Patna High CourtBranch Manager, Sheikhpura Branch, ... vs Arjun Prasad Singh And Ors. on 22 January, 2001Equivalent citations: 2001(49)BLJR542, AIR 2002 PATNA 130, (2001) 2 BLJ 754, (2001) 1 PAT LJR 552, 2001 BLJR 1 542Author:Shivakirti SinghBench:Shivakirti SinghJUDGMENT1. The present appeal has been filed by State Bank of India against the judgment and Order dated 7-2-2000 passed by a learned single Judge of this Court in CWJC No. 8089 of 1999 by which the writ petition filed by certificate debtor respondent No. 1 has been allowed and order of Collector, Nawadah dated 4-6-1998 passed in

case No. 449/M, of 1996 has been set aside.2. The only relevant facts for determination of the Issue Involved In this appeal are that an order of certificate officer was challenged by the certificate debtor in an appeal preferred before the Additional Collector, Nawadah vide case No. 62/92-93 which appeal was allowed by the Additional Collector by his order dated 11-2-1993 and all the orders passed by the certificate officer in the certificate preceding were set aside. It appears that the certificate officer did not implement the order passed by the Additional Collector and aggrieved by such action of the certificate officer, the certificate debtor-respondent No. 1 moved the Collector, Nawadah vide case No. 449/M of 1996. The learned Collector, Nawadah found that power of appeal against any order of the certificate officer as per provisions of theBihar and Orissa Public Demands Recovery Act(hereinafter referred to as 'the Act') vested only in the Collector and in view of such legal position he declared the order of the Additional Collector, Nawadah dated 11-2-1993 without jurisdiction and not fit for being enforced. Against such order of the Collector, Nawadah dated 4-6-1998 the writ application was preferred by the certificate debtor-respondent No. 1, as noticed above.3. On 10-7-2000, a Division Bench of this Court granted interim stay of the order of the learned single Judge under appeal and issued notice to respondent No. 1 to show cause as to why this appeal be not admitted and, if possible, be disposed of at the stage of admission itself. In spite of service of notice, respondent No. 1 has chosen not to appear and contest this appeal.4. Learned counsel for the appellant submitted that learned single Judge erred in law in interpretingSection 60(3)of the Act and in finding jurisdiction to hear appeal in the Additional Collector by holding that there is no intention inSection 60(3)of the Act to exclude Additional Collector from the sweep of the expression 'Collector'. It was submitted by the learned counsel for the appellant that in matters governed by a statute, all authorities must act within four corners of the statutes and there can be no presumption that Additional Collector shall have the authority to exercise the appellate power vested by the statute in the Collector unless such source of power is found in one or the

other provision of the statute itself.5. A perusal ofSection 60(1)of the Act makes it clear that against any original order passed under the Act by a certificate officer an appeal lies only to the Collector.Section 60(3)empowers the Collector to authorise any sub-divisional officer or any officer appointed under Clause (3) ofSection 3to perform the functions of a certificate officer, to exercise the appellate powers of the Collector under Sub-section (1). Such authorisation has to be by an order passed with the previous sanction of the Commissioner.6. A perusal of the writ application as well as the order under appeal shows that it is not the case of the writ petitioner/respondent No. 1 that there was any authorisation in terms ofSection 60(3)of the Act to authorise the Additional Collector, Nawadah to exercise the appellate powers of the Collector under Sub-section (1) ofSection 60of the Act. Learned single Judge has also given no such finding but has taken the view that unlessSection 60(3)of the Act excludes the Additional Collector from the sweep of the expression "Collector", the Additional Collector would have the same powers of hearing appeal as has been given by the Act to the Collector. Such a view could have been possible only if there was some provision in the Act such as by an extended definition of the term Collector, as is found in some of the statutes. However, in the Act there is nothing to indicate that the term Collector shall include Additional Collector or any other officer. To the contrary, the provision inSection 60(3)requires a positive order by the Collector with the previous sanction of the Commissioner to authorise any other officer to exercise appellate powers. In such circumstances, we find sufficient force in the submission of the learned counsel for the appellant that the Additional Collector, Nawadah could not have exercised appellate power under the Act to set aside orders of the certificate officer as was done by him in passing the order dated 11-2-1993. In such view of the matter, the finding to the contrary given by learned single Judge in the order under appeal has to be set aside and is accordingly set aside.7. Although nobody has apeared on behalf of the respondent No. 1 but from the stand taken in the writ application it appears that there was a challenge to the jurisdiction of the Collector, Nawadah in passing order dated 4-6-1998 on the ground that he had no jurisdiction to examine the validity of an order purported to have been passed in exercise of appellate powers by the Additional Collector. Such an objection cannot help the writ petitioner-respondent No. 1 in view of settled proposition of law that a writ Court will not allow perpetuation of illegality and will not issue a writ in the nature of certiorari to quash even an illegal order if the effect is to revive another illegal order.8. This appeal is, therefore, allowed but since the earlier appeal preferred by respondent No. 1 was before the Additional Collector, who is found to have no appellate powers under the Act, hence, it is observed that if so advised, the writ petitioner-respondent No. 1 may prefer a fresh appeal before the proper appellate authority, the Collector, Nawadah along with a prayer for condonation of delay on account of entertainment of his earlier appeal by an authority having no jurisdiction to hear such appeal. In the facts of the case, there shall be no order as to cost.