GHANSHYAMDAS GOPALDAS MOHTA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE only point which arises for our consideration in the writ petition is whether the appeals filed under s. 86 of the Second Schedule to the I.T. Act, 1961, are governed by these provisions of s. 5 of the Limitation Act, 1963 (hereinafter referred to as 'the Limitation Act'). The facts relevant for the purposes of question under considerate may briefly be stated.

(2.) IT appears that the ITO had forwarded to the TRO, a certificate under the provisions of s. 222 of the I.T. Act, in the year 1964, for recovering a amount of Rs. 10,370.45 from the original petitioner, namely, Gopaldas Bulakhidas Mohta. After adjustments from time to time, the demand came to be reduced to Rs. 4,365 in the year 1972. In order to recover this amount, the TRO, who is respondent No. 2 herein, attached two pieces of agricultural lands bearing survey No. 14, admeasuring 4 acres 31 gunthas and survey No. 18/1 admeasuring 1 acre 5 gunthas. Both situated at Tajnapur. On June 22, 1972, the said Officer issued a proclamation of sale under rule 38 of the said rules read with r. 52(2) declaring that those two lands would be sold by public auction at 1.00 p.m. on July 13, 1972. In pursuance of this proclamation, the sale was held on July 13, 1972, and survey No. 14 was knocked down for Rs. 75,500 and survey No. 18/1 for Rs. 15,500. The upset price for these two lands and been fixed at Rs. 75,000 and Rs. 15,000, respectively. On August 10, 1972, Gopaldas Mohta filed an application before the TRO purporting to be under r. 61 read with r. 87 of the said rules. In this application, he contended that the sale held on July 13, 1972 was bad, firstly, because it was held within 30 days from the date of proclamation and as such in contravention of the provision contained in r. 55 of the Second Schedule and, secondly, that a much larger property had been put -on to sale for recovering a merger amount of Rs. 4,365. It was contended that material irregularities had been committed in the conduct of sale, which had resulted in a loss to the petitioner. It appears that besides Gopaldas Mohta, three ladies had also field an application on August 14, 1972, under the said rules for setting aside the said sale on the ground that they were equitable mortgagees of the land bearing survey No. 14 and that the proclamation was silent with respect to their said right. Besides this, they also challenged the sale on the same two grounds, on which Gopaldas Mohta had done it under his application stated above. When the application of Gopaldas Mohta was pending before the TRO, Gopaldas Mohta had filed two more applications on September 7, 1972, one for a review of the order for sale and second for permitting him to sell the lands privately. Proviso (b) to r. 61 provides that an application made by a defaulter under that rule shall be disallowed unless the applicant deposits the amount recoverable from him in execution of the certificate. It appears that because of the requirement of this proviso, Gopaldas Mohta made an application for permission to deposit the amount due from him on September 20, 1972. It is alleged that the TRO issued the requisite challan to him on September 20, 1972, and he deposited the amount on September 30, 1972. However, in the meanwhile, the TRO on September 29, 1972, passed his order on the application filed by Gopaldas Mohta on August 10, 1972, for setting aside the sale. The TRO rejected the application holding that Gopaldas Mohta had not fulfilled the requisite conditions laid down in r. 61 for setting aside the sale, namely, (a) that he had not proved any substantial injury by reason of irregularity, and (b) that he had not deposited the amount recoverable from him in execution of the certificate. He also dismissed the application for review. On the same day, the TRO proceeded to confirm the sale in favour of respondent No. 4, who was the auction -purchaser. While passing the order for confirming the sale. The TRO held that the officer conducting the sale was not empowered to sell the second lot, namely, survey No. 18/1. If the amount recoverable could be realised by the sale of the first lot, namely, the land bearing survey No. 14. In this view of the matter, the TRO confirmed the sale only in respect of the land bearing survey No. 14, but did not in respect of the other land.

(3.) THE TRO, respondent No. 3, first took up the application for condonation of delay for consideration. It appears that it was contended on behalf of the auction -purchaser, namely, respondent No. 4, herein, that the Tax Recovery Commissioner lacked the power to condone the delay firstly, became r. 86, which prescribes the period of limitation for appeal, did not invest him with any such power and, secondly, because s. 5 of the DGB Limitation Act was not applicable in view of the fact that the Tax Recovery Commissioner was not a 'Court' within the meaning of that section. This contention was opposed by the learned counsel appearing for Gopaldas Mohta before the Tax Recovery Commissioner on the ground that sub -s. (2) of s. 29 of the Limitation Act applied ss. 4 to 24 of the said Act to all cases where period of limitation had been laid down under a local or special law, it was contended before the said Commissioner that the I.T. Act was a special law and since the said Act or Rules did not expressly exclude the application of ss. 4 to 24 of the Act, s. 5 of the said Act would be applicable to the proceeding under the I.T. Act and hence the Tax Recovery Commissioner would be very much within his power to condone the delay by virtue of s. 5 of the Limitation Act. This submission on behalf of Gopaldas Mohta did not find favour with the said Commissioner and, holding that s. 5 of the Limitation Act was not applicable for condoning the delay. It is thereafter that Gopaldas Mohta filed the present petition of February 25, 1974. During the pendency of the petition, Gopaldas Mohta Expired and the present petitioners are his legal representatives.