IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13121 of 2006 ====================================================== M/S Vishnu Sugar Mills Limited, P.O. Harakhua, P.S. Vishnu Sugar Mills, District- Gopalganj through its General Manager, Shri P.R.S. Panicker .... .... Petitioner Versus 1. The State of Bihar through the Secretary, Sugarcane Development Department, Government of Bihar, Patna 2. The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna 3. The District Magistrate-cum-Collector, Gopalganj 4. The District Certificate Officer, Gopalganj 5. The Cane Officer, Gopalganj .... .... Respondents ====================================================== With Civil Writ Jurisdiction Case No.13126 of 2006 ====================================================== M/S Vishnu Sugar Mills Limited, P.O. Harakhua, P.S. Vishnu Sugar Mills, District- Gopalganj through its General Manager, Shri P.R.S. Panicker .... .... Petitioner Versus 1 The State of Bihar through the Secretary, Sugarcane Development Department, Government of Bihar, Patna 2 The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna 3 The District Magistrate-cum-Collector, Gopalganj 4 The District Certificate Officer, Gopalganj 5. The Cane Officer, Gopalganj .... .... Respondents ====================================================== With Civil Writ Jurisdiction Case No.13928 of 2006 ====================================================== M/S Sasamusa Sugar Works Ltd., At & P.O. Sasamusa, District-Gopalganj through its Cane Manager K.A. Farooqi .... .... Petitioner Versus 1 The State of Bihar through the Secretary, Sugarcane Development Department, Government of Bihar, Patna 2 The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna 3 The District Magistrate-cum-Collector, Gopalganj 4 The District Certificate Officer, Gopalganj 5. The Cane Officer, Gopalganj .... .... .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.13604 of 2006 ====================================================== M/S Bharat Sugar Mills (proprietor Upper Ganges Sugar and Industries Limited), At, P.O. & P.S. Sidhwalia, District-Gopalganj through its Senior Executive Vice President B.K.Sureka Patna High Court CWJC No.13121 of 2006 (10) dt.02-05-2014 2/21 .... .... Petitioner Versus 1 The State of Bihar through the Secretary, Sugarcane Development Department, Government of Bihar, Patna 2 The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna 3 The District Magistrate-cum-Collector, Gopalganj 4 The District Certificate Officer, Gopalganj 5. The Cane Officer, Gopalganj .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.13648 of 2006 ====================================================== M/S Vishnu Sugar Mills Limited, P.O. Harakhua, P.S. Vishnu Sugar Mills, District- Gopalganj through its General Manager, Shri P.R.S. Panicker .... .... Petitioner Versus 1 The State of Bihar through the Secretary, Sugarcane Development Department, Government of Bihar, Patna 2 The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna 3 The District Magistrate-cum-Collector, Gopalganj 4 The District Certificate Officer, Gopalganj 5. The Cane Officer, Gopalganj .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.13744 of 2006 ====================================================== M/S Bharat Sugar Mills (proprietor Upper Ganges Sugar and Industries Limited), At, P.O. & P.S. Sidhwalia, District-Gopalganj through its Executive President B.K.Sureka .... .... Petitioner Versus 1 The State of Bihar through the Secretary, Sugarcane Development Department, Government of Bihar, Patna 2 The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna 3 The District Magistrate-cum-Collector, Gopalganj 4 The District Certificate Officer, Gopalganj 5. The Cane Officer, Gopalganj .... .... Respondents ====================================================== With Civil Writ Jurisdiction Case No.13128 of 2006 ====================================================== M/S Vishnu Sugar Mills Limited, P.O. Harakhua, P.S. Vishnu Sugar Mills, District- Gopalganj through its General Manager, Shri P.R.S. Panicker .... .... Petitioner Versus 1 The State of Bihar through the Secretary, Sugarcane Development Department, Government of Bihar, Patna 2 The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna Patna High Court CWJC No.13121 of 2006 (10) dt.02-05-2014 3/21 3 The District Magistrate-cum-Collector, Gopalganj 4 The District Certificate Officer, Gopalganj 5. The Cane Officer, Gopalganj .... .... Respondents ====================================================== With Civil Writ Jurisdiction Case No.13222 of 2006 ====================================================== M/S Sasamusa Sugar Works Ltd., At & P.O. Sasamusa, District-Gopalganj through its Cane Manager K.A. Farooqi .... .... Petitioner Versus 5 The State of Bihar through the Secretary, Sugarcane Development Department, Government of Bihar, Patna 6 The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna 7 The District Magistrate-cum-Collector, Gopalganj 8 The District Certificate Officer, Gopalganj 5. The Cane Officer, Gopalganj .... .... .... .... Respondents ====================================================== With Civil Writ Jurisdiction Case No.13242 of 2006 ====================================================== M/S Bharat Sugar Mills (proprietor Upper Ganges Sugar and Industries Limited), At, P.O. & P.S. Sidhwalia, District-Gopalganj through its Senior Executive Vice President B.K.Surekha .... .... Petitioner Versus 1 The State of Bihar through the Secretary, Sugarcane Development Department, Government of Bihar, Patna 2 The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna 3 The District Magistrate-cum-Collector, Gopalganj 4 The District Certificate Officer, Gopalganj 5. The Cane Officer, Gopalganj .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.13293 of 2006 ====================================================== M/S Sasamusa Sugar Works Ltd., At & P.O. Sasamusa, District-Gopalganj through its Cane Manager K.A. Farooqi .... .... Petitioner Versus 1 The State of Bihar through the Secretary, Sugarcane Development Department, Government of Bihar, Patna 2 The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna 3 The District Magistrate-cum-Collector, Gopalganj 4 The District Certificate Officer, Gopalganj 5. The Cane Officer, Gopalganj .... .... .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.13333 of 2006 Patna High Court CWJC No.13121 of 2006 (10) dt.02-05-2014 4/21 ====================================================== M/S Vishnu Sugar Mills Limited, P.O. Harakhua, P.S. Vishnu Sugar Mills, District- Gopalganj through its General Manager, Shri P.R.S. Panicker .... .... Petitioner Versus 1 The State of Bihar through the Secretary, Sugarcane Development Department, Government of Bihar, Patna 2 The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna 3 The District Magistrate-cum-Collector, Gopalganj 4 The District Certificate Officer, Gopalganj 5. The Cane Officer, Gopalganj .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.13334 of 2006 ====================================================== M/S Sasamusa Sugar Works Ltd., At & P.O. Sasamusa, District-Gopalganj through its Cane Manager K.A. Farooqi .... .... Petitioner Versus 1 The State of Bihar through the Secretary, Sugarcane Development Department, Government of Bihar, Patna 2 The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna 3 The District Magistrate-cum-Collector, Gopalganj 4 The District Certificate Officer, Gopalganj 5. The Cane Officer, Gopalganj .... .... .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.13451 of 2006 ====================================================== M/S Bharat Sugar Mills (proprietor Upper Ganges Sugar and Industries Limited), At, P.O. & P.S. Sidhwalia, District-Gopalganj through its Senior Executive Vice President B.K.Sureka .... .... Petitioner Versus 1 The State of Bihar through the Secretary, Sugarcane Development Department, Government of Bihar, Patna 2 The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna 3 The District Magistrate-cum-Collector, Gopalganj 4 The District Certificate Officer, Gopalganj 5. The Cane Officer, Gopalganj .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.13544 of 2006 ====================================================== M/S Sasamusa Sugar Works Ltd., At & P.O. Sasamusa, District-Gopalganj through its Cane Manager K.A. Farooqi .... .... Petitioner Versus 1 The State of Bihar through the Secretary, Sugarcane Development Patna High Court CWJC No.13121 of 2006 (10) dt.02-05-2014 5/21 Department, Government of Bihar, Patna 2 The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna 3 The District Magistrate-cum-Collector, Gopalganj 4 The District Certificate Officer, Gopalganj 5. The Cane Officer, Gopalganj .... .... .... .... Respondents ====================================================== Appearance : For the Petitioners : Mr. Y.V.Giri, Sr. Advocate Mr. Ashish Giri & (In all the cases) Mr. Pranav Kumar, Advocates For the State : Mr. Narendra Kumar, AC to SC-22 (In CWJC No.13121 of 2006) Mr. Akhileshwar Singh, AC to GA-3 (In CWJC No.13126 of 2006) Mr. Devendra Kumar Sinha, AAG-2 Mr. Sudhir Kumar, AC to AAG-2 (In CWJC No.13928 of 2006) Mr. Brajesh Kumar, AC to AAG-11 (In CWJC No.13604 of 2006) Mr. Sunil Kumar Rai, AC to AAG-3 (In CWJC No.13744 of 2006) Mr. Ravish Chandra, AC to SC-16 (In CWJC No.13128 of 2006) Dr. Anil Kr. Upadhyay, SC-20 Mr. Naresh Prasad, AC to SC-20 Mr. Anurag Saurav, AC to SC-20 (In CWJC No.13222 of 2006) Mr. Yogendra Pd. Sinha, AAG-15 Mr. Rajeev Kumar Sinha, AC to AAg-15 (In CWJC No.13242 of 2006) Mr. Naseem Yahiya, G-P13 Mr. Ratnakar Ambastha, AC to GP-13 (In CWJC No.13293 of 2006) Patna High Court CWJC No.13121 of 2006 (10) dt.02-05-2014 6/21 Mr. Devendra Kr. Sinha, AAG-2 Mr. Biresh Kumar Sinha, AC to AAG-2 (In CWJC No.13333 of 2006) Mrs. Nilu Agrawal, GA-6 Mr. Avinash Kumar, AC to GA-6 (In CWJC No.13451 of 2006) ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 10 02-05-2014 Heard learned counsel for the petitioners and learned counsels for the State in all the writ applications. All the 14 writ applications raise common issues and they have accordingly been heard together and are being disposed of by this common order. The petitioners seek quashing of the entire certificate proceedings in different certificate cases filed against them including the order dated 19.9.2006 and similar orders passed on two other dates separately in the different cases in exercise of powers under Section 10 of the Bihar and Orissa Public Demand Recovery Act, 1914 by which the objections filed by the petitioners under Section 9 of the said Act have been rejected and directions have been issued to them to deposit the various amounts payable towards interest on the arrears of purchase tax for different periods in different cases, the earliest being of the year 1984-85 and the last year being 2001-02, the Patna High Court CWJC No.13121 of 2006 (10) dt.02-05-2014 7/21 periods however, are not common to all the cases but in different matters the certificate cases are for different years. The facts of the first case, namely, CWJC No. 13121/2006 are being delineated here as representative of the facts of the other cases. Under the provisions of Section 49(1) of the Cane Act each Sugar Factory is obliged to pay tax at the rate of Re. 1/- per quintal of Sugarcane which was subsequently enhanced to Rs. 1.75 per quintal with effect from 9.11.2000 by notification issued in that regard by the State Government. The failure to pay the taxes entails recovery of the same as arrears of land revenue or public demand under Section 51 of the Act. There is further provision for interest on failure to pay such purchase taxes at the rate of 11% per annum. It is not in dispute that principal amount of tax on purchase of sugarcane has been paid in all the cases including in the first writ petition for the period from 1985-86 to 1989-90. The interest not having been paid, the Cane Officer, Gopalganj by his letter dated 8.7.2002 addressed to the District Certificate Officer, Gopalganj sought recovery of interest on arrears of purchase tax for the period 1985-86 to 1989-90 payable under Section 49 (3) of the Cane Act to the extent of Rs. 3,74,552/-. Similarly, demands were raised for different periods with respect to the other writ Patna High Court CWJC No.13121 of 2006 (10) dt.02-05-2014 8/21 applications also. The petitioners on receipt of notice from the Certificate Officer filed their respective objections under Section 9 of the Act in which one of the grounds taken was that interest has wrongly been calculated in excess whereas under Section 51 of the Cane Act it is chargeable only at the rate of 11% per annum. Thereafter by letter dated 28.5.2003 the Cane Officer intimated to the District Certificate Officer that the interest on principal dues have been wrongly calculated at the rate of 15% in the requisition and therefore calculation in terms of the correct rate of interest at the rate of 11% with calculation chart was forwarded, the certificate amount thereby getting reduced to Rs. 1,89,702.44 and a request for correction of the previous calculation was made. Thereafter the petitioners filed a composite written statement in addition to the separate objections taken under Section 9 of the Act raising various points. By the impugned order dated 19.9.2006 and other orders separately in each case the District Certificate Officer rejected the objection petition and directed the petitioners to deposit the amount of Rs. 1,89,702/- within three weeks. Similar directions were issued in all the other cases on the same date as also on two other dates. Learned counsel for the parties in support of Patna High Court CWJC No.13121 of 2006 (10) dt.02-05-2014 9/21 their respective stand have made various submissions but it may not be necessary to deal with them all in the given circumstances of the case. The principal submission of learned counsel for the petitioners is that the certificate proceedings are violative of Sections 4,5 and 6 of the Bihar and Orissa Public Demand Recovery Act as neither the requisition is in accordance with Form No.2 nor the certificate is in Form No.1. It is submitted that signing of the requisition by the Cane Officer and the Certificate Officer on the same form amounts to non- compliance of Section 4. It is the stand of learned counsel for the petitioner that the law relating to recovery of public demand is a special and technical law and while construing such technical and special law, the Court should insist upon following the requirement strictly. In support of the same learned counsel relies upon a decision of this Court in the case of Hari Prasad Agrawalla Vs. The State of Bihar & ors.: 1975 BBCJ 723, in para-4 of which it has been laid down as follows:- “4. It was next contended by the learned Government Advocate that, although no requisition in the prescribed form and manner may have been sent by respondent No. 2 to respondent No. 4, the certificate, a notice with regard to which had been issued by respondent No. 4 and duly served on the Patna High Court CWJC No.13121 of 2006 (10) dt.02-05-2014 10/21 petitioner, should be deemed to be in form 1 as envisaged by Sections 4 and 6 and should be deemed to be a substantial compliance with the statutory requirement under Sec. 5 of the Act. There is no force in this argument of learned counsel for the respondents. In the case of Gujraj Sahai V/s. Secretary of State for India in Council, ((1890) ILR 17 Cal 414) it was observed by the Judicial Committee of the Privy Council as follows:- "The Act (The Public Demands Recovery Act) is an extremely stringent one; the policy of it we do not of course discuss. But we suppose it to be that, as a matter of executive convenience, demands of a public nature, the justice of which has been enquired into and certified by officials of high rank and unquestionable integrity, may properly enjoy for the enforcement of them, the very exceptional privileges accorded to them by this Act; but subject to whatever safeguards are provided by the Act by the procedure laid down in it." And, again, at page 430 it was observed:- "We think it absolutely incumbent on the Courts, when considering the validity of sales under this Act, to rigidly require an exact compliance with the formalities prescribed by the Legislature: to do so at least as rigidly as the Courts at home have, for instance, in copyright case and in many others, insisted on exact obedience to prescribed formalities." In the case of Gujraj Sahai, with which the Judicial Committee was seized the certificate did not bear the signature, and it was held that in such kind of cases the matter is of infinitely greater importance, for the non-compliance with the provision prescribed by the Act prevented the Collector from being clothed with the Patna High Court CWJC No.13121 of 2006 (10) dt.02-05-2014 11/21 powers conferred on him by the Act and the sale in such cases cannot be said to be under execution of a certificate duly made under the provisions of the Act and such sales would have to be struck down as absolutely void. This case has been referred to and relied on by a Bench of this Court in Nageshwar Prasad Singh V/s. Rai Bahadur Kashinath Singh (1958 BLJR 820). In Nageshwar Prasad‟s case the argument put forward on behalf of the certificate debtor was that it was only the matter of substance which, if not filled in, would be fatal to the certificate. That means, it was suggested, that it had no reference to such blanks in the form which had no material bearing upon the merits of any certificate issued. Such an argument was held to be untenable by this Court, and it was held that the term `matters of substance‟ refers to form prescribed by the Act and that remark cannot be limited to only certain items in the form. It will be noticed from the facts of those two cases that there it was merely the failure to put in signature at its due place in the form. Even so, both the Judicial Committee as well as the Bench of this Court held that in construing the provisions of the Act such omission or failure would not amount to a mere irregularity but would be fatal to the certificate proceedings which would be deemed to be void ab initio. The instant case with which we are concerned stands on a footing much worse for the respondents. What to talk of no signature or verification being appended to the form, as I have already stated above, no requisition in Form 2 under Sec. 5 of the Act was at all sent by respondent No. 2 to respondent No. 4. The notice in Form 1 read with Sections 4 and 6 of the Act, which was sent to the petitioner by the Certificate Officer, respondent No. 4 states at the end of the certificate (Annexure - 2), after all the columns had been filled up, that the Certificate Officer was satisfied that the above mentioned sum of Rs. 12,275/- was payable by Patna High Court CWJC No.13121 of 2006 (10) dt.02-05-2014 12/21 the petitioner to the Divisional Forest Officer, Monghyr. This satisfaction of the Certificate Officer, even treating the matter as of form only, is without any foundation, for the satisfaction of the Certificate Officer must be based initially upon the satisfaction of the requisitioning officer, namely, respondent No. 2 in the present case, who must have verified the requisition in Form 2 under Sec. 5 of the Act. In that view of the matter, I have no hesitation in holding that the certificate proceedings started against the petitioner were wholly without jurisdiction.” Learned counsel further relies upon para-7 of a division Bench decision of this Court in the case of Nirod Baran Banerjee Vs. State of Bihar and others: AIR 1981 Patna 96. It may however be necessary to quote last part of para-3 of the said judgment also. Both of which are, accordingly quoted below:- “3. …… ………….. …………….. “Section 4 of the Act states that when the Certificate Officer is satisfied that any Public demand payable to the Collector is due, he may sign a certificate in the prescribed form, obviously referring to Form No. I stating that the demand is due and shall cause the certificate to be filled in his office, thus before initiating the certificate proceeding the Certificate Officer has to be satisfied that the public demand is payable to the Collector He is also to certify specifically that the demand is due. In column No. 2 the certificate-holder has been described as the District Mining Officer, Hazaribagh and not the Collector. Even assuming that the verification (Tasdik) mentioned in the Form in question amounts to a certificate, any certificate by the District Patna High Court CWJC No.13121 of 2006 (10) dt.02-05-2014 13/21 Mining Officer, who is not vested with the powers of a Certificate Officer, cannot take the place of a Certificate by the Certificate Officer as envisaged in Form No. I of Schedule II. It is true that the Deputy Director of Mines is a Certificate Officer but the verification (Tasdik) signed by him too falls short of the requirements of Sec. 4 read with Form No. I inasmuch as it does not even indicate about his satisfaction about the demand being payable to the Collector or about the same being due. As contended it does not also state about the amount being payable, the relevant space having been left blank. There is another certificate by the District Mining Officer on the said Form which states that demand notice was served on the lessee prior to the date of filing of the requisition and that the dues are not time barred. The term due used in Sec. 4 of the Act suggests that it must be legally due but it is for the Certificate Officer to so certify and not for the District Mining Officer, who, undisputedly appears to have signed this certificate. Surplusages or unnecessary additions in the relevant form, unless it adversely affects the right of the party, may in the appropriate circumstances be overlooked but if the form falls short of the requirement of the provisions made in the Act, as in the instant case, the action taken has to be invalidated.” 7 The next point for consideration is: Whether the certificate has been issued under Sec. 4 and in Form No. I of Schedule II of the Bihar and Orissa Public Demands Recovery Act (hereinafter referred to as the Act)? The Deputy Director of Mines was the certificate officer within the purview of Sec.3 (3) of the Act. The Certificate Officer is entitled to issue a certificate in Form No. I of Schedule II both under Sec. 4 as well as under Sec. 5 of the Act. If the Certificate Patna High Court CWJC No.13121 of 2006 (10) dt.02-05-2014 14/21 Officer issues a certificate under Sec. 4 then the following certificate is required to be signed by him: "I hereby certify that the abovementioned sum of Rs......... is due to the abovenamed." If the certificate is issued under Sec. 5 then the Certificate Officer is required to give another certificate over and above as mentioned above in the following manner: "I further certify that the abovementioned sum of Rs................ is justly recoverable, and that its recovery by suit is not barred by law." Under Rule 8 of the Rules framed by the Board of Revenue the Collector or his representative can prepare the draft in Form No. 1 of Schedule II of the Act. The contention of the learned Government Pleader V was that the District Mining Officer being a representative of the Collector could prepare the draft in Form No. I. Accepting the argument of Government Pleader V as correct it is clear that the District Mining Officer being the representative of the Collector can prepare the draft in Form No. I but in the present case the certificate has also been signed by the District Mining Officer to the following effect: "I hereby certify that the above- mentioned sum of Rs. 1,36,135.32 is due to the Government from the above-named." Patna High Court CWJC No.13121 of 2006 (10) dt.02-05-2014 15/21 This certificate has been signed by the District. Mining Officer, Hazaribagh. This certificate can be signed only by the Certificate Officer i. e, the Deputy Director of Mines. Hazaribagh. In this circumstance I hold that the signature made by the District Mining Officer is illegal and without jurisdiction. This certificate should have been signed by the Deputy Director of Mines who was the Certificate Officer of Mines. In the instant case he had signed the certificate after it was signed by the District Mining Officer. There is another certificate below the signature of the Certificate Officer which was made by the District Mining Officer, Hazaribagh. In that certificate he has mentioned: “Certified that the dues have not been realized and it is not time barred.” This certificate was not at all required to be given by the District Mining Officer and it is not in consonance with Form No.1. In other words there are three certificates by three different Officers in Annexure-1. First there is a certificate of the District Mining Officer, there is another certificate by the Certificate Officer and the third certificate is again by the District Mining Officer. This fact clearly shows that the certificates were not issued in accordance with Form No.1 of Schedule II. It is the case of the State