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Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.20847 of 2016 Kabita Dash ....... Petitioner -Versus- Sub-Collector-Cum-Certificate ……. Opposite Parties Officer, Bhubaneswar & others For Petitioner : Mr. N.C. Panigrahi, (Senior Advocate) For Opp. Parties : Mr. T. Pattnaik (Addl. Standing Counsel) ----- CORAM: JUSTICE SANJAY KUMAR MISHRA _______________________________________________________________ Date of Hearing and Judgment: 08.04.2024 _______________________________________________________________ S.K. MISHRA, J. 1. This Writ Petition has been preferred challenging the notice to Show-Cause, in relation with warrant of arrest issued on 30.08.2016 against the Petitioner by the Court of Sub-Collector-Cum- Certificate Officer, Bhubaneswar, so also the under valuation proceeding initiated against her in U.V.M.C. No.1326 of 2008, as at Annexure-3 series. W.P.(C) No.20847 of 2016 Page 1 of 17 2. Mr. Pattnaik, learned ASC for the State-Opposite Parties submitted that since Notice to Show-Cause at Annexure-2 is the outcome of the order passed in U.V.M.C. No.1326 of 2008, which has been passed by the Stamp Collector (US 47-A of Indian Stamp Act)- Cum-Dy. IGR (CR), Cuttack, under the Indian Stamp Act, 1899 for under valuation of the document, ordering therein to recover an amount of Rs.7,10,062/- by instituting Certificate Proceeding against the Petitioner, this Court has no assignment to deal with any order passed by the Authority under the Indian Stamp Act, 1899 and the matter be released from the list with an order to list the matter before the Bench having assignment. 3. In response to the said submission made by the learned
Legal Reasoning
ASC for the State-Opposite Parties, Mr. Panigrahi, learned Senior Counsel for the Petitioner submitted that the Petitioner would like to confine the prayer made in the Writ Petition to set aside the notice dated 30.08.2016 at Annexure-2, which was issued by the Certificate Officer, Bhubaneswar to Show-Cause as to why warrant of arrest should not be issued against the Petitioner. 4. In view of the said submission made by Mr. Panigrahi, learned Senior Counsel for the Petitioner, prayer to quash the notice issued under the Odisha Public Demands Recovery, Act, 1962, shortly, here in after “the OPDR Act, 1962”, having assignment of this W.P.(C) No.20847 of 2016 Page 2 of 17 Bench, on consent of the learned Counsel for the Parties, the matter is taken for hearing and final disposal. 5. The case of the Petitioner, in nutshell, is that the Opposite Party No.3, Smt. Paluni Patra, after partition through Court, had entered into an agreement with the present Petitioner through her Power of Attorney Holder, Girija Shankar Mishra (Opposite Party No.4) to sell the disputed property in favour of the Petitioner. Accordingly, the Deed of Sale was executed by the Opposite Party No.4 in favour of the Petitioner on 31.12.2007 for a consideration amount of Rs.2 lakhs relating to ‘Sthitiban’ Plot No.550, Khata No.112, Kisam-Biali, Mouza-Patia measuring an area of Ac.0.267 decimals. 6. When the matter stood thus, the Petitioner was surprised to receive a notice under section 37(1) of the OPDR Act, 1962 issued on 30.08.2016 by the Opposite Party No.1 (Sub-Collector-Cum- Certificate Officer, Bhubaneswar), vide which she was asked to Show Cause as to why warrant of arrest shall not be issued against her and she was directed to appear before the said Opposite Party on 29.09.2016. In obedience to the said Show-Cause Notice, the Petitioner appeared before the Certificate Officer on 29.09.2016 and sought for time to challenge the Show-Cause Notice pertaining to warrant of arrest. W.P.(C) No.20847 of 2016 Page 3 of 17 7. It is further case of the Petitioner that prior to the issuance of notice to Show-Cause under Certificate Case No.5 of 2015, neither she had knowledge of initiation of the Certificate Proceeding against her nor about the proceeding relating to under valuation case registered as U.V.M.C. No.1326 of 2008 pertaining to registered DOCT No.13993 of 2007. Since the Petitioner was never served with any notice, after enquiry, with much difficulty, she could procure the document relating to the under valuation case from the
Decision
Authority, which has been annexed to the Writ Petition as Annexure- 3 series. 8. Though the Writ Petition was preferred way back in 2016, the Opposite Party Nos. 1 and 2 i.e. the Sub-Collector-Cum- Certificate Officer, Bhubaneswar, so also the Stamp-Collector-Cum- Deputy Inspector General of Registration, Camp at District Registration Office, Bhubaneswar, filed a common Counter Affidavit only on 09.02.2024. So far as the allegation made in Paragraph 6 of the Writ Petition and the Certificate Proceeding is concerned, Paragraphs 6 and 8 of the Counter Affidavit, being relevant to the present lis, are extracted below: “ 6. That, it is stated that with regard to non-payment of adequate amount of Stamp Duty on the Sale Deed dated 31.12.2007, a U.V.M.C. No.1326 of 2008 in relation to Registered Document No.13993 of 2007 was instituted by the court of the Stamp Collector under Section 47(A) of the Indian Stamp Act (Page No.17 of the Writ Petition). It was decided that the notice to the Petitioner under Rule 21(1) W.P.(C) No.20847 of 2016 Page 4 of 17 of the Indian Stamp Act, 1899 to pay deficient amount of Stamp Duty and deficient registration fees be issued. Thereafter, the aforesaid proceeding was posted to 30.05.2012 and on the said date, the Petitioner did not appear before the court of Stamp Collector. On 22.11.2013, the proceeding relating to U.V.M.C. No.1326 of 2008 was again taken up for hearing, wherein it was observed that despite service of notice on the petitioner, he chose not to remain present before the court of the Stamp Collector. Thereafter, a notice in Form No.2 was issued to the Petitioner through ordinary post. It is stated that the office of District Sub- Registrar, Khordha, at Bhubaneswar, do not have any record to show whether notice in Form No.2 has been received by the Petitioner or not. It is pertinent to mention here that in the said notice, the Petitioner was asked to pay an amount of Rs.7,10,062/- within the date mentioned therein and in the event if the same is not paid within the timeline fixed, the deficit amount towards Stamp duty and Registration Fees will be recovered as an arrear of land revenue. 8. That, on receipt of the aforesaid notice, a Certificate Case No.05/2014 was instituted by the Opp. Party No.1. On 04.05.2016, it was ordered by the Opp. Party No.1 that the notice under Section 6 of the OPDR Act be issued to the Petitioner. Subsequently, notice under Section 6 of the OPDR Act in Form-3 bearing PR No.190, dated 05.05.2016 was issued to the Petitioner by the Opp. Party No.1 through ordinary post which is ascertained from the process register. The token of receipt of the said notice by the Petitioner is not available due to dispatch of the same through ordinary post. Copy of the order dated 04.05.2016 and Notice in Form-3 bearing PR No.190, dated 05.05.2016 issued by the Opp. Party No.1 is annexed herewith as Annexure-B/1 series. Copy of the relevant page of the process register for the year 2016 is annexed herewith as Annexure-C/1. It is pertinent to mention here that Form No.1 was issued to the Petitioner by the Opp. Party No.1 as per Section 3 read with Section 5 of the OPDR Act, 1962. Copy of the Form No.1 issued by the Opp. Party is annexed herewith as annexed herewith as No.1 Annexure-D/1.” W.P.(C) No.20847 of 2016 (Emphasis supplied) Page 5 of 17 9. In response to the said Counter filed by the Opposite Party Nos. 1 and 2, the Petitioner has filed a Rejoinder Affidavit specifically denying therein as to receiving any notice in any of the proceeding initiated against her by the Opposite Party Nos. 1 and 2. That apart, it has been stated in the Rejoinder that before issuance of the notice to Show-Cause as to warrant of arrest shall not be issued against her, as required under section 6 of the OPDR Act, 1962, no notice in Form No.3 was issued to the Petitioner. So far as fresh notice under Annexure-B/1 given by the Certificate Officer-Cum-Sub-Collector, Bhubaneswar, it has been specifically denied that the Petitioner has no knowledge about Annexure-B/1 series, C/1 and D/1 and had not received any notice issued under section 6 of the OPDR Act, 1962 in Form No.3, bearing P.R. No.190 dated 05.05.2016. 10. Reiterating the stand taken in the Writ Petition so also in the Rejoinder, Mr. Panigrahi, learned Senior Counsel for the Petitioner submitted that before issuance of the notice under section 37(1) of the OPDR Act, 1962 to Show-Cause why warrant of arrest should not be issued against the Petitioner, as required under section 6 of the OPDR Act, 1962, after receipt of requisition in Form No.2 in terms of section 4 of the OPDR Act, 1962, the Certificate Officer should give opportunity to the Petitioner to file Petition denying liability in terms of section 8 of the OPDR Act, 1962. Mr. Panigrahi W.P.(C) No.20847 of 2016 Page 6 of 17 further submitted, as is required under section 9 of the OPDR Act, 1962, the Certificate Officer, in whose Office the original certificate is filed, only after hearing the Petition denying liability and taking evidence, if necessary, can confirm, set aside, modify or vary the certificate as he deems fit and thereafter, the steps for execution of Certificate Proceeding have to be taken only after 30 days has elapsed since the date of service of notice, as required under sections 6 and 10 or, when a petition is duly filed under section 8, until such petition is heard and determined. Mr. Panigrahi, learned Senior Counsel for the Petitioner, drawing attention of this Court to the impugned notice of Show- Cause, as at Annexure-2, so also order sheet in C.C. No.5 of 2015 annexed to the Counter filed by the State as Annexure-A/1, submitted that though the Show-Cause Notice indicates that the certificate case number is C.C. No.5 of 2015, the documents annexed to the Counter filed by the State indicate that the certificate case was registered as C.C. No.5 of 2014. Similarly, the order sheet in C.C. No.5 of 2015 reflects that the requisition was received from the Stamp Collector-Cum-DSR, Bhubaneswar on 04.05.2016 by the Certificate Officer and on receiving such requisition, on the very same day, it was ordered to issue notice to the present Petitioner under section 6 of the OPDR W.P.(C) No.20847 of 2016 Page 7 of 17 Act, 1962 fixing the date to 22.07.2016. Mr. Panigrahi further submitted that the rest of the order sheets in C.C. Case No.5 of 2015, as at Annexure G/1 to the Counter, do not reflect that the notice in terms of section 6 of the OPDR Act, 1962 in the prescribed Forms was issued and duly served on the Petitioner giving her opportunity to file Petition denying liability in terms of section 8 of the OPDR Act, 1962. Mr. Panigrahi, learned Senior Counsel for the Petitioner further submitted that the Counter filed by the State is also silent as to what was the date and mode of giving notice to the Petitioner in U.V.M.C. No.1326 of 2008. Apart from that, it has been admitted in Paragraph 6 of the Counter filed by the State that the said proceeding was taken on 22.11.2013 and as the Petitioner allegedly remained absent, notice in Form No.2 was issued to her through ordinary post. Similarly, drawing attention of this Court to the averments made in Paragraph 8 of the Counter, Mr. Panigrahi, learned Senior Counsel submitted that notice under section 6 of the OPDR Act, 1962 in Form No.3 bearing P.R. No.190, dated 05.05.2016 was allegedly issued to the Petitioner by the Opposite Party No.1 through ordinary post. Mr. Panigrahi, learned Senior Counsel further submitted that in terms of section 29 of the Orissa General Clauses, Act, 1937 so also section 27 of the General Clauses Act, 1897, presumption of W.P.(C) No.20847 of 2016 Page 8 of 17 service of notice only arises, if the same has been sent by the Registered Post to the noticee. That apart, the Opposite Party No.1 (Certificate Officer) has also not followed the procedure laid down under sections 6 and 9 of the OPDR Act, 1962 before issuance of the impugned notice under section 37 (1) of the OPDR Act, 1962. Hence, the under valuation proceeding so also the certificate proceeding are bad. Since in the Certificate Proceeding, the Petitioner was never noticed, as required under the law, the Proceeding in C.C. No.5 of 2015 deserves to be set aside. Drawing attention of this Court to Form Nos. 1 and 2, which have been appended to the Writ Petition as Annexure-3 series so also annexed to the Counter filed by the State Opposite Parties, the learned Senior Counsel for the Petitioner submitted that both the Forms are undated though the said Forms are bearing signature of the Certificate Holder so also the Certificate Officer. He further submitted that the order sheet in the certificate case annexed to the Counter filed by the State indicates that the requisition was received by the Opposite Party No.2 on 04.05.2016 and the date was fixed to 22.07.2016 ordering therein to issue notice to the present Petitioner (Certificate Debtor) in terms of section 6 of the OPDR Act, 1962. Thereafter, the subsequent order sheets, which are annexed to the Counter as Annexures G/1 i.e. the orders dated 02.08.2016 and W.P.(C) No.20847 of 2016 Page 9 of 17 30.08.2016, do not reflect that the notice in terms of section 6 of the OPDR Act, 1962 was sent and duly served on the Petitioner. In view of such irregularities, Mr. Panigrahi, learned Senior Counsel for the Petitioner submitted that the impugned notice in Annexure-2 deserves to be set aside. 11. In response to the argument advanced by Mr. Panigrahi, learned Senior Counsel for the Petitioner, Mr. Pattnaik, learned ASC for the State, drawing attention of this Court to the extract from the Process Register annexed to the Counter, submitted that the notice was duly issued to the Petitioner (Certificate Debtor) as the extract from the Process Register of the Certificate Proceeding indicates that notice was issued to the Certificate Debtor through ordinary post vide P.R. No.190, dated 05.05.2016. Despite being noticed, the Petitioner neither appeared before the Certificate Officer nor filed Petition denying liability in terms of section 8 of the OPDR Act, 1962. Hence, the Certificate Officer was justified to issue Show-Cause Notice as to why warrant of arrest shall not be issued against the Petitioner. 12. In view of the submissions made by the learned Counsel for the Parties, it would be apt to extract below sections 6, 8, 9, 13 and 46 of the OPDR Act, 1962 with Rules under Schedule-II so also section 29 of the Orissa General Clauses Act, 1937, which are relevant for proper adjudication of the present lis. W.P.(C) No.20847 of 2016 Page 10 of 17 “ 6. Service of notice and copy of certificate on certificate debtor- When a certificate had been filed in the office of a Certificate Officer under Section 3 or Section 5, he shall cause to be served upon the certificate debtor, in the prescribed manner, a notice in the prescribed form and a copy of the certificate. 8. Filing of petition denying liability –(1) the certificate- debtor may, within thirty days from the service of the notice required by Section 6 or where the notice has not been duly served, then within thirty days from the execution of any process for enforcing the certificate, present to the Certificate Officer in whose office the certificate is filed or to the Certificate Officer who is executing the certificate, a petition, in the prescribed from, signed and verified in the prescribed manner, denying his liability only on the ground that – (a) the certificate dues have been fully or partly paid; or (b) the person on whom such notice has been served is not the person named as certificate-debtor in the certificate: Provided that a certificate-debtor in respect of dues other than those in relation to which the liability under any law for the time being in force is not open to question in a Civil Court may also deny his liability on any other ground; Provided further that no petition under this sub-section shall be entertained by a Certificate Officer unless he is satisfied that such amount of the certificate dues as the certificate-debtor may admit to be due from him has been paid. (2) If any such petition is presented to a Certificate Officer other than the Certificate Officer in whose office the original certificate is filed, it shall be sent to the latter officer for disposal. 9. Hearing and determining of such petition – The Certificate Officer in whose office the original certificate is filed may after hearing the petition and taking evidence, if necessary, confirm, set aside, modify or vary the certificate as he deems fit.” 13. When certificate may be executed – No step in execution of a certificate shall be taken until the period of thirty days has elapsed since the date of the service of notice required by Sections 6 and 10 or, when a petition has been duly filed under Section 8, until such petition has been heard and determined: W.P.(C) No.20847 of 2016 Page 11 of 17 Provided that where the whole or any part of the movable property of the certificate-debtor is liable to attachment under this Act, the Certificate Officer may, at any time for reasons to be recorded in writing direct an attachment of the whole or any part of such movable property.” (Emphasis supplied) CHAPTER – V Rules 46. Effect of rules in Schedule II – The rules in Schedule II shave have effect as if enacted in the body of this Act, until altered or annulled in accordance with the provisions of this Chapter. SCHEDULE – II RULES [See Section 46] Signature and verification of requisitions Certificates for 1. Signature and verification of requisitions for certificates- (1) Every requisition made under section 4 shall be signed and verified at the foot by the person making it, or by some other person on his behalf who is proved to the satisfaction of the Certificate Officer to be acquainted with the facts of the case. (2) The verification shall state that the person signing the requisition has been satisfied by enquiry that the amount stated in the requisition is actually due. (3) The verification shall be signed by the person making it, and shall state the date on which it is signed. Service of Notices 2. Mode of service - Service of a notice issued under Section 6, or under any other provisions of this Act, shall be made by delivering or tendering a copy thereof, signed by the Certificate Officer or such ministerial officer as he authorises in this behalf, and sealed with the seal of the Certificate Officer. 3. Service on certificate-debtor or his agent - Wherever it is practicable, service shall be made on the certificate-debtor in person, unless he has an agent W.P.(C) No.20847 of 2016 Page 12 of 17 empowered to accept service, in which case service on such agent shall be sufficient. 4. Service on adult male member of certificate- debtor’s family - Where the certificate-debtor cannot be found, and has no agent empowered to accept service of the notice on his behalf, service may be made on any adult male member of the certificate debtor who is residing with him. Explanation - A servant is not a member of the family within the meaning of this rule. 5. Persons served to sign acknowledgment - Where the serving officer delivers, or tenders a copy of the notice to the certificate-debtor personally, or to an agent or other person on his behalf, he shall require the signature of the person to to an is so delivered or whom acknowledgment of service endorsed on the original notice. the copy tendered 6. Procedure where certificate-debtor refuses to accept service or cannot be found- Where the certificate- debtor or his agent, or such other person aforesaid, refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the certificate-debtor, and there is no agent empowered to accept service of the notice on his behalf nor any other person on whom service can be made, the serving officer shall- (a) affix a copy of the notice on the outer door or some other conspicuous part of the house in which the certificate-debtor ordinarily resides or carries on business or personally works for gain; or (b) if there be land affected by the notice, affix a copy of the notice on some conspicuous place in the office of the Certificate Officer and also on some conspicuous part of the land. and shall then return the original to the Certificate Officer by whom it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person, if any, by whom the house or land was identified and in whose presence the copy was affixed. 7. Endorsement of time and manner of service- The serving officer shall, in all cases in which the notice has been served under Rule 5 endorse or annex, or cause to be endorsed or annexed, on or to the original notice, a return stating the time when and the manner in which the notice was served, and the name and address of the person, if any, identifying the person served and witnessing the delivery or tender of the notice. W.P.(C) No.20847 of 2016 Page 13 of 17 8. Examination of serving officer - Where a notice is returned under rule 6, the Certificate Officer, shall, if the return under that rule has not been verified by the affidavit of the serving officer on oath, or cause him to be so examined by another Certificate Officer, or, subject to any general order of the Collector, by an Assistant Collector, Deputy Collector or Sub-Deputy Collector, touching his proceedings and may make such further inquiry in the matter as he thinks fit; and shall either declare that the notice has been duly served or order such service as he thinks fit. 9. Service by post- Notwithstanding anything hereinbefore contained, the notice may, if the Certificate Officer so directs, be served by post.” (Emphasis supplied) Section 29 of the Orissa General Clauses Act, 1937 29. Meaning of service by post :- Where any Orissa Act authorizes or requires any document to be served by post whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying, and posting by registered Post a letter containing the documents and, unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.” (Emphasis supplied) 13. From the legal provisions enshrined under the OPDR Act, 1962, it is amply clear that the Certificate Debtor has to be noticed in the prescribed Form and the prescribed manner and has to be provided with a copy of the certificate duly signed and verified by the Certificate Holder so also Certificate Officer giving him/her opportunity to file Petition denying liability. Further, so far as service of notices, as detailed in the Rules under Schedule-II read with Section 46 of the OPDR Act, 1962, apart from service of notice on the W.P.(C) No.20847 of 2016 Page 14 of 17 Certificate Debtor in person, Rule 9 in Schedule-II prescribes as to service of notice by post. Since the OPDR Act, 1962 is a State Act, this Court is of the view that, as prescribed under section 29 of the Orissa General Clauses Act, 1937, service by ‘post’ in terms of Rule-9 in Schedule-II means the service shall be deemed to be effected if the notice is sent to the Certificate Debtor by properly addressing, prepaying and posting it by registered Post and not by ordinary post, as was allegedly done in the present case. 14. From the documents available on record, it is amply clear that the Opposite Party No.1 (Certificate Officer) received the requisition in Form No.2 from the Opposite Party No.2 on 04.05.2016 and thereafter, the date was fixed to 22.07.2016 for appearance of the Certificate Debtor. Similarly, as is revealed from Form No.1, as at Annexure D/1 to the Counter, the same is undated, vide which the Certificate Officer-Cum-Sub-Collector, Bhubaneswar was required to certify that the amount in terms of the requisition is due and recoverable from the Certificate Debtor and the recovery by suit is not barred by law. The subsequent order sheets of the Certificate Proceeding, which have also been annexed to the Counter as Annexure-G/1, do not reflect that the notice was duly sent and served on the Petitioner in terms of section 46 of the OPDR Act, 1962 read with the Rules under W.P.(C) No.20847 of 2016 Page 15 of 17 Schedule-II, as extracted above, giving the Petitioner opportunity to file Petition denying liability before issuance of the impugned notice dated 30.08.2016 to Show-Cause. 15. In view of the above, this Court is of the view that the Show-Cause Notice for issuance of warrant of arrest dated 30.08.2016, as at Annexure-2, being issued without following due procedure as prescribed under sections 6 and 8 of the OPDR Act, 1962 and without proper notice in terms of the Rules under Schedule-II, is liable to be set aside. Accordingly, the Show-Cause Notice for issuance of warrant of arrest dated 30.08.2016, as at Annexure-2, is set aside. 16. Matter is remitted back to the Opposite Party No.1 with a direction to provide opportunity to the Petitioner in accordance with various provisions of the OPDR Act, 1962 and rules made there under, as detailed above, and thereafter proceed further in accordance with law. 17. In order to avoid delay, the Petitioner is directed to appear before the Opposite Party No.1 on 29.04.2024 along with a certified copy of this Order. On being so appeared, the Sub Collector-cum- Certificate Officer, Bhubaneswar shall furnish all the Forms with proper seal, signature and date to the Petitioner giving her opportunity to file her petition denying liability, if any, and thereafter, W.P.(C) No.20847 of 2016 Page 16 of 17 shall proceed further following due procedure, as prescribed under section 9 of the OPDR Act, 1962. 18. With the said observation and direction, the Writ Petition stands disposed of. 19. Urgent certified copy of this order be granted on proper application as per rules. Orissa High Court, Cuttack Dated, 8th April, 2024/Padma (S.K. MISHRA) JUDGE Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: orissa high court, cuttack Date: 20-Apr-2024 12:47:00 W.P.(C) No.20847 of 2016 Page 17 of 17