- (1.)AS a part of the drought relief programme sometime before 1960, the Sub-Divisional Officer (Civil), Bhadrak, started several small improvement works within his jurisdiction and one Kapila Charan Rout was entrusted with some of these works. Plain paper agreements had been entered into between the public officer representing the State and the contractor and moneys had been advanced for such purpose. Early in 1960, at the instance of the said public officer, certificate proceedings under the Bihar and Orissa Public Demands recovery Act, 4 of 1974, were initiated and seven cases came to be registered on 1st March, 19. 60. In the year 1963, two more cases were instituted while in february, 1970, the last of the lot under consideration was registered. A chart showing the specifications of the cases is appended below for convenience. The certificate-debtor filed objections in most of the cases but said objections were overruled and execution of the certificates was ordered. On 2-12-1074, immovable properties of the certificate-debtor were put to sale in all the cases excepting Certificate Case No. 9 Dev of 1959-60. In case No. 8 Dev of 1959-60, the following order was passed by the Certificate Officer:-
"2-12-74.-- Case record is put up today. Three bidders as mentioned in the auction bid sheet participated in the auction sale. The highest bid went upto Rs. 7,000/- (Rupees Seven thousand) only. The C. Dr. is absent although he was served with a notice and sale proclamation notice was hung on the pole over the lands to be put to auction sale. The highest bid goes in favour of Shri Bipra Charan Raut of village deo pada This auction sale is hereby confirmed and the highest bidder Shri Bipra Charan Raut of village Deopada is declared as purchaser of the lands. He is to deposit 2,5 per cent of the highest bid today and the rest within 15 (fifteen) days. Case is adjourned to 1512-74. Later Shri Bipra Charan Raut deposited Rs. 2,000/- inclusive of security deposit of the auction sale of Rs. 7,000/ -. Issue receipt in favour of him. . . . . . . . . . . . ''
In eight other connected cases, the substance of this order was reproduced. In certificate Case No. 9 Dev of 1959-60, the following order was passed:--
"2-12-74--Case record is put up today. The three bidders participated in the auction. The case was adjourned to 2-12-74 for auction sale in Cases No. 8/ Dev, etc. and others. The certificatedebtor's petition has to be considered on 5-12-74. xx xx xx since the bidders had come in other cases against the certificate' debtor, the auction sale cannot be adjourned. However, the objector's claim has to be finally decided on 5-12-74 as ordered. "
In the meantime, on 12-12-1074, O. J. C. No. 1249 of 1974 was filed before this Court while on 19-12-1974, O. J Cs. 1295, 1296, 1297 and 1298 were filed and on 20-12-1974, the other five cases were filed. On 20-12-1974, in the four cases instituted on 19-12-1974, stay of further proceedings in the certificate cases was directed by this Court while in the rest six cases, the order of stay was granted on 29-1-1975. The Certificate Officer received the stay orders granted on 20-12-1974 long before 2/-1-1975. On that date, he did not confirm the sale by making an order in the four connected certificate proceedings, but in the other case, he passed an order of confirmation of sale on the ground that there was no order of stay and directed delivery of possession to the auction purchaser. Sl. Certificate case Date of Amount of Connected to O. J-No. number. initiation. Certificate debt. C. No. 1. 8 Dev/59-60 1-3-1960 Rs. 029. 69 1249 of 1974 2. 22 Dev/59. 60 1-5-1960 Rs. 60. 44 1295 of 1974 3. 21 Dev/59. 60 1-3-1980 Rs. 856. 87 1296 of 1974 4. 7 Dev/59-60 1-3-1960 Rs. 207. 56 1298 of 1974 5. 4 Dev/59. 60 1-3-1980 Rs. 767. 12 1307 of 1974 6. 9 Dev/59-60 1-3-1960 Rs. 894. 75 1308 of 1974 7. 19 Dev/59-60 1-3-1960 Rs. 440. 31 1809 of 1974 8. 51 Dev/82. 63 28-3. 1063 Rs. 452. 50 1297 of 1974 14-10-1463 9. 52 Dev/62-63 14-10-1963 Rs. 482. 00 1306 of 1974 10. 24 Dev/69-70 20-2-1976 Rs. 2171. 09 1810 of 1974 the certificate-debtor in these writ applications asked for quashing of the connected certificate proceedings mainly on the ground that the demand in question, was not a public demand and the amount even if due to the requisitioning officer could not be collected as an arrear of land revenue under the provisions of the Bihar and Orissa Public Demands Recovery Act While these writ petitions were pending, the original certificate debtor died and he has been duly substituted by his legal representatives.
(2.)IN a counter-affidavit the challenge against the certificate proceedings has been refuted. When the applications were being heard and reference became necessary to the records of the certificate proceedings, we directed them to be brought up and we have the advantage of seeing the records. 3. For the reasons which we shall presently indicate, we have absolutely no doubt that both the requisitioning officer as also the Certificate Officer have completely misdirected themselves and the proceedings are not sustainable in law:- (1) Admittedly to the seven certificate proceedings initiated on 1-31960 and the other two initiated on 14-10-63, the provisions of the orissa Public Demands Recovery Act of 1962 (l of 1963) have no application and that is the combined result of Sections 63 and 70 of that Act. Section 69 repeals the Bihar and Orissa Public Demands recovery Act of 1914 and Section 70 provides:-
" all proceedings under any of the enactments repealed under Section 69 and pending on the date of commencement of this Act shall be continued and disposed of as if this Act had not been passed. " admittedly the, amounts are due to an officer other than the collector. Therefore, in terms of Section 5 of the Bihar and Orissa Act, the Sub-Divisional Officer (as the Requisitioning Officer) was required to send a written requisition in the prescribed form to the Certificate officer. Sub-section (2) of Section 5 of the repealed Act required that the requisition has to be signed and verified in the prescribed manner and a statutory form has been prescribed for drawing up of the requisition. In none of these cases do we find a requisition answering the requirement of Section 5 (2) of the Act. In fact, there is no requisition at all in existence. Same is the position in regard to the only other case instituted subsequent to the repeal of the Bihar and orissa Act and similar provision under Section 4 of the Orissa Act has not been complied with. Section 6 of the repealed Act corresponds to Section 5 of the Orissa act and the provision runs thus:--"on receipt of any such requisition, the Certificate Officer, if he is satisfied that the demand is recoverable and that recovery by suit is not barred toy law, may sign a certificate, in the prescribed form, stating that the demand is due. . . . . . and shall cause the certificate to be filed in his office. "
The requisition being a condition precedent, in its absence, the certificate Officer, has no jurisdiction to file a certificate in his office, (2) Before signing the certificate, the Certificate Officer has to be satisfied about two things, namely,-- (i) the demand is recoverable and (ii) recovery by statute is not barred by law. In each of the certificates, the Certificate Officer has certified that the recovery by statute is barred by law. The printed portion at the foot of the certificate in the prescribed form No. I is in Oriya language and when translated into English, the material portion of the certificate reads:-". . . . . . and that recovery by statute is barred by law. " the Certificate Officer had, therefore, no Jurisdiction to sign the certificates when he was satisfied that recovery by statute was barred by law.
(3.)'public demand has a statutory definition both under the repealed act as also the Orissa Act and the definition refers to arrear of money specified in Schedule T. In the repealed Act, a Schedule appeared, the relevant clause being to the following effect:--"any money payable to a Government Officer or any local authority, in respect of which the person liable to pay the same has agreed, by a written instrument duly registered, that it shall be recoverable as a public demand. " the certificate-debtor has throughout contended that there was no registered instrument recording the agreement of recovery as a public demand of any sum due in respect of the contracts with the Government Officer and no material has been placed either before the Certificate Officer or even before us to negative this stand of the certificate debtor. We are alive to the fact that under the orissa Act, the need for registration is not necessary and, therefore, the third ground is not available for the last of the certificate cases instituted on 20-21970, because the Orissa Act came into force with effect from 1-6-1964.