Important Point
Provisions of a statute whether directory or mandatory necessitating strict or substantial compliance are questions which must be determined by courts.
Even though there is no doubt that dues of revenue should be recovered where for properties of the defaulters interalia can be put to auction. However there cannot also be any doubt or dispute that procedures laid down therefore must be complied with.

Headnote:Maharashtra Land revenue code, 1966 – Non compliance of provisions of sections 202 and 203 - Partnership firm running into arrears of sales tax – Attachment of properties of partners – Writ petition there against by respondents 5 to 7 praying for a direction to sales tax authorities to recover dues of firm from appellants alone and not from them – However public auction of factory premises held on direction of High Court - Objection to procedure adopted by Sales Tax department in conducting auction sale of property – Disposed of by High Court without considering effect of provisions of sections 202 and 203 of code – Appeal there against – Held unfortunate that High Court not addressed itself to a vital aspect of matter despite its attention having been drawn thereto – High Court purportedly disposed of all pending applications directing only Respondent Nos 1 to 4 to take further steps in matter in accordance with law, but what those other or further steps in matter would be were not spelt out – Such a direction by High Court was wholly unwarranted – Even though there is no doubt that dues of revenue should be recovered where for properties of the defaulters interalia can be put to auction - However there cannot also be any doubt or dispute that procedures laid down therefore must be complied with – High Court resorted to a wrong procedure – Issues involved in writ petition filed by respondent Nos. 5 to 7 was limited – High Court unjustly expanded its jurisdiction – Even when an auction takes place under orders of competent civil court, procedure laid down in code of civil procedure are required to be complied with – Objections to validity of sale at instance of one party or other are required to be considered and determined - Provisions of a statute whether directory or mandatory necessitating strict or substantial compliance are questions which must be determined by courts – Matter directed to be considered by Respondent 4 Assistant commissioner of sales tax Competent authority afresh - Impugned judgment of High Court set aside – Appeal allowed. (Paras 13 to 20)
       Facts of the case :
       A Partnership firm herein in the instant case ran into arrears of sales tax. An order was passed for attachment of properties of partners. A Writ petition there against was passed by respondents 5 to 7 praying for a direction to sales tax authorities to recover dues of firm from appellants alone and not from them. However public auction of factory premises was held on direction of High Court. Objections to procedure adopted by Sales Tax department in conducting auction sale of property was disposed of by High Court without considering effect of provisions of sections 202 and 203 of code.
       Present appeal has been filed against said order of High Court.
       Findings of the Court:
       The Court held that it was unfortunate that High Court not addressed itself to a vital aspect of matter despite its attention having been drawn thereto. High Court purportedly disposed of all pending applications directing only Respondent Nos 1 to 4 to take further steps in matter in accordance with law, but what those other or further steps in matter would be were not spelt out. Such a direction by High Court was wholly unwarranted. High Court resorted to a wrong procedure. Issues involved in writ petition filed by respondent Nos. 5 to 7 was limited. High Court unjustly expanded its jurisdiction. Even when an auction takes place under orders of competent civil court, procedure laid down in code of civil procedure are required to be complied with. Objections to validity of sale at instance of one party or other are required to be considered and determined. Provisions of a statute whether directory or mandatory necessitating strict or substantial compliance are questions which must be determined by courts. Matter directed to be considered by Respondent 4 Assistant commissioner of Sales tax Competent authority afresh. Impugned judgment of High Court being sustainable held liable to be set aside.

JUDGMENT

S.B. Sinha, J.—

1.Leave granted.

2.Respondent Nos. 5 to 7 herein were partners of a firm known as M/s. Somras Distillers. It ran into arrears inter alia in payment of sales tax.

3.The properties of the partners were attached. A Writ Petition came to be filed by the respondent nos. 5 to 7 inter alia praying for a direction to the sales tax authorities to recover the dues in respect of the said firm from the appellants alone and not from them.

4.As Respondent Nos.1 to 4 intended to put the properties of the partnership firm on auction, the High Court in terms of an Order dated 28.4.2003 directed:

“In so far as item No. 4, namely Plant Machinery of the firm is concerned, we are informed that the upset price fixed is rupees twenty-five lacs and no bidders are coming forward. It will be appropriate if advertisement of auction in relation to this item is given in the national dailies which are widely circulated. The cost of auction as also advertisement shall be payable out of the auction sale proceeds. The auction be conducted within a period of 45 days from today and report of auction in respect of the above mentioned properties be filed before the Court, S.O. to eight weeks.”

5.Pursuant to the said direction, an auction was held on 6.6.2003 of the factory premises of the firm; the highest bid being Rs. 65 lakhs.

6.Public auction in such matters are governed by the provisions of Maharashtra Land Revenue Code, 1966, the relevant provisions of which read as under:

“Purchase money when to be paid.

202.The full amount of purchase-money shall be paid by the purchaser before the expiration of two months from the date on which sale of the immovable property took place or before the expiration of fifteen days from the date on which the intimation of confirmation of the sale is received by the purchaser, whichever is earlier;

Provided that, if the last date on which the purchase-money is to be paid happens to be a Sunday or other authorised holiday, then the payment shall be made before the sunset of the first office day after such date.”

“Effect of default.

203. In default of payment within the prescribed period of the full amount of purchase-money whether of movable or immovable property, the deposit after defraying thereout the expenses of the sale, shall be forfeited to the State Government, and the property shall be resold, and the defaulting purchaser shall forfeit all claims to the property or to any part of the sum for which it may be subsequently sold.”

7. A question arose as to whether the auction purchaser had deposited the amounts in terms of the said provision. By an order dated 29.4.2004, despite the High Court’s notice having been drawn thereto, a learned Single Judge directed:

“I am unable to find any substance in this argument. It may be noted that despite the order of the Court that the auction shall be held strictly in accordance with law, it has confirmed the auction by order dated 09.12.2003 and now the petitioners cannot take recourse to contempt proceedings. They should have brought this fact to the notice of the Court in Writ Petition No. 2530/2001. In this view of the matter the petition is dismissed. Needless to say that the petitioners are at liberty to move the Court in Writ Petition No. 2530/2001.”

8.A similar application for recalling the said order was dismissed directing;

“In view of the above referred observations, it is evident that auction sale was confirmed subject to result of this petition. Therefore, grievance of any party to the proceedings would be considered at the time of final hearing. The earlier orders have been passed by us in the petition from time to time keeping in view the necessary recovery to be effected by the Department towards sales tax dues.”

9.It was further directed :

“In view of the above referred facts and circumstances, we see no justification whatsoever for respondent Nos. 5 to 7 to oppose handing over of possession particularly when auction of sale is already confirmed by this Court and

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