IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.593 of 2010 In (CIVIL WRIT JURISDICTION CASE 15181/2007). 1. M/S Raja Continental, A Partnership Firm Having It's Place Of Business At Binodpur, Katihar Through Smt. Preeta Jha, D/O Late Parmanand Singh Jha, One Of The Legal Heirs Of Late Parmanand Singh Jha, Partner M/S Raja Continental, R/O Vill. And P.S.- Mangrauni, Distt.- Madhubani, Bihar …. Appellant. Versus 1. Bihar State Financial Corporation Through It'S Specified Authority, Frazer Road, Patna 2. M/S Jain Atithi Bhawan, C/O Bajrang Textiles Agency, Badal Rai Katra, M.G.Road, Katihar … Respondents. For the Petitioner : Mr. Arbind Jha, Adv. For the Corporation : Mr. Vinay Kant Man Tripathi, Adv. For the Pvt. Respondent : Mr. Malllika Mazumdar, Adv. ---------------------------------- 5. 29.11.2011 Heard the parties. 2. By the order under appeal dated 19th February 2010, a writ petition preferred by the appellant bearing C.W.J.C. no. 15181 of 2007 has been dismissed mainly on the ground that the writ Court was not required to test the correctness of the decision made by the Specified Authority under Section 32G of the State Financial Corporation Act, 1951 ( hereinafter, in short, referred to as the ‘Act’) and the remedy of the writ petitioner may lie before the Certificate Officer whose duty would be to look into all the objections raised by the writ petitioner and decide the same. 2 3. Learned counsel for the appellant submits that neither Section 32G of the Act nor the Notification issued by the State Government dated 1st September 2001 containing rules for recovery of dues against the Bihar State Financial Corporation, 1996 provide for adopting the provisions of Bihar and Orissa Public Demand Recovery Act, 1914 which alone vests power of deciding objection in the Certificate Officer. In support of his submission that the provisions of the Public Demand Recovery Act are inapplicable in view of machinery for recovery specified under Section 32G, learned counsel for the petitioner has placed reliance upon the judgment of the Supreme Court in the case of Unique Butile Tube Industries(P) Ltd. Vs. U.P. Financial Corporation and others, (2003)2 SCC 455. In Para-9 of that judgment, the Apex Court has observed that proceedings under the U.P. Public Money (Recovery of Dues) Act, 1972 was not permissible. The reason for the said view was that the U.P.Act dealt with separate mode of recovery not related to the proceedings under the Financial Act. The Apex Court held the recovery proceeding under the Act to be maintainable in view of Section 34(2) of Debts (Dues to Bank and Financial Institution) Recovery 3 Tribunal Act, 1993 ( hereinafter, in short, referred to as ‘D.R.T.Act’). Section 34(1) of the D.R.T. Act stipulates that except as provided under sub-section(2), the provisions of that Act shall have over-riding effect notwithstanding anything inconsistent contained in any other law. But sub-section(2) of Section 34 saves the provisions of the Industrial Financial Corporation Act, 1948, the State Financial Corporation Act, 1951 and some other Acts. Hence, the Apex Court held that proceeding for recovery as per Section 32G of the Act was permissible but not any proceeding for recovery under other laws not saved by Section 34(2) of the D.R.T Act. 4. Learned counsel for the Bihar State Financial Corporation submits that Section 32G permits recovery of amount due to the Financial Corporation as an arrear of land revenue and provides that if the State Government or the Specified Authority is satisfied after following the prescribed procedure that any amount is due as claimed by the Financial Corporation, it may issue a certificate for that amount to the Collector and the Collector shall proceed to recover that amount in the same manner as an arrear of land revenue. Hence, according to learned counsel, the 4 procedure prescribed under the Bihar & Orissa Public Demand Recovery Act has been indirectly and by implication adopted u/s 32G of the Act. 5. In our considered view, Section 32G does not adopt the procedure prescribed in the Bihar & Orissa Public Demand Recovery Act. Same is the position in the Rule of 1996 framed by the State Government and in the Regulations called as ‘Bihar State Financial Corporation Recovery of Dues Regulation, 2002 framed by the Bihar State Financial Corporation and published in the Gazette on 26th September, 2002. In fact Regulation 3 makes it clear that the State Government or the Specified Authority shall determine the amount due after giving the Industrial concern and the Corporation reasonable opportunity of being heard and of adducing such evidence as they may like. There is further stipulation that the order passed by the State Government or the Specified Authority shall be final and no appeal shall lie against it. Thus the provisions to the aforesaid effect in the Rules and Regulations clearly rule out any further hearing by the Certificate Officer under the Bihar & Orissa Public Demand Recovery Act. 6. In view of the aforesaid discussions, it has to 5 be held that the writ Court is required to consider the case of the writ petitioner/appellant and his objections to the decision of the Specified Authority on merits in accordance with law. There is no remedy for the writ petitioner to get a further adjudication from the Certificate Officer under the Bihar & Orissa Public Demand Recovery Act because once the Specified Authority determines the dues, the Collector has only to execute the certificate. The legal authority to determine the dues under section 32 G vests only in the State Government or the Specified Authority. This legal position is clear from the observations of the Supreme Court in Para-25 of the judgment in the case of Delhi Financial Corporation Vs. Rajiv Anand, (2004)11 SCC 625. The writ court noticed only Para-21 of that judgment but Para-25 clarifies that there is no provision in the act barring the jurisdiction of Civil Court. Hence a suit can be filed or resort can always be had to the High Court under Article 226 or 227 of the Constitution of India. 7. In our considered view, the matter requires reconsideration by the Writ Court in the light of legal position noticed above. Hence, the order under appeal is set aside and the matter is remitted to the writ Court for 6 rehearing the parties and to decide the writ petition afresh on its own merits as we have not gone into the merits of the matter. Jay/A.F.R. (Shiva Kirti Singh,J) (Shivaji Pandey, J)