Jharkhand High Court
Jagdish Mahto vs The State Of Jharkhand on 5 December, 2022
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.1541 of 2013
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1. Jagdish Mahto, son of Late Sripati Mahto, resident of Village-Gopinathpur, PO : Mundatand
2. Dashrath Mahli, son of Late Simantan Mahli, resident of Village-Gopinathpur, PO : Mundatand
3. Nagi Manjhi, wife of Sri Lakhiram Manjhi, resident of Village - Sindri, PO: Mundatand
4. Deo Narayan Manjhi, son of Sri Lakhiram Manjhi, resident of Village - Sindri, PO: Mundatand
5. Prabhasi Mahli, wife of Sri Dashrath Mahli, resident of Village-Gopinathpur, PO : Mundatand
6. Bimla Devi, wife of Umesh Chandar Mahto, resident of Village - Sindri, PO: Mundatand
7. Savitri Mahli, wife of Balram Mahli, resident of Village - Gopinathpur, PO: Mundatand
8. Surendra Mahto, son of Sri Baikinth Mahto, resident of Village - Gopinathpur, PO: Mundatand
9. Balram Mahli, son of Sitaram Mahli, resident of Village - Gopinathpur, PO: Mundatand All are under PS:Seraikella, District-Seraikella- Kharsawan.
.... ... Petitioners
Versus
1. The State of Jharkhand
2. Certificate Officer, Seraikella, PO & PS:Seraikella, District-Seraikella-Kharsawan
3. Block Development Officer, Seraikella, PO & PS:Seraikella, District-Seraikella-Kharsawan.
... ... Respondents
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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners : Mr. Ajit Kumar, Advocate For the Respondents : Mr. K.K.Singh, S.C.-VI
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Order No. 10/Dated 5th December, 2022 This writ petition is under Article 226 of the Constitution of India for issuance of writ of certiorari for quashing of order dated 03.01.2013 passed by the Respondent No.2 directing issuance of bailable warrant inter alia on the ground that the objection filed under 2 Section 9 of the Bihar and Orissa Public Demand Recovery Act, 1914 (hereinafter to be referred to as the Act, 1914) has still not been decided and during its pendency the aforesaid bailable warrant of arrest has been issued.
2. The short issue which has been raised on behalf of the petitioners questioning the jurisdiction of the Certificate Officer as to whether by keeping the objection required to be filed under Section 9 of the Act, 1914, the Certificate Officer can come out with the bailable warrant of arrest for recovery of the requisitioned amount as requisitioned by the concerned authority by way of public demand.
3. Learned counsel appearing for the petitioners has submitted that the statutory provision as contained under the Act, 1914 contains a provision that whenever a public demand is being decided to be recovered, the same will be forwarded before the Certificate Officer by the concerned competent authority for its recovery and thereafter, the Certificate Officer will issue a notice under Section 7 of the Act, 1914 enabling the concerned certificate debtor to file objection under Section 9 of the Act, 1914.
The notice has been issued under Section 7 of the Act, 1914 which has been replied by making objection said to have been filed under Section 9 of the Act, 1914 on 25.11.2010 and while keeping the same pending, the Certificate Officer has come out with the bailable warrant of 3 arrest on 16.01.2013, being aggrieved with the same, the instant writ petition has been filed invoking the jurisdiction of this Court conferred under Article 226 of the Constitution of India.
4. It has been submitted by making a ground that if the statute provides to deal with the objection filed under Section 9 of the Act, 1914, the same is mandatory to be decided by the Certificate Officer before taking any coercive measure, but, herein, the action of the Certificate Officer in issuing bailable warrant of arrest is absolutely contrary to the statutory mandate and, as such, the order dated 16.01.2013 directing for issuance of bailable warrant of arrest is required to be quashed and set aside.
5. Mr. K.K.Singh, learned S.C.-VI, appearing for the State of Jharkhand, has submitted by taking aid of the stand inter alia taken in the counter affidavit filed on 19.12.2020 wherein at paragraphs 12 and 18 the stand has been taken that the objection which was required to be filed by the petitioners since is beyond the period of thirty days and as such, the same will be construed to be not an objection within the meaning of Section 9 of the Act, 1914 reason being that the objection filed beyond the period of thirty days, as provided under Section 9 of the Act, 1914 will be construed to be redundant in the eyes of law. Therefore, if in that pretext the warrant of arrest has been 4 on 16.01.2013, the same cannot be said to suffer from an error.
He has taken the further ground by referring to stand taken in Para 19 that in spite of several opportunities having been granted to the writ petitioners, they have not pressed the objection filed under Section 9 of the Act, 1914 and, as such, they cannot now take the ground of pendency of the objection filed under Section 9 of the Act, 1914.
6. In response to the aforesaid submission, Mr. Ajit Kumar, learned counsel appearing for the petitioners, has submitted that even accepting that the writ petitioners has not chosen to appear on various dates, even then the objection filed by the writ petitioners under Section 9 of the Act, 1914 ought to have been dealt with on its merit but, in any case, keeping the objection pending and taking coercive measure by issuance of bailable warrant of arrest cannot be said to be proper compliance of the statutory mandate as provided under the Act, 1914.
He has further submitted by referring to the order- sheets that it is incorrect on the part of the State to take the ground that the writ petitioners have never appeared before the Certificate Officer, rather, they had appeared on two dates but the matter has been adjourned on the ground of non-appearance of the Certificate Holder. 5
7. This Court has heard the learned counsel for the parties and has perused the material available on record including the documents appended to the paper book.
8. The issue which requires consideration by this Court in this writ petition is as to whether the Certificate Officer can be allowed to take coercive measure in exercise of power conferred under the Act, 1914 without disposing of the objection filed under Section 9 of the Act, 1914?
This Court, in order to answer the aforesaid issue, deems it fit and proper to refer the statutory provisions which are required to be referred taking into consideration the given facts of the case.
The Act, 1914 has been mandated for recovery of „Public Demand‟ if it comes under the fold of „Public Demand‟ within the meaning of Section 3 of the Act, 1914.
The due requisition will be made about the recovery of the public demand before the concerned competent Certificate Officer for its recovery. The Certificate Officer, on receipt of such requisition for recovery, is required to issue notice to the intended certificate debtor, as provided under Section 7 of the Act, 1914.
The certificate debtor, immediately on receipt of notice under Section 7 of the Act, 1914, is required to file objection for the purpose of denial of the liability. The 6 section 7 and Section 9 is required to be referred herein which read hereunder as:-
"7. Service of notice and copy of certificate on certificate debtor. - When a certificate has been filed in the office kof a certificate officer under Section 4 or section 6, he shall cause to be served upon the certificate-debtor, in the prescribed manner, a notice in the prescribed manner, a notice in the prescribed form and a copy of the certificate."
9. Filing of petition denying liability - (1) The certificate debtor may within thirty days from the service of the notice required by Section 7, or where the notice has not been duly served then within thirty days from the execution of any process for enforcing the certificate, present to the Certificate Officer in whose office the certificate is filed or to the Certificate Officer who is executing the certificate, a petition, in the prescribed form, signed and verified in the prescribed manner, denying his liability, in whole or in part.
(2) If any such petition is presented to a Certificate Officer other than the Certificate Officer in whose office the original certificate is filed, it shall be sent to the latter officer for disposal."
It is evident from the provision of Section 9 that the certificate debtor may within thirty days from the service of the notice required by Section 7, or where the notice has not been duly served then within thirty days from the execution of any process for enforcing the certificate, present to the Certificate Officer in whose office the certificate is filed or to the Certificate Officer who is executing the certificate, a petition, in the prescribed form, 7 signed and verified in the prescribed manner, denying his liability, in whole or in part.
9. It is not in dispute herein that the objection, as required to be filed under Section 9, has already been filed by the petitioners, as would appear from the stand inter alia taken by the State respondents in the counter affidavit.
Since in the counter affidavit a plea has been taken that the objection although has been filed, but it was not within the period of thirty days as mandated under Section 98 of the Act, 1914. Therefore, when the State is admitting the fact that the objection which has been filed by the petitioners under Section 9 is pending then the question arises on what ground the coercive measure by issuance of bailable warrant of arrest has been taken on 16.01.2013?
10. Admittedly, the objection was filed on 25.11.2010 and it is still pending, as would appear from the order- sheets appended to the writ petition wherein either the writ petitioners in some circumstances or the certificate holder in some circumstances have chosen not to appear before the Certificate Officer but the fact remains that the objection filed under Section 9 of the Act, 1914 is still pending on one ground or the other.
The Certificate Officer, kept the objection under Section 9 pending even if it has been filed beyond the period of thirty days, a conclusive decision ought to have 8 been taken by the Certificate Officer either way but the ground cannot be taken that since the objection has been filed beyond the period of thirty days as mandated under Section 9 as the ground has been taken on behalf of the State, which is to be decided by the Certificate Officer as to whether the period of thirty days is mandatory to be observed or it is obligatory.
11. Since this Court is not delving upon the aforesaid issue and, as such, not recording any finding about the nature of the period of thirty days whether it is mandatory or obligatory.
12. It is left open for the Certificate Officer to take decision in that regard in accordance with law but the issue which is now being considered by this Court that keeping the Section 9 objection pending on any ground whatsoever the action of the Certificate Officer in coming out with the bailable warrant of arrest on 16.01.2013 cannot be justified. Otherwise, the objection required to be filed by the certificate debtor within the meaning of Section 9 of the Act, 1914 will become redundant.
13. In view thereof and considering the discussions made hereinabove, the order dated 16.01.2013 by which the bailable warrant of arrest has been issued against the petitioners, is required to be interfered with. 9
14. Accordingly, the order dated 16.01.2013 is hereby quashed and set aside.
15. The Certificate Officer is directed to decide the objection filed under Section 9 of the Act, 1914 on its own merit and in accordance with law within a period of three weeks from date of receipt of copy of this order.
Depending upon the outcome of the aforesaid decision, the Certificate Officer is at liberty to proceed further in accordance with law.
Needless to say that if the certificate debtor will not appear before the Certificate Officer, the Certificate Officer will be at liberty to proceed in accordance with law.
16. Accordingly, the instant writ petition is allowed and disposed of in terms of observations and directions as above.
(Sujit Narayan Prasad, J.) Birendra/N.A.F.R.