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Shrimati Bhuwaneshwari Devi Vs. Sales Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Miscellaneous Writ No. 1046 of 1955
Judge
Reported in[1957]8STC506(All)
AppellantShrimati Bhuwaneshwari Devi
RespondentSales Tax Officer and ors.
DispositionPetition dismissed
Excerpt:
.....dismissed all the objections by the impugned order dated the 17th of october, 1955. as regards the objections filed by the petitioner, the additional collector says that the petitioner failed to produce any evidence to show that the house was purchased from her stridhan property. 5. in view of sub-section (4) it is quite clear that if a notification has been issued by the state government authorising the additional collector of kanpur to exercise the powers of a collector in proceedings for recovery of sums as arrears of land revenue, the action of the additional collector would be perfectly within his jurisdiction. 6. the learned counsel then argued that the property was purchased in 1945 and there was no good reason for holding that it was not her personal property and that she was a..........and her property could not be attached in recovery of the sales tax due from (sic) her. she filed her objections in the court of the additional collector along with the objections of certain other persons. the additional collector dismissed all the objections by the impugned order dated the 17th of october, 1955. as regards the objections filed by the petitioner, the additional collector says that the petitioner failed to produce any evidence to show that the house was purchased from her stridhan property.3. the learned counsel for the petitioner has urged before us that the additional district magistrate has attached the property and it is he who is proceeding to sell it, but he has no jurisdiction to do so because under section 286 of the zamindari abolition and land reforms.....
Judgment:

Chaturvedi, J.

1. This is a petition under Article 226 of the Constitution praying that a writ of certiorari be issued quashing an order of the Additional District Magistrate of Kanpur dated 17th October, 1955, dismissing certain objections filed by the petitioner before him.

2. There is a firm named Sarveshwar Bhagwati Pd. with its office at Generalganj, Kanpur. Sri Sarveshwar, husband of the petitioner, is one of the partners of the firm. Sales tax is due from the firm for the years 1952-53 and 1953-54, which the firm has omitted to pay. The Sales Tax Officer sent a certificate to the Collector on the l6th of July, 1955, for the recovery of the amounts, as arrears of land revenue. The Collector attached a house situate in Mohalla Gandhi Nagar in proceedings for recovery of the amount of sales tax. The petitioner filed an objection saying that she was the owner of the house, having purchased it by a sale deed dated the 15th of August, 1945, and that it was her own personal property. She alleged that she was not the assessee and her property could not be attached in recovery of the sales tax due from (sic) her. She filed her objections in the court of the Additional Collector along with the objections of certain other persons. The Additional Collector dismissed all the objections by the impugned order dated the 17th of October, 1955. As regards the objections filed by the petitioner, the Additional Collector says that the petitioner failed to produce any evidence to show that the house was purchased from her stridhan property.

3. The learned counsel for the petitioner has urged before us that the Additional District Magistrate has attached the property and it is he who is proceeding to sell it, but he has no jurisdiction to do so because under Section 286 of the Zamindari Abolition and Land Reforms Act, it is only the Collector who can take proceedings for realisation of sums which are recoverable as arrears of land revenue. This point has not been taken anywhere in the grounds, and it also appears that nowhere in the petition or in the affidavit it has been stated that it is the Additional Collector who is taking proceedings for the realisation of the amount and not the Collector. A very long rejoinder affidavit has been filed but in none of the 38 paragraphs of that rejoinder affidavit it is stated that the Additional Collector is proceeding to recover the amount and not the Collector. For the above reasons we are not prepared to permit the learned counsel to take this ground at this late stage of the proceedings.

4. We may further state that under Sub-section (3) of Section 14A of the U. P. Land Revenue Act it is open to the State Government to issue orders authorising an Additional Collector to exercise and perform the powers and duties of a Collector. Sub-Section (4) then says :-

This Act and every other law for the time being applicable to a Collector shall apply to every Additional Collector, when exercising any powers or discharging any duties under Sub-section (3) as if he were the Collector of the district.

5. In view of Sub-section (4) it is quite clear that if a notification has been issued by the State Government authorising the Additional Collector of Kanpur to exercise the powers of a Collector in proceedings for recovery of sums as arrears of land revenue, the action of the Additional Collector would be perfectly within his jurisdiction. If a ground to this effect had been taken the standing counsel might have been in a position to produce the notification before the Court.

6. The learned counsel then argued that the property was purchased in 1945 and there was no good reason for holding that it was not her personal property and that she was a benamidar for her husband. The question whether the petitioner is the owner of the attached property or she is merely a benamidar for her husband and the property belongs to her husband, is a disputed question of fact. The Additional Collector has held that she is merely a benamidar for her husband. A question like this can more satisfactorily be determined in appropriate proceedings in a regular civil suit. The petitioner has a right to file a suit for appropriate reliefs and that remedy is equally efficacious and more appropriate than the remedy that the petitioner has sought here. It is obvious that a question of title like this cannot be satisfactorily decided on the strength of affidavits filed by interested parties.

7. This petition has no force and we accordingly dismiss it with costs.


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