Public Demand Recovery Act 1913

 

 Bismillahir Rahmanir Rahim

Public Demand Recovery Act, 1913

Scope and characteristics of the act:

The state and the exchequer exercise prerogative right of realization of public demand. As realization of PDR through is lengthy procedure through regular civil court for this this summery procedure has been provided by adopting special and speediest possible method in order to help the wheel of administration.

Provisions for Special summery procedure

ü  The revenue authorities are empowered with summery power of execution of certificate for the purpose of realization of public demand by attachment under section 17 and sale 20.

ü  The specified procedure  of appeal  has been provided in section 51

ü  The general bar to exercise jurisdiction has been provided in sec. 37 in matters of question arising between certificate holder and debtor relating to making execution discharge except where fraud has been alleged.

ü  Title of purchase has been safeguarded by section 20(2).

Short Content of the Act

ü  3(6) interest chargeable shall have to include in demand.

ü  3(3) with sanction of commissioner collector can appoint as certificate officer.

 

 

The Act Is Consolidated and A Complete In Itself

ü  Consolidated has been effected in the schedule 1defining public demand from different act.

ü  Self –contained in complete procedure of execution.

ü  Section 55 provides for saving of other acts

ü  Akubali Haolader vs. Najamali Haolader   it has not been disputed and cannot be disputed that the PDR is a self-contained and complete statute although some provisions of BTA which it adopts not set out at length but merely incorporated.

ü  Fur the r the provisions of PDR is intelligible without reference to the provisions of the CPC

 

   

Public demand: definition and kinds

Section 3(6) of PDR

 “Public demand” means

ü  Arrear or money mentioned or referred to in Schedule

ü  Interest which is chargeable thereon up to the date a certificate is signed under part II.

ü  So which are not referable or covered by schedule 1 cannot be treated as public demand.

And which does not fall within any clause of schedule 1 cannot be realized by certificate procedure .for example, if a person borrows money from another that cannot be realized through certificate procedure rather by civil court.

Public demands are of two kinds as provided in the act

Public demands pay able to collector

3) Money declared by any law recoverable or realizable as an arrear of revenue or land-revenue.

4) Money which is declared enactment to be public demand.

 

7) Demand payable to the Collector by a person holding any interest in land, pasturage, forest-rights, and                         fisheries.

6) Money awarded as fees or costs by a revenue authority.

 

Public demands pay able to other than collector

5) Money due from the sureties of a farmer in respect of the revenue of the estate farmed by him.

8) Property managed by, the Court of Wards or the revenue authorities on behalf of a private individual.

9) Money payable to an officer of the Government by a written instrument Public demands pay able to other than collector.

9A) any money payable to Government which was advanced as loan

Public demand payable to other than collector

12A Sum ordered by a liquidator.

12B) sum due to a land mortgage bank

13) Money due from a purchaser at a sale held in execution of a certificate.

14) Money payable to a local authority.

15) Money payable to a new bank Constituted under Bangladesh Banks (Nationalization) order 1972.

16) Money payable to Palli Shayak Foundation

 

Province Of East Pakistan vs. Mahim Chandra Barman

 “Govt. right to realize compensation against a trespasser does not come under article 7 of schedule nor it is public demand as defined in sub section 6 of 3.”

 

ü  Certificate debtor:

Section 3 clause (1) “Certificate-debtor” means

o   the person named as debtor in a certificate filed under this Act,

o   any person whose name is substituted or added  by the Certificate-officer;

§  Debt definition has been given in Bacharam vs. Adya Nath as-

‘Sum of money which is pay able or will be payable in future by reason of the present obligation.’

§  Certificate debtor equivalent to clause 10 of section 2 of CPC defines judgment debtor

Person Substituted and added will also be included as debtor: 

According to section 43 of PDR public demand does not cease on the death of the certificate debtor. As it provides that certificate officer may proceed to execute certificate against his legal representative by serving a notice under section 7.

Such procedure has been provided in rule 83B of schedule 2 of PDR.

 Definition of ‘legal representative’ has been provided in section 2(2) of CPC.

ü  Certificate officer

3(3) “Certificate-officer” means

Ø  a Collector,

Ø  a Upazila Nirbahi Officer,

Ø   a Upazila Magistrate

Ø  and  officer appointed by a Collector with the sanction of the Commissioner under this Act;

§  According to clause 10 of section 3 of general clauses act collector means

ü  Chief Officer in charge of revenue administration of district

ü  A deputy commissioner of such district.

§  Commissioner has been defined in clause 12 of sec. 3 of GCA

ü  Chief Officer in charge of revenue administration of a division.

ü  An Additional Commissioner of such division.

Ex officio certificate officer

Ex officio has been defined in oxford law dictionary as by virtue of holding an office. The following officers are ex officio under PDR

Ø  a Collector,

Ø  a Upazila Nirbahi Officer

Ø   a Upazila Magistrate

Non ex officio

ü  Deputy collector

ü  Assistant collector (also see rule 11)

Hierarchy of certificate officer

Section 50

All Certificate-officers (not Collectors), Assistant Collectors and Deputy Collectors shall, in the performance of their duties under this Act, be subject to the general Supervision and control of the Collector.

Section 51

1)      An appeal from any order made under this Act shall lie–

(a)                to the Collector if the order was made by an

·         Assistant Collector

·         Deputy Collector, or by a

·         Certificate-officer not being the Collector

(b) If the order is made by the Collector to Commissioner

(2) Every such appeal must be presented, in case (a), within fifteen days, or, in case (b) within thirty days, from the date of the order.

Section 4: Filing of certificate demand payable to collector

 When the Certificate-officer is satisfied that any public demand payable to the Collector is due, he may sign a certificate, in the prescribed form (form no1), stating that the demand is due, and shall cause the certificate to be filed in his office.

Comments

§  Order 5 rule 15 of CPC

-Section 5: Requisition for Other Certificate

Public demand is due which is payable to any person Other than the Collector such person may send to the Certificate-officer a written requisition in the prescribed form. (Form no2)

Provided no action shall be taken on a requisition made by

ü  a land mortgage bank registered under Co-operative Societies Act, 1940

ü  Unless the requisition be countersigned by the Registrar of Co-operative Societies.

(2) Such requisition shall be signed and verified in the prescribed manner (rule 1) and charge shall be added with the fee which is payable under the court fee act 1870.

Comments

§  rule 1:signature and verification of reacquisition for certificate

1.      every signature shall be signed and verified by person making it

2.      Verification shall state that the requisition has been verified by inquiry and the amount is due.

3.      Verification shall be signed by person making it.

§  Board instruction 6(2):the requisition officer will prepare the draft certificate in the form no.1 and send them to certificate officer along with requisition form in form 2

 

§  Form no 2:recquisition for a certificate

 

§  Persons entitled to send written requisition :

Ø  the court of wards

Ø  Revenue authority in management of private property

Ø  Debt settlement board

Ø  The commissioner of Waqfs

Ø  Local authority namely paurashava or zila parisad and others.

§  If requisition is submitted without reasonable cause section 46 will apply

 

§  Section 46 if the certificate officer is satisfied that the requisition u/s 5 was made without any reasonable cause he may award compensation to the certificate debtor.

Section10A: Demand Notice

When a notice is served instead of a notice under section 7, for the recovery of any dues under-

ü  Bangladesh House Building Finance Corporation Order, 1973

ü  Bangladesh Krishi Bank Order, 1973

ü  Co-operative Societies Act, 1940

ü  Customs Act, 1969

ü  any loan advanced by the Government

ü  any money referred to in Article 15 of Schedule I

By registered post requiring the certificate-debtor to deposit the amount of his debt to the Certificate officer, shall cause a notice is called demand notice

 

Violation of natural justice:

 Oxford law dictionary defines natural justice as Rules of fair play, originally developed by the courts of equity. According to the dictionary there are two principal natural justice:

ü  The first is the rule against bias, i.e. nemo judex in causa sua means no man may be a judge in his own cause.  That means any decision, is invalid if made by a person with any financial or other interest in the outcome or any known bias that might have affected his impartiality. Porter v Magill [2001] UKHL 67.

ü  The second rule is known as audi alteram partem: hear the other side. It states that a decision cannot stand unless the affected person was given a fair opportunity to state his case and to know and answer the other side's case (R v Army Board of the Defence Council, [1992] QB 169;

 

Under section 9 the certificate debtor has given opportunity of filing of petition

Denying liability but this opportunity has been taken by subsection 3 of10Aby mentioning the provisions of section 9 or section 10 shall not apply in the case of a certificate for the recovery of any dues or loan specified I n sub-section (1). So it is the violation of natural justice

Alternative remedy:

ü  The exemption of section 9 and 10 cannot be extended to abridge the right of the certificate debtor us 22, 23.

§  Only remedy under has been provided by section 37 of the act though provision of section 34 35 is found untenable.

§  When an application under section 9 was pending for determination but at the same time a sale is held the affected party can invoke High Court division for an order declaring the sale is without jurisdiction. (Chittagong engineering and  electric supply co.ltd. vs. certificate officer Dhaka case)

Effect of notice and demand notice section

§  After the service of the demand-notice the provisions of clauses (a) and (b) of section 8 shall apply.

Power exercise by transferee officer.

Procedural difference demand payable to collector and other than collector

ü  To collector:

§  section 4 ,

§  section 56

§  form no 1

ü  other than collector :

§  section 5,6

§   form 1,2

 

§  Difference between section 4 and 6

Ø  No reacquisition is necessary but collector only the collector and his legal representative will prepare certificate in form1 and served it to collector for execution.

Under section 5 the requiring officer will prepare a draft certificate in the aforesaid form and send the same accompanied with requisition in form 2

Ø  Under section 4 the demand must be payable to collector and the certificate officer must be satisfied that the demand is due.

Under 6on receiving the certificate officer must be satisfied that the demand is due and recoverable and not barred by law. (This difference is only linguistic based)

Ø  Under section 4 public demand directly payable to collector

Where public demand due to Gov. and payable to person other than collector like private person or local authorities’ provision 6 will apply

Ø  Under section 4 demand includes principle sum and charge only but under 6 demand includes as well as interest and court fee payable under court fee act.

Ø  Under sec.4provision has also been given in board instruction no.6(1) where board instruction no.6(2) is applicable.

Linguistic difference confusion solved:

§  Section 4 is governed by section 56  Which says

1.      Article 6-9 of limitation act shall not be applicable

2.       But other provision shall be applicable.

§  Other provision means section 3 of limitation act will apply and accordingly no certificate shall be issued for demands. {Section 3 deals with suit instituted, appeal preferred, and application made, after the period of limitation shall be dismissed. the first schedule deals with limitation period  of different suits}

§  Example of SAT-under section 142 period for recovery of arrears of rent is 3 years. If any amount beyond 3 years is included in the certificate under 4, the certificate officer will refuse which barred under 142 of Sat and article 3 of limitation act. Though there is no mention of suit not barred by law in section 4 the CO cannot recover it, so the provision of limitation of 6 and 4 is same though in section 4 there is no mention of suit barred by law.

§  Question arises will it be correct to say that the co like section 6 also have to be satisfied in section 4 that the recovery by suit not barred by law.

 

Section 6 requires positive finding that the recovery of due not barred by law.

In case of section 4 the co is not to record any such finding but there is no bar which prevents him to record when it is necessary a negative statement that the recovery of due under law is barred.

 

Noteworthy to mention that public demand payable to collector is always recoverable by certificate procedure and not by suit. But if it is found that a certain dues covered u/s 4 is barred by law, the certificate debtor u/s 9 objet to co. for disallowing the recovery.

 

Section 7: Service of notice and copy of certificate on certificate-debtor

When a certificate has been filed in the office of a Certificate-officer he shall cause to be serve upon the certificate-debtor in the prescribed manner (rule 2-9) a notice in the prescribed form (form no.3)and a copy of the certificate.

Rule 2-9:

Mode of service. — a notice shall be made by delivering or tendering a copy signed and sealed by the Certificate Officer

3. Service on certificate-debtor or his agent: service shall be made on the certificate-debtor in person or on agent empowered to accept service

4. Service on adult male member of certificate-debtor's family: Where the Certificate-debtor or his agent cannot be found service may be made on any adult male member of the family 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.      Person served to sign acknowledgment.—

Ø  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,

Ø  He shall require the signature of the person to an acknowledgment of service endorsed on the original notice.

6. Procedure where certificate-debtor refuses to accept service or cannot be found.—Where the certificate-debtor or his agent, or other person refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the certificate-debtor or agent or 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 he resides or carries on business or personally works for gain, or

(b) if land affected by the notice co shall affix a copy of the-notice on conspicuous place in the office of the Certificate Officer and also on the land and shall then return the original to the Certificate Officer with a report endorsed thereon stating that he has so affixed the copy and the name and address of the person 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 endorse or annex  to the original notice a return stating the time and the manner in which the notice was served and the name and address of the person identifying the person served and witnessing the delivery .

8. Examination of serving officer.—Where a notice is returned the Certificate Officer shall if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine 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 contained, the notice may be served by post.

 

Section 8: Effect of Service of Notice:  after the service of notice under section 7,-

Ø  any private transfer or delivery of any of his immovable property shall be void situated in the district in which the certificate is filed and

Ø   any interest in any such property the amount due from time to time of the certificate shall be a charge upon the immovable property of the certificate-debtor wherever situated.

Comments and notes.

The transfer is not void for all purposes but for enforceable claim. So the transferee can pay the entire dues and can free the property from attachment.

 

Such transfer is not void but voidable one. Where a certificate debtor satisfies the demand after notice has been served his transfer will be valid transfer when the transfer is made notice has been served.

 

 

Devendra Vs Ram Kumar

“If the certificate debtor after the service of notice but before attachment disposes the property and satisfy the demand the certificate the transfer would be valid.”

As to clause (a) it will not affect any other immovable property situated beyond the district

Clause (b) the amount due from time to time refers the charges and costs which accrued subsequent to the filing the certificate u/s 7. Singing certificate u/s 4 is for the actual amount due and interest from date when the amount become due up to the filing of the certificate and ad valorem court fees. Sir comments (dues started from January but notice has been given in June (interest of in that interim period January to June)

The period u/s 16 for recovery of charges and cost refers to the period subsequent to the filing of the certificate u to the satisfaction of the demands.

Similarity and dissimilarity

Both applicable for immovable property

Dissimilarity

Ø  Clause a prohibits transfer o immovable property situated in the district in which the certificate is filed. Clause b provides the amount of due from time to time shall be charge upon the immovable property of the certificate debtor beyond that district.

Ø  Clause (a) prohibit any private transfer of immovable property. From the language of clause b  it is clear that  in case of enforcement of charge  it doesn’t matter where the property situated.

ü  Provision of section 68 of CPC also same with this section

Section 9: Filing of Objection Petition Denying Liability

1.      The certificate-debtor within thirty days

·         from the service of the notice under  section 7or

·         Where the notice has not been duly served then within 30 days

From the execution of any process for enforcing the certificate, may present to the Certificate-officer a petition, in the prescribed form (form no.4) signed and verified in the prescribed manner (rule 10-11) denying his liability in whole or in part.

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.

 

Comments and notes

Rule 10: signature and verification

a.       Petition filed u/s 9 shall be signed and certified at the foot by certificate debtor or by other on behalf of him who is acquainted with the fact of the case.

b.      Verification shall be signed and shall state the date.

Rule 11:

The certificate officer transfer such petition to any assistant collector or deputy collector for hearing and determining the petition.

§  Form no 4

§  Chittagong engineering and electric supply Co. ltd vs. certificate officer, Dhaka@46page DLR

Section 10: hearing and determining the petition

ü  The Certificate-officer in whose office the original certificate is filed shall

ü  hear the petition,

ü  take evidence  if necessary

ü  determine whether the certificate-debtor is liable for  the amount for which the certificate was signed;

ü   and may set aside modify or vary the certificate accordingly:

Provided that

ü  if the Certificate-officer is not  Collector,

ü  Considers that the petition involves a bona fide claim of right to property, he shall refer the petition to then Collector.

ü  If the collector satisfied that a bona fide claim of right of property is involved shall make an order canceling the certificate.

Comments

§  The last part of the section is similar to rule 60 of order 21.

§