Bilas Yadav vs State of Bihar and Others

Aftab Alam, J.—The Petitioner is facing a proceeding under the Public Demands Recovery Act, registered as Certificate Case No. 7 of 2001-2002 before the District Certificate Officer, Gaya. The Certificate case is instiuted for recovery of Rs. 2,45,000/-. The Petitioner seeks quashing of the proceedings in the certificate case on the ground that the amount sought to be recovered was not a public demand and the provisions of the Act were, therefore, not attracted for its recovery. Seeking the same relief the Petitioner earlier came to this Court in C.W.J.C. No. 3943 of 2002 which has dismissed by order dated 10.4.2002 Annexure-4). At that stage this Court de(sic)ed to intervene in the matter but left it (sic)en to the Petitioner to agitate the question of maintainability of the proceedings therefore the Certificate Officer himself. The (sic)erative part of that order is as follows:

Having considered the submissions, I am of the view that the Petitioner should agitate the question of jurisdiction of the Certificate Officer, apart from other questions available to him in law, before the Certificate Officer himself. The learned Certificate Officer shall dispose of the objections raised by the Petitioner by a reasoned order.

In pursuance of this Court''s direction the Petitioner filed his objections before (sic) certificate officer. The objection petition filed u/s 3 of the Public Demands Act was rejected by order dated 5.9.2002. In that order, however, the Certificate Officer did not advert at all to the issue of maintainability of the certificate case though it is asserted in the writ petition that the question of maintainability of the proceedings was specifically raised before the Certificate Officer. This writ petition has now been filed challenging the order, dated 5.9.2002 passed by the Certificate Officer.

Mr. Yogesh Chandra Verma, Advocate for the Petitioner submitted that the institution of the certificate case was wholly unauthorised and without jurisdiction for the simple reason that the money sought to be recovered from the Petitioner was not a public demand within the meaning of the Act.

It appears that the Petitioner had taken the settlement of the Barabar Mela for the year 2000-2001 on the basis of a public auction. In fact in the auction held for the settlement of the mela, the highest bidder was one Rajendra Singh who had made a bid of Rs. 4,55,000. Later on, the Petitioner filed a complaint before the Commissioner, Magadh Division alleging irregularities in holding the auction and offering a sum of Rs. 6,79,000/- for the settlement of the mela. On the intervention of the Commissioner on the basis of the complaint filed by him the settlement was made in the Petitioner''s favour for a sum of Rs. 6,79,000/-. Out of the settlement money he deposited Rs. 4,34,000/- and for the recovery of the balance amounting to Rs. 2,45,000/- the certificate case has been instituted against him.

Mr. Verma submitted that the certificate amount was not a public demand within the meaning of the Act for the following two reasons:

(i) It was part of the settlement money for the mela and

(ii) The settlement of the mela was made not at the instance of the government but by the Barabar Kala Evam Sanskritik Vikas Parishad which was a society registered under the Societies Registration Act.

As regards the first ground Mr. AAG I invited my attention to a full Bench decision of this Court in Ram Chandra Singh v. State of Bihar 1987 P.L.J.R. 47. In the full Bench decision it was held that part of the bid money for settlement of a Hat was covered by Article 7 of Schedule I of the Act and, therefore, it was fully a public demand within the meaning of the Act. The decision in Ram Chandra Singh thus answers the first plea advanced by Mr. Verma and that has to be rejected out of hand.

But there appears to be some substance in the second plea advanced by Mr. Verma that the settlement was made not by the State Government but by the Barabar Kala Evam Sanskritik Vikas Parishad and the alleged dues were of the Parishad and not of the government and hence, those dues did not qualify as public demand.

It is undeniable that the settlement of the mela was made at the instance of Barabar Kala Evam Sanskritik Vikas Parishad on the basis of a decision taken by its Executive Committee. It is also admitted that the Parishad is a society registered under the Societies Registration Act.

On behalf of the Respondents, however, it is stated that the District Magistrate and the District Planning Officer, Jehanabad are the ex-officio President and Secretary respectively of the Parishad. It is, therefore, contended that the Parishad is not an entirely autonomous and independent body''. It is further stated that when the bid of Rajendra Singh was accepted the Petitioner in his complaint filed before the Commissioner had himself stated that the acceptance of his bid would involve a loss of government revenue as he was willing to offer a higher sum. It is further stated in the counter affidavit that the certificate amount was a public demand as it involved government revenue.

The correctness of the stand of the Respondents has to be tested with ref- erence to the following facts and circumstances concerning the Parishad. It is noted above, that the Parishad is a Society registered under the Societies Registration Act. Clause 3 of its Memorandum of Association states that the Parishad would act as an autonomous and independent body for tourism, art and cultural development of this historical and cultural heritage of the district. Its functions are outlined in accordance with its aim and objective to promote art, culture, education etc. Clause 5 of the Memorandum of Association, dealing with the Parishad''s properties and Assets is as follows:

The income and property of the Parishad howsoever derived, shall be applied towards promotion of the objectives thereof set forth in this Memorandum of Association. No portion of the income and property of the Parishad shall be paid or transferred directly or indirectly, by way of dividend, bonus or otherwise, howsoever by way of profit, to the persons who at any time heave (sic) been members of the Parishad or to any of them or to any person claiming through them provided that nothing here in contained shall prevent the payment in good faith of remuneration to any member there of other persons in return for any service rendered to the Parishad for travelling allowance, halting, or other similar charges.

A perusal of the Parishad''s Rules leaves no room for doubt that it is a distinctly separate body from the government, notwithstanding the fact that the District Magistrate, Jehanabad is its ex-officio Chair(sic) Dy. Development Commissioner Chairman and a number of officers District Administration are ex-officio (sic)s of its executive committee.

Rule 17 of the Parishad''s Rules with its funds is as follows:

(sic) the funds of the Parishad shall (sic)st of the following:

(i) Recurring and non-recurring of (sic)s in and made by Central Govt. State Govt. for furtherance of the (sic)ts of the Parishad.

(ii) Income from investment, grants, (sic)tions, receipts from other sources (sic)ferred to under Rules and memo(sic)m of association for the further- of the Parishad.

(iii) Income and properties of the (sic)had shall be applied towards the (sic)otion of the objectives setforth in memorandum of association sub-to limitations, if any, imposed by Govt. of India and State Govt. in (sic)rd to the expenditure of grants made (sic)em.

On going through the Memoran-Association and the Rules of the (sic)d, it becomes plain and clear that organisation and body the Parishad (sic)aly separate from the State Government. Without going into the question (sic)r the Parishad is ''State'' within the (sic)ig of Article 12 for the purpose of (sic)III of the Constitution, there can be (sic)bt that it is quite different from the Government for the purpose of the Demands Act.

Some relevant entries in Schedule (sic) Public Demands Act now need to mined having regard to the status of (sic)rishad as a society, registered under (sic)ocieties Registration Act. In Ram Ira Singh (supra) entry 7 in Sched-was held to cover the bid money for (sic)ent of hat as public demand. Entry follows:

Any demand payable to the Collector by a person holding any interest in land, pasturage, forest-rights, fisheries or the like, whether such interest is or is not transferable, when such demand is a condition of the use and the enjoyment of such land, pasturage, forest-right, fisheries or other things.

In the afore-quoted entry the expression ''payable to the Collector'' clearly means payable to the Collector in the capacity as Collector of the district. The Collector cannot of course recover his personal loans as public demand on the plea that the money was payable to the Collector. Similarly the dues of bodies and organisations will not become public demand on the basis of entry 7 merely because the Collector held some ex-officio position in that body/organisation. In the present case though the Certificate might have been issued by the Collector or on his direction it is undeniable that the dues are of the Parishad and not of the State Government or the Collector. Hence, those dues cannot be deemed to be public demand in terms of entry 7 of Schedule I.

The other relevant entry is at SI. No. 15 which in so far as relevant for the present is as follows:

Any money payable-

(i) xx xx xx xx

(ii) xx xx xx xx

(iii) a company or a corporation or a statutory body, including a registered society carrying on financial transactions, owned by or in which, Government has a majority of shares or which is managed by an authority appointed under any law for the time being in force; or

(iv) xx xx xx xx

in respect of which the person liable to pay the same has agreed, by a written instrument that it shall be recoverable as public demand.

In this case admittedly no written agreement was drawn up between the Parishad and the Petitioner and, therefore, there can be no question of the Petitioner giving his agreement by a written instruments that the dues of the settlement amount would be recoverable as a public demand.

In fact the Parishad and the Respondent authorities would be well advised to incorporate such a clause in the standard settlement agreement so as to avoid any similar controversy in future.

In the light of discussions made above, I come to the irresistable conclusion that the certificate amount does not qualify as public demand and hence, the certificate case instituted against the Petitioner is without jurisdiction. It is accordingly quashed. This order, however, will not come in the way of the Respondent authorities in recovering the amount from the Petitioner through any other legal means and in taking such further action against him as may be permissible in law.

In the result, this writ petition is allowed but with no order as to costs.