9911796707
TMI Blog1970 (9) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... 55. The respondent again moved the appropriate authorities against the same but ultimately failed. It thereafter instituted the present suit for a declaration that the certificate proceedings were illegal, ultra vires, etc., on certain grounds which will appear in the course of this judgment. The suit was contested by the State of West Bengal and the Collector of 24-Parganas as also the Certificate Officer. The learned judge accepted the contentions of the plaintiff-company to the effect that the notice dated the 26th February, 1955, was bad inasmuch as it was not signed on the same date as the certificate which bears the date 29th August, 1953, and further that the certificate was not in accordance with the prescribed form. He, therefore, decreed the suit. Hence this appeal by the defendants. The first point that is pressed by Mr. S. C. Das Gupta, the learned Government Pleader, is to the effect that the learned judge erred in holding that the certificate proceedings were bad inasmuch as the certificate was not in accordance with the prescribed form. It is a fact that the certificate is not exactly in accordance with the prescribed form. Wording of the certificate issued in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question merely on the ground of any defect, error or irregularity in the form thereof." Mr. Das Gupta, therefore, contends that the defect in form cannot invalidate the proceedings. Mr. J. C. Pal, learned Advocate appearing on behalf of the respondent, however, contends that this Act 11 of 1961 has no application to the facts of the instant suit. He draws our attention to the object of the Act. The statement of objects and reasons would show that this provision was enacted because "the High Court of Calcutta has invalidated certain certificate proceedings on the ground of a defect in the certificate and notice forms; objections are being filed against the large number of pending certificates challenging their validity on the basis of the decision of the High Court. It is, therefore, necessary to validate such certificate proceedings". Mr. Pal contends that the present suit was instituted long before the decision in Satish Chandra's case[1961] 65 C.W.N. 324. and, therefore, would not come within the amendment made by Act 11 of 1961. According to him, this amending Act would be confined only to those cases where the proceedings are challenged to be invalid after the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Certificate Officer." The notice issued in this case on the whole complied with this form [exhibit 1(a)]. It is obvious that the date of the signing of the notice and the date of the affixation of the certificate are different. The learned Judge on this aspect has also relied on Satish Chandra's case[1961] 65 C.W.N. 324., where their Lordships have held that the notice and the certificate must bear the same date. Mr. Das Gupta, however, relied on the later decision in Messrs. N.C. Mukherjee and Company[1964] 51 I.T.R. 366; A.I.R. 1964 Cal. 165,, wherein this aspect of the matter has also been considered and it has been held that: "It is plain enough that a fresh notice issued under section 7 after the first notice is set aside cannot be signed on the date on which the certificate was filed and cannot bear that date. If the notice under section 7 is signed on the same day on which the certificate is filed the date given at the foot of the notice does not conflict with the statement in the body that the certificate has been filed in the office on the same date. But the notice under section 7 need not be signed on the day on which the certificate is filed. If the notice is signed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the operation of this Amendment Act. There is also another ground on which we would like to follow the later decision. There may be thousand and one reasons, for which a notice sent along with a copy of the certificate, both signed on the same date, may prove infructuous. To take an instance, as is happening nowadays, the bundle containing the notices might be destroyed by fire, or otherwise by some miscreants. The notice might be lost or might be stolen even while in the custody of the post office. A second notice in the circumstances would be necessary. But to hold that the second notice must bear the same date as the certificate is to ask for the impossible. After all we have to import some amount of common sense in interpreting the law. A too technical view may lead to an impossible situation as we have indicated above. In our view, therefore, the filing of the certificate and the signing of the notice both on the same date would refer to the first notice, but if for some unforeseen circumstances a second notice has to be issued, it must bear a different date, and that would not invalid the notice. We would, therefore, respectfully agree with the later decision, and hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the order of the Additional Collector, the plaintiffrespondent instituted the present suit on 4th January, 1957, against the State Government and its officers, for a declaration that the certificate proceeding based on the certificate dated 29th August, 1953, was not "duly filed" and for cancellation of all orders passed by the revenue officers in connection therewith. The main allegations were that the certificate was not drawn up and filed in compliance with the statutory provisions and forms prescribed, that the certificate and notice were signed on diverse dates by two Certificate Officers and the original notice bearing lithographic signature was not duly signed as required in law. Accordingly, it was contended that the certificate proceeding was void and without jurisdiction. The State Government, the Collector of 24-Parganas and the Certificate Officer filed one joint written statement denying the contentions in the plaint and averred that the certificate and the notice were valid and legal and there was no violation of the statutory provisions. It was further contended that the proceeding was not void, illegal or without jurisdiction and the grounds taken by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and reasons, are as follows: "The High Court of Calcutta has invalidated certain certificate proceedings on the ground of a defect in the certificate and notice forms ; objections are being filed against the large number of pending certificates challenging their validity on the basis of the decision of the High Court. It is, therefore, necessary to validate such certificate proceedings." (Vide Statement of Objects and Reasons printed in the Calcutta Gazette, Extraordinary, Part IVA, dated 17th February, 1961.) Mr. Sachindra Chandra Das Gupta, the Government Pleader, has contended that in view of the subsequent decision of this court in N.C. Mukherjee & Co. v. Union of India[1964] 51 I.T.R. 366; A.I.R. 1964 Cal. 165., the objections against the certificate and notice on formal defects, are not sustainable in law. In any event, in view of the West Bengal Act 11 of 1961, objection could no longer be taken against the certificate and notice on the ground of formal defects therein and the certificate and the notice impugned must be deemed to be valid. Mr. Jyotish Chandra Pal, the learned counsel appearing for the respondent has contended that the amending Act 11 of 1961 could not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice issued under section 7 cannot also be pronounced as invalid merely on the ground that it was not signed on the date the certificate is filed and bears a wrong date of the filing of the certificate. It has not been disputed that if the amending Act applies to the instant case, which we hold so, there is no further scope for challenging the certificate and the notice notwithstanding the High Court's decision relied on by the trial court or anything contained in the Public Demands Recovery Act, 1913, its Rules and forms. As was held by another Division Bench of this Court in N. C. Mukherjee & Co. v. Union of India[1964] 51 I.T.R. 366; A.I.R. 1964 Cal. 165., the decision in Satish Chandra v. Union of India(1) was superseded by West Bengal Act 11 of 1961. It was further observed therein that in view of the change in law thus affected, it was not considered necessary to refer the matter to a larger Bench even though the said Bench expressly differed from the earlier decision. A point was taken by Mr. Pal that the second notice [exhibit 1(a)] dated 26th February, 1955, was defective which is not merely a formal defect, in that it stated that the certificate was filed "this day", wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
