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Nazir Ahmad, J.—This is a writ petition for quashing the certificate proceeding bearing O. D. Certificate Case No. 20 of 1974-75 against the petitioners and also for quashing the order of Respondent no. 5 District Certificate Officer, Monghyr, dated 29.9.1980 in the aforesaid certificate case. A copy of the order-sheet of O. D. Certificate Case No. 20 of 1974-75 up to 29.9.70 has been filed as Annexure 1, and a copy of the order dated 29.9.80 rendered in English has been annexed as Annexure 1/A. The petitioners have filed a genealogy of the family of Gangadhar Banka which is at page 6 in paragraph 3 of the writ petition and is as follows :--
It may also be pointed out that on 26.11.1980 vide order No. 3 a prayer was made on behalf of the petitioners that respondent Nos. 6, 7 and 8 who belong to the branch of Lakshmi Devi (2nd wife of Ganga Dhar Banka), are not necessary parties and so their names were ordered to be expunged. Thus in the branch of Ganga Dhar Banka the petitioners now remain only legal representative on the record. From the order of the District Certificate Officer (Respondent no. 5) as contained in Annexure 1, an English translation of which is. Annexure 1/A, it is evident that certain facts are admitted. Respondent no. 5 has clearly pointed out at page 136 of the brief that the admitted fact is that in the family of Ganga Dhar Banka there was partition in 1955 and his sons became separate in their family and business life and by being separate inter se they began doing their exclusive independent business and that the sons of Ganga Dhar Banka who resided at Jhajha had no concern with the business of Ganga Dhar Banka vice versa Ganga Dhar Banka had no concern with the business of his sons at Jhajha and that Ganga Dhar Banka and his sons became separate in their daily family life and in their business life. He has also pointed out at page 145 that after the family partition of 1955 Shri Ram Banka son of Ganga Dhar from Durga Devi went to Bombay and started his business there and Shri Ganga Dhar Banka after living at Calcutta for sometime went to Bombay and began doing business of power loom at Bombay jointly with his son Shri Ram Banka. The District Certificate Officer also held that the amount of demand under recovery were levied as excise duty jointly against Ganga Dhar Banka and late Shri Ram Banka. It was also undisputed that along with Ganga Dhar Banka his son Shri Ram Banka who was his partner in this business Was liable to pay his dues and it was also not disputed that the writ petitioner Smt. Bhagwan Devi is the wife of Shri Ram Banka and Raghunath Prasad Banka and Anand Kumar Banka are sons of late Shri Ram Banka The Certificate Officer also held that Shri Ram Banka died in the state of jointness with the writ petitioners. He, therefore, held that the petitioners were joint. He has clearly stated at page 147 that Shri Ram Banka was joint in mess and business with the writ petitioners. The Certificate Officer, therefore, held that the petitioners were legal heirs of Ganga Dhar Banka and Shri Ram Banka, as the business at Bombay was jointly done by Ganga Dhar Banka and Shri Ram Banka. The Certificate Officer clearly held that respondent nos. 6 to 8 who were in the branch of Lakshmi Devi, 2nd wife of Ganga Dhar Banka, were separate and had no concern with the business of Ganga Dhar Banka and Shri Ram Banka. It was due to this that the names of respondent nos. 6, 7 and 8 have been expunged by order dated 26.11.1980.
A counter affidavit has been filed in this case on behalf of respondent nos. 1 to 3 where it has been asserted that Ganga Dhar Banka and Shri Ram Banka were held liable to pay the "Central Excise duty in respect of their manufacturing activities in manufacturing cotton fabrics falling under Tariff Item 19 under the Central Excses and Salt Act, 1944 (hereinafter referred to as the 1944 Act), by the adjudicating officer Shri R.B. Sinha, Officer on Special duty. Central Excise, Bombay (Respondent no. 1) by his order in original No. 2/67 dated March 6, 1967, and Ganga Dhar Banka and Shri Ram Banka were held liable to pay the Central Excise duty to respondent no. 1 after giving them fullest opportunity to explain their case. It has also been asserted in the counter affidavit that Ganga Dhar Banka and Shri Ram Banka availed of the appeal and revision facilities provided under the 1944 Act and the appellate authority and the revisional authority in their orders confirmed the aforesaid order in original of respondent no. 1 With regard to the liability of the aforesaid party to pay the Central Excise duty, Ganga Dhar Banka and Shri Ram Banka were required to pay by way of Central Excise duty of Rs. 6,57,690, 10 paise on cotton fabrics manufactured by them, plus penalty of Rs. 1000/- each as communicated by the Assistant Collector, Central Excise, Bombay in his latter dated April 10, 1967 and August 9, 1974, the later communication being issued after the Government of Inida''s decision in revision dated 29.4.1974. There was no response to the above communication and so the Assitant Collector of Central Excise, Bombay (respondent no. 2) issued a certificate dated 26.9.1974 u/s 11 of the 1944 Act addressed to the District Collector, Monghyr (Bihar), asking him to initiate recovery proceedings in respect of the above dues from Ganga Dhar Banka who was reported to be staying at Jhajha in Monghyr district under his jurisdiction.
Annexure A of the counter affidavit is the order passed by respondent no. 1. Annexure B thereof is the appellate order of the Central Board of Excise and Customs, New Delhi Annexure C relates to the revision application which was disposed of by the Government of India, Ministry of Finance, Department of Revenue and Insurance. Annexure D is the notice issued, by the Assistant Collector, Central Excise, Bombay to Ganga Dhar Banka and Shri Ram Banka for paying the dues. Annexure E is the letter sent by the Assistant Collector of Central Excise, Bombay, Division No. 1 to the District Collector of Monghyr along with the certificate (sic) signed by him. Annexure F is the notification showing vesting of powers to every officers of the Central Excise Department. Thus it is evident that the certificate was issued for the dues which were payable by Ganga Dhar Banka and Shri Ram Banka. It appears that Shri Ram Banka died before Ganga Dhar Banka, and Ganga Dhar Banka died on 22.1.1979 during the pendency of the certificate proceedings. Hence the certificate was issued against Ganga Dhar Banka before his death on 22.1.1979.
On behalf of the writ petitioners also Annexure 2 has been filed which is same as Annexure E to the counter affidavit which contains the certificate also but the writ petitioners have marked the certificate as Annexure 3.
In the counter affidavit it has also been asserted in paragraph 5 that the writ petitioners had raised various objections before the learned Collector, Monghyr, who after prolongned hearing and the deliberation held by his order dated 10.7.197(sic) that the certificate was legal and was filed by the competent officer and the aforesaid order was never challenged and so the legality of the certificate cannot be challenged.
On the aforesaid facts various grounds have been raised in the writ petition by learned counsel for the petitioners. However, when the case was taken up for hearing Mr. Balbhadra prasad singh made only two legal submissions before us. Admittedly Ganga Dhar Banka died on 22.1.1979 and even Shri Ram Banka was dead prior to the death of Ganga Dhar Banka
The first ground which has been submitted before us by Mr. Balbhadra Prasad Singh is that there is no provision in the 1944 Act and in the Revenue Recovery Act 1890 (hereinafter) referred to as the 1890 Act), for Substituting legal representative of a certificate debtor. Admittedly the certificate was issued against Ganga Dhar Banka. For this purpose Mr. Balbhadra Prasad Singh relied on a case reported in 1972 Allahabad weekly Reporter at page 235, but this decision has not been made available to us and so it is not possible for us to refer to that decision.
Mr. Sudhir Kumar Katriar, on behalf of respondent nos. 1 to 3, has submitted that the 1890 Act does not lay down the procedure of the public demand. He has referred to section 7 of the 1890 Act which lays down that nothing in the fore going sections shall be construed to effect the provisions of any other enactment for the time being in force for the recovery of land revenue or of sums recoverable as arrears of land revenue. He has submitted on the basis of section 7 of the 1890 Act that the local laws are saved by section 7 and so the local laws will be applicable in this case. For this purpose he has relied on section 3(3) of the 1890 Act which lays down that the Collector of the other district shall, on receving the certificate, proceed to recover the amount stated therein as if it were an arrear of land revenue which had secured in his own district. He has also relied on various decisions to support his views.
Mr. Sudhir Kumar Katriar on behalf of respondent nos. 1 to 3 has relied on a Division Bench decision of the Allahabad High Court in the case of Udhamal v Sales Tax Officer and another (17 Sales Tax Cases 633) where it has been held that the provisions of the Revenue Recovery Act, 1890, would not exclude the operation of the U.P. Zamindari Abolition and Land Reforms Act. It has also been held in this decision that where the Sales Tax Officer addressed a letter to the Collector to recover the arrears of sales tax from the appellant as arrears of land revenue, the Tahsildar under the direction of the Collector, could take the necessary proceedings for recovery of the amount under the provisions of the U.P. Zamindari Abolition and Land Reforms Act.
Learned Advocate for respondent nos. 1 to 3 has also relied on the case of Prabhakar Vishnu Naik Vs. Union of India, where it has been held that the presumption of law is that the official acts are done as required by law in a proper way. It has also been held in this decision that even in the case at least as regards those matters for which no special provision is made by the Revenue Recovery Act, the ordinary law is applicable and it was held that the provisions of the Revenue Recovery Act do not impair the provisions of the and Revenue Code for recovery of land revenue by reasons of section 7 of the Revenue Recovery Act and since the amount is to be recovered as land revenue, those provisions will apply in; this case.
Mr. Sudhir Kumar Katriar has also relied on the case of K Burman v. The Commercial Tax Officer. Calcutta-1 & others (1972 Taxation Law Reports Volume 2 2447) where it has been held that the 1890 Act applies to the entire Indian Union and that this is the principal section for recovory of any amount due to the Collector within the meaning of the section and section 5 by its very language imports the provisions of section 3 by equating a public demand in respect of which a certificate has been issued with land revenue due to the Collector for purposes of recovery. It has also been held in this decision that the Deputy Commissoner after receiving the certificate becomes entitled and obliged to make the recovery pursuant to the provisions made for recovery of land revenue in Chapter XI of the Mysore Land Revenue Code dealing with the realisation of land revenue and other revenue demands and it cannot be said that the provisions of that Chapter can be reached only through section 193 of the Code. It was also held in this decision by the Mysore High Court that so far as arrears of land revenue or other public demands recoverable as land revenue accuring or arising in other Stales are concerned, the law by which the machinery under Chapter XI of Mysore Land Revenue Code is invoked is the Revenue Recovery Act. In this case the certificate for public demand was sent from West Bengal to Mysore and in those circumstances it was held that the local law will be applicable in view of section 7 of the 1890 Act.
Mr. Sudhir Kumar Katriar has also relied on the case of Padranna Raj Krishna Sugar Works Ltd. and others v. Land Reforms Commissioner. U.P., Lncknow and others (1962 Allahabad Law Journal Vol. 60 page 616) where it has been held in paragraph 30 that once certificate has been sent to the Collector u/s 46 (2) of the Act, the same is realisable in the manner provided by the Land Revenue Law prevailing in the Slate in which the recovery is to be made and that it is well known that in different States there are different laws under which moneys can be recovered as arrears of land revenue.
Now the argument advanced by Mr. Balbhadra Prasad Singh, on behalf of the petitioners, is that the substitution of the petitioners as legal representative was not proper and legal. I have already pointed out that u/s 7 of the 1890 Act when the certificate was sent to Bihar it has to be governed by the Bihar and Orissa Public Demand Recovery Act, 1914 (hereinafter referred to as the 1914 Act), as it relates to the machinery provisions.
Section 3(6) of the 1914 Act gives definition of "public demand" and it means any arrear or money mentioned or referred to in Schedule 1 and includes any interest which may, by law, be chargeable thereon upto the date on which a certificate is signed under Part II, and u/s 3 (7) "rules" means rules and forms contained in Schedule II or made u/s 48. Section 4 of this Act lays down that when the certificate officer is satisfied that any public demand payable to the Collector is due, he may sign a certificate in the prescribed, form, stating that the demand is due and shall cause the certificate to be filed in his office. Section 5 of the 1914 Act lays down that when any public demand payable to any person other than the Collector is due, such person may send to the certificate Officer a written requisition in the prescribed form Section 6 of the 1914 Act lays down that on receipt of any such requisition the certificate Officer, if he is satisfied that the demand is recoverable and the recovery is not barred by law, may sign a certificate in the prescribed form, stating that the demand is due; and shall cause the certificate to be filed in his office. Section 51 of the 1914 Act clearly lays down that no certificate shall cease to be in force by reason of the death of the certificate holder. Section 52 of the 1914 Act lays down that where certificate debtor dies before the certificate has been fully satisfied, the Certificate Officer may, after serving upon the legal representative of the deceased a notice in the prescribed form, is proceed to execute the certificate against such legal representative; and the provisions of the 1914 Act shall apply as if such legal representative were the certificate debtor and if such notice were a notice u/s 7. However, the proviso to section 52 lays down that where toe certificate is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaings such liability, the Certificate Officer executing the certificate may of his own motion or on the application of the certificate holder, compel such legal representative to produce such accounts as the Certificate Officer thinks fit. Section 52 (2) of the 1914 Act provides that for the purposes of this section, property in the h ands of a son or other descendant which is liable under the Hindu law for live payment of the debt of a deceased ancestor, in respect of which a certificate has been filed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.
Thus, it cannot be doubted that the Certificate Officer can proceed against the legal representative in view of section 52 of the 1914 Act. Under such circumstances it has to be held that the Certificate Officer was justified in proceeding against the writ petitioners as legal representatives of Ganga Dhar Banka and there is no illegality in the order.
Now I shall take up the second ground raised by Mr. Balbhadra Prasad Singh, learned counsel for the petitioners. The second ground raised by Mr. Balbhadra Prasad Singh is to the effect that the certificate signed by the Assistant Collector of Central Excise, Bombay, Division No. 1 is invalid and void, as he was not competent to sign it and it should have been.signed by the Collector of the district. In this connection Mr. Balbhadra Prasad Singh has referred to various provisions of the 1890 Act. He has pointed out that u/s 2 (2) of the 1890 Act "Collector" means the chief officer in charge of the land revenue administration of a district, and u/s 2 (3) "defaulter" means a person from whom an arrear of land revenue, or a sum recoverable as an arrear of land-revenue, is due, and includes a person who is responsible as surety for the payment of any such arrear or sum. Section 3 of the 1890 Act lays down that where an arrear of land revenue, or a sum recoverable as an arrear of land revenue is payable to a Collector by a defaulter being or having property in a district other than that in which the arrear accrued or the sum is payable, the Collector may send to the Collector of that other district a certificate in the form as nearly as may be of the Schedule, stating the name of the defaulter and such other particulars as may be necessary for his identification and the amount payable by him and the account on which it is due, and that the certificate shall be signed by the Collector making it or by any officer to whom such Colleector may, by order in writing, delegate this duty and, save as otherwise provided by this Act, shall be conclusive proof of the matter therein stated, and that the Collector of the other district shall, on receiving the certificate, proceed to recover the amount stated therein as if it were an arrear of land revenue which had accrued in his own district.
On this basis Mr. Balbhadra Prasad Singh for the petitioners has submitted that as the certificate was pot signed by the Collector of the district, the certificate is illegal and invalid and so the entire proceeding is void. However, section 3(3) of the 1890 Act clearly Shows that in the distirict where the certificate is Sent the Collector of that district shall recover the public demands as if it were an arrear of land revenue which had accrued in his own district which clearly shows that the procedure laid down in the district where arrears is to be realised has to be followed. Section 5 of the 1890 Act lays down that where any sum is recoverable as an arrear of land revenue and by public officer other than a Collector or by any local authority, the Collector of the district in which the office of that officer or authority is situate shall on the request of the officer or authority, proceed to recover the sum as if it were an arrear of land revenue which had accrued in his own district and may send a certificate of the amount to be recovered to the Collector of another district under the foregoing provisions of this Act as if the sum were payable to himself this clearly shows that the public officer other than a Collector has also authority to sign the certificate. Section 6 of the 1890 Act relates to the property liable to sale. I have already mentioned about section 7 of the 1890 Act. Section 10 lays down that where a Collector receives a certificate under this Act from a Collector of another State, he shall remit any sum recovered by him by virtue of that certificate to that Collector, after deducting his expenses in connection with the matter. Thus it is evident that the 1890 Act is not exhaustive and this is why u/s 7 of the 1890 Act other local laws have been saved.
On the other hand Mr. Sudhir Kumar Katriar for respondent nos. 1 to 3, has submitted that section 3 of the 1890 Act relates to the Collector to whom the land revenue is payable, and if the land revenue is payable to any other public officer other than a Collector then at the request of that officer the Collector will proceed to recover the sum. He is supported by the dicision reported in Sri Raja Venkata Ramayya Appa Rao Bahdur Varu Vs. The Collector of Madras and Another, .
Mr. Sudhir Kumar Katriar has also referred to section 11 of the 1944 Act, which lays down that in respect of the duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder, the officer empowered by the Central board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963, to levy such duty or require the payment of such sums may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector, on receipt of such certificate, shall proceed to recover from the said person the amount specified therein as it were an arrear of land revenue. Thus it is evident that an officer under the 1944 Act could sign a certificate and send it to the district in which the certificate debtor resides. It cannot be doubted that in this case admittedly the dues were under the 1944 Act which were being recovered as a public demand. In view of section 11 of the 1944 Act the certificate was signed by the Assistant Collector, Central excise, Bombay, Division NO. 1 who forwarded the certificate along with his forwarding letter dated 28.9.1974 which is at pages 218 and 219 of the brief. The amount was due to the Assistant Collector, Central Excise, Bombay, Division No. 1 and so the Collector could not sign the certificate u/s 3 of the 1890 Act, as it was not an amount due to the Collector. Under such circumstances the certificate was validly signed u/s 11 of the 1944 Act and it has to be presumed that the official acts were properly done. Under such circumstances the certificate cannot be held to be void on the ground that it was signed by the Assistant Collector of Central Excise.
Mr. Balbhadra Prasad Singh pressed only the aforesaid two grounds before us and both the grounds have been disposed of.
In view of my discussions above, I hold that there is no merit in this writ petition. It is, accordingly, dismissed, but there will be no order as to costs.
Uday Sinha, J--I agree with the judgment just delivered by my learned Brother. I would, however, like to add a few words of my own. After the series of litigations it is no more in doubt that Gangadhar Banka and Sri Ram Banka were liable to pay the Central Excise duty. The next question is whether the Assistant Collector, Central Excise could issue requisition for realisation of the dues by certificate process. Section 11 of the Central Excise and Salt Act, 1944 clearly empowers him to transmit a requisition. The next question would be whether he could request Collector of Munger to collect the dues as public demand. Public demand, no doubt, would be in terms of the Schedule to the Bihar Public Demand Recovery Act. The Central Excise Act places no bar upon the Excise authorities to make such a requisition. In fact, it was not contended on behalf of the petitioners that the requisition could not be issued to Collector of Munger. The only question that remains is, after the death of Gangadhar Banka and Sriram Banka, the original certificate debtors, whether their heirs could be substituted in their place and whether the certificate could be realised from them. The Bihar Public Demand Recovery Act clearly provides for executing the certificate against the heirs of the certificate debtor. My learned Brother has discussed this aspect of the matter with which I am in full agreement. Once the certificate has been transmitted, the satisfaction of the certificate in this State has to be carried out in terms of the Bihar Act. There can, therefore, be no serious objection to the Revenue authorities proceeding against the petitioners. The reliance placed upon the provisions of the Revenue Recovery Act, 1890 is clearly misplaced. The provisions of that Act do not nullify the provisions of the Bihar Act. The provisions of the Central Act must be read as supplementing the State Act and not supplanting them. The application has, therefore, been rightly dismissed by my learned Brother.