Onward Trading Company vs The Tahsildar and Another

Nainar Sundaram, J.—The petitioner is facing revenue recovery proceedings in the State of Tamil Nadu for arrears of sales tax, which

became due in the State of Maharashtra. The notice impugned is that of the first-respondent, dated 9th January, 1980, calling upon the petitioner

to pay the arrears of sales tax dues referred to above. Mr. K. Ramagopal, learned counsel for the petitioner, would urge three points, inviting

interference in writ jurisdiction. The first point is, for the sales tax arrears which became due in the State of Maharashtra, the process under the

Revenue Recovery Act, 1890 (1 of 1890), hereinafter referred to as ""the Act"", cannot be initiated here in the State of Tamil Nadu. Such a

contention was raised and was repelled in Tarachand v. Tahsildar [1983] 52 STC 324 . In view of the above pronouncement, I am not able to

sustain this contention urged by the learned counsel for the petitioner.

Secondly, learned counsel would submit that the certificate for recovery under the Act has been admittedly issued by the Assistant

Commissioner, Sales Tax III, Bombay City division, under the powers delegated to him by the Collector of Bombay; and the present sales tax

arrears cannot be characterised as arrears of land revenue payable to such Collector so as to enable him to delegate the power to issue the

certificate, since the power of delegation is available only u/s 3 of the Act, in respect of an arrear of land revenue or a sum recoverable as an arrear

of land revenue, payable to the Collector and the power of delegation is not available in respect of any other sum recoverable as an arrear of land

revenue by any public officer than the Collector or by any local authority, as set out in section 5 of the Act. The distinction which the learned

counsel wants to make is that while section 3 of the Act contemplates an arrear of land revenue or a sum recoverable as an arrear of land revenue

payable to a Collector in respect of which under sub-section (2) thereof, there could be a delegation of power with reference to the issuance of the

requisite certificate; in contrast u/s 5 of the Act, no such power of delegation is available and permissible in respect of any sum recoverable as an

arrear of land revenue by any public officer other than the Collector or by any local authority. Section 3 reads thus :

Recovery of public demands by enforcement of process in other districts than those in which they become payable. - (1) Where an arrear of

land revenue, or a sum recoverable as an arrear of land revenue, is payable to a Collector by a defaulter being or having property in a district other

than that in which the arrear accrued or the sum is payable, the Collector may send to the Collector of that other district a certificate in the form as

nearly as may be of the Schedule, stating -

(a) the name of the defaulter and such other particulars as may be necessary for his identification, and

(b) the amount payable by him and the account on which it is due.

(2) The certificate shall be signed by the Collector making it (or by any officer to whom such Collector may, by order in writing, delegate this duty)

and, save as otherwise provided by this Act, shall be conclusive proof of the matters therein stated.

(3) The Collector of the other district shall, on receiving the certificate, proceed to recover the amount stated therein as if it were an arrear of land

revenue which had accrued in his own district.

Section 5 of the Act reads as follows :

Recovery by Collectors of sums recoverable as arrears of revenue by other public officers or by local authorities. - Where any sum is

recoverable as an arrear of land revenue by any public officer other than a Collector or by any local authority, the Collector of the district in which

the office of that officer or authority is situate shall, on the request of the officer or authority, proceed to recover the sum as if it were an arrear of

land revenue which has accrued in his own district, and may send a certificate of the amount to be recovered to the Collector of another district

under the foregoing provisions of this Act, as if the sum were payable to himself.

On an assessment of the language of both the provisions, I do not find any warrant to sustain the distinction advanced by the learned counsel for

the petitioner. The last set of expressions occurring in section 5, namely, ""under the foregoing provisions of this Act, as if the sum were payable to

himself"" is portent indeed and will certainly bring into play the provisions of section 3 for the purpose of delegating the power of issuance of the

requisite certificate to any other officer, even in respect of any sum recoverable as an arrear of land revenue by any public officer other than a

Collector or by any local authority. My attention has not been drawn to any authority which has expressed specifically a view different from the

one which I have expressed above. Hence, this contention also stands eschewed.

Thirdly, learned counsel for the petitioner would submit that assuming that the Collector has got the power of delegation, the delegation could be

only for the purpose of signing the certificate and nothing more and the certificate should emanate from the Collector only. Section 3(2) of the Act,

which empowers delegation and which by the force of the language of section 5 will certainly be attracted to proceedings u/s 5 speaks about the

Collector signing the certificate made by him and it further speaks about the delegation of his duty. This duty in the context could only mean the

composite duty of making and signing the certificate; and not only the duty of bare signing the certificate already made by the Collector. To say that

the power of delegation must be confined only to the signing of the certificate, to be made by the Collector would be practically negating the very

intendment and purpose of the provision of delegation. For a bare signing of a certificate, already made by the Collector, I do no think the

provision of delegation was enacted. Hence, I am not able to accept this contention.

I must record here that in the affidavit filed in support of the writ petition, what all has been averred with regard to the contentions, run as follows

in paragraph 20 thereof :

I further submit that u/s 3 of the Revenue Recovery Act, the Collector of the district to whom the arrear is payable, has to issue the certificate to

the Collector in whose jurisdiction the defaulter resides or his property is situated. The Assistant Commissioner of Sales Tax has no jurisdiction to

issue the certificate to the Collector of Madras and such a certificate will not confer jurisdiction of the first respondent to initiate proceedings under

the Revenue Recovery Act (1 of 1890). Hence, the proceedings initiated by the first respondent are illegal and without jurisdiction.

As we could see from the above averments, they have not touched specifically the contentions as they have been advanced before me. Yet, I

permitted the counsel to make his submissions and I have dealt with them as above. I have not sustained any of the contentions and accordingly the

writ petition fails and the same is dismissed. No costs.

Writ petition dismissed.