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TMI Blog1954 (1) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 7 the petitioner filed an application for staying the proceeding till the disposal of the appeal by the Assistant Commissioner, which was rejected on 25-5-1952. 4. On failure of the petitioner to pay up his dues under the certificate, a distress warrant was issued against him on 26-6-1952, but it could not be executed. 5. On 30-8-1952, the Certificate Officer recorded an order in the order-sheet to the effect that the certificate debtor was a zemindar and an influential man of the locality and directed a notice to be issued upon him to show cause why a warrant of arrest should not be issued. On 13-19, September, 1952, the Certificate Officer received a telegram from the certificate debtor asking for time till the Jagadhatri Pujah. Upon the telegram the Certificate Officer directed the petitioner to pay up his dues by 20-10-1952, and stayed the issue of distress warrant and warrant of arrest till that date. The order sheet of this date contains an entry to the following effect; Inform C. D. Put up on 21-10-52. 6. The petitioner states in his petition, and it is not denied by the opposite party, that although the order, dated September 13/19, 1952, was directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. It is clear that the Certificate Officer evidently forgot that the certificate debtor had been arrested once before on 5-1-1953, and that he could not under the law be arrested twice for default of payment of the same arrears. However that may be a post card bearing the seal of the Certificate Officer and bearing the date 27-5-1953, was addressed to the certificate debtor asking him to pay up his dues by 16-6-1953, failing which warrant of arrest would be issued against him. Eventually, on 1-7-1953, the Certificate Officer directed a sale of the properties of the certificate debtor in accordance with the list submitted by the lawyer of the certificate debtor and he also directed the Income Tax Officer to furnish the particulars about the house properties of the certificate debtor in the town of Contai. 13. On 27-3-1953, the Certificate Officer, Midnapore, started a fresh Certificate Case, being case No. 193K/8 of 1952-53, against the petitioner in respect of penalty amounting to ₹ 661-5-0 which was imposed upon him for nonpayment of income-tax. On receipt of the notice under Section 7, Public Demands Recovery Act, the petitioner filed an application denying his liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the period for which the amount is due has not been mentioned. As this is an important particular, the omission of the period also renders the Certificate invalid. In the third place, he has argued that as the fourth column requiring further particulars of the public demand has been left blank, the Certificate is void. Lastly, he has contended that the lithographic signature of the Certificate Officer on the copy of the Certificate is not valid in law. 17. With regard to the first ground upon which the validity of the Certificate has been challenged, the question is whether the description of the Certificate holder as the Government of West Bengal is correct. There can be no doubt or dispute that the liability in respect of income-tax is a liability to the Union Government and as such the Union Government is the certificate holder. The proper description of the certificate holder should, therefore, be the Government of the Union of India, or any of its subordinate officers in the Income Tax Department. But the learned Senior Government Pleader has contended that under Section 46(2), Income Tax Act that liability is converted into a liability to the State Government. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e third ground upon which the validity of the certificate has been challenged is that the fourth column has been left blank. This column requires that further particulars of the public demand for which the certificate is signed should be mentioned. The learned Senior Government Pleader has argued that as there were no further particulars about this demand nothing could be stated. This contention also appears to us to be without substance. In this particular case, further particulars were that the public demand was in respect of an assessment for an undisclosed income for the year 1946-47. It was necessary to mention that fact in the fourth column and the omission to do so was a violation of the requirements of the fourth column. 21. The fourth ground upon which the validity of the certificate has been challenged is that the copy of the certificate which was served upon the petitioner was not signed by the hand of the Certificate Officer but merely bore his lithographic signature. Sections 4 and 6, Public Demands Recovery Act require that when a Certificate Officer is satisfied about certain things, he may sign a certificate in the prescribed Form and cause the same to be filed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... named in it as debtors, and to have the effect of binding their immovable property, at least it should be in a form such as provided by the Act, which enables any person who reads it to see who the judgment creditor is, what is the sum for which the judgment is given, and that those particulars should be certified by the hand of the proper officer appointed by the Act for the purpose. If no such certificate is given the whole proceeding is gone. There is no judgment, there is nothing corresponding to a judgment or decree for payment of the amount, and there is no foundation for the sale. The authority to proceed to sale is based on the certificate which has the effect of a judgment or decree, and if no judgment or decree is given, and no certificate is filed having the force or effect of a judgment or decree, there can be no valid sale at all. 23. This decision of the Judicial Committee was followed in a large number of decisions of this Court, amongst which reference may be made to the case of -- 'Ali Miyan v. Wajaddin Sikdar' , decided by Greaves and Chakravarti JJ., and also to the case of --Sudhir Chandra v. Sudhangshu Kumar' , decided by Biswas J. The effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umns of the tabular statement of the certificate have not been properly filled up. In this view of the matter, we are inclined to hold that the defects complained of by the petitioner render the certificate invalid. As the certificate is the foundation of the entire proceeding, we are constrained to hold that the entire proceeding is based upon an invalid foundation and it is, therefore, liable to be quashed. 26. The second ground urged by Mr. Sisir Das appearing in support of the Rule that the notice under Section 7, Public Demands Recovery Act was not signed by the Certificate Officer in his own hand but bore this rubber stamp signature only. This defect, according to his submission, vitiated the notice. Mr. Sisir Das has relied upon the provisions of Rule 2 of the Rules framed under Section 38, Public Demands Recovery Act which provides for the mode of service of a notice under Section 7. Rule 2 runs as follows : Service of a notice under Section 7 ..... shall be made by delivering or tendering a copy there-'Of, signed by the Certificate Officer, or such ministerial officer as he authorises in this behalf, and sealed with the seal of the Certificate Officer. 27. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had issued a notice under Section 77(1), Public Demands Recovery Act to show cause against the issue of warrant of arrest. I have already stated that on receipt of that notice the certificate debtor sent a telegram to the Certificate Officer praying for time till the Jagadhatri Pujah, but the Certificate Officer allowed him time only upto 20-10-1952, and directed the office to inform the certificate debtor about this date. The petitioner has stated before us that this order was never communicated by the office of the Certificate Officer and this statement has not been denied. We have, therefore, to proceed on the view that the order of the Certificate Officer allowing time till 20-10-1952, was not communicated to the certificate debtor. Then all of a sudden on 21-10-1952, the warrant of arrest was issued against him. Section 29, Public Demands Recovery Act which was placed on the Statute Book by an Amendment of the Public Demands Recovery Act (Bengal Act 1 of 1942) requires that no order for the arrest of a certificate debtor in execution of a certificate shall be made unless, after giving the certificate debtor an opportunity of showing cause why he should not be committed to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had already issued. But instead of that he authorised execution of the warrant of arrest by the first part of the order. Moreover he adjourned the hearing of the objection, filed by the certificate debtor, to 6-1-1953, presumably for the purpose of obtaining the report from the Income Tax Officer and before the objection filed by the certificate debtor to show cause why the warrant of arrest should not be issued against him was finally decided, the certificate debtor was actually arrested on 5-1-1953, as I have already stated. To say the least, the Certificate Officer was acting in a manner which was in contravention of fundamental principles of justice. It was necessary that he should decide the objection filed by the certificate debtor before he could put him under arrest in execution of the warrant for arrest. In the warrant of arrest which was signed by the Certificate Officer on 28-10-1952, there is a direction that that warrant should be executed on or before 21-11-1952. There is nothing in the order sheet of the Certificate Officer to show that he extended the returnable date, but there is an endorsement on the warrant of arrest itself signed by somebody whose designation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate Officer absued his power of putting the petitioner under arrest in a colourable exercise of his powers under the Public Demands Recovery Act . 33. These are all the points which arise for consideration with regard to Certificate Case No. 62F/8 of 1951-52. 34. We have now to turn to Certificate Case No, 193K/8 of 1952-53. In this case the certificate which was filed shows that the name of the certificate holder was described as Income Tax Officer, Midnapore, Bankura. We cannot say that this description of the Certificate Officer was wrong or incorrect. The entry in the second column showing the amount of public demand together with the period for which such demand was due shows that a sum of ₹ 661-5-0 was due as penalty on income-tax for 1946-47. It is interesting to note that the period has been mentioned in this case though it was not mentioned in the certificate which was the basis of Certificate Case No. 62F/8 of 1951-52. The fourth column of the certificate which requires further particulars of the public demand was left blank. We are of the opinion that it was the duty of the Certificate Officer to cause this column to be filled up by inserting the reason for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for from us. The order by which the warrant of arrest was issued against him on 21-10-1952, as I have already pointed out, was passed without any notice to him. On 25-11-1952, he filed his objection showing cause why the warrant of arrest should not be issued against him. But that objection was never heard and decided by the Certificate Officer. On 7-12-1952, he forwarded the objection to the Income-tax Officer for a report, but there is nothing in the order sheet to show that he at any time received that report from the Income-tax Officer or that he applied his mind to the question whether the warrant of arrest should be issued against the certificate debtor. It is also true that the certificate debtor might Institute a suit under Section 34, Public Demands Recovery Act for cancellation of the certificate but the existence of an alternative remedy like a suit does not, in our opinion, preclude us from exercising our powers under Article 227, Constitution of India, provided that alternative remedy is not as speedy or effective as an application under Article 227. In the case of -- 'Re. Annamalai Mudaliar', (E)', Ramaswami, J., of the Madras High Court made an exha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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