IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.457 of 2008 UDAY NARAYAN YADAV @ UDAY PRASAD YADAV Versus STATE OF BIHAR & ORS ----------- 4 31.7.2008 Heard learned counsel for the petitioner and the State. In the instant writ petition the petitioner, who claims to be the owner of the vehicle in question, prays for quashing the proceeding under the Public Demand Recover Act (hereinafter referred to as ‘the Act’) for recovery of a sum of Rs.1,39,671/- with interest thereon and for his release from jail custody as he was illegally arrested on 2.3..2008 pursuant to the order passed in the certificate proceeding. The case of the petitioner is that he was plying his Tata Maxi Taxi No.BR-39/0013 which was duly registered on 23.3.1991. He regularly paid the road tax till 1995. He states that his vehicle was not in working condition and its body was badly damaged and - 2 - therefore the vehicle was given for repair to M/s Shatrughan Body Builders but as he did not have enough money, he could not get it properly repaired. The vehicle as such was left in the garage of Body Builders from 25.9.1996 to 18.3.2001. Thereafter the vehicle was kept in Ashok Garage, Katihar from 18.3.2001 to 20.3.2001 from where the vehicle was seized by the Transport Officer on 20.3.2001. The further case of the petitioner is that the D.T.O. submitted a prosecution report to the Chief Judicial Magistrate, Katihar leading to registration of CII Case No.37/2001 under sections 28, 177, 182, 196, 192 of the Motor Vehcile Act for non payment of road tax for the period 1996 to 30.6.2001 amounting to Rs.1,39,671/-. The grievance of the petitioner is that while the criminal proceeding was pending before the learned Magistrate, Katihar, the District Transport Officer, Katihar also filed requisites for initiation of certificate case against the petitioner before the District Certificate Officer, Katihar for recovery of the tax amount giving rise to Certificate Case - 3 - No.11/01-2003. Learned counsel for the petitioner submits that the petitioner has filed an appeal under section 26 against the assessed taxation amount before the Transport Commissioner. He submits that continuance of certificate case both for the same offence is not permissible. He further submits that pursuant to the order of the Certificate Officer he was arrested on 2.3.2008. The Certificate Officer even rejected his bail application on 18.4.2008 and since then he is in jail. Learned counsel for the State submits that a criminal case before the Chief Judicial Magistrate was filed for alleged violation of sections 28, 177, 182, 196, 192 of the Motor Vehicle Act and the certificate proceeding was initiated for recovery of the road tax. He submits that the law does not prohibit continuance of both the proceedings. He further submits that notice was issued to the petitioner way back on 18.3.2002. On 20.1.2003 the petitioner even appeared and filed time petition. However, the petitioner failed to file any objection or show cause pursuant to - 4 - the aforesaid notice. The law does not bar initiation of a criminal case as well as the certificate case, both of which are for different purposes and in realm of different spheres. The criminal case under the Motor Vehicle Act is instituted for penal offences, whereas certificate proceeding is primarily initiated for recovery of demand and civil dues. Thus I do not find any substance in the submission of learned counsel for the petitioner and the same is rejected. Now this takes us to the second submission of the petitioner whether it was lawful for the Certificate Officer to detain the petitioner in custody in which he is continuing even today. Section 7 of the Bihar and Orissa Public Demand Recovery Act, 1914 (hereinafter referred to as ‘the P.D.R. Act’) requires service of notice and copy of certificate on certificate debtor. Section 9 provides opportunity to the certificate debtor for denying his liability in whole or in part. Under section 10 the Certificate Officer hears and determines such petition denying liability. If no show cause is filed then Certificate Officer can have the - 5 - certificate executed under section 14 of the Act by attaching moveable property in appropriate cases. The mode of execution of the certificate is prescribed under section 15 of the Act. The arrest of a certificate debtor is one of the last mode of executions under section 15 of the Act, and as far as possible the same should not be resorted to. At the first instance the Certificate Officer may attach or can recover the dues from sale of properties. In the instant case the Certificate Officer without following the mandate of either section 14 or 15 of the Act, detained the petitioner in custody and even rejected his bail application on 18.4.2008. Such Act of Certificate Officer is not permissible in law. The detention of the petitioner is totally unauthorized and he is directed to be released forthwith on furnishing his personal bond. However, it would be open to the Certificate Officer to issue notice to the petitioner afresh and after hearing him may pass appropriate order in accordance with law. It would be open to the petitioner to submit - 6 - KHAN before the Certificate Officer that he has preferred an appeal before the appropriate forum against assessment of road tax. With the aforesaid observations and directions, this application stands disposed of. (S.P.Singh,J)