JUDGMENT

V.G. Oak, C.J. - This writ petition arises out of proceedings under the Income Tax Act, 1961. Surendra Dubey is the petitioner. He in the son of Haridwar Dubey.

2. A sum of Rs. 52,250 was assessed against Haridwar Dubey as Income Tax. A further sum of Rs. 5,000 was assessed as penalty against Haridwar Dubey. The authorities proceeded to realise the sums that were due from Haridwar Dubey towards Income Tax and penalty. Certain plots were attached. Surendra Dubey filed an objection to the effect that the plots in question did not belong to Haridwar Dubey individually and the land belongs to the joint Hindu family consisting of Haridwar Dubey and Surendra Dubey. In spite of the petitioner's objection, the land was sold on March 25, 1969, and was purchased for Rs. 10,000 by Jit Narain Dubey, who is respondent No. 3 in the writ petition. Surendra Dubey has filed this writ petition challenging the attachment and sale proceedings.

3. The basis of the petition is that the land in question does not belong to Haridwar Dubey, the defaulter. It is joint family property. The position is disputed by the respondents. According to the affidavit filed on behalf of the Collector, Gorakhpur, there is no material on the record to support the petitioner's claim that this is joint family property. Another counter-affidavit has been filed by Jit Narain Dubey, who has purchased the property. According to Jit Narain Dubey, this is Haridwar Dubey's separate property.

4. Whether the property in dispute is Haridwar Dubey's separate property or is joint Hindu family property is a question of fact. It is not convenient to decide this controversy in the present summary proceedings.

5. It has been urged for the petitioner that proceedings for attachment and sale were taken under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, although those provisions are not applicable to proceedings under the Income Tax Act, 1961. In support of this contention, the petitioner has filed annexure A-l, dated January 25, 1969. Annexure A-1 refers to U. P. Act No. 1 of 1951 and certain rules framed under that Act. In the counter-affidavit filed on behalf of the Collector it was conceded that such forms were used in the present proceedings. But it is suggested that the proceedings were in fact held under the Income Tax Act, 1961.

6. We have compared the procedure prescribed by U. P. Act No. 1 of 1951 and by the Income Tax Act, 1961. There is hardly any material difference in the two procedures so far as a stranger may file an objection to the effect that the attached property belongs to the objector and does not belong to the defaulter. In the present case also the petitioner was able to file such an objection and the authorities were aware of the objection filed by the petitioner.

7. In paragraph 22 of the counter-affidavit filed by Udai Bhan Singh the detailed procedure followed by the authorities has been explained. Firstly, there was a report from the Sub-Divisional Officer, Bansgaon. It was suggested that objection might be filed within 30 days from the date of sale. The sale was actually held on March 25, 1969. A number of authorities appear to have participated in these proceedings. Mr. R. K. Gulati, appearing for the petitioner, contended that the Sub-Divisional Officer and the Additional District Magistrate were not competent to deal with the matter. No such point has been raised in the writ petition.

8. It will be seen that, although the petitioner did file an objection against the proposed sale, no definite order was passed by the authorities before selling the property. The procedure adopted appears to be irregular. Rule 11 of the Second Schedule to the Income Tax Act, 1961, provides for investigation by the Tax Recovery Officer with respect to such an objection.

9. The objection should have been disposed of before putting the property to sale.

10. Mr. R. K. Gulati contended that in case this court does not grant relief in the present petition, t