Ahmad, C.J.
1. The parties to all these six applications are the same; they arise out of substantially the same facts, and involve common Questions of law; therefore, they have all been heard together and are disposed of by this common judgment.
2. The rule in all these case was obtained by the common petitioners under Article 226 of the Constitution of India against a common order dated 11-10-1963 passed by the Member, Board of Revenue in exercise of his revisional jurisdiction under Section 62 of the Bihar and Orissa Public Demands Recovery Act, 1914 in proceedings arising out of 6 Public Demands Recovery cases numbered as Certificate Misc. Cases Nos. 1207 of 1950-51, 12 of 1951-52, 3991 of 1951-52, 154 of 1953-54, 2204 of 1952-53 and 175 of 1963-64. By that order, the Member, Board of Revenue held that-
'Certificate under Section 46(2) was sent to the Collector. From then it becomes a due payable to the Collector. As far as the certificate officer is concerned, he treats it as an arrear of land revenue payable to the Collector. Therefore the certificate is under Section 4 and not under Section 6. Therefore the provisions of Section 53 (2) are not applicable.'
Further he also added :
'The order of the Certificate Officer and the Additional District Magistrate is not justified and should be reversed. Revision allowed. The order of the certificate officer dated 6-9-1960 is set aside and the case is remanded for disposal according to law.'
3. The petitioners in all these cases are the sons of one late P. C. Ghose Mandal of Balasore. It is said that the late P. C. Ghose Mandal was assessed to income-tax by the Income-tax Officer, Baripada for six different periods and the taxes assessed were not paid in full. Therefore, as provided by Section 46 (2) of the Indian Income-tax Act, 1922 (Act XI of 1922), requisitions for the recovery of those taxes were, it is said, sent to the Collector Balasore by the Income-tax Officer, who has been impleaded here as the opposite party No. 1. These different requisitions gave rise to the proceedings aforesaid under the Public Demands Recovery Act wherein both F. C. Mandal and his sons were impleaded as judgment-debtors. Objections were raised in all those proceedings by the petitioner claming that the family being governed by the Dayabhag School of Hindu Law, they were not liable for the income tax dues assessed against their father. The Certificate Officer, on hearing the parties exempted petitioners from liability for these income tax dues, by his order dated 27-1-1954. It however so happened that immediately thereafter F. C. Mandal died on 10-7-55. This led to fresh notice being issued against the petitioners in all these proceedings on 26-12-55 and on 26-1-1957. But in due course these fresh proceedings were also dismissed against them by the Certificate Officer on the ground that the order already passed on 27-1-1954 could not be reopened by him. Against that order the Income-tax authorities went up in appeal before the Additional District Magistrate and Collector of Balasore, on 23-5-1957. The Additional District Magistrate and Collector, on hearing the parties allowed these appeals by his order dated 10-3-1958 and recommended all these cases to the Certificate Officer for their disposal in accordance with law. Thus they again came back to the Certificate Officer and this time while they were pending for disposal, they were on 6-9-1960 struck off by his order under Section 53 (2) of the Bihar and Orissa Public Demands Recovery Act, 1914, (Act IV of 1914). The said order which the Certificate Officer passed on that day was in these words:
'Dr. present R.C. has been informed by R. P. A. D. C. P. on behalf of R. C. nor R. C. himself present though informed. The case is lingering since last 10 years and a number of adjournments have been granted to R. C. on some pretext or other, entailing unnecessary harassment to the parties. The case is, therefore, struck off under Section 53 (2) of the P. D. R. Act. '
Against this order there were again appeals taken to the Additional District Magistrate and Collector, Balasore. In his opinion there was no substance in these appeals; accordingly the Additional District Magistrate and Collector dismissed all of them by a common order dated 2-11-1962. It was this order of the Additional District Magistrate and Collector which led to the aforesaid six revision petitions before the Member, Board of Revenue where they were numbered as Revision Cases Nos. 124, 125, 127, 128 and 129 of 1962-63.
4. The Member, Board of Revenue, disagreeing with the order of the Certificate Officer and the Additional District Magistrate and Collector, allowed these revision petitions and passed the aforesaid order on 11-10-1963.
5. Now the petitioners in these applications have challenged the validity and legality of this order of the Member, Board of Revenue and Mr. Asok Das appearing for them has advanced three grounds in support thereof;
(i) That though the requisitions for the realisation of the dues under the aforesaid certificates were made by the Income-tax Officer to the Collector as provided under Section 46(2) of the Income-tax Act, those dues were not payable to the Collector and therefore, the certificates, for their realisation, must have been filed by the Certificate Officer under Sections 5 and 6 and not under Section 4 of the Public Demands Recovery Act. As such the Certificate Officer in cancelling the certificate under Section 53 (2) of that Act, by his order dated 6-9-1960, did not act without jurisdiction.
(ii) That in fact, in none of these cases there was ever any requisition made by the Collector to the Certificate Officer or any certificate drawn up by the Certificate Officer in Form No. 1 as contemplated by Section 4 of the Public Demands Recovery Act. Therefore, these circumstances also lend support to the view that the certificates in these cases were dealt with under Sections 5 and 6 of that Act and not under Section 4.
(iii) That the orders dated 2-11-62 having been passed in appeal by the Additional District Magistrate and Collector, the revision against that order under Section 62 of the Public Demands Recovery Act did not He before the Member, Board of Revenue, and, as such the order passed by the Member, Board of Revenue on 11-10-1963 in revision, was void or without jurisdiction.
6. Now I take up these points in the order in which they have been just stated.
7. In my opinion there is no substance in the contention as made by Mr. Das that the certificates in these cases were not filed by the Certificate Officer under Section 4 of the Public Demands Recovery Act but under Sections 5 and 6. 'Public Demand' as defined in Section 3(6) of the Public Demands Recovery Act means :
'any arrear of 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.'
and as such all public demands are thereunder not made payable to the Collector. Therefore, in the scheme provided under the Public Demands Recovery Act public demands have been classified into two classes: (1) those which are payable to the Collector, and (2) those which are payable to a person other than the Collector. The dues that are payable to the Collector are public dues like land revenue, rent, forest dues etc., which Government is entitled to get under law and the collection of which has been entrusted with the Collector of the District. As against that, the dues which are payable to a person other than the Collector are those which, not Government, but any local or public authority or any other person is entitled to get under the law and for the realisation of which the certificate procedure as laid down in the Public Demands Recovery Act has been made available. The certificates in respect of the public demands payable to the Collector have to be filed in the manner provided in Section 4 of that Act while the certificates in respect of public demands payable to any person other than the Collector have to be filed in the manner provided in Sections 5 and 6 of that Act. It is not disputed that if the income tax dues for which requisitions may be made by the Income-lax Officer under Section 46(2) of the Income Tax Act are payable to the Collector then the certificates for their realisation have to be filed in the manner as provided in Section 4 of the Act and as such under Section 53 (2) of the Public Demands Recovery Act, the certificate officer can have no jurisdiction to cancel the certificates. Under Section 53 the jurisdiction of the certificate officer for the cancellation of the certificate is confined to two types of cases only : First are those in which cancellation is sought to be done at the request of the certificate holder and the other where the certificate has been filed under Section 6 and the Certificate Officer is of opinion that the certificate-holder is not reasonably diligent. Here there is no claim made that there was at any time any request made to the Certificate Officer by the certificate holder for the cancellation of the Certificates. Therefore, the cancellation in this case, if any, could be done only under clause (2) of Section 53 of the Act. But Section 53 (2) presupposes that the certificate was filed under Section 6 and not under Section 4. Therefore, if, as already stated, the certificates in the present case were filed under Section 4 of the Public Demands Recovery Act, the action of the Certificate Officer in cancelling the certificates under Section 53 (2) of that Act by his order dated 6-9-60 was obviously without jurisdiction and as such the order passed in revision by the Member, Board of Revenue, if he had under the Public Demands Recovery Act necessary power of revision, as claimed by the Income-tax Department, was legal and valid, and the petitioners are not entitled to any relief in these applications. That being so, the entire controversy in these cases substantially centres round the question whether the Income Tax dues for which requisitions were made by the Income-tax Officer under Section 46(2) of the Income-tax Act were public demands payable to the Collector or not.
8. The submission made by Mr. Asok Das is that they were not payable to the Collector and as such the certificates for the realisation of the same must have been filed under Section 5 of the Public Demands Recovery Act; and if that was so, the Certificate Officer had the jurisdiction to cancel those certificates in exercise of the power given to him under Section 53 (2) of that Act.
9. Now under the Act though the Public demands are as already stated classified into two classes there is no definite criterion provided therein to find out as to which of the public demands are payable to the Collector and which are payable to a person other than the Collector. The answer to this question therefore has to be sought in the relevant statutes and the transactions whereunder the obligations for payments of these public demands are constituted or created.
10. In the present cases the Public Demands made under the certificates were the taxes which were assessed and payable under the Income-tax Act. In Section 46(2) of that Act, there is the specific provision made for the realisation of the arrears of income-tax dues from the assessee on the footing *' as if it were an arrear of land revenue. ' That Sub-section (2) of Section 46 reads :
' The Income-tax Officer may forward to the Collector a certificate under the signature specifying the amount of arrears due from an assessee and the Collector on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue. . .'
Now this much is not denied that the due from an assessee under the Income-tax Act is a 'public demand' as provided in item 3 of schedule I of the Public Demands Recovery Act. Therefore, the only point that remains for consideration is whether such a public demand is payable to the Collector.
11. In Section 1 of (B. C.) Act VII of 1868 which was enacted ' to make further provision of recovery of public demands as arrears of land revenue', revenue, is defined to include 'every sum annually payable to Govt. by the proprietor or tenure of! any estate in respect thereof, and every sum payable to Government in respect of taccavi or of any money advanced by Government to-proprietors of land for making or repairing embankments, reservoirs, or water courses, or other improvements, on the lands held by them'. This definition of the word 'revenue1 as given in the aforesaid Act leaves no doubt that revenue or, for the matter of that, land revenue is a sum payable to Government and as such realisable on behalf of Government, by the Collector. Further the word 'Collector' as defined in Section 3(11) of the General Clauses Act (in respect of areas other than Presidency Towns) means the 'Chief Officer in charge of the revenue administration of the district.' and as explained in Section 1 of the aforesaid Act (Act VII of 1868) the word 'Collector' also includes 'any person vested with the power of a Collector.' It is for this reason therefore that under the Public Demands Recovery Act public demand which is payable to Government has been described as public demand payable to the Collector. Accordingly if the provision made in Section 46(2) of the* Income-tax Act as to the requisition to the Collector and as to the realisation of the due 'as if it were an arrear of land revenue' is read in the light of, the aforesaid definitions and explanations, there is no ambiguity left that the dues from the assessee under the Income-tax Act are made thereunder as public demand payable to the Government and as such to the Collector. Obviously therefore such a public demand is without question attracted by the procedure laid down in Section 4 of the Public Demands Recovery Act which is the only provision made thereunder for the certificates relating to the dues payable to the Government and as such to the Collector. Therefore, in my opinion, there is no substance in the contention raised by Mr. Asok Das that the Income-tax dues from an assessee under the Income tax Act, as referred to in Section 46(2) thereof, is a public demand payable to any person other than the Collector, as described in Section 5 of the Public Demands Recovery Act.
12. In support of his contention Mr. Asok Das has drawn our attention to the Explanation given in Section 46(2) of the Income Tax Act. That explanation says that:
'A proceeding for the recovery of any sum shall be deemed to have commenced within the meaning of this Section, if some action is taken to recover the whole or any part of the sum within the period hereinbefore referred to, and for the removal of doubts it is hereby declared that the several modes of recovery specified in this section are neither mutually exclusive nor affect in any way any other law for the time being in force relating to the recovery of debts due to Government and it shall be lawful for the Income-tax Officer, if, for any special reasons to be recorded, he so thinks fit to have recourse to any such mode of recovery notwithstanding that the tax due is being recovered from the assessee by any other mode.' This explanation has to be read in the background of the period of limitation referred to in Sub-section (7) of Section 46 and this explanation has been added thereto only to remove doubts if any as to the point of time from which in particular circumstances limitation is to commence. It has nothing to do with the question as to whether the due from an assessee under the Income Tax Act is payable to the Collector or not, nor can it be said to mean that it is payable to the Income-tax Officer. Apart from this, Sub-section (7) of Section 46 has to be read along with Sub-section (2) thereof and when so read the aforesaid explanation also in a way lends support to the view that, for the purpose of Sub-section (2), the dues from the Income-tax assessee have been made payable to the Collector and that such dues are to be realised on the assumption 'as if it were an arrear of land revenue.'
The next contention of Mr. Asok Das is that whatever may have been the position in regard to such income tax dues during the pre-Constitution period, but now after the coming into force of the Constitution, these Income tax dues constitute a part of the 'Consolidated Fund of India' and as such they cannot be said to be payable to the Collector who is an officer of the State. I must confess I have not been able to follow this argument. The word 'Collector' as used in Section 46(2) of the Income Tax Act has to be understood as defined in the statutes dealing with realisation of arrears of land revenue. And when so read it cannot be accepted that the dues from the assessee as provided in Section 46(2) of the Income-tax Act are not payable to the Collector but to any person other than the Collector.
13. This question has already been the subject of judicial decision in many cases. The leading case on the subject is Doorga Prosad v. Secy. of State, AIR 1945 PC 62. Therein also an income tax officer purporting to act under the powers conferred by Section 46(2) of the Income-tax Act addressed to the Collector a requisition certifying that a sum as tax was due from the assessee on account of income tax, super tax and penalty, and requested the Collector to recover the amount as if it were an arrear of land revenue. The question raised in that case was whether the certificate issued in pursuance of that requisition under the Bengal Public Demands Recovery Act 1913 was a valid certificate for thereunder there was no evidence to prove that there was at any stage any certificate filed under Section 5 of the Act. In answer thereto their Lordships therein observed (at p. 64) that 'their Lordships agreed with the view taken by the High Court that the money was payable to the Collector and accordingly the certificate was issued under Section. 4 and not under Section 6, and no requisition under Section 5 was required.' This case seems to have been uniformly followed by the Courts in India: vide Matilal v. Certificate Officer 24 Perganas, (1955) 59 Cal WN 660. Therein also the income-tax Officer, purporting to act under Section 46(2) of the Income-tax Act, addressed to the Collector a certificate that a certain sum was due from the assessee as income tax and requested the Collector to recover that amount as if it were an arrear of land revenue under the Bengal Public Demands Recovery Act (Act III of 1913). In pursuance thereof the certificate Officer issued a certificate for the realisation of the same. But subsequently the Certificate Officer in exercise of the power given to him under Section 44(2) of that Act (corresponding to Section 53(2) of the Bihar and Orissa Public Demands Recovery Act) cancelled the certificate. The question raised was whether the cancellation was valid in law. On behalf of the assessee it was contended that the certificate in that case must be taken to have been issued under Section 5 read with Section 6, and not under Section 4 of the Act III of 1913. Further it was also contended there that in any case there was no demand payable to the Collector, but it was payable to the Income-tax Officer which was being realised by certificate proceedings ; and the certificate was of the nature mentioned in Section 5. The learned Judge who decided the case did not accept that contention and held that:
'Although the demand is in the first instance payable to the Income Tax Officer, the provisions of Section 46(2) of the Income Tax Act set out above proceed on the assumption that the amount is to be recovered as arrears of land revenue. It is well known that it is the Collector who collects land revenue. In my opinion such a certificate must be taken to be a certificate issued under Section 4 of the Act. This view is supported by the Privy Council decision in AIR 1945 PC 62. It was held there that when the Certificate Officer purporting to act under the power conferred by Section 46(2) of the Income-tax Act addresses to the Collector a certificate certifying that a sum is due from the assessee as income tax and requests the Collector to recover the amount as if it were an arrear of land revenue, it is a public demand within the meaning of the Bengal Public Demands Recovery Act and the certificate issued is under Section 4 and not under Section 6 and no requisition under Section 5 is required.'
The other case in this connection which has been brought to our notice by Mr. D. Mohanty appearing for the Department is that of Ladhuram v. D.K. Ghose, (S) AIR 1957 Cal 667. It is true that therein the opinion expressed on this point was by way of obiter and as such has no binding force, but definitely the reasoning given therein can be usefully relied upon in support of the view that has just been expressed above. That was a judgment given by Chakravarty C. J. and while dealing with this point the learned Chief Justice observed:
'It is not also altogether irrelevant to regard the provisions of Section 46(2) of the Income Tax Act itself which says that the income tax officer shall forward the certificate to the Collector and the Collector, on receipt of such certificates, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue. It was held by the Judicial Committee in the case of AIR 1945 PC 62 : (1945) 13 I.T.R. 285 that the debt under an income-tax certificate is a debt payable to the Collector himself and not a debt payable to some other authority and therefore the certificate should be filed under Section 4 and not under Section 6.'
The same view seems to have been reiterated by the Supreme Court in a very recent case, Builders Supply Corporation Ltd. v. Union of India, AIR 1965 SC 1061. The main question involved therein was whether the Government of India was entitled to claim priority for arrears of income tax due to it from an assessee over the private debt due from him to his creditors. In dealing with this question their Lordships had occasion to refer to Section 46(2) of the Income-tax Act and in that connection observed:
'We have referred to this decision because at brings out emphatically the real character of the provision prescribed by Section 46(2). Section 46(2) does not deal with the doctrine of priority of Crown dues at all. It merely provides for recovery of arrears of tax due from an assessee as if it were an arrear of land revenue.'
So, if not directly, at least indirectly, this decision also in a way supports the view that arrear of Income-tax for which requisition was issued under Section 46(2) of the Income Tax Act is to be dealt with on the footing 'as if it were an arrear of land revenue.'
14. Mr. Asok Das, has, however, in answer to these authorities, drawn our attention to the decisions in Abanindra Kumar v. A.K. Biswas, AIR 1954 Cal 355 and Soorayya v. Malayya, AIR 1955 Andhra 229. But both of them mainly related to the question as to the validity of the certificate issued by the Certificate Officer and not as to whether the amounts due thereunder were payable to the Collector or to any person other than the Collector. In my opinion, therefore, they have no bearing on the point now in issue before us.
15. For these reasons I think the conclusion is irresistible that the requisition made to the Collector for the realisation of the dues from the assessee under Section 46(2) of the Income Tax Act is to be dealt with as if it were an arrear of land revenue and as such payable to the Collector. Therefore for the realisation of such a due the certificate under the Bihar and Orissa Public Demands Recovery Act has to be filed under Section 4 of that Act and not under Section 6. It has therefore to be held that the Certificate Officer had no jurisdiction under Section 53(2) of that Act to cancel the certificate which had been filed by him in these cases and as such the order passed by him, cancelling them on 6-9-60 was without jurisdiction.
16. Then, as to the second point raised by Mr. Das, it will, I think, suffice to say that in view of this opinion which I have just expressed it has become more or less academic. Further it has to be remembered that the word 'Collector' as explained in Section 1 of the B.C. Act VII of 1868, includes 'any person vested with the powers of the Collector'. Therefore, a requisition made under Section 46(2) of the Income-tax Act can be sent to any officer appointed by the Collector with the sanction of the Commissioner to perform the functions of a Certificate Officer as provided in the Public Demands Recovery Act. As such even if it be conceded for a moment that in these cases the requisitions made under Section 46(2) of the Income-tax Act were sent by the Income Tax Officer straight to the Certificate Officer appointed by the Collector and not to the Collector there was nothing wrong done; nor for that reason the certificates, issued on the basis of these requisitions can be held not to have been issued under Section 4 of that Act. And so far as question relating to the absence of Form No. 1 is concerned, that does not seem to have been proved before the authorities under the Public Demands Recovery Act. After all that is a disputed question of fact. Therefore that cannot be allowed to be raised for the first time in this Court under Article 226 of the Constitution. Therefore the second point of Mr. Asok Das must also fail.
17. The last point of Mr. Asok Das relates to the question whether Member of the Board of Revenue has any jurisdiction under Section 62 of the Bihar and Orissa Public Demands Recovery Act to exercise power of revision against the appellate order of the Additional District Collector. It is true that thereunder the authority to revise any order passed by the Collector under the Act, is given to the Commissioner and not to the Board of Revenue but Section 62 of the Bihar and Orissa Public Demands Recovery Act has, for the purposes of the State of Orissa, to be read along with the provisions made in the Orissa Revenue Divisional Commissioners Act, 1957 (Orissa Act 19 of 1957). Under Section 3 of that Act power has been given to the State Government by notification from time to time to appoint for such Division such person as they may deem fit to be the Revenue Divisional Commissioner. This is followed by Section 4 which reads:
'4 (1). The Revenue Divisional Commissioner appointed under Section 3 shall subject to the control of the State Government, be the Chief Executive Authority in charge of the general administration of the Division, and shall deal directly with the appropriate Departments of the Government in respect of such matters as may be prescribed.
Explanation:--'General administration' includes executive functions relating to revenue administration, law and order, administration of local bodies and such other functions as may be specifically entrusted to the Revenue Divisional Commissioner by Government from time to time.
(2). The said Commissioner, so appointed, shall exercise in respect of his Division-
(a) such revenue powers and executive functions as may be prescribed by rules made by the State Government from time to time and
(b) all or any of the powers of the Board of Revenue under the Orissa Board of Revenue Act 1951, or under any other law for the time being in force, as the State Government may, by rules, prescribe.'
Therein it is Sub-section (2) (b) which has a direct bearing on the question now under consideration before us. It clearly directs that the Commissioner shall exercise only such power of the Board of Revenue under the Orissa Board of Revenue Act 1951 or under any other law for the time being in force as the State Government may by rules prescribe. In exercise of the powers conferred thereunder there were in 1959 the Orissa Revenue Divisional Commissioners Rules framed. Therein Rule 7 provides that-
'Subject to the powers of revision, alteration and cancellation vested in the State Government the Revenue Divisional Commissioner shall exercise the duties and functions with respect to the subjects enumerated in Clause (2) of Appendix I appended hereto to the extent specified in column (3) thereof in respect of laws in force from time to time within their respective jurisdiction.'
Now in appendix I the power of appeal and revision that has been conferred on the Revenue Divisional Commissioner is to be found in item 23 and that says:
'Appeal and revision against all original orders of the Collector under the Bihar and Orissa Public Demands Recovery Act 1914...... .. ..Full powers vested in the Board.'
It follows therefore that thereunder the power that has been conferred on the Revenue Divisional Commissioner is confined to appeal and revision against all original orders of the Collector but does not extend to the power of revision against the appellate orders of the Collector under the Public Demands Recovery Act. In other words this power of revision against the appellate orders of the Collector continued to remain vested, under the Orissa Board of Revenue Act, 1951, in the Board of Revenue. It is not disputed that under Section 10 of the Orissa Board of Revenue Act, 1951, (Orissa Act No. 23 of 1951) the Board had, in respect of the territories for the time being included in the State of Orissa, all such original appellate and other jurisdiction as under the law in force immediately before the date of commencement of that Act had been exercisable in respect of the said territories or any part thereof by the Revenue Commissioner, Orissa, and the Commissioner, Northern Division functioning as Board of Revenue; and that this power was subsequently amended and altered in this respect only by the Orissa Board of Revenue (Amendment) Act, 1957 (Orissa Act 19 of 1957). Therefore those powers which were not given to the Commissioner under Orissa Act 19 of 1957 remained with the Board of Revenue as provided in Section 10 of Orissa Act 23 of 1951. That being so, the Bihar & Orissa Public Demands Recovery Act 1914 must be taken to have been by necessary implication repealed to the extent of the provisions made in the aforesaid Orissa Act 23 of 1951 read with Orissa Act 19 of 1957. Therefore there is no doubt that at the relevant time the Board of Revenue had the jurisdiction to hear revisions against the appellate orders passed by the Collector under the Public Demands Recovery Act, and that jurisdiction was not then with the Commissioner. As such the order passed by the Member, Board of Revenue on 11-10-63 in exercise of its revisional jurisdiction against the appellate Order of the Additional District Magistrate and Collector passed on 2-11-62 was valid and legal.
18. For all these reasons, I hold that the applications must fail. Accordingly they are dismissed with costs. Consolidated hearing fee Rs. 200/- (two hundred).
Das, J.
19. I agree.