/'K ygQUCQURTOFJUDiCATURECHHATT^^^^ : MON'BLESRIS.R.NAYAK,CJ PiTmQNERS RESPQNDENTS y^JT PETSTSON NO.S384 OF 2005 1. LAFARGE INDIA PRJVATE L!M!TED, A Company incorporated and registered under the reieva.nt oprovlsions of the Compsnles Act, 1956, hav'jng its registered Office at; Bakhtawar, 14th FJoor, 229, Nariman OPoint, ^4umbai 400 001. AND Cement P!ant at ViHage Arasmste, P.0. Gopai Nagar, District Janjgir- Champa (CG) 495 663. 2. S.K. TlWARi, S/'o Late Shri Govind Tiwari, Works Manager, Arasmeta CemenS P!ant, P.0. Gopai Nagar, Dist: janjgir-Champa (CG) Versu.s 1. State of Chhattisgarh, Represented by the Secretary to the Government of CG, Department of Power/ESectricity, DKS Bhawan, Mantralay; Rai pur (CG). 2. The Chief E!ectrica! Snspector, Government of Chhattisgarh. Quarter No.437, Wdard No.36, 1st FJoor, Ne.ar Government Chhattssgrah College, Byron Bazaar, Rsi pur 482 001. (CG). 3. The Additjona! T^srrdar, Janjglr, P.0. Janjyir, District Janjgir-Champa (CG). present: Mr. B.P. Sharma, learned counsel for the petjtioners. Mr. N.K. Agrawa! , tearned Dy. A.G., with Mr. Yashwant Singh, i.earned Govt. Adv., for the State of Chhattisgarh. [Passed on 19'" of December 2005) !n this wrlt petltion the petitioners to Impugn the notice of demand datsd 1S/1Q/2Q05 issued by ths Addltiona! Tahsiidar, Janjgir- Champa, the third respondent herein, in the prescn'bsd form 'A' in sxercise of his power under Sectlon 146 read with section 155 (c) ofthe 1^ Chhattisgarh Land Revenue Code, 1959 (for short 'the Code'} caiSJng upon the petjtioners to pay a sum of Rs.57,87,S92/- towards arrears of e'ectricsty ciuty dus to the State Government from the petitioners under the Chhatt'sgarh ESectricity Duty Act, 1949 (forshort 'the 1949 Act>). (2) The pstitioner No.1 is a company jncorporated and reglstered under the reievant provisions of the Companies Act, 1956 and inter a!ia is sngaged in the manufacture of cement at their works s'tuate at v'!!age Arasmeta, P.0. Qopa! Nagar, D'strict Janjgir-C-hampa, popu!ar!y known as Arasmeta Cement P'ant. The aforesaid Cement P!ant had been estab'ished by Raymond Limjted (Cement Divisio"), Mumbai, !R or about the year 1932 and its fixed assets had been acquired by the petitioner No.1 in the mQnth of January, 2001. The petitiQner No.2 's a Works Manager at the Arasmeta Cement Piant. (3) Thjs writ petitson is f'led under Articies 226/227 of the CQnstitutJon of Jndia assajling the vaiidsty of the impugned notice of demand. The rejiefs sought in this wrst petition are the fo!!owing: (a) A writ of and/or !R the nature of Mandamus do issue restrain.ing the respondent State Authorities from giving any and/or further effect to the impugned notice of demand Annexure-P/1 and/or to desist from recQvering any amount whatsoever from the petstioners as the a!Seged arrears of electridty duty payabte under the 1949 Act pursuant to the impugned notice of demand Annexyre-P/1. (b) A writ of and/or in the nature of certiorari do 'ssue ca!!ing upon the respondent State authorities to produce in this Court the complete record, fi!es, inter and intra departmenta! correspondence, ^ »»NN» registers etc. pertaining to the case on hand at the time of hearing, so that consdonabie justice is done to the petitioners by qyashing the impugned notice of demand Annexure- p/1. (c) To issue any other appropriate wn't, order or direction as may appear to the Hon'ble Court just.fjtand appropriate in the facts and circumstances of the present case. (d) To award ful! costs of the present proceedings to the petstioners against the respondents. (4) Shri B.P. Sharma, isarned counse! who appeared for the petitioner wou!d strenuous!y contend that the petitsoners are not Isabte to pay She money demanded by the third respondent in the smpugned notice of demand and that the determSnatJon of the liabiiity by the second respondent is tota!!y erroneous. At th's stage, it needs to be noticed that the petitioners have set-out thsir case in detaH in para 5 of the writ petition. There is no need for me to refer to and consider those detaHs and cSasms put forth by th.e petitsoners for the decis'on-maksng !R this v/rit petit'on. Suffice it to state that the impugned notice is issued by the third respondent In exercise of the power conferred upon him under -Section 155 (c) read with Sectson 146 of the C-ode. The third respondent has Jnitiated the recovery proceedlngs on the basis of a certifscate Issued under sub-Section (1) of Sect'on 145 of the Code. sub-Section (1) of SectiQn 145 of the C-ode says that the statement of account, certlfied by the C-oJIectoF or by the Tahsiidar sha!l be presumed to be correct statement of the arrears payabie to the Government or its amount and ofthe person who is defau!ter, unti! the CQRtrary is proved. Under sub-SectiQn (2) of SecSJon 145 it is stated that it is not necessary 4 to give any notice to the defaulter before drawing up the statement referred to in sub-Section (1). The expression "unti! the contrary is proved" occurring in sub-Section (1) cieariy shows Shat the defaultsr is entitted to an Qpportunity to contest the correctness of the amount or of h's liab'Hty or of the payment of the amount. A D'vision Bench of the Madhya Pradesh High Court in the case of GhanshyaaTsSaS Vs. State1 reported jn heid that the presumptson under SectiQR 145(1) is a rebuttab!e presumptiQR. Section 145 provides that a Tahsiidar or Naib Tahsi'dar may cause a notice of demand to be sen/ed on any defaulter before the issue of any process under -SectiQn 147 for the recovery of an arrear. !t is at this stage that the defaulter is entifed to be heard before any step for the recovery of amount is taken under Section 147. The word "may" used in Section 145 shou!d be construed as "sha!!". This posstion is made further c!ear by Ru!e 2 of the Ru!es framed under Sections 14S and 147 of the Code which states that a notice of demand shai! issue in dup'icate in Form A and shaS! be signed and seaied by the officer Issuing it. Therefore, It is open for the petitioners to {1!e their objections, if any, before the third respondent. The presumption incorpQrated in sub-Ssction (1) of SectiQn 145 in respect of statement of accQunt certified by the C-Q.'lector showing the amount of arrears payabie to the Government is rsbuttabie meaning thereby that it wl!! be presumed to be correct as IQRQ as the contrary is proved. As heid by the Fu!i Bench of the Madhya Pradesh High Court, in Ramchandra Vs. State of M-P.2 reported in, if recovery proceedlngs are started on the basjs of a certificats issued under Sectjon 145C1) of 1 1961 RN 409= 1961 JU SN 384 = 1961 MPU SN 218 2. 1979RN33(FB) the C-ode, the recoyery Q<^cer shouid stay the recovery prQcsedings and shou'd direct the objector to f'ie his objections before the authQrity issujng the certi^cate under Section 145 (1) of the Code wh.o shaS! decide the Qbjections and inform the recoyen/ officer about ths furthsr action that has to be taken. in the same case, it ¥/as a!so he!d that in the objector requests that his objectjons shou!d fon^arded to the authQrity issuing the cert'Hcate under Sectjon 145(1} of the Code, the recQvsry officer, if he finds that the Qbjection is reasQnab'e, shouid forward it to such an authority for decjsion before proceeding further with the case. QuiSe cu"Qus!y ths petitioners without fi!ing any objectiQn either before the third respondent or before the Tahsildar after receipt of the impugned notice of demand have straightaway have <1!ed Shis writ petition. The third respondent - the Recovery Qfficer cannot go into correctness ofthe cerSificate jssued under Section 145(1) oftheCode. !f the peSltioners had any objections to the Impugned notjce of de-mand, they shouid have fi!ed their objections before the third respondent wlthQut any JQSS of time and requested him to refer their Qbjections to the.authority Issulng the certificate under Sectjon 145 (1) ofthe C-ode for their decision and SQUght for stay of the recovery proceedings til! then jn view of the judgments of the Miadhya Pradesh High Court in the case of Gharsshyasrs!aS Vs. State1 (supra) and Ramcharsdra Vs. State of M.P2 (stipra). Even othervvise, the dispute brought before this Court by way of this writ petition bristles Shat disputed facts and resQiution of such dispute is not possib'e in a summary proceeding underArticte 226 of ths CQRstJtutjon. There is no justification for the pstitjoners to rush to this C-oyrt strajghtaway under Articie 226 of the ConstitutJQn after receipt of the impugned notice of demand without resortlng to the ~\ remedies avai!ab!s under the C-ode itse'f and in the Jight of the afQrementioned judgments ofthe Madhya Pradesh High Court. (5) !n the circumstance, J am not inclined to entertajn th!'s writ petition. !t is accordingiy dismissed at the stage of admission itself. howeyer, resen/ing Hberty to the petitioners to work out their lega! remedies, as provided under the Code. There sha!! be no order as to CQStS. -—--' Sd/- Chief Justice A