Jharkhand High Court
Chandrashekhar Singh vs The State Of Jharkhand Through The ... on 12 August, 2021
Equivalent citations: AIRONLINE 2021 JHA 1256
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1228 of 2020
Chandrashekhar Singh ... ... Petitioner
Versus
1. The State of Jharkhand through the Deputy Commissioner, Jamtara
2. The Deputy Director, Mines, Santhal Pargana Division, Dumka
3. The District Mining Officer, Jamtara ... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Rahul Kumar, Advocate
Mr. Sudhansu Kumar Deo, Advocate
For the Respondents : Mr. Anshuman Kumar, AC to Sr. SC-II
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Order No. 09 Dated: 12.08.2021
The present writ petition is taken up today through Video conferencing.
The present writ petition has been filed for quashing order dated 31.12.2019 (Annexure-5 to the writ petition) passed by the respondent no. 2 - the Certificate Officer-cum-Deputy Director, Mines, Santhal Pargana Division, Dumka in Certificate Case No. 08/2018-19, whereby "warrant of attachment" has been issued against the petitioner. Further prayer has been made for issuance of direction upon the said respondent to consider the objection dated 18.03.2020 filed by the petitioner under Section 9 of the Bihar and Orissa Public Demands Recovery Act, 1914 (hereinafter referred to as "the Act, 1914") and to adjudicate and amend the certificate accordingly.
2. The learned counsel for the petitioner submits that a piece of land situated at Plot No. 2513/P of village-Dhobna, measuring an area of 2.75 acres was leased to the petitioner vide deed dated 30.08.2011 for the purpose of mining of stones for a period of 10 years and an amount of Rs. 24,750/- was paid as security deposit for the said mining leasehold area. However, the environmental clearance and other statutory permissions were not granted for the said mining operation and as such, the mining activity on the said land could not commence. The said fact was duly intimated to the respondent no. 3
- the District Mining Officer, Jamtara, who vide memo no. 824/M dated 23.09.2014 acknowledged the said fact. The petitioner time 2 and again intimated the respondent no. 3 regarding the closure of the leased mines making prayer for termination of the lease deed, however, the respondent no. 3 did not pass the order of termination of the mining lease. Thereafter, the respondent no. 3 filed Certificate Case No. 8 of 2018-19 before the respondent no. 2 for recovery of an amount of Rs. 3,85,805/- from the petitioner. The petitioner had no knowledge about the institution of the said certificate case, as he had not been served any statutory notice under Section 7 of the Act, 1914 which prevented him to file any objection to the certificate amount. It is submitted that the certificate proceeding was conducted in gross violation of the principles of natural justice and the procedure established by law. The respondent no. 2 proceeded without recording any satisfaction in relation to service of notice and vide order dated 03.06.2019 issued "warrant of attachment" against the petitioner. Thereafter, on expiry of the time for execution of the said "warrant of attachment", the same was again issued vide order dated 31.12.2019. As soon as the petitioner got information about initiation of the certificate proceeding, he filed an objection dated 18.03.2020 under Section 9 of the Act, 1914 denying the certificate amount. He also filed an application dated 18.03.2020 for review and recall of the order of the "warrant of attachment". However, the respondent no. 3 rejected the objection of the petitioner on the same day by holding that the same has been filed after the expiry of prescribed period and that the same was not in accordance with law.
3. The learned counsel for the respondents submits that the petitioner was served with a notice vide letter no. 85/M, Jamtara dated 19.01.2018 for violation of the terms and conditions of the lease deed, however he did not comply the said notice and as such, vide order dated 03.05.2018 passed by the Deputy Commissioner, Jamtara, the mining lease of the petitioner was terminated and vide letter no. 575/M dated 05.05.2018, he was informed accordingly. It is further submitted that vide letter no. 746/M, Jamtara dated 12.07.2018, the petitioner was informed that a sum of Rs. 4,61,522/- was due against him in connection with fixed rent, surface rent, interest and royalty for mining lease area till June, 2018, but he did 3 not respond to it. Again vide letter no. 1101/M Jamtara dated 19.11.2018, the respondent no. 3 sent a reminder to the petitioner, however, he neither replied the same nor paid the dues amount. It is also submitted that the petitioner has wrongly asserted that no notice under Section 7 was received by him, rather the same was issued to him vide registered post in the prescribed form with a copy of certificate which was not returned. It is thus evident that notice under Section 7 was served upon the petitioner, but he did not bother to file his objection petition within 30 days. Thereafter, the petitioner was also served with notices vide memo no. 47 dated 20.02.2019 and memo no. 73 dated 22.04.2019 to pay the certificate amount, however, he did not reply the same.
4. Heard the learned counsel for the parties and perused the materials available on record. The thrust of the argument of the learned counsel for the petitioner is that the impugned order has been passed in violation of the principles of natural justice since he was not provided any opportunity of hearing before passing the said order.
5. Before coming to the merit of the contention of the parties, it would be relevant to refer some provisions of the Act, 1914. Section 7 provides that a notice along with a copy of the certificate is to be served to the certificate debtor on filing of a certificate in the office of a certificate officer under Section 4 or Section 6. Section 9 provides that the certificate debtor may present a petition, in the prescribed form, signed and verified in the prescribed manner, denying his liability, in whole or in part within thirty days from the service of the notice required by Section 7, or where the notice has not been duly served, then a petition may be presented within thirty days from the execution of any process for enforcing the certificate to the Certificate Officer in whose office the certificate is filed or to the Certificate Officer who is executing the certificate.
6. Thus, the period of limitation of thirty days for filing objection starts from the date of knowledge of the certificate 4 proceeding i.e., either from the date of receiving the notice under Section 7 or at any time during the process for enforcing the certificate. As per the statutory mandate, the situation where it is not conclusively proved that the notice has been served under Section 7 of the Act, 1914 as well as to meet the said situation and to provide the right of hearing to the certificate debtor, provision has been made for giving right of hearing to the certificate debtor even at later stage of the proceeding. The purpose behind making such a provision is to afford opportunity of hearing to the certificate debtor which is one of the most important factors of the principles of natural justice and every administrative and quasi-judicial authority is bound to follow the same while hearing a matter where civil right of a person is going to be affected.
7. In the case in hand, the petitioner has claimed that the notice under Section 7 of the Act, 1914 was not served to him. On the other hand, the contention of the respondents is that the said notice was issued to the petitioner under registered post and the same did not return back and thus, it would be presumed that the notice was validly served to the petitioner. To appreciate the said contention of the respondents, I have perused Rule 2 to 9 mentioned under Schedule II of the Act, 1914 which provide the mode of service issued under Section 7 or under any provision of the said Act, service of notice upon the certificate debtor or his agent/adult male member of the family by taking the signature of the person to whom the copy delivered or tendered as an acknowledgement of service. The same also mention the procedure when certificate debtor refuses to accept service or cannot be found as well as the endorsement of time and manner of service will also be done by the servicing officer. The serving officer shall also examine the matter in case the notice is returned and notice may be served by post. It is clarified that the notice under Section 7 is required to be served to the certificate debtor personally or his agent authorized to receive the notice and in case the certificate debtor or his agent is not found to receive the notice, the same may be served to an adult family member of the certificate debtor. Rule 5 provides that the serving officer shall 5 require the signature of the person endorsed on the original notice to whom the notice is served as acknowledgement of service. Rule 9 provides that the notice may be served by post if the Certificate Officer so directs. Thus, the normal process of service of notice under Section 7 of the Act, 1914 is the personal service and the service by post is an exception which may be done only when the certificate officer specifically directs for the same.
8. In the present case, on perusal of the order sheet annexed as Annexure-5 to the writ petition, it is evident that no such specific direction was given by the Certificate Officer for serving the notice through registered post. Thus, the process of service of notice under Section 7 of the Act, 1914 as adopted by the respondents suffers from legal infirmity. Otherwise also, no acknowledgement of service of notice sent through registered post has been placed on record to show that the notice was served to the petitioner and as such, I am of the considered view that the respondent no. 2 was not justified in rejecting the objection of the petitioner merely on the ground that the same was filed much after issuance of notice under Section 7 of the Act, 1914, demand letter and warrant of attachment resulting into expiry of the prescribed period to file objection.
9. Section 14 mandates that no step in execution of a certificate shall be taken until the period of thirty days has elapsed since the date of the service of the notice required by Sections 7 and 11 of the Act, 1914 or when a petition has duly been filed under Section 9 of the Act, 1914, no step in execution of a certificate shall be taken until such petition has been heard and determined. Since the respondent no. 2 failed to show any evidence of service of notice upon the petitioner under Section 7 of the Act, 1914, he is obliged to hear the objection filed by the petitioner and to determine the same in terms with the provisions of Section 10 of the Act, 1914 and to pass an appropriate order.
10. In view of the aforesaid discussion, the order dated 18.03.2020 is hereby quashed. The respondent no. 2 is directed to take appropriate decision on the objection filed by the petitioner on 6 merit after providing proper opportunity of hearing to him/his representative.
11. Till the said order is passed by the respondent no. 2, the execution of certificate shall remain stayed.
12. The writ petition is accordingly allowed with aforesaid observation and direction.
(Rajesh Shankar, J.) Manish/AFR