ORDER
1. In an application under Article 226 of the Constitution of India, the petitioner prays for quashing Annexures 6, 7 and 8. These orders have been passed by various authorities under the provisions of Bihar Public Demands Recovery Act, 1914.
2. The Forest Department, Deltonganj, published a notice in the Bihar Gazette dated 7-12-66 for sale of Kendua leaves. The auction was held on 21-12-1966 and the petitioner was the highest bidder. The petitioner agreed to pay Rs. 9,000/-annually for three years. He also deposited a sum of Rs. 2250/- as earnest amount on 21-12-66 before the authority concerned. He did not deposit the balance amount of Rs. 6750/- before the authority concerned. One of the conditions, as mentioned in the advertisement, as contained in Annexure 1, was that if the petitioner did not deposit the aforesaid balance amount in the treasury, then in that case, his contract shall automatically be revoked. In the present case, it is admitted position that the petitioner never deposited the balance of the bid amount in the treasury and, as such, his contract was automatically revoked by the department concerned. There is also a provision in para 5 of Annexure 1 that the loss incurred shall be recoverable from the contractor concerned. It is for this reason, it is stated, that the department assessed the loss, that is, Rs. 5531/-and directed the petitioner to pay the loss to the Forest Department. The officer of the Forest Department sent a requisition to the Certificate Officer for realising this amount from the petitioner. The point under consideration is: Whether such amount of damages can be realised by the Certificate Officer under the provisions of the Bihar and Orissa Public Demands Recovery Act, 1914 or not? (hereinafter referred to as ‘the Act’). According to the provisions of the said Act, any authority can realise the amount through the process of the Act, as mentioned in Schedule 1. The heading of Schedule 1 of the said Act is ‘Public Demands’. In this connection, the learned counsel for the State referred to Item No. 9 of Schedule 1 of the Act. In other words the argument of the learned counsel for the State is that this money shall come within the purview of Item No. 9 of Schedule 1 of the Act. It is relevant to quote Item No. 9 of Schedule 1 of the Act;
“9. Any money payable to a servant of the Government or any local authority, in respect of which the person liable to pay the same has agreed, by a written instrument that it shall be recoverable as a public demand.”
3. On a perusal of Item No. 9 of Schedule 1 of the Act, it is clear that if a party agrees by written instrument to pay a certain amount to the Govt. or to the local authority, then in that case it shall be recoverable as a public demand. On a perusal of Annexure 1, it is clear that the amount of damages is not at all mentioned in annexure 1. In absence of any specified amount, such money cannot be recovered under Item No. 9. The word ‘money’ mentioned in Item No. 9 means the money specified in the agreement of the parties. In view of the fact that the amount of damages is not mentioned in Annexure 1; as such, amount of damages cannot be recovered by the Forest Department. Neither the agreement nor the Act or the rules made thereunder provides any machinery to ascertain the damages incurred by the Forest Department. Whenever any money is realised as public demand or arrear of revenue or arrear as land revenue, then in all these cases the specified amounts are mentioned by the authorities concerned. If the amount of damage is not mentioned, then it can be ascertained only by the civil court and not by the Forest Department itself.
4. In this connection, a reference has also been made to Section 73 of the Bihar Private Forests Act, 1947 which is as follows :–
“73. Recovery of money due to Governments. All money payable to the State Government under this Act, or under any rule made under this Act or on account of the price of any forest-produce, may, if not paid when due, be recovered under the law for the time being in force as if it were an arrear of land revenue,”
On a perusal of Section 73 of the Bihar Private Forests Act, 1947 also, it appears that the amount of damages as mentioned in Annexure 1 will not come within the purview of Section 73 of the Forests Act.
5. Another circumstance is that the petitioner was never put in possession of the forest for collecting Kendua leaves. In view of these infirmities I hold that the Certificate Officer had no authority in law to realise Rs. 5531/- through the process of the Act for the reasons mentioned above.
6. In the result, the application is allowed and Annexures 6, 7 and 8 are hereby quashed. Parties shall bear their own costs.
Chaudharysia Saran Sinha, J.
7. I agree with the order proposed by my learned Brother. But I would like to make a few observations of my own.
The claim of the respondents, forwarded before the Certificate Officer rests on para 5 of Annexure 1, which is undisputedly, a part of the agreement executed between the petitioner on the one side and the Governor of Bihar on the other. Clause 5 of Annexure 1 states merely about the realisation of the loss incurred by the State Government for the inaction of the petitioner leading to reauction as a public demand. No specific amount of loss is mentioned therein. A claim for Rs. 5531/- was put forward before the Certificate Officer. Learned counsel for the State in spite of repeated query failed to satisfy this Court as to how this amount of Rs. 5531/- was arrived at or even calculated. Learned counsel for the respondents contended that the amount of Rs. 5531/- could be recoverable under Section 73 of the Bihar Private Forests Act, 1947 (hereinafter referred to as ‘the Forests Act’) read with Item No. 9 of Schedule 1 to the Bihar and Orissa Public Demands Recovery Act. 1914 (hereinafter referred to as ‘the Act’). Section 73 of the Forests Act refers to all money payable to the State Government under that Act or under any rule made thereunder or on account of price of any forest produce. It is nowhere the case of the respondents that the money sought to be realised from the petitioner is payable under the Forests Act or any rule made thereunder. Money recoverable on account of price of any forest produce cannot be equated to loss incurred by the State Government in connection with the forest produce. Obviously, therefore, none of the three parts of Section 73 is applicable to the instant case and we are left to fall back upon the provisions of Item No. 9 of Schedule 1 referred to above.
8. According to Item No. 9, any money payable to a servant of the Government or to any local authority in respect of which person liable to pay the same has agreed by a written instrument that it shall be recoverable as a public demand, will come within the definition of ‘public demand’ as occurring in Section 3 (61 of the said Act. The money in question is not payable to a servant of the Government or any local authority but to the Governor of Bihar. This apart the Public Demands Recovery Act lays down summary procedure for realisation of money and it requires strict compliance with the provisions’ of the Act and the Rules. A certificate is in the nature of decree. This is why Section 4; of the Act necessitates the satisfaction of the Certificate Officer that money sought to be realised is due. It is in this context, that the terms ‘any money in respect of which the person liable to pay the same has agreed’ have to be considered. The loss mentioned in para 5 of the agreement in question is in the nature of damages and not an ascertained sum of money nor can it be said that amount is ascertainable on the face of the terms of the agreement. This being the position, the respondents cannot take advantage of the provisions of Item No. 9 of Schedule 1 of the Act. I may, however, observe that the respondents shall be within their rights to proceed against the petitioner for recovery of the loss after it is duly ascertained in accordance with law.