LexISHA BEEVI ON BEHALF OF THE MINOR UMAIBEN BEEVI & ORS. versus THE TAX RECOVERY OFFICER & ADDL. P.A. TO COLLECTOR, QUILON & ORS.
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·- A ' • B c D E F ' G .. \ H 681 ISHA BEEVI ON BEHALF OF THE MINOR UMAIBEN BEEVI & ORS. v. THE TAX RECOVERY OFFICER & ADDL. P.A. TO COLLEC- TOR, QUILON & ORS. September 5, 1975 [H. R. KHANNA, M. H. BEG AND A. C. GUPTA, JJ.] I'ractice-JVrii of Prohibition or Mandamus-When can be issued. lncofne .Tax Act, 1961-Second Sclredule rr. 11 and 48-Notices for recovery df tax-Whether Persona! Assistant to Collector could issue. Purporting to act under the provisions of Income-tax Act, 1961, the Addi- tional Personal Assistant to the Collector, who was functioning as the tax recovery officer, issued notices to the appellants prohibiting them from trans- ferring or otherwise dealing with the properties in their possession on the basis of 22 certificates issued to them under the Indian Income-tax Act, 1922 and the Income-tax Act, 1961 because. arrears of income tax were dlre from the deceased assessee. The appellants who claimed that the properties were gifted to them by the deceased assessee, questioned (i) the jurisdiction of the Tax Recovery ·Officer, as al~ his competence to the issue of recovery pro- ceedings under the 1961 Act, because the taxes became ·due under the Trawan- core Income-tax Act and 1922 Act; (ii) and the issue of 22 certificates on the ground that'neithe_r the Travancore .Act nor the 1961 Act warranted the issue of certificates against an assesse~ after bi's death. The appellants prayed for the issue of writs of mandamus, certiorari and prohibition. The High Court dismissed the petitions. Dismissing the apPeals, HELD : ( 1) (a) The orders sought to be quashed were only notices of commencetm:nt of recovery proceedings by attachment of certain ptoperties. Final orders could only be passed after the appellants have~ had their oppor• tunities to object under r.11 of the Second Schedule to 1961 Act because the notices purported to be only preliminary notices under r. 48 of the Second Schedule to the 1961 Act. These proceedings could only be quashed if they were entirely without jurisdiction. Otherwise a prayer for quashing the J)rdJ ceeding9 would obviously be premature. [684 E-F] (b) No occasion for the issue of writ of mandamus could arise unless the appellants showed non-compliance with some mandatory provision and seek to get1 that provision enforced because some obligation towards them is not carried out by the authority alleged to be flouting the law. [684 F-0] ( c) The appellants have asked for writs of prohibition. The existence of an alternative remedy is not generalJy a bar to the issuance of such a writ or order. But, in order to substantiate a right to obtai':O a writ of prohibition from a High Court or from this Court, an applicant has to demonstrat>e total absence of jurisdiction to proceed on the part or the officer or authority com .. p~ained against. It is not enough if a wrong section or provision of law is 01ted in a notice or order if the power to proceed is actually there under another provision. [684 HJ (2) T!ie appellants not ~aving raised the question at any earli'er stage that the Additional Personal Assistant to .the Collector was not an officer authorised to issue notices, could not do so in appeal to this Court. Even if the Peshkar was the competent officer under the Travancore Inconie-tax Act. his duties as tax recovery officer wpuld. by operation of the various provisions of law contained in s.8(1) of the General Clauses Act, s.13(1) of the Finance Act 1950, s.2(44), and s.221 or the 1961 Act. automatically devolve upon the Collector or Additional Collector o_r upon such officer as may be empowered 13~L925SupCI/75 682 SUPREME COURT REPORTS [1976] I S.C.R. by the State Government, by a special or general notification in the official gazette to effect recovery of land revenue or other public demand under any law relating to land revenue or other publiC demand. [688 A; 687 HJ (3) If any part of the property is illegally or unjustiably attached, it does not really affect the jurisdiction of the Tax Recovery Officer to proceed to deal with an objection under r. I I in Schedule 2 of the 1961, Act. [688 El CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1489-1499, 1159 & 1160 (NT) of 1970. From the Judgment and Decree dated the 30th September 1969 of the Kerala High Court at Ernakulam in Writ Appeals Nos. 493 to 495, 497 to 500, 502 to 505, 492 and 501 of 1969. D. V. Patel, M. Ramchandran and A. S. Na
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