The proviso to sub-section (2) of Section 68 of the Assam Land and Revenue Regulation is directory and not mandatory, and its non-compliance does not vitiate the attachment.

In these Rules a common question falls 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. 475/72.

3. 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 (he 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 (hs 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.

4. 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 proviso 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 proviso 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 movables seized will be released. The undisputed case is that the movables seized have net been sold.

5. The admitted position is that the arrear of the agricultural income tax may be realised as an arrear of land revenue under the Regulation. The mode of recovery of arrear of land reve­nue has been prescribed in chapter V of the Regulation. Section 68 of the Regulation provides: (relevant portion only).

"68. (1) * * *

(2) If the arrear is not in respect of a permanently settled estate, the prescribed officer may in his discre­tion, before employing any of the processes for enfor­cing payment prescribed by this Chapter, issue a notice of demand, calling on the defaulter to pay the amount within a time specified ;

Provided that, in such classes of cases, not being cases in which an arrear has accrued in respect of a perman­ently settled estate, as the State Government may direct in this behalf, the prescribed officer shall not employ any such process for enforcing payment as aforesaid, until he has issued a notice of demand and the defaul­ter has failed to pay the arrear within the time speci­fied in such notice''.

The petitioner's submission is that the issue of a notice of demand as required by the proviso is mandatory and unless the notice is issued, the Collector does not have the jurisdic­tion to seize the property. The 'process for enforcing pay­ment', in my opinion, involes two stages-firstly the attachment of the property, and secondly its sale, if the arrear is not paid meanwhile. The purpose of employing the 'process for enforcing payment' is to realise the arrear of land revenue. Mere seizure does not serve the purpose of the realising the arrear of land revenue. The arrear can be realised only by sale of