform the functions of a Certificate Officer. In the hierarchy of the officials of the Mining Department, there are posts of District Mining Officer and the Deputy Director of Mines. It is undisputed that the Deputy Director of Mines is bestowed with the powers of the Certificate Officer as defined in Section 3(3) of the Act, though no such power stands bestowed on the District Mining Officer. Strict compliance with the legal requirements being necessary, a reference to Form No. I would be essential. There is a certificate to be appended according to Form No. I which is to be signed by the Certificate Officer. This Certificate has to state as follows:—
“I hereby certify that the above-mentioned sum of Rs…………is due to above-mentioned…………… from the above-named…………”.
Section 4 of the Act states that when the Certificate Officer is satisfied that any public demand payable to the Collector is due, he may sign a certificate in the prescribed form, obviously referring to Form No. I stating that the demand is due and shall cause the certificate to be filled in his office, thus before initiating the certificate proceeding the Certificate Officer has to be satisfied that the public demand is payable to the Collector. He is also to certify specifically that the ‘demand is due’. In column No. 2 the certificate-holder has been described as the District Mining Officer, Hazaribagh and not the Collector. Even assuming that the verification (Tasdik) mentioned in the Form in question amounts to a certificate, any certificate by the District Mining Officer, who is not vested with the powers of a Certificate Officer, cannot take the place of a Certificate by the Certificate Officer as envisaged in Form No. I of Schedule II. It is true that the Deputy Director of Mines is a Certificate Officer but the verification (Tasdik) signed by him too falls short of the requirements of Section 4 read with Form No. I inasmuch as it does not even indicate about his satisfaction about the demand being payable to the Collector or about the same being due. As contended it does not also state about the amount being payable the relevant space having been left blank. There is another certificate by the District Mining Officer on the said Form which states that demand notice was served on the lessee prior to the date of filing of the requisition and that the dues are not time barred. The term ‘due’ used in Section 4 of the Act suggests that it must be legally due but it is for the Certificate. Officer to so certify and not for the District Mining Officer, who, undisputedly appears to have signed this certificate. Surplusages or unnecessary additions in the relevant form, unless it adversely affects the right of the party, may in the appropriate circumstances be overlooked but if the form falls short of the requirement of the provisions made in the Act, as in the instant case, the action taken has to be invalidated.
4. Shri Chunni Lal referred to instruction No. 8 of the Board's Instruction under the Public Demands Recovery Act, paragraph 1 of which states that in case of certificates filed under Section 4 of the Act no requisition is necessary but the Collector or his representative will prepare a draft in Form No. 1 of Schedule II of the Act and send it to the Certificate Officer for signature and execution. The term ‘his representative’ used in Instruction No. 3 was not intended to include a District Mining Officer in a case of the nature as the instant one. Assuming that to be so, the representative of the Collector as mentioned therein was simply to prepare the draft in Form No. I and then to send the draft to the Certificate Officer for signature and execution. Instruction No. 8 cannot, therefore, come to the rescue of the respondent. The contention of Shri Chunni Lal is, thus, negatived.
5. In view of the submissions of Shri Sreenath Singh that the petitioner must succeed in case the Form in question is found to be not in conformity with the legal provisions, it is not necessary either to discuss the decision reported in AIR 1974 Pat 75 (Vishnu Sugar Mills Ltd. v. The State of Bihar) relied upon by Shri Chunni Lal or that reported in 1975 B.B.C.J 723 : (AIR 1976 Pat 217) (Hari Prasad Agarwalla… v. The State Of Bihar & Others…) relied upon by Shri Sreenath Singh for the purpose of deciding this case.
6. The result is that the application is allowed and Annexures 2 to 5 are quashed with the observations that it would be open to the authority or authorities concerned to proceed against the petitioner or realisation of the dues, if any, in accordance with law and in strict compliance with the relevant legal provisions, referred to above. There will be no order as to cost and the parties shall bear their own costs.
B.P Jha, J.:— 6-A. Learned counsel for the State raised a preliminary objection to the effect that this writ petition is not maintainable as an earlier petition filed by the petitioner being C.W.J.C No. 191 of 1976 (R) was dismissed as with drawn. It is a settled law that if writ petition is dismissed as withdrawn the party is entitled to move another writ petition for the simple reason that the second writ petition will not be barred by res judicata as there was no decision in the earlier writ petition. It is clear that the earlier writ petition was permitted to be withdrawn hence I reject this preliminary objection.
7. The next point for consideration is: Whether the certificate has been issued under Section 4 and in Form No. I of Schedule II of the Bihar and Orissa Public Demands Recovery Act (hereinafter referred to as ‘the Act’)? The Deputy Director of Mines was the certificate officer within the purivew of Section 3(3) of the Act. The Certificate Officer is entitled to issue a certificate in Form No. I of Schedule II both under Section 4 as well as under Section 5 of the Act. If the Certificate Officer issues a certificate under Section 4 then the following certificate is required to be signed by him:
“I hereby certify that the abovementioned sum of Rs………. is due to the abovenamed.”
If the certificate is issued under Sec. 5 then the Certificate Officer is required to give another certificate over and above as mentioned above in the following manner:
“I further certify that the abovementioned sum of Rs……………. is justly recoverable, and that its recovery by suit is not barred by law.”
Under Rule 8 of the Rules framed by the Board of Revenue the Collector or his representative can prepare the draft in Form No. I of Schedule II of the Act. The contention of the learned Government Pleader V was that the District Mining Officer being a representative of the Collector could prepare the draft in Form No. I. Accepting the argument of Government Pleader V as correct it is clear that the District Mining Officer being the representative of the Collector can prepare the draft in Form No. I but in the present case the certificate has also been signed by the District Mining Officer to the following effect:
“I hereby certify that the above-mentioned sum of Rs. 1,36,135.32 is due to the Government from the above-named.”
This certificate has been signed by the District Mining Officer, Hazaribagh. This certificate can be signed only by the Certificate Officer i.e the Deputy Director of Mines, Hazaribagh. In this circumstance I hold that the signature made by the District Mining Officer is illegal and without jurisdiction. This certificate should have been signed by the Deputy Director of Mines who was the Certificate Officer of Mines. In the instant case he had signed the certificate after it was signed by the District Mining Officer. There is another certificate below the signature of the Certificate Officer which was made by the District Mining Officer, Hazaribagh. In that certificate he has mentioned:
“Certified that the dues have not been realised and it is not time barred.”
This certificate was not at all required to be given by the District Mining Officer and it is not in consonance with Form No. I. In other words there are three certificates by three different Officers in Annexure 1. First there is a certificate of the District Mining Officer, there is another certificate by the Certificate Officer and the third certificate is again by the District Mining Officer. This fact clearly shows that the certificates were not issued in accordance with Form No. I of Schedule II. It is the case of the State that the certificate was issued under Section 4 of the Act. In that case there should be only one certificate and that is by the Certificate Officer, who should, have stated in the following manner:
“I hereby certify that the above amount of Rs. 1,36,135.32 is due to the Government from the above-named.”
This certificate should have been signed by the Certificate Officer and not by the District Mining Officer. The certificate given by the District Mining Officer is illegal and without jurisdiction and it is not in consonance with Form No. I of Schedule II. In the circumstances my learned brother is correct in quashing Annexures 2 to 5. The authorities are directed to proceed in accordance with law.
Petition allowed.