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TMI Blog1967 (7) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... ory functions which were sought to be exercised by Shri Majumdar and, in particular, powers which imposed fiscal liability upon the petitioner. The question which we have to decide arises as follows : Under section 2(44) of the Income-tax Act, 1961, in order to exercise jurisdiction as a Tax Recovery Officer a person must be either a Collector or an Additional Collector or an officer empowered to act as a Certificate Officer to effect recovery of arrears of land revenue or other public demand, or any gazetted officer of the Central or the State Government who may be authorised by the Central Government by general or special notification to exercise the powers of the Tax Recovery Officer. In this case there is no dispute that Shri Majumdar's jurisdiction is sought to be supported on the ground that he was a " Certificate Officer " within the meaning of the Bengal Public Demands Recovery Act. Section 3(3) of the Bengal Public Demands Recovery Act, 1913, defines a Certificate Officer. Primarily it is only a Collector who can be a Certificate Officer, the other categories not being relevant in this case. But the term " Collector " has again been defined in clause (3a) of the section a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12(1). Unless, therefore, a person is first appointed as a Magistrate of the first class, he cannot be validly appointed as an Additional District Magistrate. In all probability, Shri Majumdar, being a member of the Indian Administrative Service, had powers of a First Class Magistrate during the regular term of his office. Those, however, must terminate with the termination of his service on superannuation and that is why he required to be vested with the powers of a First Class Magistrate for the term for which he was appointed by the order dated the 28th March, 1960, that is, up to the 28th February, 1961. It is, however, contended on behalf of the petitioner that the notification conferring the powers of a First Class Magistrate having been published in the Calcutta Gazette subsequent to the publication of the notification appointing him as an Additional District Magistrate must be held to be invalid in view of the express provision of section 10(2) of the Code. The notification of vesting of first class powers was not only printed subsequent to the other notification but it also bore a number which was arithmetically subsequent to the other one. In this situation, reliance has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether the appointment which is before me is valid or not has to be answered with reference to the fact that there were in fact two notifications made on the same date and published in the same Gazette. The only defect is that in the matter of printing and publication, the initial order, namely, the order vesting the powers of a Magistrase of the First Class was printed subsequently to the printing of the order of appointment as Additional District Magistrate. The petitioner, it is conceded, would not have had any complaint if the order of printing would have been reversed. The question is whether the legal consequences would depend upon these technical vagaries of the printing establishment of the Calcutta Gazette. In fact, there appears to be some sort of explanation as to why " the cart was put before the horse " as it has been described on behalf of the petitioner. The reason is apparent from the heading of the notifications themselves. The order of appointment as Additional District Magistrate appears under the Home Department (General Administration) column while the order vesting the powers of the Magistrate, First Class, was issued by the Law (Judicial) department of the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate Officer and Additional District Magistrate, 24 Parganas, for the period up to the 28th February, 1962, from the 1st March, 1961, on the existing terms and conditions. " We have to stop here for a moment inasmuch as the validity of such extension has been questioned on behalf of the petitioner on a number of grounds. Though, I must say, the procedure adopted does not come to the credit of the administrative department in the matter of exercise of statutory powers and, in particular, of appointment under section 10 of the Code of Criminal Procedure, it cannot be struck down as legally invalid, for other cogent reasons. The first ground on which the validity of this order is impeached is that the two stop-gap letters issued by the Deputy Secretary could have no legal validity to continue the appointment as it was not made by the Governor. It is patent that the Governor's name was not used in the letters and it was not formally couched in the form of an order of the Governor. Patently, therefore, it cannot be claimed to be an order expressly to be taken. in the name of the Governor within the meaning of article 166(1) of the Constitution ; but, as has been equally established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the re-employment might be taken to have been validly extended without a gap by the formal order No. 4865 dated 30th March, 1961, in the absence of a fresh conferment of the powers of a Magistrate, first class, on the second occasion, a mere extension of the order of appointment of the Additional District Magistrate would not suffice to make the incumbent an Additional District Magistrate within the meaning of section 10(2) of the Code of Criminal Procedure. Apparently there is some force in this contention but the order of the 30th March, 1961, does not seek to give a re-employment to the person concerned but merely extends the re-employment which was initially granted on the 26th April, 1960, read with the formal notification of the 28th March, 1960. It is true that at the time of an initial appointment an order merely appointing a person as an Additional District Magistrate is of no effect under section 10(2) of the Code inasmuch as it is only a Magistrate of the First Class who is competent to be appointed as Additional District Magistrate. But once the initial requirement has been satisfied and the person has been duly appointed as an Additional District Magistrate, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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