judgement:
ivil Appeal Nos.
372 382 of 1969.
Appeals by Special Leave from the Judgment and order dated 10 10 1968 of the Rajasthan High Court in C.S.A. Nos. 18 and 29, 27, 28.
30 35 of 1960 and 54 and 58 of 1961.
section N. Jain and section K. Jain for the Appellants.
B. P. Maheshwari and Suresh Sethi for the Respondent.
The Judgment af the Court was delivered by SHINGHAL, J., These appeals by special leave arise out of a common judgment of the Rajasthan High Court dated October 10, 1968, by which the suits which were filed by the present appellants were dismissed in pursuance of the earlier judgment of the same court dated November 9, 1964, on the ground that they were governed by section 179(2) of the Rajasthan Town Municipalities Act, 1951, hereinafter referred to as the Act, and were barred by limitation.
The facts giving rise to the appeals were different in details, but they were examined in the High Court with reference to the common questions of law which arose in all of them and formed the basis of that Court 's, decision against the plaintiffs.
We have heard these as companion appeals, and will decide them by a common judgment.
It is not necessary to give the detailed facts of all the cases as it will be enough to refer to the suit which was filed by M/s Surajmal Banshidhar and the developments connected with it, in order to appreciate the controversy.
The plaintiff firm referred to above carried on business in "pakka arat" and exported goods of various kinds from Ganganagar.
The Municipal Board of Ganganagar realist "export duty", by way of ter 171 minal tax, on the exported goods.
The plaintiff therefore raised a suit on October 19, 1957, challenging the Board 's right to "impose or to reales" any export duty during the period June 5, 1954 to March 10 1957, amounting to Rs. 10,729/ .
It however confined the suit to the recovery of Rs. 10,000/ alongwith interest and gave up the balance.
The Board denied the claim in the suit and pleaded, inter alia, that the levy of the terminal tax was in accordance with the law and the suit was barred by limitation.
The trial court rejected the defence and decreed the suit, and its decree was upheld by the District Judge on appeal.
Similar decrees were passed in the other suits, for various sums of money.
The Board took the matter to the High Court in second appeals.
The appeals were heard by a Single Judge who, while deciding that the suits were governed by section 179(2) of the Act, referred the question on the legality of the levy to a larger Bench.
A Full Bench of the High Court held that the levy of the terminal tax was illegal, and sent the cases back to the Single Judge who allowed the appeals only for those amounts which were found to be within limitation under section 179(2) of the Act and dismissed the other suits.
The plaintiffs obtained special leave and have come up to this Court in these circumstances.
The question which arises for consideration is whether the suits fall within the purview of section 179(2) of the Act.
The first two subsection of section 179 which bear on the controversy read as follows, "179.
Limitation of suits, etc.
(1) No suit shall be instituted against any municipal board, president, member, officer, servant or any person acting under the direction of such municipal board, chairman, member, officer or servant for anything done or purporting to be done under this Act, until the expiration of two months next after notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, has been, in the case of a municipal board, delivered or left at its office, and, in case of a chairman, member, officer, or servant, or person as aforesaid, delivered to him or left at his office or usual place of abode; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) Every such suit shall, unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be dismissed if it is not instituted within six months after the accrual of the alleged cause of action.
" The question therefore is whether the illegal levy of terminal tax (assuming that it was illegal as held by the High Court) could be said to 172 be a thing "done or purporting to be done" under the Act.
A similar question arose for the consideration of this Court ill Poona City Municipal Corporation vs Dattatraya Nagesh Deodhar(l) with reference to the provision in section 127 (4) of the Bombay Provincial Municipal Corporation Act, 1949, and it was held that if the levy of a tax was prohibited by the Act concerned and was not in pursuance of it, it 'could not be said to be 'purported to be done in pursuance of execution or in tended execution of the Act '.
" It was observed that what was plainly prohibited by the Act could not be "claimed to be purported to be done in pursuance or intended execution of the Act.
" It was therefore held that the suit was outside the purview of the section 127(4) and was not barred by limitation.
We are in respectful agreement with that view, and we have no hesitation in holding, in the circumstances of the pre sent cases, which are governed by a provision similar to section 127(4) or the Poona City Municipal Corporation Act, that the suits did not fall within the purview of section 179 of the Act and were not barred by limitation.
It may be mentioned that it has not been argued before us, and is nobody 's case, that the suits would be barred by limitation even if they did not fall within the purview of section 179(2) of the Act.
The decision of the High Court to the contrary is not correct and will have to be set aside.
It has however been argued on behalf of the respondents that the High Court erred in taking the view that the levy of the terminal tax was illegal, and our attention has been invited to the relevant provisions of the law including the Bikaner State Municipal Act, 1923, article 277 of the Constitution and section 2 of the Act.
It is not in controversy before us that the Bikaner State Municipal Act, 1923, authorised the levy of terminal tax and such a tax was levied by the Ganganagar Municipal Board under the authority of that law upto January 26, 1950, when the Constitution came into force.
On and from that date, the power to levy export duty vested in the Parliament but article 277 saved that and some other taxes as follows, "277.
Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution, were being law fully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district or other local area may, not withstanding that those taxes, duties, cesses or fees are mentioned in the Union list, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law. ' (1) ; 173 it was therefore permissible for the Municipal Board to continue to levy A the terminal tax until provision to the contrary was made by Parliament by law.
But it so happened that the Bikaner Municipal Act, 1923 was repealed and the Act was brought into force with effect from December 22, 1951.
Section 2(b) of the Act, which dealt with the repeal of the Bikaner Act and the saving of some of its provisions, expressly provided that on the coming into force of the Act, the laws and enactments specified in the First Schedule of the Act shall be repealed in so far as they relate to the Town Municipalities covered by the Act.
So as the Bikaner State Municipal Act, 1923, was included in the first Schedule, it was repealed by the aforesaid section 2.
That section however contained a proviso, clause (b) whereof was to the following effect, "(b) all town municipalities constituted under the said laws or enactments, and members appointed or elected, committees established, limits defined, appointments, rules, orders and bye laws made, notifications and notices issued, taxes imposed, contracts entered into, and suits and other proceedings instituted, under the said laws or enactments or under and laws or enactments thereby repealed shall, so far as may be and so far as they relate to town municipalities be deemed, unless the Government directs otherwise, to have been respectively constituted, appointed, elected, establish ed" defined, made, issued, imposed, entered into and instituted under this Act.
" The repeal did not therefore affect the validity of those taxes which had already been imposed and which could be "deemed" to have been imposed under the Act, unless there was a direction to the contrary by the State Government.
It is quite clear from the provisions af the Act, and is in fact not disputed before us, that the terminal tax in question could not be imposed under any of the provisions of the Act.
Its, levy could not therefore be saved by clause (b) of the proviso to section (2) of the Act.
On the other hand, it could be said with justification that the State Legislature had decided to discontinue the levy by excluding it from the purview of the saving clause.
The further levy of the tax therefore became illegal and it was not permissible to continue it any longer under article 277 which merely gave the authority concerned the option to continue the levy if it so desired.
So as the levy of the tax after December 22, 1951, was illegal, there is nothing wrong with the view taken by the High Court that the amounts 174 paid by the plaintiffs by way of terminal tax were recoverable by the suits which have given rise to these appeals, and there is no force in the argument to the contrary.
The appeals are allowed with costs, the decrees of the High Court are set aside and those of the lower appellate court restored.
P.B.R. Appeals allowed.

summary/full:
The respondent Board realised terminal tax on goods experted by the appellants.
In suits filed by the appellants for refund of the amounts which they claimed were collected without authority of law, the respondent Board pleaded that the levy was in accordance with law and that the suits where barred by limitation.
The trial court decreed the suits and on appeal the District Judge affirmed the trial Court 's decrees.
In second appeal the High Court held that the levy was illegal.
The High Court, however, allowed the appeals in respect of those amounts which were found to be within limitation under section 179(2) of the Act and dismissed the others.
On the question whether the levy could be said to be a thing done or purported to be done under the Act.
Allowing the appeal, ^ HELD: The suits did not fall within the purview of section 179 of the Act and were not barred by limitation.
[172 D] 1.
(a) It is well established that if levy of a tax is prohibited by an Act and is not in pursuance of it, it could not be said to be purported to be done in pursuance of the execution or intended execution of the Act.
[172 B] Poona City Municipal Corporation vs Dattatraya Nagesh Deodhar, ; followed.
(b) The terminal tax could not be imposed under any of The provisions of the Act.
The High Court was right in holding that the amounts ` paid by the appellants by way of terminal tax were recoverable by the suits.
[173 F G 174 Al 2.
The Bikaner State Municipal Act, 1923 (which was the predecessor of the present Act) authorised the levy of terminal tax and the Board accordingly levied the tax until January 26, 1950.
With the coming into force 12 SCI/78 170 of the Constitution, by virtue of article 277 it was permissible for the Board to continue to levy the terminal tax until provision to the contrary was made by Parliament by law.
But with effect from December 22, 1951 the Bikaner Act was repealed and the present Act was brought into force.
the repeal, however, did not affect the validity of those taxes which had already been imposed and which could be "deemed` ' to have been imposed under the Act.
But the provisions of the Act the clear that the terminal tax in question could not be imposed thereunder.
The levy could not, therefore, be saved by cl.
(b) of the proviso to section 2.
on the other hand it is clear that the State Legislature had decided to discontinue the levy by excluding it from the purview of the saving clauses.
The further levy of the tax, therefore, became illegal and it was not permissible to continue it any longer under article 277 which merely gave the authority concerned the option to continue to levy if it so desired.
[173A, F G]


judgement:
: Criminal Appeal 227 of 1977.
Appeal by Special Leave from the Judgment and order dated 17 2 1977 of the Gujarat High Court in Special Criminal Application No. 1 of 1977.
M.F. Thakkar and section section Khanduja for the Appellant.
B.V. Patel, section P. Nayar and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by TULZAPURKAR, J.
This appeal by special leave is directed against the judgment and order of the; Gujarat High Court dated February 17, 1977 in Special Criminal Application No. 1 of 1977 filed under Articles 140 226 and 227 of the Constitution whereby the High Court reversed the order of the learned Sessions Judge, Broach in Criminal Appeal No. 39 of 1975 and sent the matter back to the learned Sessions Judge for passing an appropriate order in regard to the question as to whether the entire seized stock of exercise books of the appellant or part thereof should be confiscated under section 6A of the .
The question raised in the appeal is whether exercise books are covered by the item "paper" occurring in section 2(a) (vii) of that Act as also in Entry 13 of Schedule I to the Gujarat Essential Articles Dealers ' (Regulation) order, 1971 ? The question arises in these circumstances: The appellant Maharaja Book Depot is a partnership firm dealing in books and stationery articles at Rajpipla, District Broach.
Its shop was inspected and searched by the Mamlatdar of Rajpipla on July 4, 1975 when certain alleged irregularities came to light.
During the search 78 gross exercise books of controlled variety and 97 gross exercise books of non controled variety were seized on the ground that the appellant had committed breaches of Clauses 3, 9 and 11 of the Gujarat Essential Articles Dealers ' (Regulation) order 1971 (hereinafter referred to as "the Regulation order"), in that the appellant (a) did not display at any conspicuous part of the premises the opening stock of the exercise books, (b) did not write the names of the customers on the bills issued to them for the sale of the exercise books and (c) did not keep a register showing the stock of controlled and non controlled exercise books.
A notice under section 6B of the (hereinafter referred to as 'the Act ') was served by the Collector, Broach, calling upon the appellant to show cause why the seized stock of exercise books should not be confiscated and after taking into consideration the explanation offered by the appellant the Collector by his order dated September 17, 1975 held that the appellant firm was guilty of the breaches of Clauses 3, 9 and 11 of the, Regulation order and directed that the entire seized stock be confiscated to the State Government under section 6A of the Act.
The appellant preferred an appeal to the Sessions Court at Broach being Criminal Appeal No. 39 of 1975 and the learned Sessions Judge by his judgment and order dated October 16, 1976 allowed the appeal and set aside the order of confiscation on the ground that the Act and the Regulation order did not apply to the exercise books inasmuch as an exercise book which is a distinct commodity did not fall within the item "paper" enlisted as an essential commodity in section 2(a) (vii) of the Act and in Entry 13 of Schedule I to the Regulation order.
This order was challenged by the State of Gujarat in Special Criminal Application No. 1 of 1977 under article 227 of the Constitution.
The High Court by its judgment and order dated February 17, 1977 took the view that the 141 item "paper" as enlisted both in section 2(i) (vii) of the Act and Entry 13 A in Schedule I to the Regulation order was wide enough to cover an exercise book which was nothing but collection of papers stitched together by a piece of string or pinned with pins of stappler and quashed the order of the learned Sessions Judge but instead of straightaway confirming the Collector 's confiscation order it remanded the appeal back to the Sessions Judge for passing an appropriate order after deciding the question as to whether the entire seized stock or a part thereof should be confiscated under section 6A of the Act.
The appellant has challenged the legality and or validity of the view taken by the High Court in this appeal.
In order to appreciate properly the submissions of counsel for the appellant on the construction of the expression "paper" occurring in the concerned legislations it will be necessary to set out the purpose and the relevant provisions thereof.
The Act was put on the Statute Book, as its preamble will show, with a view to provide, in the interests of the general public, for the, control of production, supply and distribution of, and trade and commerce in certain commodities defined and enlisted as "essential commodities" in section 2, which enlistment has been enlarged from time to time by Central Government Notifications.
In other words, the obvious purpose of the enactment is to control the production, supply and distribution of certain commodities which are essential for the society at large with a view to ensure that the common man gets them at fair prices without let or hindrance on the part of the trade.
Section 3 confers powers on the Central Government to regulate or prohibit the production,, supply and distribution of essential commodities and trade and commerce therein by issuance of orders in that behalf for maintaining or increasing supplies of such commodities or for securing their equitable distribution and availability at fair prices etc.
while under section 5 the Central Government can delegate its powers in that behalf to an officer or authority subordinate to it or to any State Government.
It appears that on December 8, 1971 in exercise of the powers conferred by sub section
(1) read with cls.
(d), (e), (i) and (j) of sub section
(2) of section 3 of the Act read with the order of the Government of India, Ministry of Commerce No. so 1844 dated June 18, 1966, and the order of that Government in the Ministry of Food, Agriculture, Community Development and Co operation (Department of Food) No. G.S.R. 1111 dated July 24, 1971, the State of Gujarat passed its order called "The Gujarat Essential Articles Dealers (Regulation) order, 1971", for the purpose of maintaining supplies of essential articles and for securing their equitable distribution and availability at fair prices.
Now, the Act as also the Regulation Order contain an enlistment of items which are regarded as 'essential commodities ' or '.
essential articles '; section 2(a) of the 142 Act defines 'essential commodity ' as meaning any of the classes of commodities enlisted in its various sub clauses and sub cl.
(vii) refers to the item "paper" while cl.
(v) of the Regulation order defines 'essential article ' as meaning any of the articles specified in Schedule I and item 13 in that Schedule relates to "paper" but at both the places the item has been described in identical manner, viz: "Paper, including newsprint, paper board and strawboard".
It seems that the enlistment of the item "paper" in the above manner in section 2(a) (vii) of the Act has not been amended, altered or changed but its enlistment in the Regulation order has undergone a change, for by a Notification dated July 10, 1975, the Schedule I of the Regulation order was recast and more items were added.
Schedule I so amended by the said Notification now includes the item "paper" at sl.
No. 14 which runs thus: "14.
Paper" including news print, paper board, straw board and exercise note books.
" In other words, by the Notification dated July 10, 1975 exercise note books have come to be specifically added to the item "paper".
The main question is whether exercise books are covered by the item "paper" as described in section 2 (a) (vii) of the Act and in Item 13 in Schedule I to the Regulation order as it stood before its amendment by the Notification dated July 10, 1975.
Counsel for the appellant raised two or three contentions before us in support of this appeal.
He emphasized the fact that on July 4. 1975 when the stock of exercise books was seized from the appellant 's shop by the Mamlatdar both in section 2(a) (vii) of the Act as well as under Entry 13 in Schedule I to the Regulation order the item "paper" as an essential commodity was described in a particular manner without the addition of "exercise note books" which was made in the Regulation order after the seizure had been effected.
On construction of the item "paper" he first contended that the expression "paper" ordinarily means a sheet or sheets of paper and an exercise book being a distinct commodity was excluded from that item.
Secondly, he urged that this would be.
so because even while providing for an inclusive description of the item the legislation has included only news prints, paper boards and straw boards within it but not exercise books and, therefore, the expression "paper" should be construed as excluding exercise books.
Thirdly, he urged that so far as the Gujarat Regulation order is concerned the very fact that by Notification dated July 10, 1975 Item 14 in Schedule I was enlarged so as to include specifically exercise note books within the expression "paper" clearly shows that 143 the legislative intent was to exclude exercise books from the expression "paper" under Item 13 in Schedule I as it stood prior to that date.
Lastly, he urged that since the provisions of the Act as well as the Regulation order were penal in character, the item "paper" should be construed narrowly in favour of the person proceeded against and as such the view taken by the learned Sessions Judge should be upheld.
In support of these submissions counsel relied upon a decision of this Court in State of Bihar vs Bhagirath Sharma and Another,(1) where this Court, having regard to the legislative history and penal character of the concerned order took the view that the item like "component parts and accessories of automobile", though of wide import did not cover tyres and tubes of motor cars and motor cycles.
According to him, therefore, the learned Sessions Judge was right in his view that the expression "paper" did not cover exercise book and that the seized exercise books were not liable to be confiscated under section 6A of the Act.
The question thus centres round the proper construction of the item "paper" as described in section 2(a) (vii) of the Act and item No. 13 of Schedule I to the Regulation order.
On this question the object or purpose of the Act and the Regulation order as well as the manner in which 'essential commodity ' or 'essential article has been defined therein will have considerable bearing.
As stated earlier, the object or purpose of both the pieces of legislation is to control the production, supply and distribution of essential commodities or essential articles with view to ensure that the common man gets them at fair prices without any let or hindrance on the part of the trade and it is with this object that the item "paper" has been enlisted as an essential commodity or essential article in the Act and take Regulation order.
Further though section 2(a) of the Act and Cl.
2(v) of the Regulation order purport to define 'essential commodity ' or 'essential article ' that expression has no meaning of its own and in substance both under section 2 (a) (vii) of the Act and Cl.
2 (v) of the Regulation order an enumeration or enlistment has been made of several items as constituting essential commodities or essential articles for the purposes of the Act and the Regulation Order and it will appear clear that items have been enumerated or enlisted under broad general heads and some of the items are stated to include certain things which may not in ordinary parlance fall within the broad general head.
The item 'paper" will have to be considered in the light of this position which emerges clearly on a consideration of several items enlisted as essential commodities or essential articles.
The item "paper" is described thus: "Paper including news print, paper board and straw board".
(1) ; 144 According to the Concise Oxford Dictionary paper means "A substance used for writing, printing, drawing, etc.
made of interlaced fibres of rags, straw, wood, etc.
" In Webster 's New World Dictionary (1962 Edn.) the meaning of the word "paper" is given as follows: "Paper thin flexible material in sheets or leaves, made from rags, wood pulp., or other fibrous decorate etc." In Black 's Law Dictionary (Revised Fourth Edition 1968) the expression "paper" is explained thus: "Paper a manufactured substance composed of fibres (whether vegetable or animal) adhering together in forms consisting of sheets of various sizes and of different thicknesses, used for writing or printing or other purposes to which flexible sheets are applicable." In substance, therefore, paper, whether lined or blank, means a material on which writing, printing, drawing etc.
can be done.
In light of this meaning of the expression "paper" the question is whether an exercise book would be covered by that expression or not ? It cannot be disputed that an exercise book is nothing but a collection of sheets of paper (blank or lined) stitched together by a piece of string or pinned together with pins of a stappler and is a substance used for writing and, therefore, would clearly fall within the item "paper".
The test would be whether because of stitching or pinning them together such a collection of sheets looses its identity as paper ? The answer must be in the negative.
Looked at from this angle it is difficult to accept the contention that an exercise book is a distinct commodity other than paper.
It is true that an inclusive description has been given of the item "paper" in section 2(a) (vii) of the Act and Item 13 in Schedule I to the Regulation order, but if the inclusive part is carefully scrutinised it will appear clear that the things mentioned in the inclusive part may not ordinarily be regarded as paper and, therefore, by the inclusive part an extended meaning or description is given to the expression "paper".
Since an exercise book (which is nothing but a collection of sheets of paper intended to be used for writing) squarely falls within the dictionary meaning of the word "paper" there was no necessity to mention it in the inclusive part of the description.
On a true and proper construction, therefore, we are clearly of the view that within its normal dictionary meaning the item "paper" as described in section 2(a) (vii) of the Act and Item 13 in Schedule I to the Regulation order covers an exercise book.
145 Moreover, such a construction would be in consonance with and carry out effectively the object or purpose of the Act and the Regulation order.
Counsel for the appellant undoubtedly relied upon the fact that so far as the Gujarat Regulation order is concerned it was by notification dated July 10, 1975 that the description of item "paper" (being item No. 14 in the recast Schedule I) was enlarged so as to include specifically 'exercise notebooks ' and, according to counsel, this clearly shows that initially the legislative intent was to exclude exercise book from the expression "paper" under Item 13 in Schedule I to the said order as it originally stood.
It is not possible to infer such legislative intent from the mere fact that the item "paper" has been amended and enlarged so as to include within it exercise books by means of the subsequent Notification.
In fact, as discussed earlier, since an exercise book squarely falls within the dictionary meaning of the expression "paper" we have held that it was unnecessary to mention it in the inclusive part of the description as it originally stood and in that inclusive part such things had been mentioned as could not in ordinary parlance be regarded as "paper".
In our view the amendment and enlargement of the item "paper" so as to include specifically exercise books was made ex majore cautela to make things abundantly clear and, therefore, no inference as regards the initial legislative intent of the type suggested can be drawn.
Counsel also contended that since the Act as well as the Regulation order contain penal provisions, the item "paper" should he construed strictly and narrowly in favour of the appellant firm which was being proceeded against under the said pieces of legislation.
The true rule of construction in that behalf has been set out in Maxwell on Interpretation of Statutes (12th Edn.) at page 246 where the following passage occurs: "The effect of the rule of strict construction might be sum med up by saying that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself.
If there is no ambiguity, and the act or omission in question falls clearly within the mischief of the statute, the construction of a penal statute differs little, if at all, from that of any other.
" It would thus appear clear that it is only when there is some equivocation or ambiguity about a word or provision that the rule of strict construction or narrow construction in favour of the subject is to be applied 146 but if there is no ambiguity and the act or omission falls clearly within the mischief of statute then the construction of a penal statute will not differ from that of any other.
Applying this principle to the facts of the present case it is clear that there is no ambiguity or equivocation of the item "paper ' occurring in section 2(a) (vii) of the Act and Item 13 of Schedule I of the Regulation order and since an exercise book squarely falls within the dictionary meaning of "paper" as used in the said provisions, there will be no question of construing that item narrowly so as to exclude exercise book therefrom and in favour of the appellant firm.
That takes us to the decision of this Court in State of Bihar vs Bhagirath Sharma and Anr.
(supra) on which the appellant firm strongly relied.
In that case the question was whether Motor Tyres and Motor Tubes were covered by the item "Component parts and accessories of automobiles" occuring in Item No. 1 in Schedule I to the Bihar Essential Commodities Act other than Foodgrains Prices and Stocks (Display and Control) order 1947 and this Court undoubtedly took the view that though the said item I was widely worded it did not include Motor Tyres or Motor Tubes and that no interference was called for in the order passed by the High Court acquitting the respondents of the charge that they had failed to display the price list and the stock position of the Motor Tyres anywhere in their shop in contravention of Cl.
(4) of the said order.
In our view, the decision is clearly distinguishable on the ground that the drafting precedents furnished by several Notifications that obtained there warranted such a conclusion.
From the inception along with Item 1 (component parts and accessories of automobiles) there was in the concerned Prices and Stocks (Display and Control) order, 1947 another item being Item 5 which ran thus: "Cycle tyres and tubes (including cycle rickshaw tyres and tubes)" which suggested that where "Tyres and Tubes" were intended to be included as the Item in the Schedule these had actually been expressly so stated as distinct from the "component parts and accessories or automobiles"; further, by a Gazette Notification (No. GSR 82) dated September 18, 1970 published in the Bihar Government Gazette (Extra ordinary) four items were added, one of them being Item No. 11, Which ran thus: "Tyres and tubes of cars, buses, jeeps, vans, trucks automobiles of any category whatsoever, tractors and tractor trollies.
", even the Central Government had issued three Notifications a Notification dated 11 January, 1968 (No. S.O. 218) issued by the Ministry of Commerce, in which "Tyres and Tubes of Scooters" were expressly mentioned as essential commodities distinct from the component parts and accessories of automobiles; a Notification dated 22 August, 1968 (No. s o. 2878) in which "Tyres and Tubes of Cars etc." were.
147 specifically mentioned as essential commodity and a Notification dated A 3rd January, 1969 (No. S.O. 25) in which "Tyres and Tubes of Cars " were mentioned in the manner almost similar to the one found in the Bihar Government Gazette Notification No. GSR 82 dated 18 September, 1970.
It was in the back ground of these drafting precedents furnished by such Notifications that this Court took the view that the draftsman did not intend the scheduled item No. 1 in the Order as in force in May, 1969 to cover "Tyres and Tubes of Motor cars".
In the instant case before us there are no such drafting precedents of the type which obtained in the aforementioned case.
As stated earlier, the Item "paper" in s.2 (a) (vii) in the Act has all along remained the same without any modification, alteration or enlargement and it is only the item No. 13 in the Schedule to the Regulation order (a subordinate piece of legislation) that has undergone a change and the item has been amended so as to include specifically "exercise notebooks".
We have no doubt in our minds that the said amendment to the item "paper" is declaratory or clarificatory in nature.
In the circumstances, in our view, the High Court was right in coming to the conclusion that the exercise books of the appellant firm that were seized were liable to confiscation and the remand order made by the High Court was proper.
The appeal is accordingly dismissed.
N.V.K. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The term "paper" is described as "paper", including newsprint, paper board and strawboard" in section 2(a) (vii) of the as well as in Item 13 in Schedule I to the Gujarat Essential Articles Dealers (Regulation) order 1971.
By a notification dated July 10, 1975, the Schedule 1 of the Regulation order was recast and more items were added.
Item No. 13 of the Regulation order after it was recast by the amendment of 1975 and renumbered as section No. 14 read as follows: "14.
Paper including newsprint, paper, strawboard and exercise note books.
" The appellant is a firm dealing in books and stationery articles.
On a surprise inspection and search of the appellant 's shop it was found that in regard to exercise books the appellant committed breach of the Regulation order, in that he did not display the stock; thereof that he did not write the names of customers on the bills issued to them and that he did not maintain the stock registers properly and thereof a sizable quantity of exercise books were seized.
The Collector found that the appellant was guilty of breach of the Regulation order and directed that the seized stocks of exercise books be confiscated under section 6A of the Act.
In appeal the Sessions Judge set aside the Collector 's order on the ground that exercise books did not fall within the item "paper" as envisaged in the Act and the Regulation order.
In proceedings under article 227, the High Court book the view that the term "paper" was wide enough to cover exercise books, which was nothing but a collection of papers, stitched together by a piece of string or pinned with pins of stappler, and quashed the order of the Sessions Judge.
Dismissing the appeal to this Court: ^ HELD: (1) On a true and proper construction, within its normal dictionary meaning the item "paper" as described in section 2(a)(vii) of the Act and Item 13 in Schedule I to the Regulation order covers an exercise book Such a construction would be in consonance with and carry out effectively the object or purpose of the Act and the Regulation order.
[144H 145A] 139 Black 's Law Dictionary (Revised Fourth Edn. 1968).
Webster 's New World Dictionary (1962 Edn.); Concise oxford Dictionary, referred to.
(2) 'Though section 2(a) of the Act and cl.
2(v) of the Regulation order purport to define 'essential article ' that expression has no meaning of its own and what follows is an enumeration of articles regarded as essential for the purposes of the Act and the order.
[143 F] (3) An inclusive description has been given to the item "paper" in the Act and the Regulation order, but the inclusive part refers to things that may not ordinarily be regarded as paper and, therefore, an extended meaning or description is given to the expression "paper".
Since an exercise book (which is nothing but a collection of sheets of paper intended to be used for writing), squarely t`falls within the dictionary meaning of the word "paper" there was no necessity to mention it in the inclusive part of the description.
[144 F H] (4) The amendment and enlargement of the item ' 'paper ' ' so as to include specifically exercise books was made ex majore cautela to make things abundantly clear and, therefore, no inference as regards the initial legislative intent that it was to exclude exercise books from the expression "paper" under item 13 in Schedule I to the said order as it originally stood can be drawn.
[145 D] (5) It is only when there is some equivocation or ambiguity about a word or provision in a penal statue that the rule of strict or narrow construction in favour of the subject is to be applied but if there is no ambiguity and the act or omission falls clearly within the mischief of the statute then the construction of a penal statute will not differ from that of any other.
[145 H 146A] Maxwell on interpretation of Statutes (12th Edn.) p. 246 referred to.
(6) In the instant case there is no ambiguity or equivocation of the item 'paper" and an exercise book squarely falls within the dictionary meaning of "paper".
[146 B] State of Bihar vs Bhagirath Sharma & Anr., ; distinguished.


judgement:
ivil Appeal Nos.
1249 of 1968 and 1946 of 1972.
From the Judgment and order dated 27 9 1965 of the Allahabad High Court in Special Appeal No. 95/62.
V. section Desai and Rameshwar Nath for the Appellant (In CA 1946/ 72) .
G. N. Dikshit and O. P. Rana for the Respondent in C.A. 1946/ 72.
D The Judgment of the Court was delivered by TULZAPURKAR, J.
These appeals by certificate under article 133(1) of the Constitution raise an important question whether an assessee having once exercised the option regarding the method of computation of his agricultural income by filing the requisite declaration along with his return is entitled to change the option under the U.P. Agricultural Income Tax Act, 1948 ? The appellant assessee (The Delhi Cloth and General Mills Company Limited, Delhi) is a company registered under the Indian Companies Act and has certain agricultural farms at Daurala in Meerut District from which it derives agricultural income chargeable to levy of agricultural income tax and super tax under section 3 of the U.P. Agricultural Income Tax Act, 1948 (hereinafter called 'the Act ').
Section 6(2) of the Act provides two alternative methods of computation of agricultural income, (a) Rental method (multiple of Annual Rental income) mentioned in clause (a) or (b); Produce method (subject to deductions) mentioned in clause (b) and under section 6(1) an option is given to the assessee to select one or the other method whichever may be advantageous to him.
Such option is required to be indicated ill a Declaration in the prescribed Form No. A.I.T. 2 to be submitted under Rule S of the U.P. Agricultural Income tax Rules, 1949 alongwith his return under section 15 of the Act.
For the assessment year 1954 55 a return of the agricultural income for the relevant previous year ending June 30, 1954 (1361 Fasli) was filed under 112 section 15(2) of the Act on November 27, 1954 by the appellant assessee, returning a net income of Rs. 1,06,664.
Alongwith the return a declaration in Form No. A.I.T. 2 was also filed indicating the option to be assessed in accordance with section 6(2) (b) of the Act.
On April 4, 1955 the appellant assessee discovering some mistake in the said re turn filed a revised return under section 15(4) of the Act showing the net income at Rs. 98,854 and explaining that the difference was due to certain further deductions that were claimed on account of expenses, and while filing such revised return the option unders.s 2 (b) was adhered to.
However, notwithstanding the filing of the aforesaid two returns, one on November 27, 1954 and the revised return on April 4, 1955, on April 7, 1955 the Assessing Authority served upon the appellant assessee a notice under s.15(3) requiring the latter to furnish within period specified in the notice a return in the prescribed form and verified in the prescribed manner setting forth its total agricultural income in the previous year relevant to the assessment year 1954 55 and alongwith such notice a provisional estimate of the assessee 'section agricultural income for the previous year (i.e. 1361 Fasli) computed under s.6(2)(a) was also furnished as required by section 15(3 B) of the Act; the provisional estimate made in accordance with s.6 (2) (a) of the Act showed the income of the assessee at Rs. 2,07,923/9/ .
It appears that neither the original return filed on November 27, 1954 nor the revised return filed on April 4, 1955 was found to be correct or complete by the Assessing Authority and, therefore, on April 14, 1955 the Assessing Authority served a notice under s.16(2) of the Act on the appellant assessee requiring it to produce evidence in support of its return; in reply the assessee produced some evidence in the form of accounts and vouchers and details of the various expenses were also supplied.
On September 29, 1955, however, another notice was given to the appellant assessee stating that its income had escaped assessment to the tune of Rs. 38,947/ and objections were invited.
Thereupon, the appellant assessee applied for inspection of the record before the Assessing Authority, but the application was rejected on October 18, 1955 against which a revision was filed by the appellant before the Revision Board and on April 29, 1958 the Board allowed the revision application and the Assessing Authority was directed to permit the inspection of the record.
Thereupon the appellant took inspection of the record, but on November 8, 1958, being the date fixed for the hearing of the objections, the appellant filed a fresh return (third return) in respect of its agricultural income for the self same previous year (1361 Fasli) and this was done in response to the notice dated April 7, 1955 that had been served upon it by the Assessing Authority under section 15(3 B) of the Act and along 113 with this return, which showed the net income of Rs. 1,79,543/5/9, a declaration in the prescribed Form No. A.I.T. 2 selecting the method of computation.
Of agricultural income under s.6(2) (a) was also filed and the appellant prayed that it should be allowed to change the option and have its income computed under s.6(2) (a) instead of under section 6(2) (b) as previously intimated.
The Assessing Authority without first deciding the question whether the appellant was entitled to change the option as sought, by its order dated March 27, 1959 made a best judgment assessment in accordance with the method under s.6(2) (b) of the Act and assessed the appellant 's income at Rs. 4,82,231.05 nP on which the tax liability was assessed at Rs. 2,88,488.46 nP.
The appellant challenged the assessment order ill an appeal to the Commissioner who by his order dated July, 1, 1959 allowed the appeal, set aside the assessment and remanded the case back to the Assessing Authority with a direction that he should first dispose of the question relating to change of option which the appellant had claimed he was entitled to have and then make the assessment in accordance with law after allowing the appellant an opportunity to lead evidence in support of its return.
The Assessing Authority thereupon went into the question of change of option and by its order dated November 17, 1959 held that the appellant had no right to change its option and that the assessment had to be made in accordance with s.6(2) (b) of the Act.
The appellant went in revision before the Agricultural Income Tax Revision Board challenging the said order of the Assessing Authority but the Revision Board by its order dated January 27, 1960 upheld the decision of the Assessing Authority.
The Board took the view that an assessee having exercised the option once in Form No. A.I.T. 2 filed alongwith the original return could not change that option subsequently while filing another return or revised return under the Act.
By a Writ Petition, being Civil Misc.
Writ No. 1382 of 1960 filed in the Allahabad High Court the appellant challenged the validity of the two orders, one of the Assessing Authority and the other of the Revision Board and sought a mandamus directing the Assessing Authority to assess the appellant 's tax liability after computing its agricultural income for the relevant previous year in accordance with s.6(2)(a) of the Act instead of under s.6(2)(b) of the Act.
The learned Single Judge who heard the writ petition by his judgment and order dated October 13, 1961 accepted the contention of the appellant that it was open to it to change its option with the filing of a subsequent or fresh return with the result that the impugned orders were quashed and he issued a direction to the Assessing Authority 114 that it shall proceed to assess the appellant assessee in accordance with the option expressed by it on November 8, 1958.
The respondents preferred an appeal to the Division Bench of the High Court being Special Appeal No. 95 of 1962 and the Division Bench allowed the appeal, set aside the decision of the learned Single Judge and restored the orders passed by the Assessing Authority and the Revision Board.
In its judgment dated September 27, 1965, the Division Bench took the view that the assessee had no right to change the option.
Initially the appellant preferred an appeal.
to this Court being Civil Appeal No.1249(NT) of 1968 on the strength of a certificate issued by the Allahabad High Court under article 133(1)(a) of the Constitution but at the time of the hearing of that appeal this Court accepted the preliminary objection raised by the respondents to the maintainability of the appeal on the ground that the High Court was not competent to grant the certificate under articles 133 (1) (a) in as much as the issue before the High Court was incapable of valuation and the order appealed against could not come within the scope of the said provision; this Court, therefore, revoked the said certificate and sent the case back to the High Court for fresh consideration inasmuch as the appellant 's prayer for grant of certificate in the High Court was made both under articles 133(1) (a) and 133(1) (c) of the Constitution and directed the High Court to consider the prayer for grant of the certificate under the latter provision.
Thereafter the High Court by its order dated April 18, 1972 granted the certificate under article 133(1) (c) on the ground that the question of law involved was of substantial importance and also of great public importance and it is on the strength of such certificate that was issued by the High Court that the Civil Appeal No.1946 (NT) of 1972 has been filed by the appellant in this Court.
However, in both the appeals the principal question raised is whether an assessee who has once exercised his option in regard to the method of computation of his agricultural income by filing the requisite declaration in the prescribed Form No. A.I.T. 2 alongwith his first or initial return can change the option under the Act? In may be stated at outset that after the judgment was delivered by the learned single Judge of the Allahabad High Court on October 13, 1961 answering the point in favour of the assessee, the Assessing Authority, since no stay was obtained during the pendency of Special Appeal No. 95 of 1962, proceeded with the assessment of the appellant on the basis of that judgment and completed the assessment on December 19, 1962, in accordance with section 6(2)(a) of the Act and 115 we are informed at the Bar that the appellant has paid the tax according to that assessment order.
But after the reversal of the judgment.
Of the learned Single Judge by the Division Bench that assessment order became ineffective and a fresh assessment order was made on July 30, 1969 in accordance with the judgment of the Division Bench by adopting the method of computation indicated in s.6(2) (b).
Against that assessment order dated July 30, 1969 the appellant preferred ar.
appeal but the same was dismissed on June 23, 1970 and a revision against the dismissal of that appeal is pending before the U.P. Agricultural Income tax Board.
The position, therefore, would be that if the appellant succeeds in these appeals the assessment order made against it on July 30, 1969 and which has been confirmed in appeal on June 23, 1970 and which is the subject matter of revision before the Board will be rendered ineffective and the assessment order made against it on December 19, 1962 will revive and hold the field and the appellant shall be taken to have complied with the demand under that order but in case the appellant fails in these appeals the Appellate order dated June 23, 1970 subject to the result of the revision will become operative.
Counsel for the appellant raised two or three contentions before us in support of the appeals.
In the first place he contended that under section 6(1) of the Act an option to choose one or the other method of computation of agricultural income has been given to the assessee so that he could choose whichever method was advantageous to him and the assessee would be entitled to exercise such option every time he files a return, be it the initial or first return or a subsequent return or a revised return, in regard to his agricultural income of any particular previous year, especially, as Rule 5 of the U.P. Agricultural Income tax Rules.
1949 makes it incumbent upon the assessee to file a declaration in Form A.I.T. 2 indicating his option alongwith "his return of income".
He urged that this position becomes all the more clear if the provisions of the present s.6 and Rule 5 are considered vis a vis the said provisions before they were amended.
Secondly, he urged that in the instant case in spite of the appellant having filed its first return of November 27, 1954 and its revised return of April 4, 1955, the Assessing Authority had, served upon it a notice under s.15(3) alongwith a statement showing provisional estimate of the agricultural income of the appellant at Rs. 2,07,923 9 annas in accordance with s.6(2) (a) for the relevant previous year ending June 30, 1954 (1361 Fasli), pursuant to which the appellant filed a fresh return on November 8, 1958 for the said previous year indicating in the accompanying 116 declaration in Form No. A.I.T. 2 the option for computation in accordance with s.6(2) (a) of the Act and, therefore, the Assessing Authority had to make the assessment in accordance with s.6(2)(a) of the Act.
Thirdly, he contended that in any event since the Assessing Authority after the issuance of the notice under section 16(2) had proceeded to make a best judgment assessment under s.16(4) it had no option but to make the assessment with due regard to the statement of provisional estimate served under s.15(3 B) notwithstanding any option exercised under s.6(1) of the Act.
on the other hand, counsel for the respondents supported the view taken by the Division Bench of the High Court by contending that the option conferred upon an assessee by section 6 is to be exercised in accordance with the provisions of the Act and the Rules and the only provision is that contained in Rule 5 which speaks of a declaration indicating the option being filed alongwith 'his return of income ' which could only be when the assessee filed his first or initial return and there is no provision for filing such a declaration alongwith any subsequent return or revised return.
He urged that only s.15(4) speaks of filing a revised return which could be done only if the assessee discovered any wrong statement in the return previously filed by him under sub s.1 or 2 or 3 of section 15 but a statement made in such previously filed return does not become wrong merely because the assessee had selected the wrong option; in other words, the assessee does not get the right to file a revised return under s.15(4) merely because he wishes to change the option.
He? therefore, urged that in the absence of any positive provision being contained in the Act or the Rules conferring upon the assessee the right to change the option, the right of the option once exercised must be held to have become final.
He, further urged that the aspect whether an assessee will have a right to change the option by filing a fresh declaration along with a return filed in response to the notice served under section 15(3) of the Act, notwithstanding his having filed a return under section 15(1) or section 15(2) and having exercised his option at that time, was not raised before the High Court by the appellant and as such the appellant should not be permitted to raise it now inasmuch as there is no material on record to show that the return filed by the appellant on November 8, 1958 was in response to that notice or was within time specified in that notice.
In any event, he urged that sub sections
(1), (2) and (3) d section 15 are independent provisions and the notice under section 15(3) does not give an assessee any right to change the option.
He further urged that in the instant case the assessee could be said to have acquiesced in the proceedings that were taken by the Assessing Authority on the 117 two earlier returns which were filed by him based on s.6(2)(b) and as such the appellant could not be allowed to change the option initially exercised by it.
In order to decide the main question that has been raised in these Appeals it will be necessary to refer to the provisions of s.6 and Rules S, and 7, as they stood originally and as they stand now after the amendments.
Originally s.6, which dealt with computation of agricultural income and conferred an option on the assessee to select one or the other of the two methods of computation mentioned therein ran thus: "6.
Computation of agricultural income. (1) The agricultural income mentioned in sub clauses (i), (ii) and (iii) of clause (b) of sub section (1) of section 2 shall, at the option of the assessee, be computed m accordance with clause (a) or clause (b) of sub section (2): Provided that an assessee who has once exercised his option shall not be entitled to vary the method of computation except with the permission of the Board of Revenue.
(2) (a) Subject to such deduction in respect of agricultural calamities as may be prescribed, the income shall be, deemed to be such multiple, not exceeding 71 per cent, of the rent of the land calculated at the latest sanctioned rent rates applicable to hereditary tenants of similar class of soil, as the Board of Revenue may fix for each district or portion thereof: Provided that the Board of Revenue may direct that the multiple for calculating income from and newly brought under cultivation shall for the specified number of years be such lower figure as may be specified, or (b) the income shall be the gross proceeds of sale of all the produce of the land subject to the Following deductions: (Here followed sub clauses (i) to (xiii) specifying the (deduction) .
(3) If the assessing authority is satisfied that the proceeds of sale have not been correctly shown by the assessee or that any portion of the produce has not actually been sold, he may assess the value of the produce for purposes or clause (b) of sub section (1) of section 2 by determining, to the best of his judgment.
the amount of produce and the market value thereof " 118 Original Rules S, 6 and 7 of the U.P. Agricultural Income Tax Rules, 1949, framed under s.44 of the Act ran thus: "5.
An assessee shall, along with his first return of in come, file a declaration in Form No.
A.I.T. 2 indicating his option under sub section (1) of section 6. 6.
The declaration filed by an assessee under rule S shall be preserved by the assessing authority in a separate guard file.
Where an assessee desires to vary the method of computation indicated under rule 5, he shall before the first day of August of the year in respect of which assessment is to be made.
present an application for permission in that behalf to the assessing authority addressed to the Board of Revenue and the former shall without unnecessary delay forward the same together with such remarks as it may consider proper of the Board of Revenue for necessary orders.
" lt may be stated that the aforesaid provisions came up for consideration before Division Bench of the Allahabad High Court in Kr.
Jyoti Sarup vs Board of Revenue, U.P. (Lucknow) and Anr.
(1) and justice Mukherji took the view that "this proviso (meaning the proviso to sub s (1) of section 6) means that once and only once during the course of an assessee 's "assessable life", can he, unfettered, exercise the option given to him under s.6(1) of the Act and that if once he has exercised his option, he cannot, without the permission of the Board, take the other alternative." Justice Bind Basni Prasad, the other Member of the Bench, observed that "My interpretation of s.6 (1) is that after the commencement of the U.p.
Agricultural Income Tax Act, an assessee has once selected one method of computation of agricultural income he cannot vary it subsequently in any year without the permission of the Board of Revenue.
The proviso is not limited in its application to variation of such method in the course of a year".
Thereafter, the Legislature thought of amending these provisions.
By the Amending Act XVIII of 1954 the aforesaid proviso to s.6(1) was deleted with effect from July 1, 1954 and an altogether different proviso unconnected with the option was substituted.
By a Notification No. 2590/I C289 C 53 dated August 29, 1953 the word "first" n occurring between the words "his" and "return" was deleted from (1) 119 Rule 5 with effect from the date of the Notification.
Rules 6 and 7 were totally deleted.
The amended section 6 as it stands today runs thus: "6.
Computation of agricultural income. (1) The agricultural income mentioned in sub clause (i), (ii) and (iii) of clause (b) of sub section (1) of Section 2 shall, at the option of the assessee, be computed in accordance with clause (a) or clause (b) of sub section (2), Provided that the agricultural income as aforesaid for tea gardens shall be computed in accordance with clause (b) of sub section (2).
(2) (a) Subject to such deductions in respect of agricultural calamities as may be prescribed, the income from the land shall be deemed t o be an amount equal to its rent multi plied by such multiple not exceeding 12 1/2 as the Land Reforms Commissioner may fix, and different multiples may be fixed for different districts or portions of district and for different classes of groves and orchards: Provided that the Land Reforms Commissioner may direct that the multiple for calculating income from land newly brought under cultivation shall for a specified number or years be such lower figure as may be prescribed.
Explanation.
In this section rent shall be deemed to be an amount calculated at the latest sanctioned rent rates applicable to hereditary tenants of the highest class of soil in the village in the case of orchards and groves and of similar class of soil in other cases.
(b) the income shall be the gross proceeds of sale of all the produce of the land subject to the following deductions.
(Here followed sub clauses (i) to (XIII) specifying the deductions) .
(3) If the assessing authority is satisfied that the proceeds of sale have not been correctly shown by the assessee or that any portion of the produce has not actually been sold, he may assess the value of the produce for purposes of clause (b) of sub section (1) of Section 2 by determining.
to the best of his judgment, the amount of produce and the market value thereof.
" 120 The amended Rule S as it now stands runs thus: "5.
An assessee shall, along with his return of income, file a declaration in Form A.I.T. 2 indicating" his option under sub section (1) of Section 6.
" The Form No. A.I.T. 2 of declaration of the option for computation of income under s.6 reads thus: "In pursuance of Section 6(1), I,. do here by declare that I have elected the method of computation of agricultural income provided by Section 6(2)(a)/6(2)(b) and Lave computed my income accordingly.
" It seems to us clear that section 6 as originally framed gave an assessee the right to exercise the option, unfettered, only once after the commencement of the Act if he once selected one method of computation of agricultural income he could not vary it subsequently in any year without the permission of the Board of Revenue which was given absolute discretion to grant or to refuse such permission.
At any rate, that was how the original unamended provisions were authoritatively interpreted by the Allahabad High Court.
Relying upon the deletion of the original proviso to s.6(1) of the Act by the Amending Act XVIII of 1954 and the deletion of the word "first" which occurred originally in Rule S as also the deletion of Rules 6 and 7, counsel for the appellant contended that whatever may have been the position under the original section 6 and original Rules 5, 6 and 7, under the amended s.6 read with the amended Rule 5 it would be clear that there is no restriction on the assessee`s right to change the option and it would be open to an assessee not merely to change his option every year but even to change his option during.
the year by filing a fresh return or a revised return for the same year indicating the change in the declaration accompanying such fresh return or revised return provided, of course, it is done before the assessment is completed by the Assessing Authority.
In our view, there is considerable force in this contention for the reason that whatever restrictions had been imposed on the change of option by the original proviso to s.6(1) have been removed and the concept of "first return deleted from Rule 5.
That being so, the expression "his return of income" occurring in Rule 5 would apply to any of returns contemplated under s.15 of the Act, namely, (1) a return filed in pursuance of the general notice issued and published by the Collector under s.15(1): (2) a return filed by the Principal officer of a Company under section 15(2) read with section 21; (3) a return filed in pursuance of individual notice served upon an assessee by the Assessing Authority under 121 s.15(3) and (4) a return or a revised return filed by an assessee A under section 15(4), provided that in the first three cases the return is filed within time specified in the notice or the rule or within the extended time granted by the Assessing Authority and in the last case the revised return is filed on account of discovery of a wrong statement in the previous return and is filed before the assessment is complete.
In fact, Rule 5 is obligatory and makes it incumbent upon an assessee to file along with his return of income a declaration in Form No. A.I.T.2 indicating his option under section 6(1) of the Act and as such the exercise of such option including a change of the option indicated in the declaration filed along with a subsequent return or a fresh return or a revised return will be valid provided the return itself is validly submitted.
In this view of the matter it is not possible to accept the view of the Division Bench of the High Court that if once option is exercised by an assessee by filing the requisite declaration along with his return for a particular year he will have no right to change his option by filing a fresh return or a revised return before the assessment is made for that year.
Turning to the factual aspects in the case the main question that arises is whether the return filed by the appellant on November 8, 1958 was in pursuance of the notice served by the Assessing Authority upon the appellant under s.15(3) of the Act or whether it was a revised return filed under s.15(4) of the Act and his question assumes significance because it was along with this return that the assessee had filed a declaration in Form No.
A.I.T. 2 indicating a change in the option and praying that the computation of its agricultural income should be made in accordance with section 6(2) of the Act instead of under s.6(2)(b) as mentioned in the declarations filed alongwith two earlier returns dated November 27, 1954 and April 4. 1955.
t is obvious that if the return dated November 5, 1958 was filed under section 15(4) then in order to avail of the change of the option the appellant will have to show that it was really a revised return in the sense that the same had been filed because of a wrong statement discovered in the earlier returns filed by him.
The Division Bench of the High Court G has rightly taken the view that a wrong statement in the earlier returns does not mean selection of a wrong option by the assessee; in other words, the assessee does get the right to file a revised return under section 15(4) merely because he wishes to change the option.
Counsel for the appellant, however, contended that the fresh return filed by the appellant on November 8, 1958 was not a revised return under s.15 (4) at all but was a return filed in response to the notice that was served upon it by the Assessing Authority on April 7, 1955 under 9 817SCI79 122 s.15(3) of the Act.
In this behalf counsel for the respondent did make a grievance before us that there was no material on record to show whether, in fact, the return filed on November 8, 1958 was in response to the notice served under s.15(3) and if so, whether the same Was filed within time or the extended time, if any, granted by the Assessing Authority.
The hearing of the appeal was, therefore, adjourned to enable both the parties particularly the Revenue which will be possessing the records to produce material in that behalf and at the resumed hearing though no material by way of assessment re cords of files in the custody of the Assessing Authority was produced by the Revenue, the appellant placed on record a copy of the return dated November 7, 1958 (which was filed on November 8, 1958) together with a copy of the declaration in the Form No.
A.I.T. 2 and the forwarding letter.
The forwarding letter dated November 7, 1958 clearly shows that the return was filed in response to the notice dated April 7, 1955 served upon the appellant under s.15(3) of the Act.
The said letter in terms referred to the notice dated April 7, 1955 under s.15(3) as also to the statement of provisional estimate of agricultural income for the relevant previous year 1953 54 (1361 Fasli) prepared under section 6(2) (a) read with section 15(3 B) accompanying the notice and further stated that the appellant had decided, in order to avoid further prolonged litigation, to accept the provisional estimate of agricultural income under section 6(2) (a) (subject only to necessary corrections as regards area and classification of soil etc.) and to suffer agricultural income tax: on that basis and requested the Assessing Authority to complete the assessment in accordance with section 6(2) (a) of the Act.
It is, therefore, clear that the return filed by the appellant on November 8, 1958 was in response to the notice served upon it by the Assessing Authority under s.15(3).
Moreover, the said return was rejected by the Assessing Authority not on the ground that it had been filed beyond time but on the ground that the appellant had no right to change its option which clearly suggests that the return was treated by the Assessing Authority as having been filed within time but the same was rejected on merits holding that the appellant was not entitled to change its option.
It is thus clear that the return filed by the assessee on November 8, 1958 was not a revised return under s.15 (4) but a fresh return filed within time in response to notice under s.15(3) served upon it by the Assessing Authority and as such the appellant was entitled to change its option and have computation of its agricultural income made in accordance with s.6(2) (a) of the Act.
The fact that the appellant had produced some evidence in pursuance of notice received under s.16(2) in relation to its earlier returns or that it took inspection of the records of the Assessing Authority can 123 not and does not amount to acquiescence or waiver of its right to file a, declaration indicating its option a fresh long with the return validity filed in response to the notice served under section 15(3) of the Act.
Apart from the aforesaid position there is yet one more aspect to which we would like to refer in relation to the question raised before us in these appeals and that arises in view of the provisions of s.16(4) of the Act under which the Assessing Authority makes its best judgment assessment.
In this connection ss.15(3), 15(3 B) and 16(4) the Act will have to be considered together.
Section 15(3) runs thus: "15(3) In the case of any person whose total agricultural income is, in the opinion of the assessing authority.
such amount as to render such person liable to payment of agricultural income tax in any year, he may serve in hat year .
a notice in the prescribed form requiring such person to furnish within such period, not being less than thirty days as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner setting forth (alongwith such other particulars as may be provided for in the notice), his total agricultural income during the previous year: Provided that the assessing authority may in his discretion extend the date for delivery of the return.
" Section 15(3 B) runs thus: "15(3 B) Alongwith the notice under sub section (3) the assessing authority shall send a statement showing a pro visional estimate of the agricultural income which in his opinion accrued to the person during the previous year.
The estimate shall be prepared in accordance with the provisions of clause (a) of sub section (2) of Sec ion 6 and be in such form and contain such particulars as may be prescribed." In the instant case, as we have said above, notice under s.15(3) was served by the Assessing Authority upon the appellant and as required by s.15(3 B), alongwith the notice the Assessing Authority had sent a statement showing the provisional estimate of the agricultural income which in its opinion accrued to the appellant during the previous year 1953 54 which estimate was prepared in accordance with the provisions of section 6(2) (a).
Admittedly, the change of opinion sought to be exercised by the appellant was denied to it by the Assessing Authority and the Assessing Authority proceeded with the assess 124 ment of the agricultural income of the appellant assessee in accordance with s.6(2)(b).
Admittedly further, the Assessing Authority had issued a notice under s.16(2) requiring the appellant to produce evidence in support of its earlier returns.
On September 29, 1955 the Assessing Authority served a further notice upon the appellant in forming the latter that agricultural income to the tune of Rs. 38,947/ had escaped assessment and invited objections from the appellant whereafter it seems that the Assessing Authority not being satisfied with the evidence produced by the appellant proceeded to make its best judgment assessment under section 16(4).
Section 16(4) runs thus: "16(4) If the principal officer of any company or other person fails to make a return under subsections (2) or (3) of Section 15, as the case may be, or, having made the return, fails to comply with all the terms of the notice issued under sub section (2) of this section or to produce any evidence required under sub section (3) the assessing authority shall make the assessment lo the best of his judgment with due regard to the statement, if any, sent under sub section (3 B) of Section 15, notwithstanding any option exercised under sub section (1) of section 6.
" It will appear clear from the aforesaid provision contained in s.16(4) that whenever the Assessing Authority proceeds to make the assessment to the best of its judgment the same is required to be made "with due regard to the statement, if any, sent under sub section (3 B) of section 15 notwithstanding any option exercised under sub section
(1) of s.6.
lt is thus clear that irrespective of whatever option might have been exercised by the assessee the best judgment assessment has to be made by the Assessing Authority by having due regard to the statement of provisional estimate of agricultural income made in accordance with s.6(2)(a) of the Act.
The non obstante clause leaves it open tc the Assessing Authority to select whatever basis it consider appropriate for computing and determining the true agricultural income of the assessee; it may adopt any one of the bases in respect of the entire agricultural area or adopt one basis in respect of one part of agricultural area and the other basis in respect of another part, the only obligation being to have "due regard" to the statement under s.15(3 B).
The scheme of s.16(4) clearly shows that in regard to the best judgment assessment there is nothing sacrosanct about the option exercised by the assessee under section 6(1) of the Act, equally it can be said that in regard to assessments other than best judgment assessments under the scheme of s.15 there is nothing sacrosanct about the particular option previously exercised by the assessee and he need 125 not be held bound by it provided he changes the option by filing a subsequent or a fresh or a revised return in accordance with the applicable provisions contained in s.15, the object being to determine his true agricultural income for the relevant previous year, though so far as the Assessing Authority is concerned such option whether original or subsequent, would indisputably be binding on it.
In view of the aforesaid discussion we are clearly of the view that the learned Single Judge of the Allahabad High Court was right in his conclusion that the appellant assessee was entitled to have tho computation of its agricultural income for the previous year 1953 54 (1361 Fasli) relevant to the assessment year 1954 55 done in accordance with section 6(2) (a) of the Act.
The appeals are, therefore, allowed, the order of the Division Bench dated September 27, 1965 in Special Appeal No. 95 of 1962 is set aside and that of the learned Single Judge dated October 13, 1961 in Civil Misc.
Writ No. 1382 of 1960 is restored.
The appellant will get the costs of Civil Appeal No.1946(NT) of 1972 from the respondents while each party will bear and pay its own costs of Civil Appeal No. 1249 (NT) of 1968.
P.B.R. Appeal allowed.

summary/full:
Section 6(1) of the U.P. Agricultural Income tax Act, 1948 gives an option to an assessee to select one of the two alternative methods of computation of agricultural income as provided in section 6(2), whichever is more advantageous to him.
Such option is required to be indicated along with his return submitted under section 15 of the Act.
While submitting its return for the assessment year 1954 55 the assessee chose the option to be assessed under section 6(2) (b) of the Act.
It later submitted a revised return under section 15(4) but stuck to the option to be assessed under section 6(2) (b) .
The assessing authority, notwithstanding the filing of these two returns by the assesses, called upon it to file a return of the income computed under section 6(2)(a).
Thereafter the assessing authority served a notice on the assesses requiring it to produce evidence in support of it return.
After the assesses produced the required evidence, the assessing authority issued a notice to the effect that certain income escaped assessment and called for its objections, if any.
The assesses asked for inspection of records; but it was refused.
At the instance of the assesses the Revision Board directed true assessing authority to permit inspection of the record.
After inspection of the record he assesses filed a fresh (third) return.
At this stage the assesses preferred the method of computation of income provided under section 6(2)(a) instead of section 6(2)(b) which it chose earlier.
Without deciding the question as to whether the assesses was entitled to change the option, the assessing authority made a best judgment assessment under section 6(2)(b).
On appeal the Commissioner directed the assessing authority to first decide the question relating to change of option whereupon the assessing authority held that the assesses had no right to change its earlier option.
On further appeal the Revision Board upheld the order of the assessing authority.
In the assessee 's writ petition challenging the order of the assessing authority a single Judge of the High Court held that it was open to the assesses to change its option at the time of filing a subsequent or fresh return.
But the Division Bench was of the view that the assesses had no right to change its option.
In its appeal the assessee contended before this Court that (1) it is open to the assessee to change its option not merely every year but during the year by filing a fresh return or a revised return provided it is done before tho assessment is completed (2) although the assessee filed its first return and the 110 revised return, the assessing authority issued a notice under 8.
15(3) along with a statement of provisional estimate computed in accordance with section 6(2) (a) pursuant to which the assessee filed the third return exercising the option for computation in accordance with section 6(2) (a) and, therefore, the assessing authority had to make the assessment in accordance with section 6(2) (a) and (3) in any event since the assessing authority had proceeded to make a best judgment assessment under section 16(4) it had no option but to make the assessment with due regard to the provisional estimate served under section 15(3B) notwithstanding any option exercised under section 6(1) of the Act.
Allowing the appeals, ^ HELD: The Division Bench of the High Court was wrong in holding that when once the option is exercised by an assessee by filing the requisite declaration he will have no right to change the option by filing a fresh return or revised return before the assessment is made for that year.
[121 Cl 1.
Whatever restrictions had been imposed on the change of option by the original proviso to section 6(1) had been removed and the concept of "first return ' was deleted from r. 5 That being so, the expression "his return of income" occurring in r. S would apply to any of returns contemplated under section 15, In fact r. 5 is obligatory and makes it incumbent upon an assessee to file, along with his return, a, declaration indicating his option under section 6(1).
The exercise of such option.
including a change of option indicated in the declaration filed along with a subsequent return or a fresh return or a revised return, will be valid provided the return itself is validly submitted.
[120 G H] 2.
If the return was filed under section 15(4), then in order to avail of the change of the option the assessee will have to show that it was really a revised return in the sense that the same had been filed because of a wrong statement discovered in the earlier returns.
Clearly the third return was filed in response to) the notice issued by the assessing authority under section 15(3).
This return was rejected by the assessing authority not on the ground that it had been filed beyond time but on the ground that the assessee had no right to change its option which suggests that the return was treated by the assessing authority as having been filed within time but was rejected on merits holding that the assessee was not entitled to change its option.
Therefore the third return was not a revised return under section 15(4) but a fresh return filed within time in response to the notice under section 15(3) and as such the assessee was entitled to change its option and have the computation made in accordance with section 6(2) (a).
The fact that the assessee had produced come evidence in pursuance to the notice in relation to its earlier returns or that it took inspection of the records cannot and does not amount to acquiescence or waiver of its right to file a declaration indicating its option afresh along with the return validly filed in response to the notice under section 15(3) of the Act.
[121 F G;122D; G H] 3.
Moreover, irrespective of whatever option might have been exercised by the assessee the best judgment assessment has to be made by the assessing authority by having due regard to the statement of provisional estimate of agricultural income made in accordance with section 6(2) (a).
Under section 16(4) whenever the assessing authority proceeds to make the assessment the same is required to be made "with due regard to the statement, if any, sent under 111 section 15(3 B) notwithstanding any option exercised under section 5(1).
" The scheme of section 16(4) clearly shows that in regard to the best judgment assessment there is nothing sacrosanct about the option exercised by the assessee under section 6(1); equally it can be said that in regard to the assessments other that best judgment assessments under the scheme of section 15 there is nothing sacrosanct about tho particular option previously exercised by the assessee and he need not be held bound by it provided he changes the option by filing a subsequent or a fresh or a revised return in accordance with the applicable provisions in section 15.
So far as the assessing authority is concerned such option, whether original or subsequent, would be binding on it.
[124F; H]


judgement:
Civil Appeal No. 453 of 1969.
(From the Judgment and order dated 12 9 68 of the Orissa High Court in Misc.
Appeal No. 208 of 1966).
Sardar Bahadur Saharya and Vishnu Bahadur Saharya for the appellant.
Nemo for the respondent.
CHANDRACHUD, C.J. Respondent 1 obtained a money decree on August 18, 1962 against respondent 3 and his mother respondent 4.
On June 28, 1963 respondent 1 filed an execution petition for recovering the decretal amount and prayed therein for attachment of the Immovable property belonging to respondent 3.
The property was attached by an order passed by the Executing Court on July 13, 1963.
On November 27, 1963 respondent 1 filed an application in the Executing 198 Court praying that permission be obtained of the Revenue Divisional officer for sale of the property since respondent 3 to whom the property belonged was a member of the Scheduled Tribe.
The permission was considered necessary by reason of the provisions contained in Clause 6 of the ""Orissa Scheduled Areas Transfer of Immovable Property by Scheduled Tribes Regulation No. 2 of 1966".
It provides: In execution of money decree against a member of a Scheduled Tribe no right title or interest held by him in any immovable property within any scheduled area shall be liable to be attached and sold except as and if prescribed.
Rule 4 made under the aforesaid Regulation provides: There shall be no attachment or sale of immovable property in execution of a money decree against a member of a Scheduled Tribe within any scheduled area without the writ ten permission of the competent authority.
The property at such a sale shall be sold only to a member of a Scheduled Tribe unless otherwise specifically directed in writing by the competent authority.
The Revenue Divisional officer, Nowrangpur, was the competent authority for the present purpose.
Respondent 3 who was in the meantime negotiating for the private sale of the property moved the R.D.O., Nowrangpur on June 18, 1963 for permission to sell the property to a non Scheduled Tribe person.
He obtained the requisite permission by an order dated October 23, 1963 for the sale of the property for Rs. 4,000/ .
On the strength of the aforesaid permission respondent 3 sold the property to the appellant on January 2, 1964 by a registered deed of sale.
A copy of the order passed by the R.D.O. was produced by respondent 1 in the Executing Court whereupon on May IS, 1964 the property was put to sale.
Respondent 2, who is the son of respondent 1 purchased the property in the auction sale.
On June 22, 1964 the appellant filed an application under order 21 Rules 89 and 90 and Sections 47 and 151 of the Code of Civil Procedure praying that the auction sale should be set aside on the ground that the attachment and the auction sale were void since they were effected without obtaining the permission of the competent authority under Orissa Regulation No. 2 of 1956.
The appellant also alleged that the decree holder had played a fraud on the Court by inducing it 23, 1963 which was passed by the competent authority at the instance 23, 1963 which was passed by the competent authority at the instance of the appellant.
199 Respondent 2 resisted the appellant 's application on the ground that he was a bona fide purchaser in a court sale, that the aforesaid sale was held after the competent authority had granted permission for the sale of the property and that therefore his title to the property was not liable to be displaced at the instance of the appellant.
The learned District Munsif who dealt with the matter accepted the contention of the appellant and set aside the auction sale.
In Civil Miscellaneous Appeal No. 9 of 1965 filed by respondent 1, the Appellate Judge confirmed the order of the District Munsif and dismissed the appeal.
Respondent l then filed a second appeal in the Orissa High Court, being Miscellaneous Appeal No. 208 of 1966.
Before the High Court respondent 1 raised two contentions only viz., (1) that the judgment debtor, respondent 3, was not a member of the Scheduled Tribe and therefore the attachment and the court sale were not void; and (2) that the judgment debtors, having failed to take objection to the attachment on the ground that they belonged to a Scheduled Tribe, were debarred from objecting to the sale of the property on the principle of constructive res judicata.
The High Court rejected the first contention relying mainly on the circumstance that respondent 1, the decree holder, had accepted the position that respondent 3 whose property was being put to sale was a member of the Scheduled Tribe.
The High Court however accepted the second contention on the ground that neither respondent 3 nor the appellant had taken any objection in the execution proceedings that since the former had no saleable interest in the property the auction sale could not be held or that the permission given by the, R.D.O. did not authorise the sale.
Being apprieved by the judgment of the High Court dated September 12, 1968, the, private purchaser from the decree holder has filed this appeal.
We are in agreement with the view of the High Court that it is not open to respondent 1, the decree holder, to contend that respondent 3 whose property was put to sale in the execution proceedings was not a member of the Scheduled Tribe.
Respondent 1 filed his execution petition for the purpose of recovering the decretal dues by attachment and sale of the property belonging to one of the judgment debtors, respondent 3.
Respondent 1 himself asked the Executing Court to secure the permission of the competent authority for sale of the property on the ground that respondent 3 whose property was to be put to sale belonged to the Scheduled Tribe.
The permission from the competent authority was later obtained by the appellant, with whom respondent 3 was negotiating for a private sale of his property.
The 200 permission which was granted by the R.D.O., Nowrangpur at the instance of the appellant was produced by respondent I in the execution proceedings as if the permission was granted in his favour for the sale by respondent 3 of his property.
Respondent 1 cannot then be permitted to dispute that respondent 3 did not belong lo a Scheduled Tribe and therefore the permission of the competent authority was not needed to validate the sale.
The contention that respondent 3 did not belong to a Scheduled Tribe was founded solely on the consideration that he belonged to the Bhotra tribe which is not expressly mentioned as on of the Scheduled Tribes in the schedule to the Constitution (Scheduled Tribes), order 1950.
It may be assumed that respondent 3 is a Bhotra.
But paragraph 2 of the Scheduled Tribes order, 1950 provides to the extent material that the Tribes, or parts of, or groups within the Tribes specified in the Schedule to the order shall also be deemed to be Scheduled Tribes.
Whether Bhotras fall within any of the sub groups or the Scheduled Tribes enumerated in Part IX of the Schedule to the 1950 order is a question which could not have been permitted to be raised for the first time in the second appeal.
Much less can it be allowed to be raised before us.
This appeal, like the second appeal before the High Court, must therefore be disposed of on the basis that respondent 3 is a member of the Scheduled Tribe.
Upon that footing, the appellant must succeed because after the R.D.O., Nowrangpur granted permission to sell the property on October 23, 1963, the property was purchased by the appellant from respondent 3 on January 2, 1964.
Prior to that sale the property was undoubtedly attached in execution proceedings on July 13, 1963 but the order of attachment was void, being contrary to the express inhibition contained in Clause 6 of Regulation No. 2 of 1956 read with Rule 4 made thereunder.
Both Clause 6 and Rule 4 provide that no immovable property belonging to a member of the Scheduled Tribe is liable to be attached or sold except in accordance with the Permission granted by the competent authority.
Under the registered sale, Ext. 4, executed by respondent 3 in favour of the appellant, the title to the property vested in the appellant.
The appellant having become an owner of the property on account of the aforesaid private sale, respondent 3 had no saleable interest left in the property which could be put to sale in the court auction.
It is elementary that what can be brought to sale in a court sale is the right, title and interest of the judgment debtor and therefore, the auction purchaser can get nothing more than that right, title and interest.
The judgment debtor not having any saleable interest in the property at all on the date of the auction sale, there was nothing that respondent 2 could get in the auction sale which was 201 held in execution of the money decree obtained by his father, respondent 1.
The auction sale therefore cannot displace the title of the appellant which is the same thing as saying that as between the title of the appellant and the so called title of the auction purchaser, the appellant 's title must prevail.
It must follow that the auction sale is bad and must be set aside.
There is an additional reason why the auction sale is not valid By the permission granted by the R.D.O., Nowrangpur on October 23, 1963 for sale of the property, one of the conditions imposed on the judgment debtor was that the property shall be sold for a sum of Rs 4,000/ .
In the private sale, the appellant purchased the property for Rs. 4,000/ and therefore the condition of the permission was complied with.
But the auction sale was held in satisfaction of the decretal dues which were far less than Rs. 4,000/ , the decree itself being in the sum of Rs. 1,000 odd and the highest bid at the auction being of Rs. 3,000/ only.
As the condition imposed by the R.D.O. regarding the price was violated by the auction sale, the auction purchaser cannot get a valid title to the property under that sale.
In this view, no question of res judicata can arise because the basic issue ill the appeal is as regards the validity of the auction sale in favour of respondent 2.
The appellant claims through the judgment debtor and neither the latter nor the decree holder ever disputed that he, the judgment debtor, was a member of the Scheduled Tribe.
On the other hand both of them were conscious of the situation that the property could not be sold without the sanction of the R.D.O., Nowrangpur.
The decree holder himself, apprised the Executing Court of that position.
The failure, there, of the judgment debtor to raise any particular contention cannot operate as res judicata, actually or constructively, either against him or against the appellant.
For these reasons we allow the appeal, set aside the judgment of the High Court and confirm that of the learned Subordinate Judge, Koraput, setting aside the court sale in favour of respondent 2.
There will be no order as to costs.
S.R. Appeal allowed.

summary/full:
On the strength of the permission granted by the Revenue Divisional Officer, as required under clause 6 of the Orissa Scheduled Areas Transfer of Immovable Property by Scheduled Tribes Regulation 3 of 1956 and Rule 4 made thereunder, to sell his private property to a non scheduled Tribe person for a sum of Rs. 4000/ , Respondent 3 sold his property on January 2, 1964 by a registered deed of sale to the appellant, despite an attachment order passed by the Executing Court on July 13, 1963 on an application dated June 28, 1963 made by Respondent 1 to recover the decretal amount as per the money decree obtained by him on August 18, 1962 against Respondent 3 and his mother Respondent 4.
Later, Respondent No. 1 however, produced the copy of the order passed by the R.D.O. dated October 23, 1963, at the instance of appellant in the Executing Court and got the property put to sale on May 15, 1964.
In the court auction respondent 2 son of respondent 1 purchased the property.
On June 22, 1964, the appellant filed an application under order 21 Rules 89 and 90 and Section 47 and 151 C.P.C. for setting aside the auction sale on the ground that the attachment and the auction sale were void for want of permission from the competent authority under Orissa Regulation 2 of 1956 and also due to fraud committed by the decree holder.
The application was allowed followed by confirmation by the appellate judge, in appeal.
But the High Court in Second Appeal reversed it accepting the contention of res judicata.
Allowing the appeal by special leave, the Court.
^ HELD: 1.
Both clauses 6 of the "Orissa Scheduled Areas Transfer of Immovable Property by Scheduled Tribes Regulation 2 of 1956, and Rule 4 made thereunder, provide that no immovable property belonging to a member of the scheduled Tribe is liable to be attached or sold except in accordance with the permission granted by the competent authority.
Prior to the sale to the private party, the property was undoubtedly attached in execution proceedings on July 13, 1963, but the order of attachment was void, being contrary to the express inhibition contained in clause 6 of Regulation 2 of 1956 read with Rule 4 made thereunder.
[200E G] 2.
The auction sale is bad and invalid: It is elementary that what can be brought to sale in a Court sale is the right, title and interest of the judgment debtor and therefore, the auction purchaser can get nothing more than that right, title and interest.
In the instant case, the appellant having become an owner of the property on account of the 197 Private sale dated January 2, 1964 respondent 3 had no saleable interest left in the property which could be put to auction.
The auction sale therefore cannot displace the title of the appellant which is the same thing as saying that as between the title of the appellant and the so called title of the auction purchaser the appellant 's title must prevail.
[200G H, 201A] Moreover, as the condition imposed by the R.D.O. regarding the price was violated by the auction sale, the auction purchaser cannot get a valid title to the property under that sale.
In the private sale, the appellant purchased the property for Rs. 4,000/ and therefore the condition of the permission was complied with.
But the auction sale was held in satisfaction of the decretal dues which were far less than Rs. 4,000/ the decree itself being in the sum of Rs. 1,000/ and odd and the highest bid at the auction being of Rs. 3,000/ only.[201 B C] 3.
(a) The basic issue being the validity of auction sale in favour of respondent 2, no question of res judicata can arise.
the appellant claims through the judgment debtor and neither the latter nor the decree holder ever disputed that he, the judgment debtor, was a member of the Scheduled Tribe.
On the other hand both of them were conscious of the situation that the property could not be sold without the sanction of the R.D.O., Nowrangpur.
The decree holder himself apprised The Executing Court of that position.
The permission which was granted by the R.D.O., Nowrangpur at the instance of the appellant was produced by respondent 1 in the execution proceedings as if the permission was granted in sis favour for the sale by respondent 3 of his property.
The failure, therefore, of the judgment debtor to raise any particular contention cannot operate as res judicata actually or constructively, either against him or against the appellant.
[201 D F] (b) Whether "Bhotras" fall within any of the sub groups of the Scheduled Tribes enumerated in Part IX of the Schedule to the Constitution (Scheduled Tribes) Order, 1950 is a question which could not have been permitted to be raised for the first time in the Second Appeal.
Much less can it be allowed to be raised in this Court in an appeal under article 136 of the Constitution.[200C D]