@JUDGMENTTAG-ORDER
1. This Batch of appeals filed by the Bihar State Credit & Investment Corporation Limited (hereinafter referred to as ''the Corporation'') is directed against the common judgment and order dated 14.1.2003 passed by a learned Single Judge of this Court by which a set of sixteen (16) writ petitions filed by the respondents were allowed holding that the appointment of the Assistant Law Officer of the Corporation as Certificate Officer for recovery of its loans was bad and illegal. Those writ petitions were filed by different borrowers of the Corporation. They were badly in default in repayment of their loans. For recovery of its loan amounts, therefore, the Corporation had instituted proceedings against them under the Bihar Public Demands Recovery Act. The writ petitioners assailed the proceedings of the respective certificate cases before this court on a number of grounds, including violation of procedural safeguards. But in all writ petitions there was a common ground that raised a jurisdictional issue. All the writ petitions questioned the appointment of Mr. OP. Singh, Assistant Law Officer (referred to as the Law Officer in the judgment under appeal) of the Corporation as the Certificate Officer u/s 3(3) of the Act. On behalf of the writ petitioners, it was contended that the concerned person not being an Officer of the State Government could not be appointed as Certificate Officer under the Act. In any event, since he was an employee of the Corporation his appointment as Certificate Officer for recovery of the Corporation''s loan suffered from the vice of bias and offended the principle ''No man can be the Judge in his own cause''. In view of the common ground all the sixteen writ petitions were consolidated into one set and were heard on the ''preliminary jurisdictional issue''.
2. On a consideration of the rival submissions and the decisions relied upon by the two sides, the Writ Court upheld the writ petitioners'' challenge and allowed all the writ petitions without adverting to any other grounds peculiar to any particular case in that set. This batch of appeals is filed against the aforesaid judgment and order of the learned Single Judge.
3. From the judgment coming under appeal, it appears that apart from the main submissions advanced on behalf of the Corporation, it was also faintly argued that Mr. O.P. Singh had come to the Corporation on deputation from the State Government and the Corporation itself was a company in which the majority shares were held by the State Government. Hence, he would qualify for the expression "any Officer" even within the restricted meaning sought to be put on it by the writ petitioners. The Writ Court roundly rejected the submission. Before us no such submission was made in defence of the appointment of Mr. O.P. Singh and the arguments were confined to the core issue.
4. Both Mr. Jitendra Singh, appearing for the Corporation in all but two appeals and Mr. A. Amanullah appearing on its behalf in those two appeals proceeded on the premise that Mr. O.P. Singh was an employee of the Corporation and justified his appointment as Certificate Officer on that basis. Mr. Singh contended that the expression "any Officer" in Section 3(3) of the Act should be understood to mean what it says, literally. He submitted that the Writ Court committed a material error in giving to the expression a narrow and restricted meaning. He further submitted that the rule of ejusdem generis had no application to the provision in question and the Writ Court misapplied it and unduly emasculated the expression "any Officer". He also submitted that the officer concerned had no personal stakes or interests in the proceedings held for the recovery of the Corporation''s loans and, therefore, it was quite unjustified to hold his appointment bad on the principle of bias.
5. Learned counsel seemed to draw a great deal of strength from the fact that one of the decisions (of the Delhi High Court in
6. On the other hand, Mr. Navniti Prasad Singh who led the arguments on behalf of the writ petitioners-respondents submitted that the Certificate Officer under the Public Demands Recovery Act was vested with such powers and duties that were unquestionably part of the sovereign function of the State. It was, therefore, inconceivable that those powers (and duties) should be given to any one who was not an officer of the Government, did not hold a civil post and was not under the direct administrative and disciplinary control of the Government. Seen in this light, the expression "any officer" would appear as an extension of the same genus to which the Collector and the Sub-Divisional Officer belong and it could only be read ejusdem generis with the class of Officers preceding the expression.
7. Coming to the question of bias, Mr. Navniti Prasad Singh submitted that an arrangement under which an employee of the Corporation is made Certificate Officer for recovery of the Corporation''s dues would clearly have strong elements of departmental or institutional bias and there would always be a real likelihood of miscarriage of justice. He submitted that the impugned appointment was quite repugnant to the principle ''no one can be a Judge in his own cause''. He further submitted that in the facts and circumstances of these cases, it could not even be said that Mr. O.P. Singh was entirely free from any personal bias in the matter. Mr. Navniti Singh stated that the practice of appointing an employee of the Corporation as the Certificate Officer was being followed-off and on from 1990 but on each occasion it was Mr. O.P. Singh and no one else who was found suitable for being given the powers of Certificate Officer. He further submitted that Mr. Singh had acquired the reputation of having no regard for the Procedure laid down by law. He proceeded against the borrowers in a most unreasonable, arbitrary and high handed manner, caring little to comply with the provisions of the Act. Moreover, as Assistant Law Officer in the Corporation, he was assigned targets for recovery of the loan amounts and the actual recovery made by him had a direct bearing on his career prospects.
8. These in a nutshell were the rival submissions made on behalf of the parties but before proceeding to consider those submissions in greater detail, it will be useful to have a glance at the broad features of the Bihar Public Demands Recovery Act, 1914.
9. The P.D.R. Act was framed in 1914 with the object to consolidate and amend the law relating to the recovery of public demands in Bihar and Orissa. The terms used in the Act are defined in Section 3 and the definition of ''Certificate Officer'' which is the subject matter of debate in these cases is contained in subsection 3 of Section 3. It is as follows:
"Certificate Officer" means a Collector, a Sub-Divisional Officer and any officer appointed by a Collector, with the sanction of the Commissioner, to perform the function of Certificate Officer."
10. It is not in dispute that the appointment of Mr. O.P. Singh as Certificate Officer was made by an order issued by the Collector with the sanction of the Commissioner.
11. ''Public demand'' is defined u/s 3(6) with reference to Schedule I to the Act. It may be noted that at the time of framing of the Act, Schedule I had only entries 1 to 10 that were in the nature of either land revenue or any other dues of the Government. With the passage of time.
Schedule I of the Act was expanded and new entries were made. Entry No. 15 was inserted by Amendment Act 7 of 1974. It has four clauses and the Corporation''s dues are admittedly covered by clause (iii) of Entry 15. The relevant portion of which is reproduced below:
14. Any money payable to--
(i) xx xx xx xx
(ii) xx xx xx xx
(iii) A company or a Corporation or a statutory body, including a registered society carrying out of financial transactions, owned by or in which, Government has a majority of shares or which is managed by an authority appointed under any law for the time being in force; or
(iv) xx xx xx xx
in respect of which the person liable to pay the same has agreed, by a written instrument that it shall be recoverable as public demand.
12. It may be noted that though Schedule I to the Act was expanded from time to time to bring within the definition of public demand dues which were not essentially Government due, no corresponding amendments were introduced in any of the provisions in the main body of the Act.
13. Section 4 authorises the Certificate Officer to sign a certificate in case he is, satisfied that any public demand payable to the Collector is due. In the set of cases in hand, the dues being of the Corporation and not of the Collector, Section 4 has no application.
14. The dues of the other kind are dealt with under Sections 5 & 6. Section 5 provides that when any public demand payable to any person other than the Collector is due such person may send to the Certificate Officer a written requisition in the prescribed form. Sub-section (2) of Section 5 requires that the requisition should be signed and verified in the prescribed manner and further provides that it would be chargeable with a fee equal to the Court-fee payable on a plaint for recovery of the money for which the requisition was made.
15. Section 6 provides that on receipt of any such requisition the Certificate Officer may sign a certificate provided he is satisfied that the demand is recoverable and that recovery is not barred by law. The certificate has a prescribed form and at the time of signing it, the Certificate Officer shall add to the demand the amount of fee paid u/s 5(2). The certificate after it is signed will be filed in the office of the Certificate officer.
16. Section 7 deals with service of notice and copy of the certificate on the certificate debtor. Section 8 deals with the effect of service of notice and inter alia bars the certificate Debtor from making any private transfer or delivery of possession of his immovable property.
17. Section 9 gives the valuable right to the Certificate Debtor to file a petition denying liability within 30 days from the service of notice.
18. Section 10 casts a statutory obligation upon the Certificate Officer to hear the petition, take evidence (if necessary) and determine whether the Certificate debtor is liable for the whole or any part of the amount for which the certificate was signed, and may set aside, modify or vary the certificate accordingly.
19. Part 3 of the Act beginning from Section 12 to Section 42 deals with the execution of the certificate and contains some really stringent provisions.
20. Section 15 provides for attachment and sale of any property and/or the arrest of the Certificate debtor and his detention in civil prison as the modes of execution of a certificate.
21. Section 17 provides that apart from the certificate amount, interest, cost and charges too will be recoverable.
22. Sections 18 and 19 deal with attachment. Section 21 empowers the Certificate Officer to investigate the claim or objection raised against an attachment or sale of any property ordered by him in execution of a certificate.
23. Section 22 deals with production of evidence by the claimant or objector. Section 23 provides for the release of property from attachment or sale and Section 24 deals with disallowance of claim to the attached property.
24. Section 26 deals with the purchaser''s title in regard to the property sold in execution of a certificate and Sections 33 to 37 contain provisions to deal with any obstruction caused to the purchaser in obtaining possession of the property.
25. Sections 38 to 42 deal with matters appertaining to arrest, detention and release. Section 38 empowers the Certificate Officer to arrest a Certificate debtor at any hour and on any day (subject to Section 56 that prohibits entry into any dwelling house after sunset and before sunrise) and to commit him to a civil prison in the district. The proviso to Section 38 provides that on payment of the amount stated in the warrant of arrest as due under the certificate and the costs of the arrest the Certificate debtor would be released at once.
26. Section 40 lays down the period of detention and as to how and when a person detained in the civil prison in execution of certificate may be released.
27. Section 42 prohibits arrest or detention of a women, a minor and a person of unsound mind.
28. Section 46 bars the jurisdiction of the Civil Court excepting a case in which fraud is alleged.
29. Section 55 provides that the Certificate Officer may award compensation to the Certificate debtor if he is satisfied that any requisition u/s 5 was made without reasonable cause.
30. Section 57 gives judicial immunity to the Collector, Certificate Officer, Assistant Collector or Deputy Collector acting under the Act and every Government Officer making a requisition u/s 5 of the Act.
31. Section 59 puts all Certificate officers subject to the general supervision and control of the Collector.
32. Sections 60, 62 and 63 contain provisions in regard to appeal, revision and review etc.
33. While discussing the broad features of the P.D.R. Act, it would also be appropriate to see how the Court has seen and interpreted the Act and its provisions. In this regard, two points emerge that are of relevance to the present controversy.
(1) From the earliest the Courts have held that a certificate signed by the Certificate Officer becomes or takes the place of a decree for recovery of due from the Certificate debtor [See (i) Bindeshwari Prasad, Liquidator vs. Shiv Dutta Singh, 19 PLT 328 (334) (Spl. Bench), (ii)
(2) Having regard to the highly stringent provisions of the Act, the Courts from the earliest have insisted on an equally stringent adherence to the procedural requirements [See (i) Gujraj Sahai vs. Secretary of State for India in Council and Ors. ILR (1890) 17 Cal. 114 (ii)
34. It is in this background and having regard to the nature, object and purpose of the Act that the submissions of the two sides are to be appreciated.
35. On the question of giving the expression ''any person'' in Section 3(3) of the Act, a restricted meaning and the application of the rule of ejusdem generis, Mr. Jitendra Singh submitted that the contention of the writ petitioners-respondents was completely wrong and incorrect. Learned counsel submitted that the basic and the first rule of interpretation was to allow the words of the statute to have their normal and larger meaning and there was no reason in this case to deviate from this basic rule of interpretation. Learned counsel submitted that according to the Law Lexicon (1997 edition page 1350) the word Officer was defined to mean:
(i) a person holding an office,
(ii) one who performs the duties of a pubic office.
36. An employee of the Corporation was undoubtedly an officer within the plain meaning of the word and, therefore, there was no illegality in his appointment as a Certificate Officer.
37. Learned counsel further submitted that the legislative intent behind a statute can be gathered only by reading it as a whole and on doing so, it would appear that the words ''any officer'' would clearly include Officers of the Corporation or fully owned Government Companies. Learned counsel further submitted that the object of the Act was the speedy recovery of public demands as defined u/s 3(6) and NOT only Government demand. Hence, even if the submission of the writ petitioners-respondents are accepted to an extent and the rule of ejusdem generis is applied to the expression in question, it must be held not to mean only a Government servant but a public servant within the meaning of Section 21(12) of the Indian Penal Code and Section 2(c)(iii) of the Prevention of Corruption Act. Counsel submitted that the Act maintained a distinction between Government money and public money. Entry 9 of Schedule I related to any money payable to a servant of the Government and Entry 15 related to any money payable to (i) State Bank of India or (ii) a Nationalised Bank or (iii) the Bihar State Electricity Board. But both kinds of dues were classified together under the term ''public demand'' and it was, therefore, natural and logical that the recovery of the dues may also be entrusted and assigned to a public officer and not confined to Government Officers. He also submitted that it was wrong to say that an Officer of the Corporation appointed as Certificate Officer was not under the control of the Government and referred to Section 59 of the Act that provides that all Certificate Officers in the performance of their duties under the Act shall be subject to the general supervision and control of the Collector. He also referred to the provisions of Sections 60, 61 & 62 of the Act and submitted that the orders passed by the Certificate Officer were in any event subject to an appeal and revision before the superior Officers of the State Government.
38. Mr. Jitendra Singh made light of all the stringent provisions of the Act and submitted that the issuance of the Certificate or hearing & disposing of the objection petition filed by the Certificate debtor did not involve anything more than an arithmetical calculation. Learned counsel'' further submitted that the recovery of a loan advanced by a financial corporation did not involve adjudication of any complicated questions. The borrower and the surety or the guarantor know the amounts taken as loan, they know when the loan amounts were to be repaid, they know the rate of interest, they know what amounts were repaid and what was not paid or what amounts were repaid beyond the due dates. Thus, only a simple calculation is to be made to ascertain the amounts due to be recovered under the Certificate.
39. Mr. Singh further submitted that there was a large variety of sovereign functions, some of which could undoubtedly be delegated or alienated without any difficulty and the recovery of loans under the P.D.R. Act was one such function that need not necessarily be carried out by a Government Officer or functionary.
40. Coming to the issue of bias, learned counsel submitted that the principle, "No one can be a Judge in his own cause" would have no application merely if an officer of the Corporation is appointed as Certificate Officer, unless he is shown to have some personal interests in the proceedings.
41. Mr. Singh tried to support his submissions on the basis of the Supreme Court decisions in (1)
42. Mr. Navneeti Pd. Singh on the other hand submitted that it would be a grave error to play down the stringency of the provisions of the P.D.R. Act. In any event it was rather late in the day to try to do so since the stringency of those provisions was recognised by a long series of decisions. In this regard he referred in particular to Sections 12 and 15 (modes of execution), 21 to 24 (investigation of claims and objections), 25 (sale of property in execution of Certificate), 33, 34 (obstruction of possession after sale), 38 (power of arrest and detention), 39 (release from arrest and re-arrest), 40 (detention in, release from, prison), 46 (bar of jurisdiction of Civil Court), 55 (compensation for wrong claims) and 57 (Judicial immunity).
43. He further submitted that it will be a dangerous error to give to a person other than a Government Officer who was under very limited statutory control and not under complete administrative control of the Government the right to arrest someone and to put him behind the bars. He submitted that the right to arrest and consign someone to jail was the essence of police powers which along with taxation and eminent domain are consistently held as the primary inalienable functions which only the State can exercise. He cited as analogy the schemes under the Arbitration & Conciliation Act and under Part III of the Legal Services Authorities Act and submitted that by mutual consent the parties to a dispute may get the dispute adjudicated on/resolved either by private arbitration or through the agency of Lok Adalat but in either case the arbitral award or the decree made on the basis of the parties'' consent before the Lok Adalat had to come to the court for execution and enforcement.
44. Mr. Navneeti Pd. Singh submitted that in order to avoid the unacceptable situation where a Non-Government person might be exercising the primary sovereign power of arrest and detention it was necessary to read the word "any officer" ejusdem generis with Collector and Sub-divisional Officer and thereby to place ''any officer'' in the same Class.
45. In reply to the submissions advanced on behalf of the appellants that in case of recovery of loans nothing more than an arithmetical calculation was required. Mr. Singh submitted that it was an over-simplification of the matter. The question had to be viewed in the light of the provisions of the P.D.R. Act and mixed up with the question was the issue of bias. In answer to the court''s query as to what objection(s) the borrower/certificate-debtor might possibly raise u/s 9 of the Act, Mr. Singh submitted that the certificate debtor could resist the proceeding on manifold grounds.
46. He could point out that the requisition was not in the prescribed form or it was not signed and verified in the prescribed manner. He could show that the certificate was not in the prescribed form or that it did not indicate that the Certificate Officer was satisfied that the demand was recoverable and the recovery was not barred by law. Mr. Singh submitted that though these objections appeared technical, these would nevertheless vitiate the proceeding as held by a series of decisions. In this regard he further submitted that the appointment of the Assistant Law Officer as the Certificate Officer has led to a highly anomalous situation. Learned counsel pointed out that for recovery of dues other than Government dues (that is, the dues of the Corporation) the making of the requisition and the signing of the certificate were required to be made by two different persons in two different stages. Now, in case the requisition came from the Managing Director or any other superior officer of the Corporation, the Assistant Law Officer was bound to sign the certificate without any scrutiny, as provided in law. Mr. Singh further submitted that in reality in most cases both the requisition and the certificate were made by Mr. O.P Singh, the Certificate Officer himself and, thus, all the statutory safe-guards under sections 5 and 6 of the Act were rendered nugatory.
47. He next submitted that u/s 9 of the Act the certificate debtor could raise the objection that no court fee was paid oh the requisition and in that circumstance the certificate case may not proceed further. He stated that in the recovery cases in the Corporation no court fee was paid on almost any requisition and yet certificates were signed and coercive measures initiated against the certificate debtors. He further submitted that to Mr. O.P. Singh such omissions or deficiencies meant nothing and he turned a Nelson''s eye to such objections raised by the certificate-debtor.
48. Mr. Navneeti Pd. Singh further submitted that apart from the above objections with regard to violation of the statutory safe-guards, the certificate-debtor could take the plea that the demand was barred by limitation or that the Corporation''s dues were not public demand because there was no written agreement that it would be recoverable as public demand. The certificate debtor could take the objection that the borrower being a company, the dues against it were not recoverable from the Directors personally. He submitted that Mr. O.P. Singh would give a short shrift to all those objections and would at once proceed to hold the threat of arrest against the certificate debtor.
49. In support of his submissions Mr. Navneeti Pd. Singh relied upon the following decisions of the Supreme Court, (1) i.
50. Among the decisions relied upon in support of the appellants'' case P.K. Unni was on the provisions of Order XXII rule 89 of the CPC and it hardly seems to have any relevance to the present case. Similarly, the decision in the Agriculture Produce Market Committee that held that the activities of the Market Committee did not represent any sovereign functions of the State and it was an industry within the meaning of the Industrial Disputes Act does not seem to have any direct application to the matter in hand.
51. Both sides have made submissions on the rule of ejusdem generis and have cited authorities in support of their submissions. Mr. Jitendra Singh, counsel for the appellants cited U.P. State Electricity Board (supra) and the Assistant Collector of Central Excise (supra). In the former decision the rule of ejusdem generis was NOT applied to give any restrictive meaning to the expression "any other rules of regulations" in Section 13(b) of the Industrial Employment Standing Orders Act. In the latter decision the expression "other legal proceeding" was given a restricted meaning by reading it ejusdem generis with the preceding words "suits and prosecution".
52. In the decision relied upon by the respondents in Sir Stuart Samuel, it was held that to interprete the words "any other person or persons whatsoever" the doctrine of ejusdem generis would apply and "any other person" would mean any person who held an office in the British Government of a similar kind to those enumerated in the provision.
53. Ejusdem generis is one of the rules of interpretation of statutes. It is actually considered as an example of the larger rule called, Noscitur a sociis which is described in the Black''s Law Dictionary (Eight Edition; page 1087) as follows:
"Noscitur a sociis (Latin "It is known by its associates") A canon of construction holding that the meaning of an unclear word or phrase should be determined by the words immediately surrounding it. Of EJUSDEM GENERIS; EX-Pressio UNIUS ExCLUSlO AITERIUS, RULE OF RANK. (Cases: Statutes < 193. C.J.S. Statutes: 332.)
"The ejusdem generis rule is an example of a broader linguistic rule or practice to which reference is made by the Latin tag noscitur a sociis. Words, even if they are not general words like ''whatsoever'' or ''otherwise'' preceded by specific words, are liable to be affected by other words with which they are associated." Rupert Cross, Statutory Interpretation 118 (1976)."
54. The same dictionary at page 556 described the rule of Ejusdem Generis as follows:
"(Latin "of the same kind or class") A canon of construction that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same type as those listed. For example in the phrase horses, cattle, sheep, pigs, goats, or any other farm animal, the general language or any other farm animal--despite its seeming breadth--would probably be held to include only four-legged, hoofed mammals typically found on farms, and thus would exclude chikens."
55. It must, however, be realised that the rule of ejusdem generis merely shows the way to give certain general words a restricted meaning under certain conditions but the necessity or the need to give to those words a restricted meaning arises from other considerations. The primary and the basic rules of interpretation of Statutes is to give the words used and the enactment, their normal and large meaning. This rule is to be adhered to even if the Court feels that the object and purpose of the Act would be better served by substituting the word in question by some more appropriate or suitable word. But this rule like every other is not without an exception. It may some time happen that by giving certain words in a statutory provisions their normal, larger meaning, following the rule, one would arrive at absurd results. For instance, it may bring the provision into conflict with some constitutional guarantee or it may make it appear irreconcilable with some other provisions of the same Act or seem to defect the very object and purpose of the Act. Then, in order to save the Constitutional validity of the provision, to make it harmonious with the overall scheme of the Act or to make it meaningful, the Court proceeds to examine whether the desired result can be achieved by reading down certain words. In that event, the rule of ejusdem may be applied usefully to give some general words a restricted meaning in the context of the words preceding those words.
56. It needs, therefore, to be examined whether giving to the expression "any officer" its normal wider meaning would lead to a result that may be untenable in law. On behalf of the writ petitioners-respondents it is insisted that that is so. But on behalf of the appellants it is contended that reading the expression "any officer" in its normal meaning shall not lead to any abnormal consequences. The rival contentions are to be examined in the light of the decisions on the issues of sovereignty and bias relied upon by the respondents.
57. In Subodh Gopal Bose (supra), S.R. Das, J. speaking for the Supreme Court observed as follows:
"Every student of Constitutional law is well aware that constitutional lawyers classified the States Sovereign power into three categories, namely, the power of taxation, the power of eminent domain and the police power. These are distinct categories of sovereign powers with different connotations subserving different needs of the society and the State."
58. Seervai, in Constitutional Law of India, Fourth Edition Page 1392 Paragraph 14.73 explained the expression ''police power'' with reference to Webster''s Third International Dictionary as follows:
"Police power is defined as ''the inherent power of a Government'' to exercise reasonable control over person and property within its jurisdiction in the interest of general security, health, safety, morals and welfare except where legally prohibited (as by Constitutional provisions)".
59. In Krishna Bus Service (supra), the Supreme Court examined the validity of the appointment of the General Manager of Haryana Roadways as an Officer who can exercise the powers of a Deputy Superintendent of Police under the Motor Vehicles Act, 1939 by a notification issued u/s 133A of the Act. On a consideration of the nature of powers under Sections 129 and 129A of the Act, the Supreme Court observed and held as follows:
"The powers of stopping the motor vehicles and the powers of inspection, search, seizure and detention exercised under the Act are serious restrictions on the fundamental right of the operators of motor vehicles guaranteed under Article 19(1)(g) of the Constitution. These powers can be considered as reasonable restrictions only when they are exercised properly in the interests of the general public. They should be reasonable both from the substantive as well as the procedurally standpoint. Such powers should, therefore, be entrusted to a person who is expected to exercise them fairly and without bias. The General Manager of Haryana Roadways who is a rival in business to the private operators of motor vehicles in the State and is intimately connected with the running of motor vehicles cannot be expected to discharge his duties in a fair and reasonable manner. An unobstructed operation of the motor vehicles by private owners operating along the same route or routes would naturally affect the earnings of the Haryana Roadways. There is, therefore, every likelihood of his being overzealous in discharging his duties of stopping a vehicle and in searching, seizing and detaining motor vehicles belonging to others and at the same time, excessively lenient in the case of vehicles belonging to his own Department."
60. It was further observed in the decision that the appointment of the General Manager could also not be defended on the ground of the rule of necessity and hence, the appointment amounted to an unreasonable restriction on the fundamental right of the private motor vehicles operators and, therefore, violative of Article 19(1)(g) of the Constitution. The appointment of the General Manager as an Officer who can exercise the powers of the Deputy Superintendent of Police under the Act was also not in the interests of the general public since a large number of motor vehicles owned by the Haryana Roadways would not be subject to inspection and checking by an independent agency. The Supreme Court accordingly held as invalid and quashed the notification by which the General Manager, Haryana Roadways was given the powers of a Deputy Superintendent of Police under the Act.
61. The decision in Krishna Bus Service does not indeed deal with the issue of sovereignty and it was used by the writ petitioners-respondents in support of their plea of bias. More important from their point of view is the decision in Ishwar Singh Bagga (supra). In Bagga''s case, certain officers of the Rajasthan State Road Transport Corporation were empowered u/s 129A of the Motor Vehicles Act, 1935 to exercise in respect of all the State Carriages and contract carriages on the notified routes u/s 68D(3) of the Act, the powers given to Police Officers under that Section. The Court noticed that Section 129A of the Act authorised an Officer empowered under it to seize and detain (and also to provide for its temporary safe custody) a vehicle that contravened either Section 22 or Section 42(1) of the Act or any of the conditions mentioned in the permit. He could also file a case before the Magistrate for taking action against the owner of the motor vehicles for violation of the relevant provisions of the Act. With regard to the provisions of Section 129A of the Act, the decision observed thus:
"It is, thus, seen that the powers are of drastic nature and for the effect of depriving the owner of a motor vehicle of his property which sometimes may be of the value of Rupees two to three lakhs. They also have the effect of depriving the passengers who are travelling in that vehicle of a transport service right in the middle of a route and may exposed him to hunger and thrust as it was widely advertised in a pamplet issued by the Corporation itself. It is against the above background that we have to consider whether it was open to the State Government in this case to authorize some of the Officers of the Corporation to exercise the powers u/s 129A of the Act."
62. Having thus noticed the nature of the powers u/s 129A of the Act. the Court framed the question for its consideration (in paragraph 7 of the decision) as follows:
"Section 129A of the Act enables the State Government to appoint ''any police officer........or other person'' u/s 129A of the Act to exercise the powers mentioned therein........The other question which arises for consideration is whether the expression "other person" mentioned in Section 129A of the Act can include persons other than Government Officers, such as the officers of the Corporations."
63. The decision then considered in detail the statutory position and status of the State Road Transport Corporation and then, the above question was answered in the following manner:
"A reading of Section 129A and Section 133A of the Act together shows that the ''other person'' referred to in Section 129A of the Act, who may be empowered to discharge the powers under that Section can only mean an Officer of the Government, such as the Motor Vehicles Officer appointed u/s 133A of the Act or of any other department. It could never have been the intention of the Central Legislature, while enacting Section 129A and Section 133A of the Act that the powers exercisable u/s 129A of the Act could be conferred on persons who were not Officers of the Government. If the Central Legislature intended that such powers could be entrusted to private persons or employees of any statutory Corporation, the Section would have expressly provided in that regard. Ordinarily, whenever a Statute empowers the State Government to appoint persons to administer any of the provisions of the Statute, the persons who may be appointed by the State Government under such provisions can only be persons appointed in connection with the affairs of the State. In other words, they should be employees or officers of the State Government who are subject to the administrative and disciplinary control of the State Government directly. The powers of search, seizure and detention of vehicles belonging to private parties and of launching prosecutions are incidental to the sovereign powers of the State and they cannot ordinarily be entrusted to private persons unless the Statute concerned makes express provisions in that regard........................In order to illustrate the above point, reference may be made to Section 43 of the Code of Criminal Procedure, 1973. it provides that any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested, to a police officer, or, in the absence of a police officer take such person or cause him to be taken in custody to the nearest police station. We are of the view that the expression "other person" mentioned in Section 129A of the Act which has to be read ejusdem generis with the words "any police officer" which precede that expression in Section 129A of the Act can only refer to an officer of the Government and not to any officer or employee of any statutory Corporation or to any other private person.
64. The plea justifying the appointment of the Officers of the State Road Transport Corporation having regard to the Corporation being a State Government Undertaking was rejected by the decision in the following manner:
"It may be that the Corporation is established by the Government with the capital contributed by the Central Government or the State Government and it may also be that for the purposes of Part III of the Constitution, the Corporation is treated as "a State". Nevertheless, the officers of the Corporation cannot be treated as persons falling within the meaning of the expression "other persons" in Section 129 or Section 129A of the Act, even though some of them may be officers deputed by the State Government to work as the officers & servants of the Corporation. In view of the foregoing, we hold that the Deputy General Manager, Traffic, the Assistant Depo Managers and the Traffic Inspectors of the Corporations could not have been authorized by the State Government to discharge the powers u/s 129A of the Act."
65. In Bagga''s decision, the Supreme Court also rejected the plea made on behalf of the State and the Transport Corporation that the impugned notification was issued only to protect the interests of the Corporation and in order to prevent the running of motor vehicles either as State carriages or contract carriages along the routes over which the Corporation is exclusively entitled to operate its State carriages under permits issued under Chapter IVA of the Act.
66. In course of hearing in Bagga''s case, a prayer was made on behalf of the State and the Road Transport Corporation that the power given to the officers of the Corporation would be exercised in a limited way and those powers would not be used against motor vehicles covered by permits u/s 63(7) of the Act but even the limited prayer did not find favour with the Court.
67. As against the above, there is the Supreme Court decision in Delhi Financial Corporation (supra) on which heavy reliance was placed on behalf of the appellants.
68. The great importance of this decision for the appellants lies in the fact that it expressly reversed the Delhi High Court judgment in
69. In Delhi Financial Corporation, the Supreme Court examined the validity of appointment of the Managing Director of the Delhi Financial Corporation as the Authority specified u/s 32G of the State Financial Corporation Act. It is, therefore, based on that Section and it is important to bear in mind that all the observations made in that decision are in the context of Section 32G of the State Financial Corporation Act. The section in question is as follows:
32G: Recovery of amounts due to the Financial Corporation as an arrear of land revenue. Where any amount is due to Financial Corporation in respect of any accommodation granted by it to any industrial concern, the Financial Corporation or any person authorised by it in writing in this behalf, may, without prejudice to any other mode of recovery, make application to the State Government for the recovery of the amount due to it, and if the State Government or such authority, as that Government may specify in this behalf, is satisfied, after following such procedure as may be prescribed, that any amount is so due, it may issue certificate for that amount to the Collector and the Collector shall proceed to recover that amount in the same manner as an arrear of land revenue."
70. On a plain reading of the provision, it would appear that Section 32G of the Financial Corporation Act combines into one, the provisions of Sections 5 & 6 of the P.D.R. Act. Section 32G of the Act provides that on an application in writing made by the Financial Corporation or any person authorised by it, the State Government or the Managing Director of the Corporation himself (being the specified authority by the Government) after following such procedure as may be prescribed can issue a certificate for the recoverable amount to the Collector and the Collector shall then proceed to recover that amount in the same manner as an arrear of land revenue.
71. It is, thus, to be seen that once the certificate is signed and issued by the Managing Director of the Corporation, his role is over and the certificate has to go to the Collector from the stage of Section 7 of the P.D.R. Act i.e. issuance of notice to the certificate debtor. The certificate debtor may then file his objections before the Collector which would be disposed of by him u/s 10 of the P.D.R. Act and the proceeding shall then enter the stage of execution of the certificate by the Collector. Thus, all the objections raised on behalf of the writ petitioner-respondents in the cases in hand do not arise under that arrangement where the power and function of the Managing Director of the Corporation is limited to the stage of issuance of the Certificate.
72. On the question of bias also, the decision in Delhi Financial Corporation found and held that the earlier decision of the Supreme Court in
73. There is yet another basic difference in the case of Delhi Financial Corporation and the cases in hand. In Delhi Financial Corporation, on a comparison of Section 32G of the Financial Corporation Act with Section 33C of the Industrial Disputes Act, the decision found and held as follows:
"Undoubtedly the provision is in the nature of an execution proceeding but it is not a recovery proceeding pursuant to a decree of a Court. It is a recovery proceeding on the amount being found to be due by a simple verification by the State Government or the authority appointed by it.....Thus, by Section 32G one more remedy of recovery is given to a Financial Corporation. Merely for execution of a decree of a Court, no such provision is required. Once, a decree is passed, it can be executed in the normal manner. That Section 32G is not for execution of a decree of a Court is also clear from the fact that it does not use the word ''decree''. All that Section 32G contemplates is that where an amount is due, an officer will make an application to the State Government, the State Government or an authority appointed by them would, after following procedure as may be prescribed, issue a certificate for that amount to the Collector and the Collector shall proceed to recover that amount as arrears of land revenue.
74. On the other hand, under the P.D.R. Act, it has always been held by Courts, including the Supreme Court, that a certificate signed and filed u/s 6 has the effect of a decree passed by the Certificate Officer and is executable as such subject to the provisions of the Act. (
75. For the reasons discussed above, it is clear that the issues under consideration in Delhi Financial Corporation were quite different and were considered by the Supreme Court in an altogether different context than the issues arising in the cases in hand. The decision in Delhi Financial Corporation does not apply to the facts of the cases.
76. It is seen above that right from Subodh Gopal Das, the Supreme Court held that the police power was one of the three categories of the sovereign powers of the State. In Kasturilal and N. Nagendra Rao, the Supreme Court examined the nature of sovereign functions/powers in cases arising from confiscation of goods. In Kasturilal it was held that the power to arrest a person, to search him and to seize property found with him can be properly categorised as sovereign power. In N. Nagendra Rao, though Kasturi Lal was explained and its application was severely limited it was nevertheless maintained that the power to search and apprehend a suspect under Criminal Procedure Code is the inalienable power of the State. In Ishwar Singh Bagga, the powers of search, seizure and detention of vehicles belonging to private parties and of launching prosecutions were held to be incidental to the sovereign powers of the State and it was further held that those powers cannot ordinarily be entrusted to private persons unless the Statute made express provisions in the regard.
77. The aforementioned decisions of the Supreme Court fully support the plea of the respondents-writ petitioners that the powers under the P.D.R. Act with regard to the mode of execution of a certificate and other incidental matters are sovereign powers and unalienable functions of the State that can be discharged only by an officer of the State Government directly under its administrative and disciplinary control and not by any private person or an employee of the Corporation.
78. The contention that the power to appoint ''any officer'' as Certificate Officer presupposes that that officer would be under the direct administrative control of the Government can be viewed from another angle. In this case, it may be presumed that the Assistant Law Officer was appointed as the Certificate Officer on the request of the Corporation and with the consent of the Officer. But purely from the point of view of interpretation, the consent of the concerned officer would be wholly immaterial if the provision of Section 3(3) is to be given the meaning as suggested by the appellants. Let us now take the case where the Collector, with due sanction from the Commissioner, appoints an Officer of the State Bank of India or the Electricity Board as ''Certificate Officer''. What will be the situation if the officer so appointed simply refuses to work as Certificate Officer? The employer, the Bank or the Electricity Board as the case may be, may find it difficult to take any action against him because to discharge the duties of a Certificate Officer is not a part of his contract of service. The State Government, of course, cannot take any action for the simple reason that there is no relationship of employer and employee between the two.
79. Moreover, if ''any officer'' is to be appointed as Certificate Officer, then there is no bar that he should only deal with the dues of the organisations to which he belongs. Can, therefore, the Assistant Law Officer of the Corporation be also empowered to deal with cases of recovery of other dues, including those of the Government, the State Bank of India or the Bihar State Electricity Board? The answer can only be in the negative.
80. On the issue of bias, the instances cited on behalf of the respondents-writ petitioners, as noted above are very many. Some of them are capable of correction in appeal, revision or by means of writ petition filed before this Court but many instances of bias are inherent in the arrangement where a middle level functionary of the Corporation is made the Certificate Officer and, therefore, it is not possible to reject the objection raised by the respondents-writ petitioners against the appointment of Shri OP. Singh, Assistant Law Officer of the Corporation as the Certificate Officer on the ground of bias.
81. From the foregoing, it is evident that if the words ''any officer'' in Section 3(3) of the P.D.R. Act are read in their normal, larger meaning, it would lead to a completely anomalous and unacceptable situation. The only way the provision can be made to operate reasonably and meaningfully is by reading the expression ''any officer'' ejusdem generis with the preceding words ''Collector, Sub-Divisional Officer.'' The expression ''any officer'', therefore, has to be read ejusdem generis with the preceding words Collector and Sub-Divisional Officer so that the provision may operate in a meaningful way. Thus, on a careful consideration of all the relevant materials and the submissions advanced on behalf of the parties, I come to the conclusion that the learned Single Judge took the correct view of the matter and rightly quashed the notification appointing Shri OP. Singh, Assistant Law Officer of the Corporation as Certificate Officer. The matter does not warrant any interference in the appeal. The judgment and order passed by the Writ Court is affirmed and the appeals are dismissed. There will be, however, no order as to costs.
Rekha Kumari, J.
82. I agree.
