Judicial intervention in the matter of public demands recovery

Repoter : News Room
Published: 2 November, 2022 12:22 pm

Soeb Aktar

Soeb Aktar : The Public Demands Recovery Act, 1913 enters the scene as the inevitable and forthright machinery for realization of what now becomes the government dues as quick and short process after the Zamindari system was abolished by the East Bengal Act XXVIII of 1951, which has, as a sequel, “outlawed” the majority of litigations in Mofussil courts, namely, the rent suits.^[1] Uncertainty and expense of recovery of dues through the civil court was undesirable in the previous time. A new forum and method have been incorporated by this Act for speedy disposal of the matters related to public demand. Section 3(6) of Public Demands Recovery Act, 1913 defines public demands as any arrear or money mentioned or referred to in Schedule I, and includes any interest which may, by law, be chargeable thereon up to the date on which a certificate is signed under part II. Schedule I provides the lists which can be recovered as public demands, some of which are any money payable to local authority, any money awarded as fees or costs by a revenue authority under any law, any money declared by any law realizable by land revenue or an arrear of revenue and so on.

Public demand recovering authority

The power and duty to sign a certificate, that the demand payable to the Collector or other public demand payable to any person other than the Collector, is given to the Certificate Officer.^[2] Section 3(3) provides the lists of persons who are entitled to be certificate officers. The section says that a Collector, a Upazila Nirbahi Officer, a Upazila Magistrate, and any officer, appointed by a Collector with the sanction of the Commissioner, is to perform the functions of a Certificate-officer under this Act.

Public Demands Recovery Act, 1913 is an amended and consolidated Act and also has been regarded as self contained. In the case Kafiluddin Ahmed vs Crown (8 DLR 184), the court held that the provisions of section 496 are not attracted in the case of certificate debtor who is arrested under section 29 of the Public Demands Recovery Act, 1913 for realization of certificate amount and who can be released by the order of the collector under section 30 of the same Act. In another case, Sadhu Saran vs Pnch Deo Lal (34 Cal. 811 F.B), it was held that the provisions of CPC could only be applicable, with regard to recovery procedures of public demands, only up to the stage of auction sale to an execution proceeding issued to enforce a certificate, not to any later stage.

In this Act, the certificate officer (hereinafter referred to as C.O.) has been recognised as a court.^[3] His declaration has therefore got a civil court’s decree.^[4] However, it is also observed that C.O. is not strictly a court and its decision is not res-judicata for civil courts.^[5] By this Act general powers of the civil courts dealing with public demands have been curtailed with some exceptions.^[6]

In the later portion the writer will try to find out how and to what extent the judiciary can intervene in matters related to public demand recovery.

Direct provisions for judicial intervention

Chapter IV of this Act talks about reference to civil courts and few provisions are there for the judiciary to intervene.^[7] But coming to the question, can the judiciary entertain this power as a first instance or without any restriction?

Let’s try to analyze chapter IV of this act.

Section 34: By this section, civil courts have been given the power to deal with the Public Demand Recovery related matters however in a restrictive way. If we analyze the whole section, it is clear to us that an aggrieved party can go to the civil courts only after exhausting the available remedy under this act otherwise the party will be debarred from seeking remedy in different law.^[8]

Section 35: This section provides to what extent civil courts can use its power to cancel or modify the certificate. This section is a negatively approached section and some points have been incorporated only where the civil courts can intervene to cancel or modify the certificate:

Where the certificate due was actually paid or discharged before filing it.
No due is payable by the debtor.
To question the proceeding of the certificate officer on the use of law.
A portion of debt is not due.
Credit to the certificate debtor is not given for any portion which he has paid.

Section 36: To use this section one has to show that he has sustained substantial injury for non service of notice under section 7. In this section two conditions shall have to be fulfilled by the party to apply in civil court:

Within 1 year from the delivery of possession to the purchaser.
No application is made under section 22 and 23 to set aside the sale.

Section 37: This is the main section which takes away the general power of the civil courts in dealing with the public demands related matters. But there is a provision in this section which gives the civil court the power to intervene with the public demand recovery related matters on the ground of fraud. Using the term fraud, it gives huge scope to the judiciary to intervene in the matters.

From the above analysis of direct provisions, it is submitted that though provisions are there to intervene by the judiciary, this power is very much restricted and conditional with other provisions of this Act.

This is not the whole scenario of the intervention of the judiciary. Writ jurisdiction and judicial interpretations have also been observed in intervening by the judiciary from time to time. For better understanding, this point needs to be discussed.

Intervention of judiciary by judicial interpretation and writ jurisdiction

Section 3(6) defines what is public demand. If a notice for due is issued where it is not clear whether this demand is public demand or not, then court intervention can be taken to solve the question.^[9] Arrest and detention can only be done by the provisions of this Act. CrPC has no application in this matter as it is a civil prison under this Act. One can challenge the arrest and the bond made under CrPC for the purpose of this Act and court can intervene in this matter.^[10]

A purchaser can file an application under section 24 to set aside the sale but he also can file a civil suit on the ground of fraud on part of the certificate debtor.^[11] Section 37 is not a bar to suit in civil court where the whole proceedings of C.O. are fraudulent and unauthorized.^[12]

Even Civil Courts have the jurisdiction to cancel certificates when they are not duly filed.^[13] In Hiranmoy vs State of Assam (AIR 1954 Assam 229) the court held that if a sale is brought about by fraud, it is liable to be set aside by the civil court as being void, for fraud vitiates the most solemn proceeding of the court. Again if sale has been held without jurisdiction the Civil Court will be competent to declare the sale held as illegal and void.

Writ jurisdiction

Primarily writ jurisdiction of the HCD should not be invoked where alternative adequate remedy is provided by law.^[14] However, it is a well settled principle that writ jurisdiction of HCD should not be denied where equally efficacious, expeditious and beneficial alternative remedies are not available.^[15] Where mandatory provisions of law are not observed, writ petition can be availed of.^[16] Where a sale is void on account of its being held at a time where section 9 is in application, aggrieved party can invoke writ jurisdiction to declare the sale illegal and void.^[17]

Natural justice

On the ground of a great dereliction of duty or flagrant violation of natural justice, HCD can use its extraordinary power to interfere with the matter related to public demands.^[18]

Conclusion

Public Demands Recovery Act 1913 is a comprehensive law to recover public demands where civil courts’ power to deal with it has been curtailed under section 37 with some exceptions. Further section 34, 35 and 36 give some scope to the lower judiciary to intervene with the matter. Though the power of the judiciary to intervene is so restricted, it can intervene on the grounds of fraud and natural justice as discussed above in this writing.

Writer is a law student at the University of Dhaka.

^[1] Obaidul Huq Chowdhury, ‘Public Demands Recovery Act’, (Dhaka Law Reports, 2nd edition, 1992) page I

^[2] Public Demands Recovery Act, 1913, s 4,5,6

^[3] Public Demands Recovery Act 1913, s 57

^[4] Manindra Kumar Das Vs Satish Chandra De, 49 CWN 437

^[5] Dwarakanath Vs Sri Garinda, 112 IC 71

^[6] Public Demands Recovery Act 1913, s 37

^[7] Public Demands Recovery Act 1913, s 34, 35, 36, 37

^[8] 10 BLD 392

^[9] Nukul Das Mridha Vs Bangladesh, 1986 BLD 331

^[10] Kafiluddin Ahmed Vs Crown, 8 DLR 184

^[11] Dibendra Vs Latika, ILR 1948 Cal. 479