Document Fragment View

Matching Fragments

1. A proceeding under the Orissa Public Demands Recovery Act, 1962 (hereinafter, "the Act") was initiated against the petitioner for realising a sum of Rs. 8,000/- said to be due as per Rule 34 of the Orissa Forest Contract Rules, 1966 (hereinafter, "the Rules"). This sum was sought to be realised on these facts:--

The petitioner, who is a forest contractor, took part in an auction which was held for selling West Baruni Coppice Coupe No. 5 of Divisional Lot No. 17, His bid was of Rs. 12,100/-. The sale was knocked down in his favour, and he was called upon to deposit the security money. But instead of depositing the amount, he fled away from the auction hall and thus made the sale ineffective. The Divisional Forest Officer, Athmallik, thereafter, in pursuance of paragraph 10(a) of General Conditions of Sale, quashed the auction sale and resold the coupe in a fresh auction which fetched Rs. 4,100/- only. The shortfall, therefore, came to Rs. 8,000/-, and it is this amount for realisation of which the aforesaid proceeding was initiated against the petitioner. In his objection filed, as at An-nexure 3, the petitioner took various grounds, but the Certificate Officer rejected the contentions by his order dated 26-10-83 and ordered to proceed with execution to realise the dues. Feeling aggrieved, an appeal was preferred and the learned Additional District Magistrate by his impugned order dismissed the same after having observed that the case of the appellant might not fall under Rule 34 of the Rules but the action of the Divisional Forest Officer to realise the amount under the terms of the sale notice came under the purview of Section 87 of the Orissa Forest Act, 1972. Feeling aggrieved, this petition has been filed.

14. While on the aforesaid subject, we may say that the Divisional Forest Officer who had signed the requisition cannot be said to be an unauthorised person or a foreigner to the subject-matter. We have said so, because the dues which were sought to be realised from the petitioner were pursuant to some action taken by the Divisional Forest Officer himself. This apart, a perusal of the Agreement Form appended to the Orissa Forest Contract Rules, 1966 would show that the same is required to be signed by a "Forest Officer" acting for and on behalf of the Governor of Orissa. As the dues in question were sought to be realised by pressing into service rule 34 of the Rules, we are of the opinion that the Divisional Forest Officer had rightly signed the requisition. It may be stated that Rule 1(1) of Schedule II of the Act permits any person, who is proved to the satisfaction of the Certificate Officer to be acquainted with the facts of the case, to sign and verify the requisition. The Divisional Forest Officer has to be regarded as such a person in the present case.

25. The next decision is by a learned single Judge of this Court which is strongly pressed into service by the learned Government Advocate -- the same being State of Orissa v. Susil Kumar, (1979) 48 CLT 561. There, some dues had become payable to the State Government whereas in the certificate the Collector was shown as the certificate-holder. An objection was, therefore, taken that the certificate proceeding had not been properly initiated. The learned Judge observed that as the agreement had been signed by the District Magistrate and the Collector "acting in the premises for and on behalf of the Governor of Orissa", which showed that the Collector was acting from the very inception as the representative of the Governor, and so, the Collector was competent to file the requisition as had been done in that case, though the Collector should have mentioned therein that he was acting in the premises for and on behalf of the Governor of Orissa, who is the certificate-holder. This defect in the description of the certificate-holder in the requisition was, therefore, regarded as only "nominal, technical and clerical", because of which it was held that the certificate proceeding could not be quashed and struck down. Instead, the learned Judge ordered to amend the column in the requisition to show that the Collector had filed the certificate proceeding for and on behalf of the Governor, in the present case also, as would be pointed out later, the agreement for purchase and sale of fores,t produce is required to be signed by a "Forest Officer" acting "for and on behalf of the Governor of Orissa" as would appear from the form of agreement as given in the Orissa Forest Contract Rules, 1964, and so, what has been stated in Susil Kumar has direct application to the case at hand. '

34. Another decision of the Calcutta High Court is by a Bench and was rendered in Abenindra Kumar v. A. K. Biswas, AIR 1954 Cal 155. Therein the liability sought to be recovered through the certificate proceeding was one incurred under the Income-tax Act. It was, therefore, observed that the liability was of Union of India, and so, the proper description of the certificate-holder should have been, as stated in paragraph 17, the Government of India or any of its subordinate officers in the Income-tax Department. But then, the name of the certificate-holder was given as State Government, which was stated to be wrongly done. It is important to note that even though the dues were payable to the Union of India, the observation was that even a subordinate officer of the Income-tax Department could be stated to be certificate-holder as the amount sought to be recovered was dues payable under the Income-tax Act. If this analogy is applied to the case at hand, it can well be said that the Divisional Forest Officer could also be described as the certificate-holder as the dues, though payable to the State Government, were relatable to what had happened in an auction sale conducted by the Divisional Forest Officer under the provisions of the Orissa Forest Contract Rules, 1966. This apart, in the Calcutta case, the proceeding was quashed not only because of the above defect but also because particulars of the public demand required to be mentioned in the fourth column of the certificate had been left blank. Then, the copy of the certificate which was served upon the petitioner had not been signed by the hand of the Certificate Officer but merely bore his lithographic signature. So, it was not a case of setting aside of the proceeding merely because of defective name of the Certificate-holder.