Decided on September 09,1970



- (1.) This is an appeal at the instance of the State of West Bengal and some of its officers. A certificate case instituted in the 24 Parganas Collectorate under the Bengal Public Demands Recovery Act for realization of a sum of Rs.14723 and 11 annas alleged to be due from the present respondent on account of arrears of Sales Tax for 4 quarters ending with December 1950. The respondent received a notice purporting to be under section 7 of the aforesaid Act on the 24th October 1952 and the respondent protested thereto and the matter was taken up to the Commissioner, Presidency Division and he quashed the certificate proceedings upto the stage of the service of notice under section 7 of the Act. Thereafter on the 10th March 1955 the respondent received another notice purporting to have been issued under section 7 of the Act and this notice is dated the 26th February, 1955. The respondent again moved the appropriate authorities against the same but ultimately failed. It thereafter instituted the present suit for a declaration that the certificate proceedings were illegal, ultra vires etc. on certain grounds which will appear in course of this judgment. The suit was contested by the State of West Bengal and the Collectorate of 24 Parganas as also the Certificate Officer. The learned Judge accepted the contentions of the plaintiff Company to the effect that the notice dated the 26th February 1955 was bad inasmuch as it was not signed on the same date as the certificate which bears the date the 29th August 1953 and further that the certificate was not in accordance with the prescribed form. He, therefore, decreed the suit. Hence this appeal by the defendants.
(2.) The first point that is pressed by Mr. S. C. Das Gupta the learned Government Pleader is to the effect that the learned Judge erred in holding that the certificate proceedings were bad inasmuch as the certificate was not in accordance with the prescribed form. It is a fact that the certificate is not exactly in accordance with the prescribed form. Wording of the certificate issued in the instant case (Ext. 2) is as follows: "I certify that he sums mentioned overleaf are due to the certificate-holder by the certificate debtor(s) and that they are justly recoverable, the recovery by suit not being barred by law." The form of the certificate prescribed at the relevant time by form No.1 is as follows: "I hereby certify that the above named sum of Rs? . . . . . is due to the above named . . . . . from the above named (if the certificate is signed on requisition sent under section 5, and) I further certify that the above named sum of Rs.. . . . .. . is justly recoverable, and that its recovery by suit is not barred by law. Dated this . . . . . . . day of . . . . . 19 A.B. Certificate Officer". The learned Judge, on the authority of the decision in the case of (1) Satish Chandra Bhowmick v. Union of India (65 C.W.N. 324), held that the notice not being in the prescribed form, is bad in law.
(3.) Mr. Dasgupta draws our attention to a later decision of this Court in (2) Messrs. N. C. Mukherjee and Co. v. Union of India (A.I.R. 1964 Calcutta 165). In that case also the certificate was granted in the form as in the instant suit and not in accordance with the prescribed form. This Court held that "a certificate is not rendered invalid by a mere defendant of form and even by an omission to fill up a blank" and further that "a certificate cannot be pronounced to be invalid merely on the ground that it does not repeat the exact formula prescribed by the standard form" and dissociated itself from the decision in Satish Chandra's case. It thus appears that there are two contrary decisions on the same point by this Court, and the matter is at large. Speaking for ourselves, we would prefer to follow the later decision and would not like to be too technical. Moreover, as has been pointed in the later decision and as urged by Mr. Das Gupta "the matter is now set at rest by West Bengal Act XI of 1961". Section 2 of this act runs as follows: "Notwithstanding any decision of any Court and notwithstanding anything to the contrary contained in the Bengal Public Demand Recovery Act, 1913 (hereinafter referred to as the said Act) or interest he rules made or forms prescribed thereunder, no certificate filed under section 4 or section 6 of the said Act and no notice served under section 7 of the said Act shall be deemed to be invalid or shall be called in question merely on the ground of any defect error or irregularity in the form thereof." Mr. Dasgupta, therefore, contends that the defect in form cannot invalidate the proceedings. ;

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