IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 462 of 2008
M/s Krishna Stone Company .... Appellant
Versus
State of Jharkhand & ors. .... Respondents
CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR.JUSTICE D.K.SINHA
......
For the Appellant : Mr.K.K.Ojha
For the State : JC to A.G.
.....
3 / 28 .2.2009. This appeal has been preferred by the appellant against the order
dated 3.12.2008 passed by the learned Single Judge in W.P.(C) No.1042 of 2008,
by which the writ petition filed by the petitioner-appellant herein was dismissed
on the ground that the petitioner-appellant had an alternative statutory remedy of
filing an appeal under Section 60 of the Bihar & Orissa Public Demand Recovery
Act,1914, which the petitioner-appellant had failed to avail and straightway filed
the writ petition challenging the correctness of the order passed by the District
Certificate Officer -cum- Deputy Commissioner (respondent no.2).
The order which was challenged by the petitioner-appellant before the
learned Single Judge had been passed by the District Certificate Officer under
Section 9 of the Bihar & Orissa Public Demand Recovery Act directing him to pay
the certificate amount in nine equal instalments commencing from the date of the
order.
The counsel for the appellant assailed the order passed by the learned
Single Judge and sought to address this Court on the correctness of the order
passed by the Certificate Officer which could not have been permitted obviously
for the reason that the learned Single Judge had not gone into the merit of the
matter and had dismissed the writ petition merely on the ground of availability of
remedy to the petitioner-appellant. The submission on the merit of the matter
therefore cannot be gone into by us while entertaining an appeal against the
impugned order.
In so far as the view taken by the learned Single Judge that the
petitioner-appellant ought to have availed the alternative remedy is concerned,
also requires no interference since the counsel for the appellant merely
2
submitted that the appellant could not prefer an appeal as in that event it would
have to deposit 40% of the certificate amount.
This submission cannot be taken care of by this Court for if there is a
statutory requirement under the Act to pay 40% before filing an appeal the same
could not have been interfered with by the Court as that would be contrary to the
statutory requirement which does not envisage discretion.
However, we have noticed that although the statutory requirement to
pay the amount before filing an appeal under Section 60 of the Bihar & Orissa
Public Demand Recovery Act is 40% of the certificate amount, it further
transpires that the Certificate Officer himself has passed an order that the amount
be paid in nine equal instalments and the petitioner-appellant has already paid
Rs.1,37,963/- which is less than two equal instalments.
Since the Certificate Officer himself has directed the petitioner to make
the payment in equal installments, requirement to pay 40% before filing the
appeal can be construed to have been waived by the Certificate Officer himself.
Nevertheless the right of appeal cannot be snatched from the appellant to contest
the matter as to whether the amount of Rs.7.00 lac and odd, which is the
certificate amount is at all required to be paid by the appellant or not. In that
event, we deem it fit and appropriate to permit the appellant to file an appeal,
provided he pays the balance amount of the second instalment, meaning thereby
that if the appellant pays two instalments of the certificate amount, he will be at
liberty to file an appeal before the appellate forum and if such an appeal is filed
the same shall be considered on merit after hearing the contesting parties.
Subject to the aforesaid observations, the appeal stands dismissed.
( Gyan Sudha Misra,C.J.)
( D.K.Sinha, J. )
G.Jha/