- (1.)JAJANGI Hat is a municipal market located within the Talcher Municipal area in the district of Dhenkanal. The Executive Officer of the said Municipality settled the said market on licence basis with the petitioner for the years 1965-66 and 1967-68. Petitioner having failed to pay up the dues, the Certificate Officer of talcher instituted certificate case No. 29 of 1969-70 for the recovery of the outstanding sum. Petitioner challenged the tenability of the certificate proceeding on several grounds, but the Certificate Officer overruled the same. Petitioner carried an appeal to the Collector of Dhenkanal and being unsuccessful moved the Revenue Divisional Commissioner at Sambalpur in revision and having failed before that authority moved the Member, Board of revenue, in a further revision who also dismissed his revision petition. This writ application has thereafter been filed asking for a writ of certiorari for quashing of the certificate proceeding.
(2.)THOUGH several contentions had been raised in the writ application, one single question has been, canvassed before us as pleaded in paragraph 13 of the writ application in the main and that ground is that this Court having already quashed the constitution of the Talcher Municipality and there being no municipal Council in law, the provisions of the Orissa Municipal Act are not applicable and no fee or tax said to be due to the Municipal Council is collectible. Therefore, the certificate proceeding is not maintainable. It has also been argued that the demand for interest from 1-3-1968 till August, 1969 amounting to Rs. 1,039. 69 paise is not collectible in view of the fact that the certificate has been signed on 10-9-1969. Reliance is placed on Section 14 of the Orissa Public Demands Recovery Act in support of this contention. It has also been alleged that in view of the specific provision in Section 169 of the orissa Municipal Act, recourse to certificate proceeding could not be taken. The next contention on behalf of the petitioner is that even if the dues-are collectible as arrears of land revenue, the amount being payable to a person other than Collector, a requisition as envisaged under the statute was necessary to enable the Certificate Officer to initiate the proceeding and in the absence of a requisition, the certificate proceeding is not tenable.
(3.)THE opposite parties have filed counter-affidavits. Opposite party -Executive officer -- has raised several factual aspects. On behalf of the State, an affidavit has been filed wherein it has been stated that Government have constituted the Talcher Municipality afresh by notification dated 17-2-1975 after the quashing of the constitution by this Court and the Municipal Council, therefore, is in existence. In an additional counter-affidavit, reliance has been placed on an Ordinance entitled "the Talcher Municipality (Validation)Ordinance, 1976" issued by the Governor of Orissa which validates the actions of the Municipal Council of Talcher and its Chairman during the period from 12th of March, 1969 to 5th of February, 1972 and of the Sub-divisional Officer, talcher, from 6th February, 1972 till the 20th of February, 1975, during the period the Municipal Council was in supersession and the said officer was functioning as the Municipal Council. The Ordinance prohibits challenge of actions of the Municipal Council and its Chairman during the relevant period merely on the ground that the said Municipality was not validly constituted. In regard to the allegation regarding payability of interest, there has been no reply. It is, however, claimed that the arrear amount could be collected as a public demand and, therefore, a certificate proceeding under the Orissa Public demands Recovery Act is maintainable. There has been no clear answer in regard to the allegation regarding want of a requisition under the statute.