Mridula Mishra, J.
1. Petitioner No. 1, M/s Lal Chand Panna Lal is a firm and petitioner No. 2 is its Proprietor, petitioner No. 1 had applied for allotment of Shop-cum-Godown before Secretary, Agriculture Produce Market Committee (hereinafter to be referred to as 'the Market Committee'). The shop-cum-Godown No. 3 was allotted on monthly rental of Rs. 100 per month to the petitioner in campus of the Market Committee on 10.5.1986. The petitioner Came in possession over the allotted shop-cum-Godown. The rent was subsequently enhanced to Rs. 150/-.
2. Petitioners' case is that due to some disturbance and criminal activities it could not carry out its business properly and due to this rent of the allotted shop remained due for some period. The petitioner No. 2 filed an application before the Secretary, Market Committee for accepting due rent and through cheque No. 943792 dated 4.9.1990 payment was made. This payment was accepted and duly communicated by the Secretary, Market Committee to the Committee and a certificate was also issued in this regard. Further case of the petitioner is that thereafter he continued to deposit up to date monthly rent upto March, 1992 and receipts were duly granted by the Market Committee. The Market Committee was not maintaining the Shop-cum-godown properly. Inspite of several complaints made by tee petitioners no action was taken by the respondents for repair/renovation of Godown-cum-shop. As a result the petitioners closed the shop and gave information to the Secretary, Market Committee by letter dated 28.11.1997 that owing to dilapidated condition of the said shop the shop is being closed. The petitioner also made a prayer for allotment of some other workable place and small shop fromwhere he could do his business, till the allotted shop is repaired. Though petitioner was allotted small shop No. 5 in the market yard on monthly rental of Rs. 96/-. But, petitioner's case is that then the allotment reminded on paper, in fact, possession was never handed over to him and he could never do his business from the small shop No. 5.
3. Petitioners' further case is that, without any notice, the Secretary, Market Committee, filed requisition under Section 5 of the Bihar and Orissa Public Demand Recovery Act for realisation of arrears of monthly rent for the Godown allotted to the petitioners for the period 10.5.1986 to November, 1997. The amount to be realised was Rs. 54057.00. The Certificate Case No. 3/03-04 was registered and notice under Section 7 of the P.D.R. Act was issued to the petitioner. Petitioner filed his objection under Section 9 of the P.D.R. Act, challenging the maintainability of the Certificate Proceeding. On the ground that dues on account of non-payment of monthly rental for Shop-cum-Godown having not been mentioned in Schedule-I of the P.D.R. Act, and there being no such agreement in this regard in between the petitioners and the Market Committee, dues can not be realised as public demand. Entire proceeding is without Jurisdiction, as the dues is not the public demand under Section 3(6) of P.D.R. Act. Another objection which was raised by the petitioner is that under Section 17 of the Agricultural Produce Market Act, Market Committee is a 'Body Corporate' and not the 'State'. Any dues of Market Committee can not be recovered as 'Governmental dues'. Hence the period of limitation is very much applicable against any money claimed in favour of Market Committee. On perusal of certificate it is apparent that period for which monthly rental was due has purposely not been mentioned, as it was barred by limitation. The Certificate Officer without considering it has initiated certificate proceeding. The requisition of Market Committee should have been in Form-II and the period for which the amount is due should have been mentioned in the requisition, as it is mandatory. The requisition as well as certificate being defective, Certificate proceeding was not maintainable.
4. Counter affidavit has been filed on behalf of the Market Committee where it has been stated that the certificate was correctly signed by the Certificate Officer. The demand by the Certificate holder was good as it is within the purview of 'Public Demand' as mentioned under Section 43 of the Bihar Agricultural Produce Markets Act. The dues of the Market Committee comes within the definition of 'Public Demand' under Section 3(6) read with Schedule-I of the P.D.R. Act. It has also been stated that the petitioner was allotted the shop-cum-godown on monthly rental of Rs. 175/-. By Board's order, vide letter No. 5918 dated 22.9.1988 rent of the shop-cum-Godown was enhanced w.e.f. September, 1988 and fixed @ Rs. 1/- per square feet. This comes to the tune of Rs. 592/- per month. Accordingly the demand was made by the Market Committees. The petitioner used to pay monthly rental at the rate of Rs. 175/- only which was not adequate. The difference of arrear of rent are dues which can be realised as public demand. The period of dues relates to 10.5.1986 to August, 1988 at the rate of Rs. 175/- per month and from September, 1988 to November, 1997 at the rate of Rs. 592/- per month. Total amount was Rs. 4900/- and Rs. 65,712/- respectively.
5. The definition of the 'Public Demand' has been given in Section 3(6) of the Bihar and Orissa Public Demand Recovery Act. 'Public Demand means any arrear or money mentioned as referred to in Schedule-I, and include any interest which may, by law, be chargeable thereon upto the date on which a Certificate is signed under Part II.'
6. Under Schedule I, there are 15 items which are Public demands, out of them following clauses are relevant for deciding present cases:
Clause - 3 - any money which is declared by any law for the time being in force to be recoverable or realisable as an arrear of rental or land revenue or by the persons authorised for the recovery of arrears of rental of the public revenue or of Government revenue.
Clause - 4 - any money which is declared by any enactment for the time being in force:
(i) to be a demand or public demand; or
(ii) to be recoverable as arrears of a demand or public demand, or as a demand, or public demand; or
(iii) to be recoverable under the Bengal Land Revenue Sales Act, 1868.
Clause - 8 Note 1 - provides that the Act does not apply to rents of houses and shops and the certificate procedure can not be applied to the recovery of such rents, unless by a written instrument duly registered, the persons liable to pay such rents have agreed that they shall be recoverable as public demands.
Clause - 9 - Any money payable to a servant of the Government or any local authority, in respect of which the person liable to pay the same has agreed, by a written instrument, that it shall be recoverable as a public demand.
Similarly Clause 15 provides that any money payable to:
(i) State Bank of India constituted under the State Bank of India Act, 1955 (No. 23 of 1955) or
(ii) a Bank specified in column (2) of the first Schedule to the banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 (Act V of 1970); or
(iii) a company or a Corporation or a statutory body, including a registered society carrying on 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) the Bihar State Electricity Board, in respect of which the persons liable to pay the same has agreed, by a written instrument that it shall be recoverable as public demand.
7. On consideration of all these provisions under Schedule - I, which defines Public demand, it is evident that only those demands are public demand which are mentioned at different clauses of Schedule - I. On perusal of all these provisions under different Clauses of Schedule - I it transpires that if by any enactment any demand has been declared as Public Demand or by any law for the time being in force, any demand has been made recoverable or realisable as an arrear of revenue or land - revenue, it can be realised through Certificate proceeding as Public Demand. Under Clause - 8 - Note 1 rents of the houses and shops, can not be recovered as public demand unless by a written instrument, duly registered, the persons liable to pay such rents have agreed that dues shall be recoverable as public demands.
8. Counsel appearing for the Bihar Agricultural Produce Market Committee in his counter affidavit has stated that under Section 43 of the Agricultural Produce Market Act, dues of Market Committee can be recovered as public demand. On perusal of Section 43 I find that it deals with does and every sum recoverable by the Market Committee or due from a Market Committee to the State Government (or the Board), which can be realised as a public demand. Section 43 does not relate to the recovery of rent by the Market Committee from the person who has taken space in the Market Yard from the Market Committee. Section 43 is applicable in any such case where sum is recoverable by the Market Committee or it is a due from a Market Committee to the State Government.
9. I find that the statements made in the counter affidavit that rental dues comes within Section 43 of the Act, as such Clause -4 Schedule -I of the P.D.R. Act is applicable. This statement has no substance.
10. The counsel appearing for the Market Committee was time and again asked to produce the agreement executed in between the petitioner and the Market Committee in order to verify whether there is a written instrument made, where in the petitioner has agreed that rent payable by him can be recovered as public demand.
11. From the statements made in the counter affidavit it is apparent that, in fact, no agreement was executed in between the petitioner and the Market Committee. In these circumstances, admittedly there is no written instrument where the petitioner has given his consent for realisation of rental dues as public demand.
12. Another objection which was raised by the petitioner relates to limitation. Petitioner's case is that in the requisition submitted by the Secretary Agricultural Produce Market Committee for initiation of a Certificate proceeding in Form- II Section 5 of the P.D.R. Act, the period for which the dues are reliable as public demand, was not mentioned. The Certificate of Public Demand was issued in Form - I, but therein also the period for which such dues are demanded is not given in column - 4. It was left blank, inspite of that the Certificate Officer, Bhagalpur has issued a certificate to this effect that he demand is justly recoverable and not barred by limitation.
13. In the counter affidavit it has specifically been stated that the demand relates to the period 10.5.86 to August, 1988 and September, 1988 to November, 1997, Section 65 Sub-section (2) of the P.D.R. Act, 1914 provides that the provisions of Limitation Act shall apply to all proceedings under this Act as if a certificate filed hereunder were decree of a Civil Court. The limitation as provided is of three years. The requisition for initiating Certificate proceeding was filed on 9.9.2005 much beyond the period of limitation. Inspite of that the Certificate Officer has signed a Certificate under Section 6 of P.D.R. Act that recovery is not barred by any law. This objection raised by the petitioner has not been answered or denied specifically in the counter affidavit. The Certificate proceeding is apparently barred by limitation. If the statute has casted a duty upon the statutory authority to act in a particular manner, he must act in that manner only, and his act must be justifiable under the provisions of the Act. The applicability of the Limitation Act under the P.D.R. Act makes it obligatory for the Certificate Officer to verify before issuance of Certificate that the certificate proceeding is not barred by limitation.
14. In the present case even ignoring the statutory provisions Certificate was issued by the Certificate Officer under Section 6 of the P.D.R. Act. This is also one of the reasons for holding that the proceeding of Certificate Case No. 7/04 - 05 pending in the Court of Certificate Officer, Bhagalpur and the notices issued thereunder are illegal and fit to be quashed. The entire proceeding of the Certificate case is hereby quashed.
15. This application is allowed.