Jharkhand High Court
Jain Petrol Supply Company And Ors. vs State Of Jharkhand Through Its Chief ... on 23 September, 2004
Equivalent citations: [2004(4)JCR291(JHR)], 2005 AIR JHAR HCR 1833, 2005 A I H C 4316 (2004) 4 JLJR 445, (2004) 4 JLJR 445
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. In all the writ petitions since common questions of law and facts are involved, they have been heard together and disposed of by this common order.
2. Petitioners have prayed for quashing the respective notices issued by the District Supply Officer, Hazaribagh directing them to refund the amount of wholesale dealers' commission realised by them from the retailers on the sale of kerosene oil and also for quashing the requisition sent by District Supply Officer, Hazaribagh to the District Certificate Officer. Hazaribagh for realising the amount and also for quashing the entire certificate proceeding issued by the District Certificate Officer, Hazaribagh in the respective certificate cases for the recovery of the amount from the petitioners. These notices have been annexed as Annexures-6, 8 and 10 respectively to the writ petitions.
3. Petitioners are the wholesale dealers' of kerosene oil holding licences granted under the provisions of Bihar Trade Articles (Licences Unification) Order, 1994. The Central Government time to time fixed commission which the petitioners were entitled to realize on the sale of kerosene oil. The said commission was time to time revised by the Ministry of Petroleum and Natural Gas, Govt. of India. However, petitioners realized commission from the retailers at the rate fixed by the Ministry of Petroleum and Natural Gas, Govt. of India and also realized commission on the basis of the direction of the Deputy Commissioners of different district of the State of Bihar and Jharkhand. The petitioners, therefore, realized commission from two sources. However, when it came to the notice of the State Government, the Deputy Commissioners were directed to stop the realization of wholesale, dealers commission fixed by the Deputy Commissioners. The Deputy Commissioners accordingly denied payment of wholesale dealers commission and the said order was challenged by the petitioners by filing writ petition being CWJC No. 1471/01 and other analogous cases. The said writ petitions were disposed of by this Court in terms of judgment dated 16th April, 2004 in the case of All India Kerosene Oil Dealer Federation v. State of Jharkhand, 2004 (2) JCR 626 (Jhr). While disposing of the writ petitions, this Court held as under :
"20. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer's commission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The Deputy Commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners."
While hearing the petitioners at the admission stage, the Bench had passed the following order :
"Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure-9) and accordingly the commission @ 2.15% only is being charged by the petitioner's members. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures-11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001.
Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11.
As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits.
Till further orders, if the members of the petitioner charge commission @ 2,15% only, in terms of interim order Annexure-9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government.
It appears from Annexure-11 that the matter is being examined. Such enquiry may go on.
This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions.
Put up this case along with CWJC No. 1471 of 2001 for Admission on 31st March, 2004."
So far the recovery of the amount from the dealers, illegally realized by them is concerned, the Bench held as under :
"27. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them."
4. Mr. Biren Poddar. learned counsel appearing for the petitioners, firstly, contended that the initiation of certificate proceeding for the realization of the commission amount by the Deputy Commissioners is wholly without jurisdiction, illegal, and void. inasmuch as, the amount is not a Government due mid is not a public demand as defined under Section 3(6) of the Bihar and Orissa Public Demands Recovery Act, 1914. Learned counsel submitted that the petitioners never entered into any agreement with the concerned respondents to the effect that in case any amount recovered by the petitioners from its customers is held to be illegal and the same can be recovered as a public demand under the provisions of the said Act. Learned counsel further submitted that the amount realized by the petitioners from the retailers, not over and above the selling price cannot be said that the petitioners have realized excess amount than what has been fixed by the Deputy Commissioners. Learned counsel, lastly, submitted that even if it is finally held that the petitioners are liable to refund the wholesale dealers' commission realized from the retailers, in that event also the petitioners may be liable to refund the same to those retailers from whom the said commission was realized but the State Government is not at all entitled to demand for the refund of the amount from the petitioners.
5. On the other hand, learned counsel appearing for the State, vehemently opposed the writ petitions and submitted that as per the direction of this Court in the judgment aforesaid the respondents are entitled to recover the amount by initiating certificate proceeding.
6. Firstly. I would like to discuss the decisions relied upon by Mr. Poddar in support of his case. Learned counsel relied upon a decision of the Patna High Court in the case of Murari Singh and Anr. v. The State of Bihar and Ors., AIR 1978 Patna 289, in which the ratio decided is that when a certificate is filed in the Office of Certificate Officer, show-cause is required to be served upon the certificate-debtor and notice in the prescribed form along with a copy of certificate also. In the case of Krishna Nand Tandon v. The State of Bihar and Ors., 1994 (1) PLJR 484, a Single Bench of the Patna High Court held that Entry-4 of the Schedule-1 of the Act. applies only where the necessary declaration contained therein is made by any enactment and, therefore, even if the tender notice provides that the damages can be recovered as an arrears of land revenue still it, cannot be treated as a public demand. It was further held that Entry-9 of Schedule-I of the said Act, will have its play only is the person liable to pay any money as agreed by a written agreement then it shall be recoverable as public demand. Mr. Poddar also relied upon a decision of the Patna High Court in the case of M/s Sahu Trading Company v. State of Bihar. 1998 (2) PLJR 201. This decision will also not help the petitioners for the reason that in the said decision it was simply held that before initiation of certificate proceeding a notice is required to be given to the certificate debtor for deposit of the amount, failing which it could be recovered as public demand.
7. The first question is whether the amount of commission illegally realized by the petitioners can be recovered by the respondent-State. So far this question is concerned, as noticed above, while declaring the realization of the said amount by the petitioners illegal, this Court held in the case of All India Kerosene Oil Dealer Federation v. State of Jharkhand, (supra) that the Deputy Commissioners of the concerned district shall be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them. Therefore, there is no need to decide the question again. The only question, therefore, that needs consideration is whether the amount of commission can be recovered as public demand.
8. In this context, I would like to refer a Full Bench decision of the Patna High Court rendered in the case of Ram Chandra Singh v. State of Bihar, 1987 PLJR 47 (FB). In that decision various entries in Schedule-I of the said Act, have been elaborately dealt with and Interpreted by Their Lordships of the Full Bench. The Full Bench held that Section 3(6) and Schedule-I, have to be viewed in the context of the fact that fresh public demand is intrinsically one of the widest amplitude. Their Lordships observed :
"9. Now, the articles in Scheduled I have to be viewed in the context of the fact that the phrase public demands is intrinsically one of the widest amplitude. It is against this background that one has to construe the afore-quoted definition given in Section 3(6) of the Act. This definition is by direct reference to Schedule I. The said schedule then has its heading as "Public Demands" and at the same time makes express reference to Section 3(6). It is thus manifest that Section 3(6) and Schedule I are one integral whole which has to be construed as part and parcel of each other. But what perhaps calls for particular notice in this context is that under the Act the definition and concept of public demand becomes one of the widest amplitude. Even in its ordinary common parlance and dictionary, meaning, a public demand is a wide ranging concept. However, this has been further and deliberately expanded by the legislature to include within its sweep any arrears or any money which may come to be mentioned or be even referred to in Schedule 1 and include also any interest which may be chargeable thereon. Yet again it deserves highlighting that Section 3(6) of the Act is not merely an inclusive definition but expressly says that the public demand means what ever may be specified in Schedule 1. In the result even the broad weep of public demand is further extended by the statute herein and in my view, designedly so. In logical essence, this leads to the result that for the purposes of this Act, a, public demand includes all arrears of revenue or any money due or demand payable which finds place in Schedule I even by reference. It seems patent that the legislature has deliberately not attempted to define public demand or limiting the same. All the arrears of revenue, money or payable demands which the legislature choose to incorporate in Schedule I become by virtue of the definition under Section 3(6) a public demand of which recovery can be made under the Act. The scheme of the definition under Section 3(6) of the Act, and the frame of the articles of the schedule complementary thereto thus become a key to the interpretation of these provisions."
9. As noticed above, in the earlier writ petition, in which the petitioners had challenged the order of the Deputy Commissioner stopping realization of commission by the petitioners, this Court while passing interim order directed the petitioners to maintain accounts and in the final judgment this Court held that the Deputy Commissioner shall be entitled to take action against the dealers for the recovery of the amount illegally collected by them. In my opinion, therefore, this amount became due and payable to the Government and the same can be recovered as a public demand.
10. In course of argument Mr. Poddar, learned counsel appearing for the petitioners, fairly submitted that the petitioners are ready and willing to deposit the amount of commission realized by them but the respondents cannot and shall not take any coercive action for the recovery of the amount by way of certificate proceedings.
11. Having regard to the facts of the case and submissions made by the learned counsel, this Court holding that the amount can be recovered by certificate proceeding direct the petitioners to deposit the amount in the concerned Government Treasury within a period of three months from today and till then certificate proceeding shall be kept in abeyance. In the event, petitioners fail to deposit the amount within the period stipulated hereinabove, the respondents shall be entitled to pursue the certificate proceedings for the recovery of the amount.