JUDGMENT
SHYAMAL KUMAR SEN, J. :
In this writ application, the petitioners who are trustees of a public charitable trust (in short, “the petitioner-trust”) have challenged an order of attachment against the shares owned by the petitioner-trust issued by the Tax Recovery Officer-II (Income-tax), Jaipur (in short, “the TRO”), under r. 26(1)(ii) of the Second Schedule to the IT Act, 1961 (in short, “the Act”), for an alleged demand against a private trust known as Raja Baldeodas Birla Santatikosh Trust (hereinafter referred to as “the private trust”). The order of attachment is in respect of the shares of Jiyajeerao Cotton Mills Ltd. owned by the petitioner-trust and registered in the name of its trustees and lying in its possession at its office at Calcutta. The said shares were received by the petitioner-trust from another public charitable trust, namely, Birla Jan Kalyan Trust, which had in its turn received such shares from the private trust as donation. The other two trusts also filed the writ applications on similar ground challenging the orders of the TRO attaching such shares owned and held by them. The writ petitions challenging the orders of attachment were moved by the said two trust and the petitioner-trust on the same day. The writ applications of the other two trusts were marked C. R. Nos. 6549(W) and 6550(W) of 1977. This writ petition was heard earlier by Susanta Chatterjee J., and at such hearing supplementary affidavit was filed incorporating facts subsequent to the filing of the writ petition and written submissions were also submitted. The judgment was reserved but was not delivered by Susanta Chatterjee J. The records of the case were misplaced and have now been reconstructed.
The cases of the said two other trusts being C. R. Nos. 6549(W) and 6550(W) of 1977 came up for final hearing before Ajit Kumar Sengupta J., as he then was, and were finally disposed of by the judgment dt. 30th July, 1992, reported as Anandilal Goenka vs. TRO . All the contentions raised and dealt with in Anandilals case (supra) are involved in the instant writ petition. The facts and circumstances of Anandilals case are identical with the present case and the said decision fully applies and should be followed in the instant case. The respondents have also not disputed that the facts and circumstances of the instant case are identical to that of Anandilals case (supra) and the said decision is applicable.
2. Mr. A. C. Moitra, the learned advocate on behalf of the Revenue, however, has taken a preliminary objection relating to the maintainability of the writ petition in this Court on the ground that this Court has no jurisdiction to proceed with the matter.
He has further submitted that Anandilals case (supra) should not be followed in view of the subsequent decision of the Supreme Court in ONGC vs. Utpal Kumar Basu . He has further submitted that in view of the decision of ONGCs case (supra), the decision in Anandilals case (supra) which held that this Court has jurisdiction to entertain the writ petition should be considered as overruled on the point and the writ petition should be dismissed on the ground of lack of jurisdiction.
3. It is, therefore, necessary to consider whether this Court has jurisdiction to entertain the writ petition. It has been submitted by Mr. Bajoria, the learned advocate for the petitioner, that in ONGCs case (supra), the Supreme Court held on facts that no part of cause of action arose within the jurisdiction of this Court.
He has also submitted that it cannot, however, be disputed that in the event part of the cause of action has arisen within the jurisdiction, this Court has territorial jurisdiction to entertain the writ petition. It has been submitted that in the instant case, there cannot be any dispute that part of the cause of action has arisen within the jurisdiction of this Court. The contention of the learned advocate for the petitioner is that the attached shares in question were lying at Calcutta. The said property was located at Calcutta. It has further been submitted by the petitioner that the order of attachment was served at Calcutta and such order of attachment cannot be effective unless served. It is also the contention of the learned advocate for the petitioner that a service of the order as prescribed by r. 26 of the Second Schedule to the Act is a sine qua non for making an attachment. It has been submitted that the attachment is made only by service of the order prohibiting the person in possession of the shares from dealing with it. The learned advocate for the petitioner has further submitted that the order becomes effective only when served and not otherwise. It was further contended that as the attachment itself has taken place at Calcutta and the property attached is lying at Calcutta, a part of the cause of action has arisen within the jurisdiction of this Court. In support of this contention, the learned advocate has referred to paragraphs 55 and 56 of Anandilals case (supra).
The learned advocate for the petitioner has relied upon that judgment and decision in the case of Everest Coal Co. (P) Ltd. vs. Coal Controller (1986) 90 CWN 438.
It has been submitted by him that in the aforesaid decision, it was held that if an order is passed by an authority beyond the territorial limits of a particular High Court but the same is given effect to against the petitioner within the said High Courts jurisdiction, the High Court will have jurisdiction in the matter. The learned advocate has further submitted that in the case of Everest Coal Co. (P) Ltd. vs. Coal Controller (supra), the decision of the Supreme Court in the case of State of Rajasthan vs. Swaika Properties , was also considered. It has further been submitted by him that the said decision in Swaika Propertiess case, (supra), was followed and relied on in ONGCs case (supra). The contention of the learned advocate for the petitioner is that ONGCs case (supra) does not any way affect the decision given by this Court in Anandilals case (supra) on the question of jurisdiction.
He has further submitted that it is to be seen in each case whether any part of the cause of action arises within the jurisdiction of this Court. The learned advocate has further submitted that in the instant case, it cannot be disputed that part of the cause of action has arisen within the jurisdiction of this Court.
The learned advocate for the petitioner has relied upon the following decisions in this connection :
Modern Food Industries (India) Ltd. vs. M. D. Juverkar (1989) Lab IC 224 (Guj);
Union of India vs. P. Kunhabdulla (1985) 1 LLJ 331 (Ker);
Keshavlal Madhavji vs. Bibi Soghra AIR 1934 Pat 619;
M. A. A. Raoof vs. K. G. Lakshmipathi ;
CIT vs. Oriental Rubber Works ;
Ajantha Industries vs. CBDT
Mr. Bajoria has further submitted that from all the above decisions it would be seen that where an order is required to be communicated in order to be effective, the High Court within whose jurisdiction it is communicated would have jurisdiction since a part of the cause of action would arise within the jurisdiction of such High Court.
It has been also submitted on behalf of the petitioner that in any event the files of the private trust including the tax recovery cases have been transferred from Jaipur to Calcutta w.e.f. 1st April, 1978, and all assessments including recovery proceedings are now with the authorities at Calcutta and the purported objection as to the jurisdiction of this Court taken by the respondents apart from being devoid of merit, is merely academic and of no consequence since all the records of the proceedings and the authorities are within the jurisdiction of this Court since April, 1978. This aspect was also considered in Anandilals case (supra), while rejecting the respondents contention as to the jurisdiction of this Court.
The learned advocate for the respondents has further argued that the decisions relied upon on behalf of the petitioners dealing with analogous provisions of the CPC as r. 26 of the Second Schedule to the Act (sic), it was submitted on behalf of the respondents that the said decisions are not relevant as the CPC was not applicable to the writ proceedings.
It has also been submitted on behalf of the respondents that s. 141 of the Code has been amended to provide that the proceedings referred to in the said section did not include proceedings under Art. 226 of the Constitution.
The learned advocate for the petitioner has further submitted that the contention of the respondent cannot be accepted since there is no issue involved in the instant case as to whether the present proceedings are to be governed by the provisions of the CPC or the rules made by this Court under Art. 226 of the Constitution. The writ petition has been filed according to the rules of this Court framed under Art. 226 of the Constitution and the contention raised by the respondents as such has no application in the instant case.
4. I have considered the respective submissions of the learned advocates for the parties and the decisions cited on behalf of the respective parties. The main question involved in this case is if this Court has jurisdiction to entertain the writ application and if Anandilals case (supra) is applicable in the instant case.
5. In support of the contention of the respondents that this Court has no jurisdiction. Mr. A. C. Moitra, the learned advocate for the Revenue, has relied upon the decision of ONGC (supra). It cannot be disputed that if a part of the cause of action arises within the jurisdiction, this Court can exercise jurisdiction under Art. 226 of the Constitution in view of the provisions contained in Art. 226(2). The Supreme Court in ONGCs case (supra) in fact reiterated the same principle that for the purpose of determining whether a part of the cause of action has arisen within the jurisdiction of the Court or not, the facts pleaded in the writ petition alone are to be taken into consideration. The Supreme Court in ONGCs case (supra) examined the facts of that case and came to the conclusion that none of the facts pleaded constituted any part of the cause of action. At page 3293 of the report, the Supreme Court observed that mere reading of the advertisement at Calcutta, submitting the offer from Calcutta and making representation from Calcutta would not constitute facts forming an integral part of the cause of action. It further held that the receipt of the fax message dt. 15th Jan., 1993, at Calcutta would not constitute an integral part of the cause of action as the fax message could not be construed as rejection of the offer as that fact, namely, of rejection occurred on 27th Jan., 1993, that is after the fax message. The Supreme Court further noted at page 3293 of the report that the advertisement itself mentioned that the tender should be submitted at New Delhi; that those would be scrutinised at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi. It would thus be seen that in ONGCs case (supra), it was held that no part of the cause of action arose within the jurisdiction of the High Court as tenders were to be submitted at New Delhi and were to be scrutinised at New Delhi and a final decision on acceptance of such tender was also to be taken at New Delhi. The Supreme Court further held that even the rejection of the tender was not communicated at Calcutta since such rejection occurred only on 27th Jan., 1993, and not on 15th Jan., 1993, the date when the fax message was received at Calcutta. However, if the tenders were to be submitted from Calcutta and the rejection was communicated at Calcutta then the said decision itself shows that part of the cause of action would have arisen at Calcutta.
It may be noted, however, that the said judgment of the Supreme Court was delivered in the special leave petition filed against the decision of the Court in the case of Utpal Kumar Bose vs. ONGC AIR 1994 NOC 296 (Cal) : (1994) 1 CLJ 448. It is apparent from the said judgment of this Court that the question of jurisdiction was not argued before this Court. In the said judgment details of the arguments on the merits of the case advanced on behalf of the petitioner as well as on behalf of the respondent by learned Solicitor-General were recorded. It may also be noted, however, that after the ad interim order was passed in the said proceeding, the respondent appeared and took directions for filing of affidavits and hearing continued for days together in detail but the question of jurisdiction was not specifically argued on behalf of the respondent. It was also not argued on behalf of the respondent that no part of the cause of action had arisen within the jurisdiction of this Court.
6. It may not be out of place in this connection to refer to the decision in the case of Union of India vs. Hindustan Aluminium Corpn. Ltd. , wherein it was held that the question whether a High Court has territorial jurisdiction to entertain a writ petition has to be decided on the basis of the allegations made in the petition. The truth or otherwise of the allegations is immaterial at that stage. In the said case the impugned orders fixing the selling price and the retention price of aluminium was fixed by the Central Government at Delhi, the factory of the petitioner-company was located outside the West Bengal. However, the head office was situated at Calcutta. The petitioner-company had alleged that it suffered losses in business at Calcutta as the direct consequence of the impugned orders.
It was further held that part of the cause of action arose at Calcutta and, therefore, the Calcutta High Court had territorial jurisdiction to entertain the petition.
In the aforesaid decision the Division Bench of this Court further held in paragraph 24 of the said judgment as follows :
“Under Art. 226(2) of the Constitution, the High Court may exercise its power conferred by cl. (1) of Art. 226 to issue directions, orders or writs if the cause of action, wholly or in part, arises within the territory over which it exercises jurisdiction. It is now well-settled that cause of action means every fact which the plaintiff should prove, if traversed, in order to succeed in the suit. Hindustan Aluminium Corporation Ltd. has come with a case that in view of the impugned orders, it has been suffering loss in its business in the sale of aluminium and its products produced and manufactured by it in Calcutta where its principal office is situate. If there had been no allegation of incurring of any loss as a result of the impugned orders, we are afraid, there would not have given rise to any cause of action either wholly or in part, in Calcutta. Normally no person institutes any suit or proceeding unless his right is jeopardized or prejudiced in consequence of any action of a private individual or of the Government. In the writ petition, there has been a categorical averment of the suffering of loss by Hindustan Aluminium Corporation Ltd. by the sale of aluminium and aluminium products in Calcutta. We are now not concerned with the truth or otherwise of the allegation as the question of jurisdiction is to be determined on the basis of the allegations made in the writ petition. If there was no such allegation of any loss suffered by Hindustan Aluminium Corporation Ltd. in Calcutta, the High Court would not entertain the writ petition, however, illegal the impugned orders may be. A writ petition is not entertained unless the petitioner comes with a case that he has been prejudiced by any action of the Government or a statutory body or authority. So, in our opinion, the writ petition, prima facie, discloses that part of the cause of action arose in Calcutta within the jurisdiction of this Court.”
It may be noted that in the aforesaid writ petition in the case of Utpal Kumar Bose vs. ONGC (supra), the petitioner has specifically pleaded that a part of the cause of action has arisen within the aforesaid jurisdiction and part of the cause of action has arisen outside the jurisdiction and the petitioner is likely to suffer loss at its registered office within the said jurisdiction if the contract is not awarded to the petitioner.
It has not been disputed on behalf of the respondent, ONGC, that the petitioner would not have suffered loss if the cause of action has arisen within the jurisdiction and in fact no issue was raised on the said question since no specific argument on the question of jurisdiction was advanced an impression was created that there was no such issue involved in the said case.
Under the aforementioned circumstances, there was no occasion for this Court to consider this question of jurisdiction suo motu.
7. In the Supreme Court, however, the points regarding jurisdiction were taken and the Supreme Court found that no part of the cause of action has arisen within the jurisdiction. On the basis of the points taken, the Supreme Court, however, decided the issue and held on facts that no part of the cause of action arose within the jurisdiction of this Court and as such the Calcutta High Court has no jurisdiction.
It is, however, to be noted that had the question of jurisdiction been argued by learned counsel for respondent, the said point could have been gone into by this Court. This aspect of the matter, however, was unfortunately not brought to the notice of the Supreme Court.
8. In the instant case, the undisputed facts are that the attached shares in question were and are still lying at Calcutta. The order of attachment was served at Calcutta. Such order of attachment cannot be effective unless served. Service of the order as prescribed by r. 26 of the Second Schedule to the Act is the sine qua non for making an attachment. The attachment is made only by service of the order prohibiting the person in possession of the shares from dealing with it. The order becomes effective only when served and not otherwise. Hence, as the attachment itself has taken place at Calcutta and the property attached is lying at Calcutta part of the cause of action has arise within the jurisdiction on this Court. This aspect has been dealt with in Anandilals case (supra). The relevant decisions on the point are discussed hereinafter.
(a) In the case of Everest Coal Co. (P) Ltd. vs. Coal Controller (supra), a Division Bench of this Court at page 443 of the said reports held as under :
“An order has been made by an authority or person at a place beyond the territorial limits of a particular High Court but the same is given effect to against the petitioner within the said High Courts jurisdiction. In such a case, at least a part of the cause of action arises, where the impugned order is implemented. Thus, when an order becomes effective only when it is communicated or served, the service of the order or receipt of a notice thereof would form part of the cause of action for filing a writ petition by the person aggrieved thereby.”
In Everest Coals case (supra), the Supreme Court decision in the case of State of Rajasthan vs. Swaika Properties (supra), was also considered. The decision in Swaika Properties case, was also followed and relied upon in ONGCs case (supra).
In Anandilals case (supra), the Division Bench decision in Everest Coals case (supra) was relied upon and followed.
(b) It would thus be evident that ONGCs case (supra), does not in any way affect the decision given by this Court in Anandilals case (supra) on the question of jurisdiction. It is to be seen in each case whether any part of the cause of action arises within the jurisdiction of the High Court. In the instant case as stated earlier the attachment itself was made at Calcutta and the property attached was at Calcutta. These facts are not in dispute. The respondents have not made any submission to the effect that attachment of the property lying at Calcutta does not and cannot constitute part of the cause of action. Save and except referring to ONGCs case (supra), it has not been shown how the said case is applicable to the facts of the instant case. The respondents have not argued, as they could not that an attachment can be effected of the shares even without serving the order on the shareholder or that actual attachment of shares lying within the jurisdiction of the High Court would not from part of the cause of action.
(c) The petitioner has relied upon various decisions of the High Courts and the Supreme Court wherein service of the order has been held to be a part of the cause of action since the order could not be effective without service thereof.
9. The learned advocate for the petitioner has relied upon the judgment and the decision in the case of Modern Food Industries (India) Ltd. vs. M. D. Juverkar (1989) Lab IC 224, Justice Ahmadi of the Gujarat High Court, as his Lordship then was, held that the place where the order of termination of service was served gave rise to the cause of action. In the said case the order of termination was passed at Delhi and it was sent to Calcutta where the employee was serving. Since the employee was on leave and staying at Ahmedabad and the order was served upon the employee there, it was held that a part of the cause of action arose within the jurisdiction of the Gujarat High Court. In paragraphs 17, 18, at pages 235 to 238 of the reports the issue relating to jurisdiction was considered. At page 239 of the reports, the Court held that whether the order was communicated at Ahmedabad since he was at the relevant time on leave or for the convenience of the employee or for any other reason was not material but what was material was the fact that it was communicated to him at Ahmedabad. The Court further held that it could not subscribe to the submission of the employer that the consequence of the termination order fell on the respondent only at Calcutta because the employee was posted at Calcutta. It further held that although a part of the cause of action can be said to have arisen at Calcutta also but that could not nullify the fact that its consequences also fell at Ahmedabad where the employee was informed of the termination of his services.
In the case of Union of India vs. P. Kunhabdulla (supra), relied upon by the learned advocate for the petitioner, Justice M. Fathima Beevi, as she was then, held the order of removal became effective only on acceptance of the order communicated by registered post. In the said case the action was taken by the authorities outside the State of Kerala. The employee concerned was not serving in the State of Kerala. However, since the order was received by the petitioner in Kerala the Court held that it had jurisdiction to entertain the writ petition.
In the case of Keshavlal Madhavji vs. Bibi Soghra (supra), it was held by the Patna High Court construing similar provisions of attachment in the CPC that the mere order to make an attachment does not amount to an actual attachment and that the attachment is not complete until it has been effected in the manner prescribed that is by a copy of the order being sent to the debtor and if it is not so sent or served on the debtor there is no attachment.
In the case of M. A. A. Raoof vs. K. G. Lakshmipathi (supra); the Madras High Court, while considering the attachment of shares under similar provisions in the CPC, held that the jurisdiction to attach such shares is of the Court within whose jurisdiction the shareholder who is to be prohibited from transferring the shares resided. It was held that the prohibitory order is to be issued for attachment only to the person in whose name the share stands and, therefore, it is significant if he resides within the jurisdiction of the executing Court.
In the case of CIT vs. Oriental Rubber Works (supra), the Supreme Court held that the books of account seized under the provisions of the IT Act, 1961, could not be retained for the period extended by the CIT unless the CIT serves the order of such extension on the party affected. At page 483 of the report it was held that in the absence of communication the CITs decision according his approval for retention of the seized books and documents would not be effective.
In the case of Ajanta Industries vs. CBDT (supra), the Supreme Court while considering the case of transfer of the income-tax file from one officer to another held that non-communication of the order to the assessee whose file is transferred would be a serious infirmity in the order and make the same invalid. The Supreme Court held that the non-communication of the order is not saved by showing that the reasons exist in the file although not communicated to the assessee.
10. From the aforesaid decisions it is clear that an order is required to be communicated in order to be effective and the High Court within whose jurisdiction it is communicated would have jurisdiction since a part of the cause of action would arise within the jurisdiction of such High Court.
The Supreme Court in ONGCs case (supra) and in Swaikas case (supra), held that if communication is required to make the order effective then communication of such order would be part of the cause of action. As submitted hereinbefore, the order of attachment cannot be effective unless it is served. The order of attachment was served and became effective at Calcutta. The property in question, namely, shares, which were attached were also at Calcutta and as such part of the cause of action arises within the jurisdiction of this Court. In Anandilals case (supra), this Court also so held. The decision in ONGCs case (supra) thus does not in any way affect the ratio of the decision in Anandilals case (supra).
It cannot also be disputed that the files of the private trust including the tax recovery case have been transferred from Jaipur to Calcutta w.e.f. 15th April, 1978, and the assessment including recovery proceedings are now with the authorities at Calcutta and, as such, the contention as to the jurisdiction of this Court taken by the respondents apart from being devoid of merit is of on consequence. All records and proceedings and the authorities are within the jurisdiction of this Court since April, 1978.
11. Arguments of the learned advocate for the respondent that s. 141 of the CPC has been amended to provide that proceedings referred to in the said section did not include proceedings under Art. 226 of the Constitution.
The contention of the respondents is wholly misconceived and has no application to the facts of the instant case. Sec. 141 of the Code provides that the procedure provided therein with regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. This provision led to the controversy as to whether the provisions made in the Code relating to suits have to be followed with regard to the writ proceedings under Art. 226. The issue was whether proceedings under Art. 226 of the Constitution were proceedings in the Court of civil jurisdiction. Some of the High Courts took the view that the proceedings under Art. 226 were in the nature of civil proceedings whereas other High Courts took the view that such proceedings were sui generis and the constitutional writ jurisdiction of the High Court could not be considered as ordinary civil jurisdiction. In order to set at rest such controversy the said amendment was made to the Code. The statement of objects and reasons for the said amendment is set out hereinbelow :
“Clause 50……. The question whether an application under Art. 226 of the Constitution is a proceeding in any Court of civil jurisdiction within the meaning of s. 141 has been the subject-matter of a controversy. While the Andhra High Court holds that s. 141 applies to such proceedings, the Allahabad, Calcutta, Madras and Punjab High Courts have held that s. 141 does not apply to such proceedings. In the circumstances, it is being clarified that s. 141 does not apply to proceedings under Art. 226 of the Constitution.” – S. O. R. (Gazette of India, 8th April, 1974, Pt. II, s. 2, exhibit P-10).
The High Courts have accordingly framed rules for application under Art. 226 of the constitution and to such proceedings the rules framed by the High Court are applicable. In the instant case no issue is involved as to whether the present writ proceedings are to be governed by the provisions of the CPC or the rules made by this Court under Art. 226 of the Constitution. The writ petition has been filed in accordance with the rules of this Court framed under Art. 226 of the Constitution and the contention raised by the respondents is difficult to appreciate.
In Anandilals case (supra) and at the hearing of this case the decisions relating to the CPC have been referred to not on the issue whether the CPC applied to writ proceedings but for interpreting the provisions of the rules in Schedule Second of the Act relating to the attachment of shares, etc., which are analogous to provisions made in the code. Accordingly, the decisions relied upon by the petitioner and those considered in Anandilals case (supra) are relevant for determining the issue involved herein.
12. The question of amendment of s. 141 of the Code and of inapplicability of its provision to the writ proceedings does not arise and have no relevance. It is not the contention of the petitioner that the writ petition is governed by the provisions of the CPC. What the petitioner has contended is that the decisions interpreting analogous and similar provisions in the CPC should be followed and applied. The respondents have not disputed, as they cannot, that the relevant provisions in Schedule Second to the Act are analogous and similar to those in the CPC. They have not pointed out any dissimilarity in the provisions of Schedule Second and those in the CPC or as to why the decision relied upon relating to the CPC would not be applicable for interpreting similar provisions in Schedule Second to the Act.
13. The other contention of the respondent is that the petitioner has an alternative remedy by way of appeal under r. 86(1) of Schedule Second to the Act. The said contention of the learned advocate for the respondent does not appear to be correct. No appeal, in fact, lies under r. 86 which is conclusive in nature. In other words, the appeal under r. 86 can only be preferred against an order which is not conclusive. Rule 86(1) provides as under :
“86 (1) An appeal from any original order passed by the TRO under this Schedule, not being an order which is conclusive, shall lie to the Chief CIT or CIT.”
The order passed in the instant case by the TRO is under r. 11 and sub-r. (6) which provides that the order of the TRO shall be conclusive. The said r. 11(6) is as under :
“(6) Where a claim or an objection is preferred, the party against whom an order is made may institute a suit in a civil Court to establish the right which he claims to the property in dispute; but, subject to the result of such suit (if any), the order of the TRO shall be conclusive.”
Further, in the writ petition the jurisdiction of the officer to attach the shares and to pass the order itself is challenged. The contention of the petitioner is that the officer has exceeded his jurisdiction in embarking upon the question of title. The suit which would be filed in the civil Court would be only one for declaration of the tile to the property attached and the scope of the suit would not be as to the jurisdiction of the TRO to investigate and give decision on the matter. In the circumstances, there was no alternative remedy to the petitioner in the instant case.
It is also well-settled that the existence of an alternative remedy does not in any way affect the jurisdiction of the High Court to grant relief under Art. 226 of the Constitution. It is only a matter which the Court can take into consideration while exercising its discretion in the matter. In the instant case, the issue does not involve any disputed questions of fact and is relating to the jurisdiction of the TRO to attach the shares and decide questions of title. Further, the issues involved are already concluded by a decision on the Division Bench of this Court in Raja Baldeodas Birla Santatikosh vs. CIT . Further, on identical facts, this Court has on two other writ applications moved on the same day granted relief under Art. 226 of the Constitution [Anandilals case (supra)]. Moreover, the petition was filed in the year 1977. The respondents have not chosen to file even their affidavit-in-opposition in the matter and are seeking to raise this objection after a lapse of 18 years. The case is of a public charitable trust. The issues are concluded by the decisions of this Court. There is no demand outstanding from the asst. yrs. 1971-72 to 1974-75 against even the private trust for recovery of which the purported attachment was sought to be made. The only demand against the private trust remaining outstanding as on date is for the asst. yr. 1970-71 for which the reference is pending before the Rajasthan High Court. Such demand for the year 1970-71 as would appear from the certificate issued by the Dy. CIT, Special Range-22, Calcutta, who is having jurisdiction over the private trust after transfer of the cases in 1978 is to the tune of Rs. 3 lakhs only. On notice being given as directed by this Court the private trust also appeared at the hearing and without prejudice to their rights and contentions agreed to pay the said sum. In the circumstances the objections raised by the respondents are meaningless and are simply for harassing the public trust.
14. The contention of the learned advocate for the respondents is that no demand for justice was issued in the instant case does not appear to be correct. The demand for justice was in fact made in the proceedings before the TRO of filing the objection. It was also made by letter dt. 12th Dec., 1977, of the petitioners advocate being annexure “J”, page 67 of the writ petition. This submission accordingly is incorrect and baseless.
15. It may be noted that in the instant case no fresh argument or submissions were made on behalf of the respondents with regard to the other contentions dealt with in Anandilals case (supra). The Division Bench of this Court in the case of the private trust for the asst. yrs. 1971-72 to 1974-75 in Raja Baldeodas Birla Santatikosh (supra) has been pleased to hold that the donation of the shares made by the said private trust to the public charitable trust from which public charitable trust the petitioner trust had received the said share as donation was not void but was only voidable at the instance of the beneficiaries of the private trust. Accordingly, the entire basis of the attachment of the said shares by the TRO, Jaipur fails. The demands against the private trust for the said asst. yrs. 1971-72 to 1974-75 have also been vacated by the Department. In respect of the demand for the asst. yr. 1970-71 attachment had been made. Further, as held in the various cases referred to and relied upon in Anandilals case (supra) the TRO is not competent to adjudicate upon and decide questions of title and the TRO can only deal with the question as to in whose possession the said shares where at the time of the attachment and on whose account the same were held. There is no dispute, and there can be none, that the shares in the possession of the petitioner trust were duly transferred and registered in the name of its trustees and were being held by it on its own account. This is evident from the order of attachment itself.
Accordingly, in my view, there is no reason for not following the principle laid down in Anandilals case (supra) in the instant case.
16. It has been submitted by Mr. R. N. Bajoria that the Raja Baldeo Birla Santatikosh Trust will pay the tax amount due and payable for the asst. yr. 1970-71 for realisation of which the attachment order has been issued. Upon payment of such amount with the appropriate authority and on production of the receipts showing such payment, the Registrar, appellate side will release the shares in question.
17. In the result, the rule is made absolute.
There will be no order as to costs.