The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.838 of 2016 Manoj Kumar Chawda ....... Petitioner -Versus- Tahasildar, Keonjhar and another …….. Opposite Parties For Petitioner : Mr. J.P. Choudhury, Advocate For Opp. Parties : Mr. Y.S.P.Babu, Addl. Govt.Advocate ----- CORAM: JUSTICE SANJAY KUMAR MISHRA ________________________________________________________________ Date of Hearing and Judgment: 17.10.2023 ________________________________________________________________ S.K. Mishra, J. 1. The Writ Petition has been preferred to quash the notice dated 31.10.2015 (Annexure-6) and Order dated 31.10.2015 (Annexure-7), with a further prayer to direct the Opposite Party No.2 to dispose of the Certificate Case No.25/2008-09 in accordance with law by affording opportunity of hearing to the Petitioner . 2. Learned Counsel for the Petitioner submits, admittedly, the certificate proceeding was initiated against his client based on the W.P.(C) No.838 of 2016 Page 1 of 6 Order passed by the Tahasildar, Keonjhar dated 12.08.2005, as at Annexure-2, in Encroachment Case No.437/05-06. 3. Learned Counsel for the Petitioner further submits, pursuant to notice in Form No.3 dated nil along with Form No.1, as at Annexure-4, certificate proceeding was initiated to recover an amount of Rs.3431.30 i.e. Rs.2523/- towards Back Rent/Penalty and Rs. 908.30 towards interest. Pursuant to the said notice, though his client appeared and filed Petition denying liability in terms of Section 8 of the Odisha Public Demands Recovery Act, 1962 (for short ‘OPDR Act, 1962’), without giving him opportunity of hearing in terms of Section 9 of the OPDR Act, 1962, the impugned Order was passed by the Certificate Officer and vide notice dated 25.08.2009 (Annexure-6), the Petitioner was directed to deposit Rs.6932.60, which includes Rs.3431.30 towards principal and equal amount towards alleged interest. That apart, cost of certificate was indicated as Rs. 50.00 and Court fee to the tune of Rs.20.00, as detailed in the said notice.
Legal Reasoning
4. Mr. Choudhury, learned Counsel for the Petitioner draws attention of this Court to the entire order-sheet in the certificate proceeding to demonstrate that before passing the impugned notice, the Certificate Officer has not followed the procedure, as enshrined under Section 9 of the OPDR Act,1962. W.P.(C) No.838 of 2016 Page 2 of 6 5. In response to the said submission made by the learned Counsel for the Petitioner, Mr. Babu, learned AGA draws attention of this Court to the averments made in the Counter Affidavit filed by the State and submits, the Petitioner had encroached the Government land. Hence, pursuant to the report of the concerned Revenue Inspector, Keonjhar, in Encroachment Case No.437 of 2005-2006, it was rightly ordered for recovery of Rs.2523/- towards Back Rent/Penalty and Rs. 908.30 towards interest. Because of non-payment of the said dues, certificate proceeding was rightly initiated against the Petitioner under OPDR Act, 1962. Mr. Babu further submits, there is no cogent reason on the part of the Petitioner to deny the said liability as has been detailed in the Petition denying liability dated 25.09.2015, as at Annexure-5. 6. It is pertinent to mention here that the coordinate Bench, vide Order dated 31.03.2016, as an interim measure, stayed further proceeding in Certificate Case No.25/2008-09 pending before the Opposite Party No.2, subject to depositing an amount of Rs.2,500/- before the Tahasildar-Cum-Certificate Officer, Keonjhar on or before 11.04.2016 by the Petitioner till the date of next listing of the matter. 7. Learned Counsel for the Petitioner submits, pursuant to said Order, the Petitioner has already deposited the said amount on 11.04.2016, which is not disputed by Mr. Babu, learned Addl. Government Advocate for the State-Opposite Parties. W.P.(C) No.838 of 2016 Page 3 of 6 8. Though the certificate proceeding has been challenged for not following procedure prescribed under Section 9 of the OPDR Act, learned Counsel for the Petitioner fairly concedes before this Court that the Petitioner being a land encroacher, was liable to pay the penalty so also back rent as has been determined by the concerned Tahasildar and ought to have deposited the same before the concerned Authority in terms of demand raised by the said Authority. Learned Counsel for the Petitioner also concedes that the Petitioner is liable to pay interest in terms of Section 14 of the OPDR Act, 1962, which is extracted below: “ 14. Interests, costs and charges recoverable -There shall be recoverable, in the proceedings in execution of every certificate filed under this Act- (a) interest upon the public demand to which the certificate relates (i) in case of persons belonging to Scheduled Castes, Scheduled Tribes, Socially and educationally Backward Classes or who is an unemployed educated youth or a member of self-help group, at the rate as specified in the agreement executed by them; and (ii) in other cases, at the rate of twelve and half per centum, per annum, from the date of signing of the certificate up to the date of realisation and : Provided that in cases where the Certificate Officer is satisfied that the certificate-debtor has made default in payment of the dues wilfully and without reasonable cause such interest may be charged at a rate not exceeding [eighteen] per centum per annum; W.P.(C) No.838 of 2016 Page 4 of 6 (b) such costs as are directed to be paid under section 53; and (c) all charges incurred in respect of – (i) the service of notice under section 6 and of warrants and other processes: and (ii) all other proceedings taken for realising the demand.” (Emphasis Supplied) 9. Since the certificate proceeding was initiated for an amount of Rs. 3431.30 and the Petitioner has already deposited Rs.2,500/- on 11.04.2016 in terms of the interim order dated. 31.03.2016, this Court is of the view that the Petitioner is liable to pay interest @ 12.5 % per annum on Rs. 3431.30 from the date of signing of the certificate up to 11.04.2016 and thereafter, he is liable to pay same rate of interest on the differential amount i.e. Rs. 931.30/- (Rs.3431.30/- minus Rs.2500/-) till the date of realization of the entire amount. 10. Accordingly, the impugned notice dated 31.10.2015 is set-aside. The matter is remitted back to the Opposite Party No.2, who shall calculate the interest payable by the Petitioner as observed by this Court and give the calculation sheet to the Petitioner within a period of four weeks from the date of production of the certified copy of this Order enabling him to deposit the amount calculated in terms of Section 14 of the OPDR Act, 1962. W.P.(C) No.838 of 2016 Page 5 of 6 11. With the said observation, the Writ Petition is disposed of. No order as to cost. 12. Urgent certified copy of this order be granted on proper application as per rule. (S.K. MISHRA) (JUDGE) Orissa High Court, Cuttack Dated, 17th October, 2023/Padma Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Reason: Authentication Location: ORISSA HIGH COURT CUTTACK Date: 19-Oct-2023 20:24:48 W.P.(C) No.838 of 2016 Page 6 of 6