JUDGMENT
Shambhu Prasad Singh, J.
1. The petitioner in all these four writ applications under Articles 226 and 227 of the Constitution of India is a public limited company incorporated under the Indian Companies Act having registered office in Calcutta and a spinning factory at village Ormanjhi in the district of Ranchi within the State of Bihar. It appears that various certificate proceedings are pending before the Certificate Officer, Ranchi, respondent No. 5, against the petitioner for realisation of dues payable to the Employees’ State Insurance Corporation (hereinafter referred to as ‘the Corporation’) as special contribution under Section 73-A of the Employees’ State Insurance Act (hereinafter referred to as ‘the Act’) In two of these writ applications, namely. C. W. J. C. No. 36 of 1973 (R) and C. W. J. C. No. 40 of 1973 (R) prayer has been made by the petitioner for quashing Annexures 3, 3-A, 4 and 4-A which are notices issued to the petitioner in two of the said certificate proceedings. The aforesaid annexures to the application in C. W. J. C. No. 36 of 1973 (R) relate to Certificate Case No. 82 (OD) of 1972-73. According to the said notices, the petitioner is liable to pay Rs. 9,859.00 as special contribution for the quarters which ended on 30th of June, 1971, of September, 1971, and 31st of December, 1971. The said four annexures to the application in C. W. J. C. No. 40 of 1973 (R) relate to Certificate Case No. 69 (OD) of 1971-72 and according to them, the petitioner is liable to pay Rs. 4,645.25 as special contribution for the quarters which ended on 31st of March, 1970, 30th of June, 1970 and 30th of September, 1970. In C. W. J. C. No. 263 of 1973 (R), a general prayer has been made for quashing the proceeding in Certificate Case No. 128 (OD) of 1970-71. This case is for realisation of Rs. 8.402.35 P. for the quarters which ended on 31st of March, 1969, 30th of June, 1969, 30th of September, 1969 and 31st of December, 1969. In C. W. J. C. No. 41 of 1973 (R), the prayer of the petitioner is for issuance of a writ directing the respondents to forbear from proceeding with certificate case No. 37 (OD) of 1971-72 and No. 72 (OD) of 1973-74 pending disposal of E. S. I. Case No. 1 of 1971 pending before the Industrial Tribunal at Patna. Certificate Case No. 72 (OD) of 1973-74 relates to the quarters which ended on 31st of March, 1972, 30th of June, 1972, 30th of September, 1972, 30th of December, 1972 and 31st of March, 1973. It is not stated in the writ petition as to which period Certificate Case No. 37 (OD) of 1971-72 relates.
2. The office of the Regional Director of the Corporation, respondent No. 2, is situate at Patna. He made requests to the Collector, Patna, respondent No. 3, under the Revenue Recovery Act to recover the dues which, according to him, were payable by the petitioner as special contribution under Section 73-A of the Act. As the factory of the petitioner was situate in the district of Ranchi, respondent No. 3 in his turn sent certificates for realisation of dues to the Collector of Ranchi, respondent No. 4. Respondent No. 4 appears to have sent the certificates to the certificate Officer, Ranchi, respondent No. 5, before whom the aforesaid proceedings are pending.
3. Facts of the cases are not in dispute and, therefore, it is not necessary to state in any detail the averments made in the writ applications and supplementary affidavits filed on behalf of the petitioner and in the counter-affidavits filed on behalf of the respondents. It will suffice to say that the petitioner claims that it was not liable to pay the special contribution, that no certificate under the Revenue Recovery Act could be sent by respondent No. 3 at the request made by the Corporation or respondent No. 2 and that respondent No. 5 had no jurisdiction to realise the dues from the petifioner under Bihar and Orissa Public Demands Recovery Act on certificates issued by respondents 3 and 4 under the Revenue Recovery Act. The respondents deny the aforesaid claims of the petitioner and aver that the petitioner is liable to pay the special contribution under Section 73-A of the Act, that certificate under Revenue Recovery Act could be sent by respondent No. 3 to respondent No. 4 at the request of respondent No. 2. and that respondent No. 5 could realise the dues under the Bihar and Orissa Public Demands Recovery Act on the basis of the Certificates made over to him by respondent No. 4.
4. Mr. S. B. Sanyal, learned counsel appearing on behalf of the petitioner in all the four cases, has made following submissions:–
(i) Special Contribution payable by
an employer under Section 73-A of the
Act is not a tax but a fee and there being no quid pro quo nothing can be realised from the petitioner,
(ii) The sums which are sought to be
realised under the proceedings not being
due to the Collector, no certificate could
be sent by respondent No. 3 to respondent No. 4 under Section 3 of the Revenue Recovery Act, nor a certificate could
be sent by respondent No. 3 to respondent No. 4 under Section 5 of the said
Act, for neither the Corporation, nor its
Regional Director respondent No. 2, was
a public officer or a local authority.
(iii) Even if a certificate for recovery of the dues could be issued under the Revenue Recovery Act, that could be realised only by the Collector and not by any other officer as Certificate officer under Bihar and Orissa Public Demands Recovery Act.
5. In support of his first contention, Mr. Sanyal has drawn our attention
to the fact that Section 73-A is under
Chapter VA of the Act which has got a
heading “Transitory Provisions”. Section
73-A and other sections, namely. Sections 73-B to 73-I of that Chapter were
repealed on 26th of March, 1973 and no longer are in force. It is Chapter IV of the Act which provides for payment of contributions by the employer for the insurance of the employees. Chapter V provides for benefits to be conferred upon the insured employees. A reading of the provisions of Chapters IV and V of the Act makes it clear that so long they are not made applicable to a particular area, the employees do not derive any benefit, nor do the employers derive any benefit indirectly by way of benefits to their employees. According to Mr. Sanyal, as Chapters IV and V have not been made applicable to Ormanjhi area and thus to the factory of the petitioner, it could not derive any benefit out of the special contributions demanded from it in the proceedings. He has, therefore, submitted that the petitioner is not liable to pay any special contribution under Section 73-A of the Act which is a fee, for, it is manifest that the petitioner or its employees could not derive any benefit out of it and thus there was no quid pro quo.
6. Learned counsel appearing on behalf of the respondents have not submitted that the petitioner or its employees could derive any benefit out of the special contribution payable by the petitioner under Section 73-A of the Act and as such there was quid pro quo, but they have submitted that the special contribution payable under Section 73-A of the Act is not a fee. It is either a tax or an impost in the nature of special assessment and could be realised from the petitioner without conferring any benefit upon it or its employees. According to learned counsel for the respondents, from the provisions of the Act, specially Chapter VA, it is manifest that it was never intended to confer any benefit on the employers or their employees out of the special contribution paid by the employers and as such it could not be a fee. No impost can be held to be a fee unless the law which levies it itself provides for some benefit out of it to the payer directly or indirectly.
7. The law on the question as to what is a fee and what is not a fee is now well settled. As far back as 1954 in the Commr., Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt, (AIR 1954 SC 282), B. K. Mukherjee, J., speaking for the Court observed as follows:–
“(46) If as we hold a fee is regarded as a sort of return or consideration for services rendered, it is absolutely necessary that the levy of fees should, on the face of the legislative provision, be correlated to the expenses incurred by Government in rendering the services. As indicated in Article 110 of the Constitution, ordinarly there are two classes of cases where Government imposes ‘fees’ upon persons. In the first class of cases, Government simply grants a permission or privilege to a person to do something which otherwise that person would not be competent to do and extracts fees either heavy or moderated from that person in return for the privilege that is conferred.
A most common illustration of this typo of cases is furnished by the licence fees for motor vehicles. Here the costs incurred by the Government in maintaining an office or bureau for the granting of licences may be very small and the amount of imposition that is levied is based really not upon the costs incurred by the Government but upon the benefit that the individual receives. In such cases, according to all the writers on public finance, the tax element is predominant, vide Seligman’s Essays on Taxation page 409, and if the money paid by licence holders goes for the upkeep of roads and other matters of generally public utility, the licence fee cannot but be regarded as a tax.
(47) In the other class of cases, the Government does some positive work for the benefit of persons and the money is taken as the return for the work done or services, rendered. If the money thus paid is set apart and appropriated specifically for the performance of such work and is not merged in the public revenues for the benefit of the general public, it could be counted as fees and not a tax. There is really no generic difference between the tax and fees and as said by Seligman, the taxing power of a State may manifest itself in three different forms known respectively as special assessments, fees and taxes. Ibid page 406.”
In the earlier paragraphs of this decision, the learned Judge also pointed out the distinction between a tax and a fee. No decision was brought to our notice in which a view different from one taken in the aforesaid decision has been taken on the question what is fee. Rather the same view has been reiterated in a recent decision of the Supreme Court in State of Maharashtra v. Salvation Army Western India Territory (AIR 1975 SC 846). However, on the question whether the special contribution payable by an employer under Section 73-A of the Act is a fee or not there has been a divergence of judicial opinion amongst different High Courts of the country. The High Courts of Assam, Andhra Pradesh and Orissa have taken the view that it is fee On the other hand, the High Courts of Allahabad, Calcutta, Gujarat and Kerala have given decisions supporting the view that it is not a fee but tax or some special assessment. So far there has been no pronouncement of the Supreme Court on the question.
8. In K. C. Sarma v. Regional Director, Employees’ Stste Insurance Corporation, (AIR 1962 Assam 120) vires of Section 73-A of the Act was challenged by the petitioner of that case. One of the grounds urged was that as the special contribution payable under that section was a fee and as no corresponding service was being rendered the levy of the import was ultra vires. Mehrotra. C, J., while dealing with this question observed that this question was not material for deciding the vires of the provisions of Chapter VA of the Act. Dutta, J., held that the impost was a fee for that the special contribution goes to a fund known as Employees’ State Insurance fund which is to be utilised for the benefits to be given to the employees under the Act; the costs of the benefits were not to be met from the general revenue of the State. Referring to the decision of the Allahabad High Court in Anand Kumar Bindal v. Employees’ State Insurance Corporation, (AIR 1957 All 136) he observed that he found it difficult to agree with that view.
9. The decision of the Andhra Pradesh High Court is in the case of Food Fats and Fertilisers Ltd. v. Regional Director, Employees’ State Insurance Corporation, (ILR (1972) Andh Pra 1103). That volume of the report is not available in our Judge’s library, nor lawyers of either side could produce it for our perusal. We could examine, therefore, only that portion of that decision which is quoted in the judgment of Orissa High Court in Hindustan Aeronautics Limited v. Regional Director, Employees’ State Insurance Corporation, (1974) 2 Lab LJ 115= (1974 Lab IC 1030), (Orissa). From the portion of the decision of the Andhra Pradesh High Court, quoted in the judgment of the Orissa High Court, it is not possible to know for what reasons learned Judges of Andhra Pradesh High Court held that the special contribution under Section 73-A of the Act was a fee. The portion merely shows that in absence of quid pro quo, i. e. conferring any benefit to the employees of the Food Fats and Fertilisers Ltd. realisation of special contribution, which was a fee, from them could not be justified. In the Hindustan Aeronautics Ltd’s. case the learned Judge of the Orissa High Court also have given no reasons why special contribution under Chapter VA of the Act was a fee. Following the judgment of the Andhra Pradesh High Court in Food Fats and Fertiliser Ltd.’s case, the learned Judges of the Orissa High Court have also held that special contribution under Chapter VA of the Act was a fee and as admittedly the benefits contemplated under Chapter V were not provided for in the area where the factory of Hindustan Aeronautics Limited operated, there was absence of quid pro quo and special contribution could not be realised from them. The learned Judges of the Orissa High Court have not considered the decisions of Allahabad, Calcutta and Gujarat High Courts supporting the view that special contribution under Chapter VA of the Act was not a fee.
10. In Anand Kumar Bindal v. Employees’ State Insurance Corporation, (AIR 1957 All 136), Mootham, C. J., after examining some decisions of the Supreme Court including the one in the Commr., Hindu Religious Endowment case (AIR 1954 SC 282) referred to above and some judgments of foreign countries, held that employer’s special contribution under Chapter VA of the Act was a compulsory exaction recoverable in the event of nonpayment as if it were an arrear of land revenue and as it was being levied by public authority for public purposes and not a payment for services rendered, it was tax; the mere fact that after recovery it did not form a part of the general revenue of the State did not make it a fee. The learned Chief Justice pointed out–
“………… it does not appear to be an essential ingredient of a tax that the moneys recovered by the levy must form part of the general revenues of the State. It is enough that, affirmatively, the levy be imposed by a statutory body for a public purpose and be enforceable by law and, negatively, that it be not a payment for services rendered.”
M. L. Chaturvedi, J., who also delivered a separate concurrent judgment in the case, while agreeing with the reasons of the learned Chief Justice for holding the special contribution to be a tax and not a fee, also referred to Article 366 (28) of the Constitution which defines the words ‘taxation’ and ‘tax’ in support of the view that it was a tax. According to that definition taxation includes the imposition of any tax or impost whether general, local or special and tax is to be construed accordingly. According to Chaturvedi, J., the definition was wide enough to include the special contribution.
11. In Calcutta Electric Supply Corporation Ltd. v. Employees’ State Insurance Corporation, (AIR 1961 Cal 248) the question whether special contribution under Chapter VA of the Act was fee or tax was not decided. However, it was held in that case that if the State Government exempted a particular employer from payment of contribution under Chapter IV, that would not amount to exempting the employer from payment of special contribution ‘ under Chapter VA and that Section 73-A (2) when it -says that the employer’s special contribution was, in the case of a factory or establishment situate in any area in which the provisions of both chapters IV and V are enforced to be in lieu of employer’s contribution payable under Chapter IV, it merely gives relief to the employer against double imposition. In other words, the learned Judges meant to say that the special contribution payable under Chapter V was not a substitute for the contribution payable under Chapter IV, for, as it appears from Section 73-A (1), special contribution could be realised from an employer even when Chapter IV was not brought into force. They emphasised on the use of the expression ‘notwithstanding anything contained in this Act’ in Section 73-A (1). Thus, it follows from the decision of the learned Judge of the Calcutta High Court that realisation of special contribution under Chapter VA was not dependent on the enforcement of the provisions of Chapters IV and V and could be realised compulsorily even when no benefits under Chapter V was being conferred to the employees of the employers from whom the special contribution was realised. This reasoning supports the view that special contribution under Chapter VA of the Act was not a fee.
12. In Dhrangadhara Chemical Works Ltd. v. Employees' State Insurance Corporation, (1972) 13 Guj LR 230. The learned Judges of that Court appear to have examined the question in great detail. After stating the purpose for which Chapter VA was introduced in the Act by amendment, the learned Judges held-- "Therefore, the charge levied in this context, whether for direct services rendered or for indirect benefits to the employers by imposing a liability on them to contribute, could never be considered as a taxation measure pure and simple nor as a levy of fee which is to be correlated on consideration of quid pro quo." They further observed-- "The payment is to be recovered from the employer by the authority of law which in the wider sense only falls in the concept of 'taxation'." Rejecting the argument of learned counsel based on the decision of the Supreme Court in Sri Jagannath Ramanuj Das v. State of Orissa (AIR 1954 SC 400) that special contribution was a fee pure and simple being a service charge, the learned Judges of-- Gujarat High Court said-- "While relying on this decision Mr. K. S. Nanavati ignores the fact that this is a case of fee, pure and simple, which has to satisfy the test of quid pro quo. Even an alternative contention that this was a tax could not have helped him, in view of the fact that the residuary taxing power was, in any event, with the Parliament under Entry 97 of the Union List. Besides, even if Latham, C. J.'s test definition had to be applied in the wider sense as a levy consisting of compulsory exaction of money which is imposed by any public authority for public purposes and which is enforceable by law, this levy, even though it does not go to the consolidated fund, would satisfy that test. The State's taxing power may be delegated and any delegatee like a local authority or public authority, which exercised the Government functions, and for whose revenue the taxing power is delegated, when it levies a compulsory exaction of money for its public purpose and when its demand is enforceable as a public debt, even by recovery as arrears of land revenue or by other coercive processes, it would be taxation in that sense." The ultimate finding of the learned Judges was-- "............ in substance and effect, even this levy, in this regulatory measure, is not a taxation pure and simple but a service charge from persons, who ultimately benefit by this scheme only where correlation is not to be established, as it is not a fee pure and simple.'' According to the learned Judges, therefore, it was an impost which more appropriately can be called a special assessment. 13. In Gwalior Rayons Silk Manufacturing Co. v. E. S. I. Corporation, 1975 Lab IC 1395 (Ker) it has been held by Kerala High Court that special contribution under Section 73-A of the Act was an impost in the nature of a tax and no question of any quid pro quo would arise in respect thereof. While rejecting the argument of learned counsel that special contribution was a fee, the learned Judges observed--
“13. It is impossible to interpret Section 73-A in the manner in which Sri Kesavan Menon wants it to be done. That will be doing violence to its language, as per that section the employer’s special contribution is absolute and will not depend upon the question whether an employee’s contribution is a percentage of the total wage bill of the employer. The total wage bill in the section as indicated in the explanation to the section itself, means:
‘the total wages which have accrued due to employees in a factory or establishment in respect of such wage periods as may be specified for the purposes of this section by the Central Government by notification in the official gazette.’ There it might be noted the reference is to employees as such and not to employees who are insured persons as defined in the Act. Therefore, the special contribution which an employer makes under Section 73-A cannot have any nexus as such with that of the contribution which the employee may or may not make.”
14. In deciding whether special contribution under Section 73-A of Chapter VA of the Act was a fee or not the most important question which arises for consideration, in my opinion, is whether the Act contemplated that any benefit directly or indirectly should be derived by the employers out of the contribution so paid. Section 73-A lays down that special contribution has to be paid by every principal employer ‘notwithstanding anything contained in the Act’. So payment of special contribution by principal employers did not depend on the enforcement of the provisions of Chapter IV or V in the area where the factory of the principal employer called upon to pay the special contribution was situate. Of course, Sub-section (2) of Section 7-3-A provided that employer’s special contribution in the case of a factory or establishment situate in any area in which the provisions of both Chapters IV and V were in force was to be in lieu of the employer’s contribution payable under Chapter IV, but that, if I may say so with respect, as has rightly been pointed out by the learned Judges of the Calcutta High Court in Calcutta Electric Supply Corporation Ltd.’s case (AIR 1961 Cal 248), was merely to give relief to the employer against double imposition. It was not and could not be a substitute for the contribution payable under Chapter IV, for, the special contribution under Section 73-A of the Act was to be realised from “every principal employer” irrespective of the fact whether provisions of Chapters IV and V were in force or not in the area where the factory or establishment of the employer was situate, whereas contribution under Chapter IV was to be realised from the employers of such areas only Where that Chapter was made applicable. The employees of such employers also became immediately entitled to benefits under Chapter V of the Act. The Act fixes no time limit for making provisions of Chapters IV and V of the Act applicable to the entire country. Their application to any particular area or to any establishment or class of establishments, industrial, commercial, agricultural or otherwise may be indefinitely deferred. It cannot, therefore, be said that the framers of the Act contemplated that every principal employer had to pay special contribution under Section 73-A of the Act as consideration for some benefit which may, on some unknown future date, be given to his employees, Rather, according to me, while enacting Chapter VA, the transitory provisions, by way of amendment of the Act, the Parliament clearly intended that the special contribution was to be paid by principal employers compulsorily irrespective of the fact whether their employees (would) be getting some benefit in return or not. The Legislature itself did not contemplate, while enacting Chapter VA, that there should be some benefit as quid pro quo to the employer or to the employees of the employer paying special contribution. In that view of the matter, the special contribution payable under Section 73-A of the Act cannot be held to be a fee. It is not very material to decide whether it is a tax or a special assessment. For the aforesaid reasons, I am inclined to agree with the view taken by learned Judges of Allahabad, Calcutta, Gujarat and Kerala High Courts and hold that the special contribution is not a feeThe decision of this Court in Ladhu Mal v. State of Bihar, (AIR 1965 Pat 491), though not a case relating to the Act, supports the aforesaid view.
15. In determining whether there is any substance in the second contention of Mr. Sanyal, it may be necessary to refer, at the outset to Section 3 of the Revenue Recovery Act. This section reads as follows:–
“3. Recovery of public demands by enforcement of process in other districts than those in which they become payable. — (1) 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–
(a) the name of the defaulter and such other particulars as may be necessary for his identification, and
(b) the amount payable by him and the account on which it is due.
(2) The certificate shall be signed by the Collector making it or by any officer to whom such Collector may, by order in writing, delegate this duty, and, save as otherwise provided by this Act, shall be conclusive proof of the matters therein stated.
(3) 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.”
From the language of the section itself it is manifest that the section is applicable to cases where an arrear of land-revenue or a sum recoverable as an arrear of land revenue is payable to a Collector. Section 2 of the Revenue Recovery Act itself defines ‘Collector’ to mean “the chief officer in charge of the land revenue administration of a district”. From the facts of the cases, a ready stated, it is obvious that the sum; sought to be realised in the instant case are not payable to a Collector. Therefore, they could not be recovered under Section 3 of the Revenue Recovery Act.
16. Section 5 of the Revenue Recovery Act, however, is as follows:–
“5. Recovery by Collectors of sums recoverable as arrears of revenue by other public officers or by local authorities.–
Where any sum is recoverable as an arrear of land revenue by any 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 section covers such cases where the sum is not payable to a Collector but, is recoverable as an arrear of land revenue by any public officer other than a Collector or by any local authority and once such public officer or local authority makes a request to the Collector of the district in which the office of that officer or authority is situate, the Collector shall proceed to recover the sum as if it were an arrear of land revenue which had accrued in his own district. For that purpose he has to take recourse to the procedure laid down under Section 3 of the Revenue Recovery Act. Neither party claimed before us that the sums with which we are concerned in these cases could be recovered under Section 3 of the Revenue Recovery Act, but while counsel for the respondents maintained that they could be recovered under Section 5 of the said Act, according to counsel for the petitioner, they could not be recovered even under Section 5 of that Act, as neither the Corporation nor its Regional Director was a public officer or a local authority. Really the question whether the Regional Director of the Corporation is a public officer or a local authority is also not material, for, the sums were payable to or recoverable by the Corporation. The Regional Director only could make a request on behalf of the Corporation to the Collector of the district under Section 5 of the Revenue Recovery Act. The Corporation is not a local authority appears to have been settled by the decision of the Supreme Court in Valjibhai Muljibhai Soneji v. State of Bombay, (AIR 1963 SC 1890). In that case it was held that the State Transport Corporation incorporated under the Road Transport Corporation Act, 1950, was not a local authority as defined in Section 3 (31) of the General Clauses Act, 1897, That clause defines ‘local authority’ as “‘local authority’ shall mean a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund.” The learned Judges of the Supreme Court held, in the aforesaid case, that the fund with which the State Transport Corporation was entrusted was not municipal fund and could not be regarded as local fund. They held the State Transport Corporation not to be a local authority in spite of the fact that Section 29 of the Bombay State Road Transport Act, 1950, provided that the Corporation shall for all purposes be deemed to be local authority. The money with the control and management of which the Corporation is entrusted under the Act cannot be held to be a municipal or local fund and, therefore, the Corporation cannot be a local authority.
17. The next, question which arises for consideration is whether the Corporation is a public officer. The word ‘public officer’ is not defined in the Revenue Recovery Act, but is defined in Section 2 (17) of the Code of Civil Procedure. Section 2 (17) of that Code is as follows:–
“(17) ‘Public officer’ means a person falling under any of the following description, namely:–
(a) every Judge;
(b) every member of the Indian Civil Service;
(c) every commissioned or gazetted officer in the military, naval or air forces of the Union while serving under the Government.
(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorized by a Court of Justice to perform any of such duties;
(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience.
(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government or to execute any revenue process, or to investigate or to report on, any matter affecting the Government, or to make, authenticate or keep any document relating to the pecuniary interest of the Government, or to prevent the infraction of any law for the protection of the pecuniary interest of the Government; and
(h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty.”
It was not disputed before us that this definition is relevant for deciding whether the Corporation is a public officer or not, for, though it may not apply in terms, it definitely provides guidelines for the purpose. It was contended on behalf of the respondents that the Corporation being a ‘person’ is a ‘public officer’ as it is covered by some of the clauses of the abovequoted sub-section. On the other hand, it was contended on behalf of the petitioner that though the Corporation may be a ‘person’, it is not a ‘public officer’ as it is not covered by any of the clauses of the definition. On behalf of the respondents reliance was placed on a decision of a learned single Judge of the Calcutta High Court in Shivadhar Shukla v. Corporation of Calcutta, (1960) 64 Cal WN 60 wherein it was held that the Commissioner of Calcutta Municipal Corporation was a public officer within the meaning of Section 2 (17) of the Code of Civil Procedure, for, though his salary and allowance were to come out from the municipal fund, he having been entrusted with the performance of various public duties, was to be treated as in the service of the Government. In reply it was pointed out on behalf of the petitioner that, as noticed in the decision itself, the Commissioner was to be, appointed by the State Government on the recommendation of the State Public Service Commission on such terms and conditions as the State Government might determine and his activities were to be controlled by the Government, and leave was to be granted by the Government, though his salaries were to be paid by the Corporation, and it was in these circumstances that he was held to be a public officer.
18. Learned counsel for the petitioner placed reliance on a Bench decision of Rajasthan High Court in Jaimal Singh v. Collector, Jaipur, (ILR (1958) 8 Raj 899) wherein the Rehabilitation Finance Administration constituted under Rehabilitation Finance Administration Act (No. 12 of 1948) was held to be not a public officer. It was held in that case that in view of the definition of ‘person’ in the General Clauses Act, a Corporation can be a ‘person’ and a ‘public officer’ is a ‘person’ who discharges public duties, but it was then pointed out that as the activities of the Rehabilitation Finance Administration did not amount to a public duty it was not a ‘public officer’. On the basis of the ratio of that decision alone, therefore, it cannot be held that the Corporation is not a ‘public officer’. For finding out whether the Corporation is a ‘public officer’ or not it shall have to be examined whether its activities amount to a public duty. The very preamble of the Act says that it is an Act to provide certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. As it appears from Chapters IV and V of the Act, the employees are to be ensured compulsorily from the contributions payable by their employers and also by the employees through the employers and benefits are to be conferred upon the employees as mentioned in Chap. V-AH this is to be done by the Corporation. Section 19 of the Act lays down that the Corporation may, in addition to the scheme of benefits specified in this Act, promote measures for the improvement of the health and welfare of insured persons and for the rehabilitation and re-employment of insured persons who have been disabled or injured and may incur in respect of such measures expenditure from the funds of the Corporation within such limits as may be prescribed by the Central Government. Under Section 28 of the Act, the first purpose for which the fund of the Corporation is to be expended is payment of benefits and provision of medical treatment and attendance to insured persons and, where the medical benefit is extended to their families, the provision of such medical benefit to their families in accordance with the provisions of this Act and defraying the charges and costs in connection therewith. One of the other purposes for which the fund of the Corporation is to be expended is defraying expenditure, within the limits prescribed, on measures for the improvement of the health and welfare of insured persons and for the rehabilitation and re-employment of insured persons who have been disabled or injured. It would thus appear that activities of the Corporation are mostly for the benefits of a class of public, namely, the employees, and I see no reason why these activities be not held to be amounting to a public duty. The activities of Rehabilitation Finance Administration as it appears from the aforesaid decision of Ra-jasthan High Court, also benefited certain class of persons, but the main activity of the Administration was to finance loans or to guarantee loans. The loans advanced by the Administration to the persons were to be repaid by them to the Administration. The Administration, therefore, was doing some sort of business. The activities of the Corporation, therefore, are quite different from the activity of Rehabilititation Finance Administration.
19. The definition of ‘public officer’, as quoted above, from the Code of Civil Procedure shows that ‘public officer’ means a ‘person’ falling under any of the eight descriptions as mentioned in that sub-section. Therefore, if the term ‘person’ is used equivalent to an ‘officer’, then Clause (g) of the definition of the Code can be read as–
“every person whose duty it is, as such person, to take, receive, keep or expend any property on behalf of the Government ………….”
Undoubtedly, it can be said that the Corporation being a corporate body, strictly speaking, is not taking, receiving or keeping any property on behalf of the Government, But the definition is only for the purposes of the Civil Procedure Code and it is not necessary that while construing the term ‘public officer1 in other enactment that definition should be strictly adhered to. It may merely provide a guideline for the purpose of finding out who is a ‘public officer’. The Revenue Recovery Act does not define the expression ‘public officer’. It also does not say that such terms which are not denned in that Act will have the same meaning as given to them under the Code of Civil Procedure. The General Clauses Act also does not define the term ‘public officer’. Therefore, as held in Jaimal Singh’s case (ILR (1958) 8 Raj 899) by the Rajasthan High Court, if the activities of a Corporation amount to a public duty, it may be held to be a ‘public officer’. Section 21 of the Indian Penal Code defines the expression ‘public servant’ and a comparison of the definition with that of the term ‘public officer’ in the Code of Civil Procedure will show that the two terms have been more or less assigned a similar meaning. Section 93 of the Act provides that all officers and servants of the Corporation shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code. If the officers and servants of the Corporation are ‘public servants’ within the meaning of Section 21 of the Indian Penal Code, there appears no reason why the Corporation itself be not held to be a ‘public officer’ for the purposes of Section 5 of the Revenue Recovery Act. I am, therefore, of the opinion, that the Corporation is a public officer for the purposes of Section 5 of the Revenue Recovery Act and can make a request to the Collector for recovery of the sums payable to it or, in other words, recoverable by it as arrears of revenue.
20. It was contended by learned counsel for the petitioner that request under Section 5 of the Revenue Recovery Act, if at all could be made, be made by the Corporation and not by its Regional Director. Section 7 of the Act lays down that all orders and decisions of the Corporation shall be authenticated by the signature of the Director-General of the Corporation and all other instruments issued by the Corporation shall be authenticated by the signature of the Director-General or such other officer of the Corporation as may be authorised by him. The Corporation being a corporate body its officers have to act on its behalf and in the instant cases it appears that the Regional Director has acted on behalf of the Corporation by making a request to the Collector of Patna for recovery of the dues. It must be presumed that the Regional Director must have been authorised to do so by the Corporation and I do not think that the petitioner can claim that the dues are not recoverable from it on that score.
21. The last point urged on behalf of the petitioner is that even if a certificate for recovery of the dues could be issued under the Revenue Recovery Act, that could be realised only by the Collector and not by any other officer as Certificate Officer under the Bihar and Orissa Public Demands Recovery Act. This question appears to have been considered by the Calcutta High Court in three of its decisions. In Ram Ranjan Rakshit v. Chief Administrator, Rehabilitation Finance Adminstration, New Delhi (AIR 1960 Cal 416), it appears, certificate proceedings were started by the Collector of Delhi under the Revenue Recovery Act and sent to the Collector of Nadia in Bengal where the defaulter resided and had property. The Collector, Nadia, sent the matter to the Certificate Officer. The objections filed by the defaulter before the Certificate Officer were overruled by him. Then he appealed to the Collector who confirmed that order. The contention of the defaulter before the High Court that the proceeding was not maintainable was overruled and his application was dismissed. In Sm. Bulu Rani v. Member, Board of Revenue, West Bengal. (AIR 1962 Cal 499), D. N. Sinha, J. (as he then was) held that when certificate is sent by one Collector to another under the Revenue Recovery Act, the receiving Collector cannot, delegate it to be dealt with by another officer. He further pointed out that the Certificate Officer was not a Collector as defined by the Revenue Recovery Act but functioning under the Bengal Public Demands Recovery Act, 1913. But, at the same time, he pointed out, following the decision in Ram Ranjan Rakshit’s case, that the provisions of the Bengal Public Demands Recovery Act may provide auxiliary machinery. In G. I. R. Co. Private Ltd. v. Certificate Officer, 24 Perganas, (AIR 1964 Cal 285) the same learned Judge, i.e., D. N. Sinha, J., observed:–
“As a point of law, I do not see why a requisition cannot be made under the Revenue Recovery Act and further proceedings taken under the Public Demands Recovery Act.”
22. Similar question also arose for consideration before the Bombay High Court in the case of Prabhakar Vishnu v. Union of India, (AIR 1970 Bom 285). In that case a requisition under Section 5 of the Revenue Recovery Act was received by one Collector from another Collector. Thereafter proclamation for sale of property was issued by the Mamlatdar. The proclamation was challenged before the High Court, but it was held to be valid on the ground that Mamlatdar was duly authorised to issue such proclamation. It was further observed that there is a presumption that official acts are done as required by law in proper way. The learned Judge also referred to Section 7 (a) of the Revenue Recovery Act which says ‘Nothing in the foregoing section shall be construed to impair ……………… or affect 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’, and held that the provisions of the Revenue Recovery Act did not impair the provisions of Land Revenue Code.
23. Learned counsel for the petitioner placed reliance on the Full Bench decision of Travancore-Cochin High Court in V. K. Menon v. Tahsildar, Mukundapuram, (AIR 1955 Trav-Co 14) (FB), but that was a case where the Collector in whose name the requisition was sent by another Collector was not in existence at all. In the circumstances, it was held that the recovery Act in such a case (sic).
24. In this connection Sub-section (3) of Section 3 of the Revenue Recovery Act is also relevant. This sub-section lays down 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. As has already been pointed out earlier, on receipt of a requisition under Section 5 the Collector has to proceed in accordance with Section 3 of the Act. It can well be contended that if in case of an arrear of land revenue accruing in his own district, the Collector can recover it under the Public Demands Recovery Act, he can also realise the dues, under a requisition under the Revenue Recovery Act under the Public Demands Recovery Act. In my opinion, therefore, the better view appears to be that if some of the provisions of Public Demands Recovery Act which are not in conflict with the provisions of the Revenue Recovery Act are adopted for recovery of dues for which a requisition is received under Section 3 or 5 of the Revenue Recovery Act, that will not invalidate the proceeding. At any rate, the petitioner being liable to pay the amount, it is not a case where this Court can grant it a relief in exercise of writ jurisdiction on the ground of some illegality or irregularity in the procedure.
25. In C. W. J. C. No. 41 of 1973, learned counsel for the respondents have also given undertaking that they will not proceed with certificate cases Nos. 37 (OD) of 1971-72 and 72 (OD) of 1973-74 pending disposal of E. S. I. Case No. 1 of 1971 before the Industrial Tribunal at Patna. In that view of the matter also no writ can be issued in favour of the petitioner in that case.
26. For the foregoing reasons, I find no merit in any of the four applications and they are accordingly dismissed. In the circumstances of the cases, however, there will be no order as to costs. Muneshwari Sahay, J. 27. I agree.