TMI Blog1978 (4) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... d on him and though the plaintiff was not a defaulter, proceedings were taken to recover the amount as a public demand from him. He came to know that an assessment had been made and penalties had been levied only when he was served with notice under the provisions of the Orissa Public Demands Recovery Act by the certificate officer. He filed an objection before the certificate officer and against the rejection of the objection he preferred an appeal before the Additional District Magistrate, but obtained no relief. He ultimately filed this suit on the allegation that no notice of demand had been served as provided in section 13(4) of the Act and, as such, the alleged demand had not become recoverable as an arrear of land revenue. The certificate officer had no jurisdiction to entertain the certificate and the amount was not collectible as a public demand. 3.. The sole defendant in defence pleaded that no suit lay for cancellation of an assessment in view of the clear bar under section 22 of the Act. The suit was also hit by sections 42 and 45 of the Public Demands Recovery Act. It was pleaded that a valid assessment had been made and the plaintiff had defaulted in making payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed under sub-section (3) of section 11, or (d) composition money payable under the third proviso to subsection (1) of section 5, less the sum, if any, already paid by the dealer, or (e) penalty directed to be paid under sub-section (3) of section 9-B, or (f) interest charged under sub-section (4-a) of section 12, shall be paid by the dealer into a Government treasury within thirty days from the date of service of the notice issued by the Commissioner for the purpose." Rule 32(1) of the Orissa Sales Tax Rules provides: "In respect of any amount found payable by a dealer under subsection (4) of section 13, the Commissioner shall serve on the dealer a notice of demand in form X with a direction to the dealer to pay the amount within thirty days from the date of service of the notice and to produce before him the receipted chalan in proof of payment of such amount within 7 days from the date of payment." Section 13(7) of the Act provides: "The amount which remains unpaid after the due date of payment in pursuance of the notice issued under sub-section (4) or sub-section (5) together with the interest payable under sub-section (6) shall be recoverable as an arrear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven imposition of penalty. As Mr. Patnaik for the plaintiff has reiterated the concession, it is unnecessary to examine that question. In fact, the lower appellate court has not granted any such relief to the plaintiff. 8.. The learned Additional Government Advocate has argued before me that the suit even for the other reliefs is not maintainable, inasmuch as section 42 of the Public Demands Recovery Act does not contemplate of such a suit, and in what circumstances a certificate is open to challenge before the civil court having been provided by the statute, the civil court has no residuary jurisdiction. I am not inclined to accept such a submission. Section 42 is a built-in provision within the statute for challenge of the certificate on certain specified grounds. The civil court has admittedly a wider jurisdiction as indicated by the Judicial Committee of the Privy Council in the case of Secretary of State v. Mask and Co.(1940) 67 I.A. 222 at 236; A.I.R. 1940 P.C. 105 at 110. Lord Thankerton, speaking for the Law Lords, stated: "....... It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the statute to which reference is made by the Privy Council must, we think, be non-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question. It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute. In what cases such a plea would succeed it is unnecessary for us to decide in the present appeal because we have no doubt that the contention of the appellant that on the merits, the decision of the assessing authority was wrong, cannot be the subject-matter of a suit because section 18-A clearly bars such a claim in the civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on[1969] 2 A.C. 147., wherein Lord Pearce had stated: "Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry 9.. In the matter before me, as already pointed out, until the demand was served on the plaintiff as required under section 13(4) of the Act, the amount did not become due and as long as the plaintiff was not a defaulter in compliance with the notice, the provision of the Public Demands Recovery Act was not available for realisation of the dues as indicated in section 13(7) of the Act. These certainly are mandatory provisions compliance whereof gives rise to one situation and non-compliance leads to a different consequence. The jurisdiction of the certificate officer to entertain the requisition and make the requisition a decree for recovery of the amount in accordance with the procedure laid down under the Public Demands Recovery Act depended upon compliance with the provisions in section 13 of the Orissa Sales Tax Act and, without such compliance, the amount was not a "public demand" and the certificate officer had no jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
