C. M LODHA, C. J - (1.) BY this petition under Art. 226 of the Constitution, the petitioner has challenged the validity of the order dated December 23 1969, by the Additional Collector, Ajmer, and also the order dated July 28 1977, by the Board of Revenue for Rajasthan, whereby the order of the Additional Collector was confirmed in revision.
(2.) WE may state a few facts giving rise to this petition. Messrs. Kalu Ram Nemi Chand is a partnership firm, of which, admittedly, the two partners are Kalu Ram and his son Nemi Chand. An amount of Rs. 37,319. 50 P. was found due from firm Messrs. Kalu Ram Nemi Chand for the period commencing from October 20,1960 upto 1965. The last assessment is said to have been finalised on March 22, 1965. For recovery of the sales-tax dues the house in question was attached on July 22, 1968. Thereupon, the present petitioner, Shanker Lai filed an objection before the Additional Collector, Ajmer, alleging that the prooerty belonged to him and was not liable to be attached and sold for recovery of the sales-tax dues from the firm Messrs. Kalu Ram Nemi Chand His case, set out in the objection, was that Kalu Ram gifted away the house in question to his wife Smt. Bilam Bai by a registered gift-deed on July 17, 1961 and Smt. Bilam Bai sold the same to the Petitioner for a valuable consideration of Rs 25,000/-, by a registered sale-deed dated July 3,1968. The Additional Collector gave opportunity to both the parties to lead evidence on the point as to whether the petitioner was a bonafide purchaser for valuable consideration from a lawful owner. After recording the evidence produced by the parties he hold that the financial position of Kalu Ram was not sound at the time when he made the gift of the house in question to his wife and that the gift was made with an intention to evade the payment of sales-tax which could have been recovered by sale of the house, had it remained in the name of Kalu Ram. He also found that the liability for payment of sales-tax was there since April, 1961. In his view of the matter, he came to the conclusion that the gift made by Kalu Ram in favour of his wife Smt. Bilam Bai was not genuine. He also found hat the Possession of the property in question was not handed over to Shanker Lal. In the result, he dismised the objections. Aggrieved by the order of the Addi-tional Collector, the petitioner filed a revision-application before the Board of Revenue and the learned Member of the Board held that the sale by Smt. Bilam Bai on July 3 1968, in favour of the petitioner Shanker Lal was not a bonafide one and was made to defeat the recovery of the sales-tax dues. He has also upheld the finding by the learned Additional Collector regarding the genuineness of the gift by observing that "a gift by husband to wife in this context means nothing. " Learned Counsel for the petitioner has urged that the petitioner had made out a prima-facie case and the Additional Collector had no jurisdiction to decide the question whether the gift was valid and/or the sale by the donee in favour of the petitioner was not a bonafide one. In this connection, he has submitted that section 11-AAA, of the Rajasthan Sales-Tax Act has no application to this case in as much as section 11-AAA was inserted with effect from April 20, 1970. It is enough to point out that section 11-AAA provides that where during the pendency of any proceedings under the said Act, any dealer creats a charge on or parts with the possession by way of sale, mortgage, exchange, or any other made of transfer whatsoever of his immovable property in favour of any other person with the intention to defraud the revenue, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable under this Act by the dealer as a result of the completion of the said proceedings. But it is not necessary for us to examine the implications of the said section inasmuch as the learned counsel for both the parties are agreed that this section has no application to the present case. We called upon the learned counsel for both the parties to point out to us as to what procedure is to be followed when the property has been attached and a person aggrieved by the attachment raises an objection that the property does not belong to the defaulter, and the same is being wrongly attached. Both the! learned counsel submitted that there is no procedure prescribed for dealing with such an objection either under the Sales-Tax Act or under the Land Revenue Act, which is applicable for recovery of the Sales-tax dues. All that section 11 (3) of the Rajasthan Sales-tax Act, provides is that in default of payment of tax payment under sub-section (1) or sub-section (2), the payment of tax shall be recoverable as an arrear of land revenue. Sec. 228 of the Rajasthan Land Revenue Act, 1956. provides that an arrear of revenue or rent may be recovered, inter-alia, by sale of other immovable property of the defaulter (clause (c) of sec. 228 ). Sec. 237 of the Rajasthan Land Revenue Act further provides that if an arrear cannot be recovered by any of the above processes, i. e. processes mentioned in the preceding provisions and the defaulter owns, or has any interest in any other estate or any share in any other immovable property, the Collector may proceed against such estate or share or other immovable property as if it were the land on account of which the revenue or rent is due under the provisions of this Act, provided that no interest save those of the defaulter alone shall be affected by such process. Sec. 238 provides for proclamation of sale. Section 246 provides for application to set aside sale on deposit of arrears. Section 247 says that at any time within thirty days from the date of the sale, an application may be made to the Collector to set aside the Sale on the ground of some material irregularity or mistake in publishing or conducting it. Thus, there appears to be no provision in the Rajasthen Land Revenue Act under which an objection filed by a person to the attachment of a certain property for realisation of the sales-tax dues, or for the matter of that, any other dues, as arrears of revenue, may be investigated. The absence of such a provision, naturally provides scope for an argument as to which party should approach the civil court. Learned counsel for the petitioner has urged that it is for the sales-tax authorities to file a suit in a competent civil court to get a declaration that the property is liable to be sold for realisation of the dues from the defaulter, whereas, the learned counsel for the Department has urged that if the transfer is found to be void, i. e. sham and bogus, then it is for the aggrieved party to get his right to the attached property declared by a civil court. In a situation like this, we are of opinion that is depends upon the facts and circumstances of each case as to whether the aggrieved party should approach the civil court or the sales-tax authorities, which want to realise the sales-tax dues by sale of the property, should do so. On attachment of a certain property, if a person files an objection to the attachment on the ground that the defaulter has no right, title or interest in the property and that the property belongs to him and is not liable to be sold for realisation of the dues from the defaulter, it is the duty of the authority attaching the property to investigate into the matter and if a prima-facie case is made out in favour of the objector, then the authority must stay its hands and direct the Department, which wants to get the property sold for realisation of its dues, to get a declaration from a competent civil court that the property belongs to the defaulter and the same is liable to be sold tor realisation of the dues. On the other hand, if the attaching authority is satisfied that the objector has no prima-facie case, then it may proceed under the provisions of the Land Revenue Act and it will then be for the aggrieved party to get the necessary declaration in his favour by a competent court We are of opinion that this is the best solution to the problem in a situation like this.
(3.) LET us now examine the merits of this case from the point of view of the principle stated above. The Additional Collector has found that Kalu Ram, the donor, was indebted to the tune of Rs. 1,60,985/-, at the time the gift of the house was made by him in favour of his wife Smt. Bilam Bai. He has further found that in spite of the gift-deed having been executed no steps were taken by the donee to deposit the house-tax in her name or get the water or the electricity connections transferred in her name, so forth and soon. He has also taken into consideration the close relationship between the donor and the donee and it is not known what was the occasion for making the alleged gift. As regards the sale in favour of the petitioner by, the donee, the Additional Collector had observed that there is nothing to show that Shanker Lal had been put in possession of the property after its sale in his favour or that he had done any act, such as getting the water or electricity connections or the municipal record transferred in his name for the purpose of establishing his ownership to the house in question. In these circumstances, he found that the petitioner had failed to establish a prima-facie case that he was a bonafide purchaser for value from a lawful owner of the property. We are therefore, of opinion that the proper course for the petitioner is to file a suit in a a competent court and get his rights with respect to the property in dispute declared. However, before parting with the case, we may observe that in the concluding portion of its order the Revenue Board has observed as under: - "at any rate, with the facts brought out by the Addl. Collector, I have no hesitation in holding that before any objection may be entertainable on merits by any Court on this score, the full amount must be deposited 'under protest', by applicant as prescribed in the law. " In our opinion, there is no warrant for such a direction and the learned counsel for the Department fairly and candidly conceded that such a direction is not justified. This direction is, therefore, struck down. ;