IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.9392 of 2010
MIRTUNJAY UPADHYA @ MRITUNJAY UPADHYA S/O RAM
DENI UPADHAYA R/O VILL.- BELWA RAJ BAIRAGI TOLA, P.O.
AND P.S.- TURKOULIA, DISTT.- EAST CHAMPARAN.
.........PETITIONER.
Versus
1. THE STATE OF BIHAR
2. THE DISTRICT CERTIFICATE OFFICER, EAST CHAMPARAN,
MOTIHARI.
3. THE BRANCH MANAGER, BANK OF INDIA, JIWDHARA.
BRANCH, EAST CHAMPARAN.
..... RESPONDENTS.
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For the petitioner : Mr. D.K.Tondon, Advocate.
For the respondents : Mr. R.K.Pandey, Advocate.
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06/ 03.12.2010 Heard learned counsel for the petitioner and learned
counsel for the respondents-State of Bihar as well as learned counsel for
the Bank of India.
2. This writ petition has been filed challenging
certificate proceeding, including order dated 21.11.2008 passed by he
District Certificate Officer, East Champaran ( respondent no.2) in
Certificate Case No.34/ B.O.I/ 2002-03 (Annexure-1) and also for release
of the petitioner from jail custody.
3. Admittedly, the petitioner is a loanee and a
certificate proceeding had been initiated against him. Learned counsel for
the petitioner raises three points. Firstly, that the said proceeding was
taken up and finally decided on 21.11.2008 without any notice under
Section 7 of the Bihar and Orissa Public Demand Recovery Act, 1914.
The second point taken by the petitioner is that the proceeding is time
barred as the loan was taken in the year 1986 and the proceeding was
initiated in the year 2001. The third point taken by learned counsel for
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the petitioner is that the authorities have violated the provision of Clause
15(2) of Schedule I of the Act and in support of his contention, he has
relied upon a decision of a bench of this court in case of Birendra Kumar
Das Vs. The State of Bihar & Ors. reported in 2001 (4) P.L.J.R.396.
4. So far the first contention raised by learned counsel
for the petitioner is concerned, it is quite apparent from the ordersheet
that on 25.08.2008 the certificate officer had specifically found that the
service report of notice under Section 7 of the Act had been received,
whereas from order dated 21.11.2008 it transpires that even after service
of notice much earlier no objection under Section 9 of the Act was filed
by the petitioner and hence it was rightly presumed by the authority that
certificate debtor had admitted the amount of loan. Thus, the certificate
case was decreed in terms of requisition and the certificate debtor was
directed to pay the said amount within thirty days failing which action
was to be taken.
5. The petitioner has relied upon order dated
10.03.2010 passed in the proceeding showing that service report had not
come but the said order is much subsequent to the decree passed in the
case and hence the said order appears to have been passed without
perusing the record of the case, including earlier specific orders passed
by the Certificate Officer dated 25.08.2008 and 21.11.2008 and in that
view of the matter, no benefit can be derived by the petitioner on the
ground of such mistakes.
6. It further transpires that after the said order was
passed by the Certificate Officer on 21.11.2008, neither the petitioner
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paid the amount of loan nor he challenged the said order or the
proceeding before the appellate authority as specific provision of appeal
has been provided under Section 60 of the Act.
7. All the three points raised by the petitioner in this
court could have been very well considered and decided by the appellate
authority after looking into the factual aspects of this case as well as
materials available on record on all the said three points. Avoidance of
clear statutory provision of appeal and filing of writ petitions, although
specific alternative remedy was available, cannot be encouraged as it
tends to make the provision of law ineffective and to unnecessarily
burden this court with such cases in which questions of facts are
involved.
8. In the said circumstances, this writ petition is
dismissed.
Sunil (S.N.Hussain,J.)