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The Revenue Recovery Act, 1890
The Bengal Districts Act, 1836 ]
Section 9 in The Revenue Recovery Act, 1890
Section 3 in The Revenue Recovery Act, 1890

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Patna High Court
Mosaddi Singh vs The State Of Bihar And Ors. on 26 February, 1976
Equivalent citations: AIR 1976 Pat 388, 1977 (25) BLJR 28
Author: S Choudhuri
Bench: H L Agrawal, S Choudhuri

JUDGMENT

S.K. Choudhuri, J.

1. This writ

application is filed for quashing the cer

tificate (Annexure '10') including the cer

tificate proceeding, a copy of the order

sheet of which has been made as Annex

ure '11' to the writ application. The cer

tificate was filed by the Anchal Adhikari

of Raghopur (Respondent No. 2) against

the petitioner, for realisation from the

petitioner of an amount of Rs. 25,917.37

Paise, being the balance of the bid amount

for the settlement of the Sairat of Suku-

marpur Ghat.

2. In order to appreciate the points raised in this case, it is necessary to state the relevant facts, which are as follows:

An auction took place on the 21st of March, 1969, with regard to the settlement of the Sairat of Sukumarpur Ghat, which was held by Respondent No. 2. The highest bidder was the petitioner, who bid the said auction for an amount of Rs. 21,100/- only. It is said that after the aforesaid auction, when the hammer was knocked down, a sum of Rs. 7, 275/-was deposited by the petitioner with the Anchal Adhikari. According to the terms of the notification, by which invitation was made to the public for the aucuon of the Ghat in question, fifty per cent, of the total bid money was required to be deposited immediately by the highest bidder with the fall of the hammer. Accordingly, a prayer was made by the petitioner for time to deposjt the balance of the fifty per cent, amount, i.e., Rupees 7, 275/- within one week. But, it appears that Respondent No. 2 did not grant any time to the petitioner and accordingly the record was sent to the Deputy Collector Incharge Land Reforms, for approval, as appears from the report of the Anchal Adhikari a copy of which has been made Annexure '2' to the writ application. This statement is also supported by the counter-affidavit which has been filed on behalf of the State of Bihar, Respondent No. 1, wherein it has been specifically stated in Paragraph No. 4 that one week's time was prayed for, for deposit of ths twentyfive per cent of the bid amount, which was rejected and in the meantime the records were forwarded to the Sub-divisional Officer, Hajipur, for obtaining approval of the settlement of the competent authority. The report (Annexure '2'), which I have already mentioned, shows that the competent authority in this case was the Deputy Collector Incharge Land Reforms.

3. It appears that the petitioner could not deposit the aforesaid twenty-five per cent, of the bid amount, but merely deposited a further amount of Rs. l,500/- on the 30th March, 1969. As no further deposit was made, it appears that the petitioner was neither given any Parwana nor the State or any representative of the State entered into any agreement with him, as was required in accordance with the Notification (Annexure 'I').

4. Thereafter a report was submitted by the Anchal Adhikari (Respondent No. 2) dated the 2nd July, 1969, stating therein that the petitioner was not in a position to realise any toll as some influential persons of that area were illegally realising tolls and preventing the petitioner. He recommended that the settlement of the petitioner be cancelled and re-bid be held of the Ghat in question. Accordingly, the authorities decided to re-auction the said Ghat by a fresh Notification dated the 15th September, 1969, which has been made Annexure '6' to the writ application. In pursuance of the said Notification, the bid was held on the 23rd September, 1969, and the bid was knocked down in favour of the highest bidder for an amount of Rs. 3,600/-, for the period from 23rd September, 1969, to 31st March, 1970, The order sheet of that date, namely, the 23rd September, 1969, is made Annexure '8' to the writ application, which further shows that the auction purchaser, one Somari Rai, deposited the entire amount and the records were thereafter sent to the Deputy Collector Land Reforms for approval. It, appears that in the meantime demand for the balance of the bid amount at which the petitioner's bid was knocked down, was made from the petitioner, but it seems that that was not complied with. A lequisition was accordingly filed by the Anchal Adhikari under Section 5 of the Bihar and Orissa Public Demands Recovery Act, 19,14, (hereinafter referred to, in short, as the Act). On the said requisition having been filed by the Anchal Adhikari, the Certificate was signed, which is made Annexure '10' to this writ application, as aforesaid. The said certificate shows that it was for realisation of the principal amount of Rs. 21, 825/-, and interest Rs. 4,092.37, making the total amount at Rs. 25,917.37. It appears from this certificate that the initial amount of twentyfive per cent., which was deposited by the petitioner, had been deducted from the original bid amount made by the petitioner. Subsequently, by an order dated the 9th March, 1973, the Certificate Officer, issued a Body Warrant for the arrest of the petitioner in the said certificate case. The said order has been made part of Annexure '11' to the writ application.

5. A counter-affidavit has been filed on behalf of the State of Bihar, Respondent No. 1. In the said counter-affidavit it has inter alia supported the action taken by the Certificate Officer and also alleged that the dues are recoverable under the certificate procedure. As I have already indicated above, in the said counter-affidavit it is also stated that after the one-fourth amount was deposited and for the rest one-fourth time was prayed for by the petitioner, which was rejected by the Anchal Adhikari (Respondent No. 2), records of the said case were sent to the Sub-divisional Officer, Hajipur, for obtaining approval of the said auction by the competent authority. The State has also admitted that the petitioner did not deposit fifty per cent, of the amount as was required under the Notification (Annexure '1'), which was one of the conditions which the highest bidder was required to comply. It has also been admitted that the petitioner did not execute any agreement, nor any Parwana was issued to him. The fact that the said Ghat was re-settled with another person on the 23rd September, 1969, was also not disputed.

6. Mr. Rama Kant Verma, learned Counsel appearing on behalf of the petitioner, contended that the amount, which is mentioned in the certificate (Annexure '10'), not being a public demand, is not recoverable under the procedure laid down in the Act. He contended that the State may have any other remedy, but the said amount cannot be realised in the way it is intended to be realised. He further contended that there being no completed contract between the petitioner and the State, the amount cannot be realised under the certificate procedure.

7. In order to appreciate the arguments put forward by Mr. Verma, it is necessary to refer to the definition of 'public demand' as given in Sub-section (6) of Section 3 of the Act, which reads as follows :--

" 'Public demand" means any arrear or money mentioned or referred to in Schedule I, and includes any interest which may, by law, be chargeable thereon up to the date on which a certificate is signed under Part II."

Referring to Schedule I, which is mentioned in the definition of 'public demand', one finds that there are 15 clauses given in the said Schedule. Our attention was drawn to Clauses 3 and 4 of the said Schedules. Under Clause 3, an amount which is declared by any law to be recoverable as arrears of revenue or land revenue or by the process authorised for the recovery of arrears of revenue or of the public revenue or of Government revenue can be recoverable as a public demand. Under Clause 4, any money which is declared by any enactment for the time being in force, to be a demand or public demand, or recoverable as arrears of a demand or public demand, or as a demand or public demand, is recoverable under the certificate procedure. There is another item in Clause 4 which says that any money which is recoverable under the Bengal Land Revenue Sales Act, 1868, is also recoverable as a public demand. Several other amounts payable under different Acts have subsequently been added in the Schedule. It has not been pointed out to us by the learned Counsel for the State as to under what provision of law the amount in the present case has been sought to be recovered as a public demand under the certificate procedure. Learned Counsel for the State merely referred to Clauses 3 and 4 of the First Schedule, to which a reference I have already made. It is manifest that the amount in question does not come under any of those clauses. We asked learned Counsel for the parties as to whether there is any Act which governs the Ghat in question. But neither party referred to us any Act. We ourselves looked into the Bengal Ferries Act, 1885 (Bengal Act I of 1885), and, found that it applies to the Sairat in question. The relevant provisions of the Act are contained in Sections 9 and 12 of the said Act. Under Section 9, a provision has been made for leasing out the tolls of any public ferry by public auction on such terms as the District Magistrate, with the approval of the Commissioner, may direct. This section further makes a provision for executing a contract, setting forth the conditions on which the tolls of such public ferries are to be leased. Section 12 makes a provision for recovery of arrears of dues payable by the lessees of the tolls of a public ferry on account of the lease, as a public demand. Except the aforesaid Section 12, there is no other provision which makes any other demand a 'public demand' recoverable under the certificate procedure. Thus in my opin- ion, the amount in the present case, which is sought to be recovered by certificate procedure does not come within Section 12 of the Bengal Ferries Act. No provision has been shown to us at the Bar under which the said amount has been made or declared to be a 'public demand', recoverable under the certificate procedure. In that view of the matter, I hold that the balance of the bid amount, which is intended to be recovered by certificate procedure, is not a 'public demand', and recoverable as such.

8. Reference was made to S. A. Mannan v. State of Bihar, ((1958) ILR 37 Pat 302) by learned Counsel for the petitioner for the proposition that if there has been no completed contract between the parties then the bid amount cannot be realised by a certificate proceeding. It was a case of auction of a Khas Mahal Hat. In that case, the highest bidder failed to deposit one fourth of the bid money, which was required to be deposited by him as security amount. Subsequently, the Hat was re-auctioned for a sum of Rs. 1,200/-, and, thereafter, a certificate was taken out for realisation of the balance amount between the first and the second bid against the petitioner of that case. It has been held, relying upon Clause 7 of the First Schedule to the Act that the interest which was auction sold was an interest created in the land and as such a registered document was necessary. It further held that as the petitioner of that case failed to deposit the required security amount and the Hat was re-auctioned, his bid was not accepted, and, therefore, there was no completed contract in favour of the petitioner, In that view of the matter, their Lordships quashed the certificate proceedings of that case, holding that the amount was not recoverable in a certificate proceeding.

9. In the present case, I have already indicated above, that there was no completed contract between the parties, and the petitioner neither deposited the fifty per cent, of the amount as was required by Annexure '1', referred to above, nor the petitioner was given possession of the Ghat, nor was he given any Parwana. It is also admitted thp.t the records Of the case were sent for final approval to the Deputy Collector Incharge Land Reforms, and it also appears that thereafter there was a re-auction of the Ghat in question in favour of one Somari Rai. It has not been shown to us that any approval was given to the bid made by the petitioner and a concluded contract was arrived at. In that view of the matter, it has to be held that in the absence of a completed contract in the present case, and in the absence of any provision making the unpaid balance bid amount a 'public demand' the amount is not recoverable by a certificate proceeding and, therefore, the certificate (Annexure '10') and the certificate proceeding are illegal and without jurisdiction.

10. In the result, the application is allowed. The certificate (a copy of which is Annexure '10'), and the certificate proceedings (a copy of the order sheet of which is Annexure '11'), pending in the court of the Certificate Officer, Hajipur, are quashed. Let writs issue accordingly. In the circumstances of the case, I do not propose to make any order as to costs.

H.L. Agrawal, J.

11. I agree.