Baharul Islam, J. - (1.) IN these Rules a common question fails for decision. The question is, whether the provision of Section 68(2) of the Assam Land and Revenue Regulation is mandatory as contended by counsel for the Petitioner.
(2.) THE Bakijai proceedings impugned in the Rules arises out of agricultural income -tax, Civil Rule No. 478 of 1972 relates to the assessment year 1962 -63. Civil Rule No. 479 of 1972 to the assessment year 1963 -64 and Civil Rule No. 480 of 1972 to the assessment year 1964 -65. It will be sufficient if we refer to the facts of Civil Rule No. 472/78. The material facts are that the Petitioner company owns a tea estate manufacturing and selling tea within the State of Assam. It is assessed to agricultural income tax under the Assam agricultural Income Tax Act, 1939 (hereinafter 'the Act'). For the assessment year 1962 -63 the Agricultural Income -tax Officer (Respondent No. 1) assessed the Petitioner under Section 20(4) of the Act at Rs. 70,919/ - of agricultural income -tax. The Petitioner did not prefer any appeal and paid Rs. 51,000/ - of the assessed tax. The Respondent No. 1 issued a Certificate to the Collector of Dibrugarh (Respondent No. 3) for recovery of the balance amount of Rs. 61,919/ - for the assessment year 1962 -63. The Bakijai Officer, Dibrugarh (Respondent No. 2), on receipt of the certificate, initiated proceedings for the recovery of the said amount. In pursuance of the said proceedings the Nazir attached movable properties of the Petitioner worth Rs. 1,65,000/ -. The attachment was done without any notice as required under Section 68(2) of the Regulation.
(3.) MR . J.P. Bhattacharjee, learned Advocate General, Nagaland appearing for the Petitioner, submits that the attachment is without jurisdiction inasmuch as it is in violation of the provisions of the provide to Sub -section (2) of Section 68 of the Regulation, which he submits, is mandatory and non -compliance thereof vitiates the attachment. In reply Mr. B.C. Baruah, learned Advocate General, Assam submits that the provision to Sub -section (2) of Section 68 of the Regulation is directory and its non -compliance is a mere irregularity and does not vitiate the attachment. He submits that immediately the arrear is paid by the Assessee -Petitioner the movable seized will be released. The undisputed case is that movables seized have not been sold.;