Rajkishor Acharya vs Certificate Officer-Cum
2023 Latest Caselaw 12758 Ori

        IN THE HIGH COURT OF ORISSA, CUTTACK
                          W.P.(C) No.6506 of 2012

     Rajkishor Acharya               .......         Petitioner

                                   -Versus-


     Certificate Officer-Cum-        .......            Opposite Parties
     Deputy Collector,
     Jeypore & another

           For Petitioner        : Mr. M. K. Mohapatra, Advocate

           For Opp. Parties : Mr.Y.S.P.Babu, Addl. Govt. Advocate

                                   -----
          CORAM: JUSTICE SANJAY KUMAR MISHRA
________________________________________________________________

        Date of Hearing and Judgment: 16.10.2023
________________________________________________________________

S.K. Mishra, J.

1. The Writ Petition has been preferred challenging the action

of the Opposite Parties in initiating OPDR proceeding against the

Petitioner for recovery of Rs.26,662.50 Paise, vide Certificate Case

No.16 of 1987, pending in the Court of Certificate Officer-Cum-

Deputy Collector, Jeypore.

2. The 1st Division Bench, while hearing on 09.07.2012,

directed the learned Government Advocate to take notice on

behalf of Opposite Parties and ordered to stay operation of the

impugned Order dated 18.05.2011 in Annexure-3 series till the

next date. Thereafter, this matter has been listed today before

this Bench. No Counter Affidavit has been filed by the State-

Opposite Parties till date.

3. Learned Counsel for the Petitioner draws attention of this

Court to the Petition dated 17.08.1987 filed by his client as

required under Section 8 of the Odisha Public Demands Recovery

Act, 1962, hereinafter referred to as "OPDR Act, 1962" for brevity

and submits, after filing of the said Petition denying liability and

praying therein to call for records as detailed in the said Petition,

the Certificate Officer, while ordering to send copy of the said

Petition (wrongly mentioned as Counter), vide Order dated

20.03.2003 directed the Certificate Holder to produce the

relevant documents for further action and ordered to inform the

Tahsildar, Jeypore to hold up the attachment warrant till hearing

and the matter was posted to 28.04.2003. Thereafter, the

Certificate Holder neither appeared nor tendered documents

called for and the matter got adjourned from time to time till

18.05.2011. On the said date, without determining the Petition

denying liability filed by the Petitioner, the impugned Order was

passed with an observation that the Petitioner, who is the

Certificate Debtor, was absent on call and the Court was satisfied

that the Certificate Debtor is avoiding to appear in the Court.

Hence, the Tahsildar, Jeypore, was directed to execute the

warrant by 01.06.2011.

4. Mr. Mohapatro, learned Counsel for the Petitioner submits,

since the impugned Order has been passed by the Certificate

Officer without determining the Petition denying liability filed by

the Petitioner and the procedure prescribed under Section 9 of

the OPDR Act, 1962 was not followed before passing of the

impugned Order dated 18.05.2011 and the principles of natural

justice was never followed by the Certificate Officer, though there

is a provision of Appeal under Section 60 of the OPDR Act, 1962,

his client has rightly approached the Writ Court challenging the

said illegal order passed by the Certificate Officer.

5. Mr. Mohapatro, learned Counsel for the Petitioner further

submits, this is a fit case to interfere and set aside the impugned

Order and remand the matter back to the Certificate Officer for

deciding the same in accordance with law more particularly,

following the provision prescribed under Section 9 of the OPDR

Act, 1962.

6. Mr. Babu, learned AGA for the State-Opposite Parties

submits, though vide Order dated 20.03.2003, it was directed to

the Certificate Holder to produce the relevant documents, but

because of non-appearance of the present Petitioner (Certificate

Debtor) on subsequent dates, even though the Certificate Holder

was absent, the Certificate Officer was justified to pass the

impugned Order dated 18.05.2011.

7. Heard learned Counsel for the Parties.

8. From the pleadings made and submissions of the learned

Counsel for the Parties so also the certified copy of the entire

order-sheet annexed to the Writ Petition as Annexure-3, it would

be apt to reproduce below the Order dated 14.09.1992 so also

Order dated 20.03.2003, respectively, in Certificate Case No.16 of

1987:

"14.09.1992- This is put up today. The representative of the C.Hr is present. The Advocate for the C.Dr is present and submits that the petition filed on 23.10.1989 challenging the maintaining of the Certificate Proceeding due to absence of agreement. The representative of the

C.Hr is directed to produce the Works Case Record along with the agreement if any on the next date. Case posted to 27.10.1992."

"20.03.2003- The Case record is taken up today on receipt of advance petition filed by the C.Dr. The learned Advocate Sri Nabin Chandra Mohanty filed Vakalatanama on behalf of the C.Dr Raj Kishore Acharya. The learned Advocate for the C.Dr has filed counter protesting the certificate dues. The learned Advocate for C.Dr argues that the C.Hr has not produced the documents like agreement paper and finalization of bills on repeated request. Further the finalization of work can determine the actual amount advanced to CDR and work done. So that whatever the balance comes the C. Dr is agreed to recoup the liabilities with the CHR. Heard. Direct the C.Hr to produce the relevant documents on the next date and send the copy of counter to C.Hr for further action. Inform Tahsildar, Jeypore to held up the attachment warrant till hearing.

Case to 28.04.2003 for hearing."

(Emphasis Supplied)

9. The subsequent order-sheet of the case record in Certificate

Case No.16 of 1987 well demonstrates that pursuant to the said

Order passed by the Certificate Officer, neither the Certificate

Holder appeared nor produced the records, as called for at the

instance of the present Petitioner (Certificate Debtor). Till

07.03.2011, it was reflected in the order-sheet that Service

Return (SR) not back and it was ordered to issue notice to both

the Certificate Debtor and the Certificate Holder to appear before

the said Court. Pursuant to the said notice, the present Petitioner

(Certificate Debtor) appeared on 18.03.2011 and filed Hazira,

whereas Certificate Holder was found absent on call. Thereafter,

both the Certificate Debtor and Certificate Holder were found

absent on 28.03.2011, 21.04.2011 and 29.04.2011. Finally, on

18.05.2011, the impugned Order was passed without following

due procedure prescribed under Section 9 of the OPDR Act, 1962

and without determining the Petition denying liability filed by the

Petitioner dated 17.08.1987, though vide order dated 14.09.1992

and 20.03.2003 the Certificate Officer directed the C.Hr to

produce certain documents to determine and decide the Petition

filed by the C.Dr in terms of Section-8 of the OPDR Act, 1962.

Sections 8 and 9 of the OPDR Act, 1962 are extracted below for

ready reference:

"8. Filing of petition denying liability - (1) The certificate-debtor may, within thirty days from the service of the notice required by Section 6 or where the notice has not been duly served, then within thirty days from the execution of any process for enforcing the certificate, present to the Certificate Officer in whose office the certificate is filed or to the Certificate Officer who is executing the certificate, a petition, in the prescribed form, signed and verified

in the prescribed manner, denying his liability only on the ground that -

(a) the certificate dues have been fully or partly paid; or

(b) the person on whom such notice has been served is not the person named as certificate- debtor in the certificate :

Provided that a certificate-debtor in respect of dues other than those in relation to which the liability under any law for the time being in force is not open to question in a Civil Court may also deny his liability on any other ground:

Provided further that no petition under this sub- section shall be entertained by a Certificate Officer unless he is satisfied that such amount of the certificate dues as the certificate-debtor may admit to be due from him has been paid.

(2) If any such petition is presented to a Certificate Officer other than the Certificate Officer in whose office the original certificate is filed, it shall be sent to the latter officer for disposal.

"9. Hearing and determining of such petition - The Certificate Officer in whose office the original certificate is filed may after hearing the petition and taking evidence, if necessary, confirm, set aside, modify or vary the certificate as he deems it.

(Emphasis Supplied)

10. In view of the above and the legal provision enshrined under

Section-9 of the OPDR Act, 1962, as extracted above, this Court

is of the view that there is a gross procedural flaw before passing

of the impugned Order dated 18.05.2011 and the said Order has

been passed without determining the Petition denying liability

filed by the Petitioner as Annexure-2. Hence, impugned Order

deserves interference.

11. Accordingly, the Order dated 18.05.2011 passed in

Certificate Case No.16 of 1987 is hereby set aside and the matter

is remanded back to the Opposite Party No.1 to re-hear the same

following due procedure of law, as prescribed under Section 9 of

the OPDR Act, 1962, by giving due opportunity of hearing to the

Certificate Debtor.

12. Since the certificate proceeding is of the year 1987, the

Certificate Officer would do well to conclude the proceeding

within four months hence. Till conclusion of the certificate

proceeding, no coercive action shall be taken against the

Petitioner.

13. The Writ Petition stands disposed of. No Order as to costs.

                                                                    (S.K. MISHRA)
Signature Not Verified                                                 (JUDGE)
Digitally Signed
Signed by: PADMA CHARAN DASH

Reason: AuthenticationOrissa High Court, Cuttack Location: ORISSA HIGH COURT, CUTTACK Dated, 16th October, 2023/Padma Date: 18-Oct-2023 07:51:42