LAKSHMANASAMI GOUNDER Vs. COMMISSIONER OF INCOME TAX SELVAMANI

JUDGEMENT

(1.) Special leave is granted.

(2.) This appeal is against the judgment dated 4/04/1991 of the Madras High court. A sum of Rs. 12,163.50 was alleged to have been misappropriated by the appellant (now he was acquitted of the charge of misappropriation) and for the recovery thereof his 13. 07 acres of coffee estate situated in Semmanthaputhur village was brought to sale under the Tamil Nadu Revenue Recovery Act, 1864 (for short 'the Act'). On 30/03/1979 the sale by auction was held by the Tahsildar. Respondent 1 purchased for a sum of Rs. 12,225. 00 and deposited a sum of Rs. 2,000. 00 being 15 per cent of the sale price. Under S. 36 of the Act, respondent 1 should have deposited the balance consideration within 30 days from the date of the auction. On 23/10/1981 the sale was confirmed and the balance amount was deposited on 4/11/1981. Theappellant filed an application but by proceeding dated 23/10/1981, the Revenue Divisional Officer overruled the objections and dismissed the application. On appeal the Additional District Collector, Salem set aside the sale on 13/10/1982. Respondent 1 filed Writ Petition No. 246 of 1984 in the High court. The learned Single Judge by judgment dated 21/08/1990 quashed the order of the Additional District Collector. On writ appeal, the division bench dismissed it. Thus this appeal.

(3.) The formidable objection raised by the appellant is that it is mandatory under section 36 that the date and place of sale shall be published in the gazette and that the publication did not mention the place of sale. Therefore, the sale is invalid in law. It is also his further plea that it is equally mandatory that the balance sale consideration of 85 per cent should be deposited within 30 days from the date of sale which was done only on 4/11/1981 long after one year and eight months of the date of sale. The sale and confirmation thereof are, therefore, illegal. The learned Single Judge and the division bench held that Form 7-A of the forms prescribed under the Act read with relevant provisions of the Board Standing Order No. 41 does not prescribe the place of sale and that, therefore, the omission to specie the place of sale does not render the sale invalid nor an irregularity. Shri Selvamani, respondent 1-in-person (himself a practising advocate) contended that it is Form 7 and not Form 7-A that would be applicable to the facts of the case. Form 7 contains the place of sale and that it was complied with. Therefore, the sale is not illegal. It is also contended that the deposit was made after protracted correspondence and that, therefore, the non-deposit within 30 days from the date of sale is not illegal. At any rate, having accepted the amount, the authority acquiesced to the deposit. Therefore, the confirmation of the sale is not illegal. We find no substance in either of the contentions. The contention that Form 7 and not Form 7-A would be applicable to the facts, is not the case set up or argued either before the authorities or the courts below. For the first time he cannot raise that plea in this court. That apart specifically the High court (learned Single Judge and the Division bench) held that it is Form 7-A that is applicable and that it does not prescribe publication of place of sale and therefore, the omission thereof does not render the sale invalid. The High court wholly misconceived of S. 36. A reading of S. 36 manifests that the word 'shall' is mandatory in the context.