Manoj Kumar Chawda vs Tahasildar
2023 Latest Caselaw 12834 Ori

         IN THE HIGH COURT OF ORISSA, CUTTACK
                         W.P.(C) No.838 of 2016

     Manoj Kumar Chawda             .......         Petitioner


                                  -Versus-


     Tahasildar, Keonjhar           ........          Opposite Parties
     and another

           For Petitioner      : Mr. J.P. Choudhury, Advocate

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

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

        Date of Hearing and Judgment: 17.10.2023
________________________________________________________________

S.K. Mishra, J.

1. The Writ Petition has been preferred to quash the notice dated

31.10.2015 (Annexure-6) and Order dated 31.10.2015 (Annexure-7),

with a further prayer to direct the Opposite Party No.2 to dispose of the

Certificate Case No.25/2008-09 in accordance with law by affording

opportunity of hearing to the Petitioner .

2. Learned Counsel for the Petitioner submits, admittedly, the

certificate proceeding was initiated against his client based on the

Order passed by the Tahasildar, Keonjhar dated 12.08.2005, as at

Annexure-2, in Encroachment Case No.437/05-06.

3. Learned Counsel for the Petitioner further submits, pursuant to

notice in Form No.3 dated nil along with Form No.1, as at Annexure-4,

certificate proceeding was initiated to recover an amount of Rs.3431.30

i.e. Rs.2523/- towards Back Rent/Penalty and Rs. 908.30 towards

interest. Pursuant to the said notice, though his client appeared and

filed Petition denying liability in terms of Section 8 of the Odisha

Public Demands Recovery Act, 1962 (for short 'OPDR Act, 1962'),

without giving him opportunity of hearing in terms of Section 9 of the

OPDR Act, 1962, the impugned Order was passed by the Certificate

Officer and vide notice dated 25.08.2009 (Annexure-6), the Petitioner

was directed to deposit Rs.6932.60, which includes Rs.3431.30

towards principal and equal amount towards alleged interest. That

apart, cost of certificate was indicated as Rs. 50.00 and Court fee to

the tune of Rs.20.00, as detailed in the said notice.

4. Mr. Choudhury, learned Counsel for the Petitioner draws

attention of this Court to the entire order-sheet in the certificate

proceeding to demonstrate that before passing the impugned notice,

the Certificate Officer has not followed the procedure, as enshrined

under Section 9 of the OPDR Act,1962.

5. In response to the said submission made by the learned Counsel

for the Petitioner, Mr. Babu, learned AGA draws attention of this Court

to the averments made in the Counter Affidavit filed by the State and

submits, the Petitioner had encroached the Government land. Hence,

pursuant to the report of the concerned Revenue Inspector, Keonjhar,

in Encroachment Case No.437 of 2005-2006, it was rightly ordered for

recovery of Rs.2523/- towards Back Rent/Penalty and Rs. 908.30

towards interest. Because of non-payment of the said dues, certificate

proceeding was rightly initiated against the Petitioner under OPDR Act,

1962. Mr. Babu further submits, there is no cogent reason on the part

of the Petitioner to deny the said liability as has been detailed in the

Petition denying liability dated 25.09.2015, as at Annexure-5.

6. It is pertinent to mention here that the coordinate Bench, vide

Order dated 31.03.2016, as an interim measure, stayed further

proceeding in Certificate Case No.25/2008-09 pending before the

Opposite Party No.2, subject to depositing an amount of Rs.2,500/-

before the Tahasildar-Cum-Certificate Officer, Keonjhar on or before

11.04.2016 by the Petitioner till the date of next listing of the matter.

7. Learned Counsel for the Petitioner submits, pursuant to said

Order, the Petitioner has already deposited the said amount on

11.04.2016, which is not disputed by Mr. Babu, learned Addl.

Government Advocate for the State-Opposite Parties.

8. Though the certificate proceeding has been challenged for not

following procedure prescribed under Section 9 of the OPDR Act,

learned Counsel for the Petitioner fairly concedes before this Court

that the Petitioner being a land encroacher, was liable to pay the

penalty so also back rent as has been determined by the concerned

Tahasildar and ought to have deposited the same before the concerned

Authority in terms of demand raised by the said Authority. Learned

Counsel for the Petitioner also concedes that the Petitioner is liable to

pay interest in terms of Section 14 of the OPDR Act, 1962, which is

extracted below:

" 14. Interests, costs and charges recoverable -There shall be recoverable, in the proceedings in execution of every certificate filed under this Act-

(a) interest upon the public demand to which the certificate relates

(i) in case of persons belonging to Scheduled Castes, Scheduled Tribes, Socially and educationally Backward Classes or who is an unemployed educated youth or a member of self-help group, at the rate as specified in the agreement executed by them; and

(ii) in other cases, at the rate of twelve and half per centum, per annum, from the date of signing of the certificate up to the date of realisation and :

Provided that in cases where the Certificate Officer is satisfied that the certificate-debtor has made default in payment of the dues wilfully and without reasonable cause such interest may be charged at a rate not exceeding [eighteen] per centum per annum;

(b) such costs as are directed to be paid under section 53; and

(c) all charges incurred in respect of -

(i) the service of notice under section 6 and of warrants and other processes: and

(ii) all other proceedings taken for realising the demand."

(Emphasis Supplied)

9. Since the certificate proceeding was initiated for an amount of

Rs. 3431.30 and the Petitioner has already deposited Rs.2,500/- on

11.04.2016 in terms of the interim order dated. 31.03.2016, this

Court is of the view that the Petitioner is liable to pay interest @ 12.5

% per annum on Rs. 3431.30 from the date of signing of the certificate

up to 11.04.2016 and thereafter, he is liable to pay same rate of

interest on the differential amount i.e. Rs. 931.30/- (Rs.3431.30/-

minus Rs.2500/-) till the date of realization of the entire amount.

10. Accordingly, the impugned notice dated 31.10.2015 is set-aside.

The matter is remitted back to the Opposite Party No.2, who shall

calculate the interest payable by the Petitioner as observed by this

Court and give the calculation sheet to the Petitioner within a period of

four weeks from the date of production of the certified copy of this

Order enabling him to deposit the amount calculated in terms of

Section 14 of the OPDR Act, 1962.

11. With the said observation, the Writ Petition is disposed of. No

order as to cost.

12. Urgent certified copy of this order be granted on proper

application as per rule.

(S.K. MISHRA) (JUDGE)

Orissa High Court, Cuttack Dated, 17th October, 2023/Padma

Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Reason: Authentication Location: ORISSA HIGH COURT CUTTACK Date: 19-Oct-2023 20:24:48