Patna High Court
Kewat Sah vs The State Of Bihar & Ors on 14 October, 2015
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6822 of 2014
===========================================================
Kewat Sah, Son of Lakhan Sah, Resident of Banhara Amarpur, P.S. Amarpur,
District- Banka, Proprietor of M/s Kewat Rice and Chura Mills, Amarpur, Dist.
Banka
.... .... Petitioner/s
Versus
1. The State of Bihar through District Magistrate, Banka.
2. The Certificate Officer, Banka, District Banka
3. Bihar State Food Corporation through District Manager, P.O., P.S. & District
Banka
.... .... Respondent/s
===========================================================
Appearance :
For the Petitioner/s : Mr. N.K.Agrawal, Sr. Advocate.
Dr. Manoj Kumar, Advocate
For the Respondent/s : Mr. R.S.Pradhan, Sr. Advocate.
Mr. Shailendra Kumar Singh, Advocate.
===========================================================
CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
C.A.V. JUDGMENT
Date: 14-10-2015
Heard learned counsel for the parties.
2. The relevant portion of the prayer of the petitioner in this writ
application reads as follows:
".... to quash the order dated 09.01.2014 passed by respondent
no. 2, the Certificate Officer, Banka in Certificate Case No.
1/2013-14by which petitioner has been directed to deposit amount of Rs. 1,59,10,881=00 (one crore fifty nine lacs Ten thousand eight hundred eighty one) towards receipt of paddy by the S.F.C., respondent no. 3."
3. Learned counsel for the petitioner, in support of aforesaid prayer, has primarily concentrated on the aspect that the amount being claimed from the petitioner in the impugned certificate proceeding is based both on error of facts and law. In this regard he has gone to explain that though under an agreement dated 25.01.2012 between the petitioner and the Bihar State Food and Civil Supplies Corporation (hereinafter referred to as 'the Corporation') , the petitioner Patna High Court CWJC No.6822 of 2014 dt.14-10-2015 2/12 had supplied 29 lots out of 30 lots of rice to the respondent no. 3 and had also made a request to the District Manager, Banka of the Corporation to lift the last, 30th lot of 540 packets of rice on 12.03.2013 and 15.03.2013 but the District Manager, Banka, instead of lifting the remaining lot of rice, had seized the mill of the petitioner on 14.04.2013 in an illegal manner and had sought to further harass the petitioner by lodging a false criminal case being Amarpur P.S. Case No. 90 of 2013 alleging under Section 406 of the Indian Penal Code against the petitioner for non-supply of 833.41 Metric Tones Rice.
4. It is the case of the petitioner that subsequently he was abused and threatened by a transporter of Corporation namely, Santosh Anand, who had claimed that 25000 quintals of paddy have been supplied to the petitioner on the basis of two forged issue orders of the Corporation in the name of the petitioner. The petitioner thereafter claims to have filed a complaint case no. 547 of 2013 before the Chief Judicial Magistrate, Bhagalpur against the aforesaid transporter Santosh Anand and others on the basis of which Amarpur P.S.Case No. 118 of 2013 had been lodged for offence under Section 420 of the Indian Penal Code involving the allegation that two Store Issue Orders bearing No. 3058662 and 417975, said to be in the name of the petitioner, were forged orders and the petitioner , as a matter of fact, had never received any paddy, as shown in the two Store Issue Orders.
5. It is the further case of the petitioner that he had moved this Court by filing a writ application being C.W.J.C. No. 19605 of 2013 with a prayer for issuance of a direction to the respondent authorities of the Corporation to open the godown and rice mill of the petitioner seized on 14.04.2013, but this Court by an order dated 21.11.2013, had disposed of the aforesaid writ application with a liberty to the petitioner to file an application before the authorities of the Patna High Court CWJC No.6822 of 2014 dt.14-10-2015 3/12 Corporation giving an undertaking about the time limit within which he would clear the dues of the Corporation in cash. This Court, according to the petitioner, had also indicated in the said order that if the authorities of the Corporation were satisfied with the explanation of the petitioner, they were also given the option to allow the petitioner to sale the articles lying in its seized godown and clear dues of the Corporation from the sale proceeds received by him and/or from the own resources within the time limit fixed by the authorities of the Corporation.
6. It is also the case of the petitioner that in terms of aforesaid order of this Court through he had appeared before the authorities of the Corporation but no order was passed on his application for opening the seized premises of the mill and godown and Store of the petitioner and in the mean time the certificate proceeding was launched at the instance of the authorities of Corporation giving rise to Certificate Case No. 1 of 2013-14 wherein the certificate officer had proceeded ahead and had passed the impugned order dated 09.01.2014 holding that the petitioner had received paddy as allotted by the authorities of the Corporation and had accordingly directed the petitioner to deposit the amount of Rs. 1,59,10,881/- in the account of District Manager of the Corporation at Banka.
7. Learned counsel for the petitioner has submitted that such action of the authorities of the Corporation by initiating the certificate proceeding is bad in law because non-supply of paddy does not come within the purview of the public demand as defined under Bihar Public Demand Recovery Act, 1914 (hereinafter referred to as 'the Act'). Learned counsel for the petitioner has in this regard also taken a specific stand that the only recourse that could have been taken against the petitioner by the authorities of the Corporation was to institute a money suit for recovery of the aforesaid amount.
8. In this case a counter affidavit has been filed on behalf of the Patna High Court CWJC No.6822 of 2014 dt.14-10-2015 4/12 respondent no. 3, District Manager of the Corporation at Banka wherein it has been explained that the certificate proceeding under the Act is maintainable in terms of the agreement inasmuch as the paddy/rice is the property of the Government and as such the proceeding is maintainable under Clause 8A of Schedule-I inserted by the Act 20 of the Amendment Act 1993. In the counter affidavit, it has also been explained that the petitioner had been supplied 24486 quintals of paddy and as per the agreement he had to supply 67% of CMR (Customed Milled Rice) to the tune of 16405.62 quintals CMR but the petitioner had deposited only 7830 quintals of CMR and thus when he had failed to deposit the balance quantity 8575.60 quintals CMR his being found liable to pay a sum of Rs. 1,59,10,881/- under the order of the certificate officer can not be held to be bad either on fact or in law.
9. The respondents in the counter affidavit have also explained that in terms of the order of this Court dated 21.11.2013 in C.W.J.C. No. 19605 of 2013, when the petitioner had filed an application for obtaining the seal of the seized mill, godown and store of the petitioner, a reasoned order was passed on 10.12.2013 directing the petitioner to deposit a sum of Rs. 1,63,20,519.69 and he was asked to file his affidavit giving undertaking to deposit the aforementioned amount of Rs. 1,63,20,519.69 by selling the alleged stock of rice kept in the mill, godown and store of the petitioner but the petitioner himself did not furnish any such affidavit by way of his undertaking in keeping with the direction of this Court in the aforesaid order dated 21.11.2013.
10. Let it be noted that though the petitioner has filed a reply to the counter affidavit but he has not disputed passing of the aforesaid order dated 10.12.2013 by the District Manager of the Corporation at Banka and his entire case is that the claim of the Corporation of supplying 24486 quintals of paddy is Patna High Court CWJC No.6822 of 2014 dt.14-10-2015 5/12 itself not correct inasmuch as the petitioner had received only 12100 quintals and 32 kilogram of paddy.
11. The petitioner has also filed a supplementary affidavit wherein it has been stated that he was liable to only deliver one lot of rice which could not be returned on account of seizure of the mill, godown and store of the petitioner.
12. Additionally, the petitioner has filed an Interlocutory Application bearing no. I.A. No. 4924 of 2015 wherein prayer has been made for stay of warrant of arrest issued against the petitioner by the certificate officer, Banka under the order dated 21.01.2014.
13. In the considered opinion of this Court, once the petitioner had appeared before the certificate officer and had filed his objection under Section 9 of the Bihar & Orissa Public Demand Recovery Act without raising the question of maintainability of the certificate proceedings, he cannot be now allowed to raise the question of the certificate proceedings being not maintainable. As a matter of fact, the petitioner's two objection petition filed on 23.12.2013 and 30.12.2013 have been considered by the certificate officer in his reasoned order dated 09.01.2014 wherein on the basis of the records produced by the officials of the Corporation, the certificate officer had arrived at a finding that the petitioner had received paddy as allotted by the Corporation. In this regard, reliance has been placed by him on the letter of the petitioner wherein he himself had clearly stated that he was willing to supply 28 lots of rice, and that he was also prepared to pay cost of balance of rice. The certificate officer, accordingly, in terms of an order passed under Section 10 of the Act has gone to hold as follows:
"Under above circumstances, it is well established that the C.D. has received the paddy as allotted by the S.F.C. but all about a sudden changed his version. The version of the C.D. is not liable to be believed so, in considered opinion of the Court, the amount as Patna High Court CWJC No.6822 of 2014 dt.14-10-2015 6/12 1,59,10,881=00 (one crore fifty nine lacs ten thousand eight hundred eighty one rupees) required to be deposited and as such directed to be deposited.
Issue notice to the C.D. to deposit 1,59,10,881=00 (one crore fifty nine lacs ten thousand eight hundred eighty one rupees) within one week."
14. As a matter of fact, on next date, the petitioner in the certificate proceeding became absent and thus the warrant of arrest was issued only when the certificate officer was satisfied that the petitioner was evading to pay the dues of amount. The order of the certificate officer dated 21.01.2014 in this regard reads as follows:-
The C.D. is absent. It appears that he has no interest in participation with the proceeding. His gesture is perilous in the interest of S.F.C., the C.H. Recovery of the certificate amount is requisite.
Issue W.A. against him and ensure its service to the P.S. concerned.
In the mean time, call a report from the Anchal Adhikari, Amarpur regarding details of his immovable property. Put up on 23.01.2014"
15. Thus, this Court finds no error in the decision making process of the certificate officer while passing both the impugned orders.
16. That apart, strictly speaking, the petitioner is also bound by the inter parte order of this Court dated 21.11.2013 in C.W.J.C. No. 19605 of 2013 which reads as follows:-
"It is submitted by the learned counsel for the petitioner that petitioner is ready to clear the dues of the Bihar State Food Corporation Ltd (hereinafter referred to as the Corporation). However, the grievance is that his godown has been locked and sealed and, hence, he is unable to sell the food-grains lying in the said godown and clear the dues of the Corporation in cash with the sale proceeds.
Learned Senior Counsel for the Corporation submits that the Corporation is ready to open the godown but the petitioner must give an undertaking before hand that he will liquidate the Patna High Court CWJC No.6822 of 2014 dt.14-10-2015 7/12 dues of the Corporation within a fixed time.
This writ application is, accordingly, disposed of with liberty to the petitioner to file an application before the authorities of the respondent Corporation giving an undertaking about the time limit within which he would clear the dues of the Corporation in cash. If the authorities are satisfied with the application of the petitioner, they shall open his godown and will permit him to sell the articles laying in the godown and clear their dues from the price they receive and/or from the own resources also within the time limit fixed."
17. From the reading of the aforementioned order of this Court, it would be clear that the petitioner had knowingly and voluntarily undertaken to pay the dues of the Corporation and his only pretence of not paying such dues was that his mill, godown and store had been seized. This Court, accordingly, had given him liberty to approach the authorities of the Corporation and the authorities of the Corporation had also passed a reasoned order which for the sake of clarity and convenience is quoted herein below:
fcgkj LVsV QqM ,.M flfoy lIykbZt dkWjiksjs'ku fy0] ckadk vkns'k ¼1½ ekuuh; mPp U;k;ky;] iVuk }kjk Jh dsoV lkg es0 dsoV jkbZl ,oa pwM+k fey cugjk@[ksehpd@vejiqj@ckadk ds ;kf;dk la0 19605@2013 dk fu"iknu fnukad 21-11-2013 dks djrs gq, vkosnd dks funs'k fn;k x;k fd oks viuk vkosnu l{ke inkf/kdkjh ds le{k bl v'oklu ds lkFk nsaxs fd oks fuxe dks cdk;k jkf'k fdrus fnuksa esa Hkqxrku djsaxsA vxj inkf/kdkjh vkosnudrkZ ds vkosnu ,oa v'oklu ls larq"V gksaxs rks muds fey xksnke dks [kksy nsaxs ftlls vkosnudRrkZ xksnke esa j[kks leku cspdj fuxe dk cdk;k jkf'k tek djsaxsA ¼2½ vkosnudRrkZ }kjk fnukad 03-12-2013 dks ftyk izc/a kd] jkT; [kk| fuxe] ckadk ds dk;kZy; esa ,d vkosnu ekuuh; mPp U;k;ky; ds vkns'k dh Nk;kizfr ds lkFk lefiZr djrs gq, dgk gS fd jkT; [kk| fuxe ckadk ls ,xzhesUV ds ckn ek= 12100-32 Doh0 /kku izkIr fd;k gwWA ftlds fo:n~/k vkosnu }kjk pkoy rS;kj dj dqy&29 ykWV vFkkZr 7830-00 Doh0 lh0,e0vkj0@pkoy Hkkjrh; [kk| fuxe ds xksnke ckxokM+h esa tek dj pqds gSA ek= ykWV vFkkZr 270 Doh0 lh0,e0vkj0 gh vkosnu ds ikl cdk;k gSA vkosnd ds }kjk dgk x;k fd esjs fey dk lhy [kksy fn;k tk, ftlls esa vuke cspdj fuxe dk iSlk tek dj Patna High Court CWJC No.6822 of 2014 dt.14-10-2015 8/12 nsaxsA ¼3½ Jh dsoV lkg] es0 dsoV jkbZl ,oa pqMk+ fey] [ksehpd@cugkjk@vejiqj@ckadk ds }kjk /kku vf/kizkfIr o"kZ 2011&12 esa ,djkjukek ds vkyksd esa dqy 24486-00 Doh0 /kku fofHkUu ,l0vkbZ0vks0 ij gLrk{kj dj izkir fd;s gSa tks fuEuor gS& dzekad ,l0vkbZ0vks0 uEcj fnukad ek=k 1 2240828 17-03-2012 1000-00-000 Doh0 2 2340934 02-07-2012 2000-00-000 Doh0 3 2340982 27-01-2012 1000-00-000 Doh0 4 41975 24-12-2012 5486-00-000 Doh0 5 3058662 23-05-2012 5000-00-000 Doh0 6 2240839 20-03-2012 5000-00-000 Doh0 7 3058631 11-04-2012 5000-00-000 Doh0 mi;qZDr dqy izkIr /kku& 24486-00 Doh0 dk Hkkjrh; [kk| fuxe }kjk fu/kkZfjr 67% dqy&16405-62 ¼lksyg gtkj pkj lkS ikap Doh0 ckSlB fdyks½ lh0,e0vkj0@pkoy gksrk gSA ftlds fo:n~/k vkosnd }kjk Hkkjrh; [kk| fuxe }kjk vafre fu/kkZfjr le{k lhek 30-04-2013 ds iwoZ rd dqy 7830-00 Doh0 lh0,e0vkj0@pkoy Hkkjrh; [kk| fuxe ds xksnke esa tek fd;k x;kA Jh lkg vkosnd }kjk dqy izkIr /kku ds cnys fu/kkZfjr vof/k esa dqy&8575-62 ¼vkB gtkj ikap lkS ipgrj Doh0 ckSlB fdyks½ lh0,e0vkj0@pkoy tek ugha djrs gq, jkT; ljdkj dh lEifr dk xcu fd;k gSA vkosnd }kjk jkT; [kk| fuxe ckadk ls izkIr /kku dk fu/kkZfjr vof/k ds iwoZ xcu djrs gq, cktkj esa csp fn;k x;k] ftldk fd ftyk inkf/kdkjh] ckadk ds vkns'k ij HkkSfrd lR;kiu ds ckn vkosnd ds fey ifjlj esa izkIr /kku ds fo:n~/k ugha ds cjkcj /kku ;k rS;kj pkoy miyC/k FkkA ftlds fy, buds fo:n~/k vejiqj Fkkuk dk.M la0&90@2013 nk;j fd;k x;kA ¼4½ vkosnd }kjk jkT; ljdkj ds uksMy ,tsalh jkT; [kk| fuxe ckadk ls ,djkjukek ds vkyksd esa fofHkUu ,l0vkbS0vks0 ds ek/;e ls dqy&24486-00 ¼pkSchl gtkj pkj lkS fN;klh Doh0½ /kku izkIr fd;sA ftlds fo:n~/k buds }kjk ek=&783-00 ¼lkr gtkj vkB lkS rhl Doh0½ lh0,e0vkj0 Hkkjrh; [kk| fuxe ds xksnke es tek djus dh ckr Lohdkj fd;k ,oa cdk;k dqy&8575-62 Doh0 lh0,e0vkj0@pky dks buds }kjk fu/kkZfjr vof/k ds iwoZ gh cspdj xcu fd;k x;kA ftldk ftyk inkf/kdkjh] ckadk ds funsZ'k ij buds ehy dk HkkSfrd lR;kiu ls iqf"V gksrh gSA vkosnd ds ikl cdk;k jkT; ljdkj dh dqy&8575-62 Doh0 lh0,e0vkj0@pky ftldk Hkkjrh; [kk| fuxe }kjk fu/kkZfjr ewY; 1903-13 izfr Doh0 dh nj ls dqy 1]63]20]519-69 ¼,d djksM frjslB yk[k chl gtkj ikap lkS muhl :i;k mugRrj iSlk½ ,oa dksVZ Qhl&50]000-00 ¼ipkl gtkj :i;k½ ,oa 18 izfr'kr lwn ds lkFk olwyh ds fy, fnukad 12-06-2013 dks uhyke inkf/kdkjh] ckadk ds le{k uhyke i= okn la0&01@2013&14 nk;j fd;k x;k gS tks lquokbZ ds fy, yfEcr gSA Patna High Court CWJC No.6822 of 2014 dt.14-10-2015 9/12 ¼5½ ekuuh; U;k;ky; ds vkns'k fnukad 21-11-2013 ds vkyksd esa vkosnd }kjk fuxe ls izkIr /kku ds cnys cdk;k pkoy@lh0,e0vkj0 dk dqy 1]63]20]519-69 :i;k vfoyEc tek djus dk funs'k fn;k tkrk gSA lkFk gh ;g Hkh vkns'k fn;k tkrk gS fd fey ifjlj ds xksnke esa iM+s vukt dks cspdj dqy jde tek djus dk 'kiFk i= Hkh vfoyEc lefiZr djsaA vkosnd ds vkosnu dh iw.kZ leh{kk ,oa mi;qZDr funsZ'k ds vkyksd esa vkosnu dks fu"ikfnr fd;k tkrk gSA g0@& 10@12@13 ftyk izc/a kd jkT; [kk| fuxe] ckadkA Kkikad 3398 @ fnukad 10&12&13 izfrfyfi& Hkonh; ftyk inkf/kdkjh ckadk dh lsok esa lknj lwpukFkZ lefiZrA g0@& 10@12@13 ftyk izc/a kd jkT; [kk| fuxe] ckadkA** (underlining for emphasis)
18. In view of the aforementioned order of the District Manager of the Corporation at Banka, the petitioner was bound to pay the amount either by way of sale of the stock kept under the seized premises of mill, godown and store or from his own resources as was also directed by this Court in the earlier order dated 21.11.2013 and thus the petitioner cannot wriggle out of his own admission made before this Court as stands recorded in the inter parte order dated 21.11.2013.
19. As noted above, the petitioner's plea of his not receiving the amount of paddy was also examined by the certificate officer, who on the basis of the documents submitted by the authorities of the Corporation has come to his own finding that the petitioner had received the specified quantity of paddy and did not return the prescribed amount of CMR to the Corporation. This Court, therefore, would now refuse to exercise its discretion keeping in view its earlier order dated 21.11.2013 in C.W.J.C. No. 19605 of 2013 specially when against an Patna High Court CWJC No.6822 of 2014 dt.14-10-2015 10/12 order has been passed by the certificate officer under Section 10 of the Act, the statutory alternative remedy for the petitioner will be only by way of filing of an appeal in terms of Section 60 of the Act.
20. This aspect of the matter has been considered by this Court in the case of M/s Shiv Industries vs. State of Bihar and Ors. in C.W.J.C. No. 7736 of 2014 disposed of on 22.07.2014, wherein it was held as follows:-
"10. Once this Court comes to the conclusion that the certificate proceeding is not without jurisdiction, it will have no difficulty in holding that the writ application itself is not maintainable because a division bench of this Court in the case of Sawar Mal Choudhary & Ors. Vs. State Bank of India & Ors. reported in 1986 PLJR 660 has already held that a writ application against a notice under Section 7 of the Act will not lie, inasmuch as, there are statutory alternative and efficacious remedy provided under the Act itself by way of deciding the objection under Section 9 of the Act as also an appeal against such order under Section 60 of the Act and further a revision under Section 62 of the Act. Thus, whatever objection is being raised by the petitioner in this writ application with regard to non-fulfillment of the terms and conditions of the agreement on behalf of the Corporation, could be very well raised by the petitioner by way of objection before the Certificate Officer under Section 9 of the Act.
21. As noted above, the petitioner had also appeared before the certificate officer and had raised his objection which has already been disposed of holding the petitioner to be liable and thus if the petitioner is aggrieved in any manner by the aforesaid order of the certificate officer either with regard to rejecting his objection and/or issuance of warrant of arrest, the remedy for him will be only by way of an appeal under Section 60 of the Act. The petitioner, in fact, does not want to deposit the amount that he owes to the Corporation as is Patna High Court CWJC No.6822 of 2014 dt.14-10-2015 11/12 also very clear from the facts already noted above, wherein the petitioner is not only facing two criminal case against him but also has filed a criminal case against the transporter.
22. This Court also does not find any force in the plea of the petitioner that two Store Issue Orders bearing No. 3058662 dated 23.07.2012 and another bearing no. 417975 showing supply of 5000 and 6054.67 quintals of paddy, is in any way forged order because the signature of the petitioner on those documents, as contained in Annexure-5 series, completely tallies with the signature of the petitioner executed on the Vakalatnama and affidavit of this writ application. As a matter of fact, when the supply made to the petitioner in between 16.02.2012 to 22.03.2013 by as many as 122 different dispatches made by the trucks, is also supported by the records, it will be difficult for this Court to accept the plea of the petitioner that the specified amount of paddy was not supplied to the petitioner by the authorities of the Corporation. As a matter of fact, this aspect has already gone into by the certificate officer in more elaborative manner in his order rejecting the objection of the petitioner passed under Section 10 of the Act.
23. Finally, the plea that the certificate proceedings could not have been initiated against the petitioner and that the authorities ought to have recovered the amount only by filing a money suit, has to be noted for its being rejected. The petitioner had appeared before the certificate officer and accepted that there was an agreement pursuant to which it had received paddy and the only dispute was with regard to quantity and the same having been decided against the petitioner, this Court would find it difficult to interfere with the certificate proceedings wherein the petitioner has deliberately avoided to remain present after an adverse order was passed against him by way of rejection of his Patna High Court CWJC No.6822 of 2014 dt.14-10-2015 12/12 objection. Thus, the consequential steps taken against the petitioner for issuance of warrant of arrest also does not call for any interference by this Court.
24. In the result, this writ application fails and is, accordingly, dismissed.
(Mihir Kumar Jha, J) Patna High Court, Patna Dated the 14th October, 2015 A.F.R./Sujit/-
U