Patna High Court
Sri Prakash Singh And Anr. vs State Of Bihar And Ors. on 6 February, 2002
Equivalent citations: 2002(50)BLJR869
Author: S.K. Katriar
Bench: S.K. Katriar
JUDGMENT S.K. Katriar, J.
1. Heard Mr. Suresh Gandhi, learned Counsel for the petitioner. Mr. V.N. Sinha, learned G.P. 9 for respondent Nos. 1, 2 and 4, and Mr. S.K. Sinha, Senior Advocate, for respondent No. 3 (State Bank of India).
2. This writ petition is directed against the order dated 5.12.2001 (Annexure-3), passed by the learned Collector of Khagaria in Branch Manager, Suite Bank of India, Maheshkhut v. Vijay Keshri, Misc. Case No. 46/95-96, as well as Branch Manager, State Bank of India, Maheshkhut v. Shri Prakash Singh, Misc. Case No. 47/95-96, whereby he has allowed the review application of respondent No. 3 under Section 63 of the Public Demands Recovery Act (hereinafter referred to as 'the Act'). The learned Collector has by the impugned order recalled his earlier order dated 23.5.1995 (Annexure-2), passed in State Bank of India v. Vijay Keshri, Misc. Case No. 7/95-96, and the order dated 23.5.1995, in S.B.I. v. Shri Prakash Singh, Misc. Case No. 8/95-96, passed under Section 60 of the Act, and set aside the order, dated 28.11.1991 (Annexure), in S.B.I. v. Vijay Keshri, Certificate Case No. 17/85-86, and the order dated 30.10.1999, Annexure 1/a, passed in State Bank of India, Maheshkhut v. Prakash Singh, Certificate Case No. 12/88-89, by the learned Certificate Officer, Khagaria.
The learned Certificate Officer by his two orders had dropped the certificate proceedings and was upheld by the Appellate Authority.
3. I regret that the two petitioners have joined together with regard to two different cause of action arising out of different cause of action arising out of different certificate proceedings creating confusion in disposal of this writ petition. However, this defect could be detected at a belated stage and I have, therefore, decided to dispose of this matter. The facts are similar and raise common questions of law and facts and are, therefore, being disposed of by the common judgment. However, representative facts would be drawn from State Bank of India, Maheshkhut v. Vijay Keshri, Certificate Case No. 17/85-86 unless specifically indicated.
4. Petitioner, Vijay Keshri had taken loan from the State Bank of India for purchase of a vehicle. It appears that he fell in arrears and, therefore, the Bank decided to initiate certificate proceedings under the Act. The same was registered as Certificate Case No. 17/ 85-86, before the learned Certificate Officer, Khagaria, who dropped the proceedings by his order dated 28.11.1999, (Annexure-1), Inter alia, on the ground that the Bank has failed to produce the purchaser for auction-purchase of the vehicle in question. The Bank preferred appeal under Section 60 of the Act which was registered as Misc. Case No. 7/95-96, and was rejected by the learned Collector of Khagaria, by his order dated 23.5.1995 (Annexure-2) on the ground of delay. Thereafter, the Bank preferred an application under Section 63 of the Act before the Appellate Authority for review of his order dated 23.5.1995 (Annexure-2), praying therein to recall the same, set aside the order of the Certificate Officer, and remit the matter back to him with a direction to proceed in accordance with law with a view to realise the certificate dues. The same has been allowed by the learned Collector by the impugned order whereby he has recalled his earlier order dated 23.5.1995 (Annexure-2), has set aside the order of the Certificate Officer, and remitted the matter back to the latter with the direction to proceed in accordance with law. Hence, this writ petition at the instance of the certificate-debtor.
5. While assailing the validity of the impugned order, learned Counsel for the petitioners submits that the impugned order is beyond the scope of a review application under Section 63 of the Act. He next submits that the Bank's appeal was hit by gross delay and there was no justification for the learned Collector to condone the same in review jurisdiction and recall his earlier order on appeal. He lastly submits that it is now settled by a long line of cases that certificate proceeding is a drastic remedy in favour of the certificate-holder. It is in the nature of execution proceeding and, therefore, the procedure prescribed under the Act should be strictly followed.
6. Learned Counsel for respondent No. 3 (State Bank of India) submits in opposition that the order of the Certificate Officer was patently illegal and, therefore, setting aside the impugned order will amount to reviving an illegal order which should not be done in exercise of the writ jurisdiction. He has relied on the following reported judgments :
(i) Mohd. Swalleh v. Third Addl. District Judge, (1988) 1 SCC 40;
(ii) M.P. Mittal v. State of Haryana, (1988) Vol. 4 SCC 371;
(iii) HariPrasad Jalan v. District Magistrate, Champaran, AIR 1983 Patna 90 (DB);
(iv) Naya Dawakhana v. State of Bihar, 1990(2) PLJR 616 (DB).
He has made elaborate submission to satisfy this Court that the order of the Certificate Officer is patently illegal. He further submits that the impugned order has been passed after consideration of the circumstances for delay in preferring the appeal. He lastly submits that, the petitioners can avail of the scheme of one-time settlement.
7. Learned G.P. 9 has made elaborate submissions in support of the impugned order and has supported the stand of respondent No. 3.
8. Learned Counsel for the petitioner submits in reply that the review jurisdiction under Section 63 of the Act is available only to the Certificate Officer. He submitted that the order of the Certificate Officer (Annexure-1) was a legal and just order. He next submits that the appeal was afflicted by explained delay of 5 years.
9. Having considered the rival submissions, I am of the view that this writ petition ought to be dismissed. I must confess that the issue is not free from difficulties. However, I prefer to take the view that I have taken for the reasons indicated below in the interest of justice, and in the exercise of extraordinary prerogative writ jurisdiction. It appears to me from a plain reading of order of the Certificate Officer that he dropped the certificate proceeding mainly on the ground that the Bank had failed to produce purchasers for auction-purchase of the vehicle in question in spite of repeated opportunities. It appears to me that this was not the right view to be taken by him. It was the duty of the Certificate Officer to execute the certificate in accordance with law, and it is no part of the duty of the certificate-holder (the Bank) to arrange the auction-purchaser. The same could not have been dropped because the certificate-holder was not able to arrange the purchaser. I am, therefore, of the view that the Certificate Officer dropped the certificate proceeding before him on a patently erroneous ground. This was followed by the appellate order which was rejected in limine on the ground of delay of less than three and half years in preferring the appeal.
10. Thereafter, the Bank preferred the review application under Section 63 of the Act before the same authority for recall of the appellate order. Section 63 of the Act reads as follows :
"63. Review.--Any order passed under this Act may, after notice to all persons interested, be reviewed by the officer who made the order or by his successor-in-office, on account of mistake or error either in the making of the certificate or in the course of any proceeding under this Act."
It appears to me from a plain reading of the same that the power of review has in spccific terms been conferred on the Certificate Officer, the Appellate Court, as well as the Revisional Court. Construction put by the petitioner on the aforesaid provision to the effect that the power of review under the Act has been conferred only on the Certificate Officer is not borne out from a plain reading of the Section. The expression "...in the courses of any proceeding under this Act", towards the end of Section 63 of the Act obviously includes the proceedings before all the authorities under the Act.
11. It is correct to state that the power of review has traditionally been very narrow in its scope unless clearly displaced by the terms of statute. An appeal lies before a higher authority, and a review lies before the same authority. The power of review has been conferred on the same authority to rectify mistakes in his own orders within the narrow confines of review jurisdiction well-known to the legal world. I do not sec on a plain reading of Section 63 of the Act that the traditional and narrow scope of review jurisdiction has been sought to be enlarged under the section. The impugned order, therefore, is beyond the scope of the review jurisdiction of the Appellate Authority conferred on him under Section 63 of the Act. However, that does not conclude the present matter.
12. The question is, whether or not this Court, in exercise of its discretionary, prerogative writ jurisdiction, set aside the impugned order which would result in reviving patently illegal orders passed by the Certificate Officer. I have on a thoughtful consideration of the entire matter reached the conclusion that this Court should refrain from adopting such a course. In the case of Mohd. Swalleh (supra), the Supreme Court was faced with a situation where the District Judge had set aside the order of the first authority under the U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972. In exercise of the writ jurisdiction under Article 226 of the Constitution, the Allahabad High Court upheld the order of the District Judge even though it came to the conclusion that no appeal lay before the District Judge, because setting aside the order of the District Judge would have resulted in reviving and perpetuating a patently illegal order of the first authority under the Act. In other words, the District Judge had exercised a jurisdiction under the Act where none was vested in him, notwithstanding which the Allahabad High Court has upheld his order. In one sense, the order of the District Judge will be deemed in law to have been substituted by the order of the High Court on the writ petition on a thorough consideration of the entire matter. On the other hand, in the present case, the learned Collector has exercised powers vested in him by law although in excess of the same. I am in no doubt that the present case is squarely covered by the judgment of the Supreme Court in the case of Md. Swalleh.
13. Learned Counsel for respondent No. 3, has rightly relied on the Division Bench judgment of this Court in Hari Prasad Jalan (supra), paragraph 6 of which is setout hereinbelow for the facility of quick reference :
"6 ... He further conceded that the Act does not vest any power of review in the District Magistrate so that by order, dated 12.4.1982 the earlier order, dated 21.4.1980 could have been recalled. According to the learned Additional Advocate-General, as the earlier order was not in conformity with the direction of the Supreme Court and the order, dated 12.4.1982 which is being questioned in this Court Application is in accordance with the direction of the Supreme Court, this Court should not interfere with the order dated 12.4.1982 although passed without jurisdiction, because the effect thereof, will be that an illegal order, dated 21.4.1980 shall be revived. In support of this contention reliance has been placed to the well-known judgments of the Supreme Court and of this Court in the cases of G. Venkateshwara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828; Abdul Majid v. State Transport Appellate Authority, Bihar, AIR 1960 Pat 333; Devendra Prasad v. State of Bihar, (1977) BBCJ 543=AIR 1977 Patna 166, and Hari Prasad Mandal v. Addl. College, Monghyr, 1978 BBCJ (HC) 575. It is almost settled that writ jurisdiction of this Court is discretionary and it should not be exercised for quashing an order which may have been passed without jurisdiction if that order has propertied to set aside another illegal order. If it is held that the order, dated 21.4.1980, is either illegal or without jurisdiction, then there should not be any difficulty in accepting the contention raised on behalf of respondents."
14. Learned Counsel for respondent No. 3 is equally right in placing reliance on the Division Bench judgment of this Court in Naya Dawakhana v. State of Bihar (supra). Paragraphs 53 and 54 of the judgment are relevant in the present context and are setout hereinbelow for the facility of quick reference :
"53. At this juncture, the main submission made by Mr. Basudeo Prasad may be noticed. The learned Counsel submitted that even assuming that the order, dated 15.10.1985 passed by the Minister-in-Charge and as contained in Annexure-10 to the writ petition is wholly without jurisdiction, this Court should not interfere with the said order as the order, dated 22.12.1984 passed by the Drug Controller is also illegal and without jurisdiction. The learned Counsel, as contained hereinbefore, has placed heavy reliance upon the judgment of this Court in A. Mazid v. State Transport Authority, AIR 1960 SC 828; Jagan Singh v. 3rd Addl. District Judge, Meerut, (1998) 1 SCC 40.
54. The ratio of the aforementioned decisions is neither in doubt nor in dispute. In the aforementioned decisions, it has been held by this Court as well as by the Supreme Court that the issuance of writ of certiorari is a discretionary remedy. Such a writ may not be issued if substantial justice has been done to the parties or if in the event upon quashing of one illegal order it is found that the same would give rise to another illegality, the High Court in its discretion may quash both the orders."
15. Law is thus well-settled that this Court should not exercise its discretionary, purgative writ jurisdiction which will result in revival of an illegal order. While passing the impugned order, the learned Collector may have exceeded in exercise of his review jurisdiction under Section 63 of the Act duly vested in him by law, and the same is hereby substituted by the present order of this Court. The order of the Certificate Officer is patently illegal and could not have been dropped on the ground assigned by him. Furthermore, the learned Collector has gone into the entire matter in depth and has also considered the circumstances leading to the delay in preferring the appeal. He has stated in the impugned order that the concerned Branch Manager was not aware of the order of the Certificate Officer, and he had also suffered a heart attack during the period. In my view, these are valid circumstances to condone the delay.
16. In that view of the matter, the writ petition is dismissed. The Certificate Officer is hereby directed to proceed with the two certificate cases expeditiously.