M.M.Dutt, J. - (1.) In this appeal, the revenue has challenged the propriety of the judgment of Sabyasachi Mukharji J., whereby the learned judge made the rules nisi obtained by the respondents on their applications under Article 226 of the Constitution absolute.
(2.) On September 2, 1960, a sale proclamation was issued by the Certificate Officer and Additional District Magistrate, 24-Parganos, under Rule 46 of the Bengal Public Demands Recovery Act, 1913, in respect of three certificate cases, for the sale of premises Nos. 14/7 and 14/8, Jhowtola Road, Calcutta, for recovery of arrears of income-tax of the certificate-debtor, one Sheikh Mohammed Yaqoob. On November 7, 1960, the respondents filed three petitions of objections to the sale of the said two properties claiming the same to belong to them and not to the certificate-debtor. The Certificate Officer directed the ITO to submit a report on the said claim petitions. It appears that by his order dated May 27, 1961, the Certificate Officer extended the time for the submission of the report by the ITO by three months. The ITO did not, however, submit any report. Ultimately, on September 20, 1961, the Certificate Officer allowed the said claim petitions of the respondents and released the said properties.
(3.) After such release, the respondents sold the properties on October 12, 1961, and May 2, 1962. On March 29, 1962, the respondents purchased both the ownership right and the leasehold interest of premises No, 50A, Phears Lane, Calcutta. It appears that on September 30, 1962, another sale proclamation was issued by the Certificate Officer and Additional District Magistrate, 24-Parganas, under Rule 46 of the Bengal Public Demands Recovery Act, 1913, for the sale of the said premises No. 50A, Phears Lane, Calcutta, and two other premises being premises Nos. 21 and 22, Colootala Street, Calcutta, for the recovery of the certificate debt of the said certificate-debtor. Again, the respondents filed three petitions of objections under the Bengal Public Demands Recovery Act claiming the said three properties to belong to them and not to the certificate-debtor. When these claim cases were pending, on August 30, 1962, the ITO made an application for review before the Certificate Officer under Section 54 of the Bengal Public Demands Recovery Act praying for setting aside of the ex parte order dated September 20, 1961, whereby the claim cases of the respondents relating to the premises Nos. 14/7 and 14/8, Jhowtola Road, were allowed and the said properties were released. It was alleged by the ITO that he did not receive any notice fixing the date of hearing of the claim cases on September 20, 1961. By his order dated September 10, 1963, the said review application was rejected by the Certificate Officer. Being aggrieved by the said order, the Union of India preferred an appeal to the Presidency Divisional Commissioner who allowed the same with a direction to the Certificate Officer to rehear the matter on the issue whether the notice was served on the I.T. dept. or not. On August 16, 1965, the Certificate Officer set aside the ex parte order dated September 20, 1961, and fixed the hearing of the claim petitions. Against the said order dated August 16, 1965 of the Certificate Officer, the respondents preferred an appeal before the Presidency Divisional Commissioner on the ground that the Certificate Officer had been directed by the Commissioner to hear the matter only on the point of service of notice and he had no jurisdiction to set aside the order dated September 20, 1961. The Presidency Divisional Commissioner, however, dismissed the appeal and directed the matter to be heard on merits.;