Orissa High Court
State Of Orissa vs Sashibhusan Mohapatra on 27 June, 1986
Equivalent citations: 1986(II)OLR267
JUDGMENT L. Rath, J.
1. The State of Orissa which was the defendant in the suit has preferred this appeal. The plaintiff brought the suit for relief of declaration that defendant is not entitled to recover Rs. 3000/- from the plaintiff as claimed in the Certificate Case No. 1036/66-67 in the Court of the Certificate Officer, Banapur, and for a decree of Rs. 1000/- against the defendant and also further prayed for the relief of permanent injunction against the defendant from taking any coercive process to recover the amount of Rs 3000/- from him under the aforesaid certificate case.
2. The claim of the plaintiff briefly stated is that he was a registered railway contractor in 1964 and under the agreement between him and the railways he was to supply black metal to the railway authorities, For the purpose of execution of such contract, he wanted to work out Badapokharia black metal quarry which was put to auction in March, 1964 and the bid was knocked down in favour of the plaintiff for a sum of Rs. 4000/-. There was, however, inordinate delay in the confirmation of the bid and he was called upon only on 1-9-1964 to deposit a sum of Rs. 1000/- which he deposited by way of security deposit. No agreement however was executed in respect of the contract and possession of the quarry was not handed over to him. Due to such delay in execution of the lease and compliance of other formalities, the period stipulated with the railway authorities expired and the year of "contract also lapsed. Thus while the plaintiff was entitled to refund of security deposit made by him, yet instead of refund of the deposit, a certificate case was started in 1966 against him for recovery of the balance of consideration of the lease amount and hence the plaintiff instituted the suit for the aforesaid relief.
3. The suit of the plaintiff was resisted by the defendant in the written statement contending that the bid in respect of quarry was knocked down for the year 1964-65 in favour of the plaintiff for a sum of Rs. 4000/- and after conffrmatiori the plaintiff was called upon to execute an agreement and deposit the bid money by 10-7-1964. The plaintiff however did not turn up and was again noticed to file an agreement on stamp paper in the office of the Tahasildar, Banapur. The plaintiff however did not turn up. A notice was served thereafter on the plaintiff on 1-9-1964 calling upon him to attend the Tanksil Office with stamp paper to execute agreement. In response to such notice, even though the plaintiff did not turn up, he however paid Rs. 1000/- on 1-9-1964 and received the work order agreeing to pay the balance bid money shortly thereafter. However, even though the plaintiff had worked out the quarry during the period of lease, he did not make any other payment and hence the certificate case had been rightly started against him for realisation of the balance amount. '
4. The learned Additional Subordinate Judge, Puri, who was the trial Court found that the quarry was delivered to the plaintiff for operating the same and that be had received the work order. The contract of the plaintiff with the railways was. irrelevant so far as consideration of his liability under the contract to the, State Government is concerned and that the absence of written agreement is of no consequence. He further held that the question whether the plaintiff had not done any substantial work in the quarry is of no relevance and hence on such findings, he dismissed the suit.
5. In appeal, the Additional' District judge, Puri, held that the amount of Rs. 1000/- paid by the plaintiff was not by way of security deposit but was part of the bid money. The learned lower appellate Court also came to the finding that the plaintiff respondent had knowledge that the auction had been confirmed and that even, though after such confirmation of auction he was to supply the stamp papers and endorse the terms of the contract on the body of the stamp paper, he had not done so and had not got the lease deed executed. The learned Additional Subordinate Judge found that merely because the lease deed had not been executed, the plaintiff could not turn round and say that he was not liable to pay any sum. He further found that the plaintiff had received the work order on 1-9-1964 and that he was free to work out the quarry from 1-9-1964 till 31-3-1965. However in view of the finding that the work order was issued long five months after the due date from which the lease was to commence, the lower appellate Court fixed the liability of the plaintiff proportionately at Rs. 2333/-, and he having already paid Rs. 1000/- the Court declared that the certificate proceeding can continue only fur Rs. 1333/-. The appeal was thus allowed in part.
6. As against the appeal filed by the State, the respondent has also filed cross-objection against the decree to. the extent the relief claimed by him, has been denied.
7. During the hearing of the appeal and cross-objection, a question was raised by the respondent as a pure question of law even though it had neither been raised in the written statement nor in the cross-objection. It was urged before me that the certificate case was wholly incompetent since the demand purported to be collected was not a public demand and hence was not realisable under the provisions of the Orissa Public Demands Recovery Act, 1962. Even though ordinarily no new po]nt which had not been urged before the Courts below is to be agitated for the first time before the High Court, yet is well-settled that where the question raised is exclusively a question of law and arises out of the admitted facts and evidence, the aforesaid limitation does not apply and the point can be canvassed before the second appellate Court. The question raised by the respondent Is that since no agreement was admittedly executed between the parties, the O. P. D. R. Act does not provide for such a demand, not arising out of an agreement to be collected as arrears of land revenue. In other words, it is stated that the demand raised by the State under the certificate case is not one which is a public demand covered under Schedule 1 of the O. P. D. R. Act. 1962 and hence the certificate case must entirely fail. The point arises out the very findings of the Courts below and on the evidence already recorded. It is not necessary for determination of the question to go into any fresh evidence or to rnake any further investigation and hence it is open for the respondent to agitate such question at this stage.
8. The word "Public demand'' has been defined in Section 2(g) of the Orissa Public Demands Recovery Act, 1962 (Act 1 of 1963) which reads as follows:
" xx xx xx
(g) "public demand" means any arrear or money specified in Schedule 1, and includes any interest which may, by law, be chargeable thereon upto the date on which a certificate is signed under Chapter II ;
XX XX XX "
Schedule I to the O.P.D.R. Act provides in Clauses (iii) and (.iv) as follows :
" XX XX XX "
(iii) Any demand payable to the Collector by a person holding any interest in land, pasturage, forest-rights, fisheries, ghats, ferries, hats, trees or the like whether such interest is or is not transferable when such demand is a condition to the use and enjoyment of Such land, pasturage, forest-rights, fisheries, ghats ferries, hats, trees or other things and for which an agreement has been executed by the persons concerned.
(iv) Rents, fees and royalties due to Government for the use of occupation of land or water, Whether property of Government or not, or on account of any products thereof and all moneys falling due to Government under any grant, lease or contract which provides that they shall be recoverable as arrears of land revenue, xx xx xx"
The demand sought to be realised from the respondent more properly falls under Clause (iii) of the Schedule 1 which stipulates that demand thereunder becomes payable to the Collector only if there is a written agreement in existence between the parties concerned. Hence, if there is no agreement executed between the State and the person concerned, the demand does not become a public demand. Even if the amount would have been payable under Clause (Iv) of the Schedule, yet the demand does not become a public demand since that clause provides that the grant, lease or contract under which money might have fallen due, must provide that the dues shall be recoverable as arrears of land revenue.
9. In this view of the fact, the conclusion is irresistible that since no written agreement exists between the parties, the demand was not a public demand and hence the very initiation of the certificate case was thoroughly misconceived and incompetent. Resort to the provisions of the O. P. D. R. Act is not a normal process of recovery of dues but is an extraordinary one and hence the application of such law must be very strictly construed. The respondent is thus entitled to the declaration that the alleged dues of the Government are not collectible from him by way of a certificate proceeding as also to an injunction restraining the appellant to recover the dues of Rs. 3000/- under the certificate proceeding.
10. The next question is whether the respondent is entitled to a decree of Rs. 1000/- as against the appellant. It has not been pleaded by the respondent that the contract is invalid in view of non-compliance of the provisions of Article 299 of the Constitution of India. The question having not been raised, it does not fall to be decided here. Admittedly, the plaintiff-respondent had paid a sum of Rs. 1000/- towards the bid money and has worked out the quarry or was at least eligible to work it out from 1-9-1964 till 31-3-1965. The plaintiff respondent has thus received some benefit out of the contract. As has been stated above, it is not for decision here whether the contract was void or not but even if contract would have been void, the plaintiff having received advantage under the same was bound to be compensated to the extent he had received the advantage under it. It has been found that the quarry was handed over to the plaintiff from 1-9-1964. Thus it will be inequitable to pass a decree in favour of the plaintiff for Rs. 1000/- since admittedly he has worked out the quarry or was atleast eligible to work out the quarry being in possession of the same since 1-9-1964. Hence such relief must be nagatived to the plaintiff.
11. In the result, the appeal is dismissed and the cross-objection is decreed to the extent of declaration that the sum of Rs. 3000/- or any part thereof is not collectible from the plaintiff under the certificate proceeding, and that the appellant ;is permanently injuncted from collecting such dues from the plaintiff-respondent through the aforesaid certificate proceeding. There shall be no order as to cost.