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TMI Blog1983 (3) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... r-General on April 5, 1935. It was extended to the Union Territory of Delhi, vide the Government of India, Home Department, Notification No. 189/38, dated 30th May, 1939. Punjab Amendment Act XII of 1940 was passed by and received the assent of the Governor-General of Punjab. Section 16 of the Amendment Act XII of 1940 substituted s. 35 in the 1934 Act. By this amendment in sub-s. (1), in the proviso, certain insertions were made in various clauses after cl. (c) including cl. (ccc). Later on the Punjab Relief of Indebtedness Amendment Act VI of 1942 was passed. By s. 5 it substituted the old proviso in cl. (ccc) in the proviso to s. 60(1) of the Code. Now s. 60 of the Code lays down that various properties mentioned therein are liable for attachment and sale in execution of a decree. Proviso, however, excepted various properties mentioned in the various clauses thereunder. The result of the amendment of the 1934 Act by means of Punjab Amendment Act XII of 1940 and Punjab Amendment Act VI of 1942 was to insert in the proviso to sub-s. (1) of s. 60 of the Code cl. (ccc) in the State of Punjab. The said cl.(ccc) reads as under : " one main residential house and other building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Tikku, counsel for the petitioner, provides that: " All such property as is by the Code of Civil Procedure, 1908 (5 of 1908), exempted from attachment and sale in execution of a decree of a civil court shall be exempt from attachment and sale under this Schedule." The TRO in pursuance of the defaults in payment of the tax alleged to be due from the petitioners, issued a proclamation of sale in terms of rr. 38 and 52(2) of the Second Schedule to I.T. Act, giving a notice that the property No. 7, Kasturba Gandhi Marg, will be sold by a public auction on March 28, 1983. It is this notice which is challenged in the present writ petition. The petitioner's case is that he is one of the joint owners of the house which is the only main residential house of the petitioners, and it is, therefore, exempt from attachment and sale. He invokes cl. (ccc) in the proviso to s. 60(1) of the Code, as applicable in Delhi. As mentioned above, cl. (ccc) in the proviso to s. 60(1) of the Code does exempt one main residential house. But Mr. Wazir Singh, the learned counsel for the Revenue, says that this exemption is no longer available in view of s. 97(1) of the Amendment Act 104 of 1976. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as Punjab is concerned, there is no dispute that the insertion of cl. (ccc) in the proviso is by virtue of a legislation by the State Legislature. If the view of Luthra J. and Sultan Singh J. that the provisions of the Code as amended by 1976 are inconsistent with cl. (ccc) (of which we express no opinion) is correct, the result undoubtedly would be that cl. (ccc) may no longer be available so far as the State of Punjab is concerned. But the same consequence does not follow in the Union Territory of Delhi. Article 246(4) of the Constitution of India provides that Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List. Article 239 lays down that every Union Territory shall be administered by the President acting through an administrator. Thus so far as the Union Territory of Delhi is concerned, the Legislature which is competent to enact law is Parliament. Union Territories (Laws) Act, 1950, empowers, by s. 2, the Central Government to extend to the Union Territory of Delhi any enactment which is in force in a State at the date of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring to Mithan Lal's case [1958] 9 STC 417 (SC), and discussing the nature of the legislation like the Punjab Municipal Act as applicable to Delhi, it was observed that (p. 231): " It is, thus, clear that on the extension of the Act to the Union Territory of Delhi by the various Central legislative enactments referred to above, it became a Central Act or an Act of Parliament as if made by virtue of power of Parliament to legislate for the Union territory of Delhi by virtue of clause (4) of article 246 of the Constitution of India." This very aspect also came up for a consideration of the extension of the Punjab Cinema Act to Delhi in National Association of Motion Pictures Exhibitors v. Union of India, C.W. No. 368 of 1981, decided on December 20, 1982, wherein, after noting all these authorities, one of us (Sachar J.) observed as follows: " On a parity of reasoning, it must be held that when Punjab Act is extended to Delhi, it is not the exercise of rule making authority. In reality, this power of extending an Act owes its legislative authority to Union Laws Act, 1950, which in its turn derives its efficacy from the legislation passed by Parliament ...... The position tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id. Even if cl. (ccc) continues to exist in Delhi, the petitioner can invoke it only if he satisfies the conditions mentioned in cl. (ccc) itself. That necessarily requires evidence and enquiry. The procedure for enquiry is provided by r. 11 (and onwards) of Sch. II to the I.T. Act, which I lays down that if any objection is made to the attachment, the TRO shall proceed to investigate the claim or objection. By our judgment all that we are holding is that cl. (ccc) in proviso to s. 60(1) of the Code has not been repealed, so far as Delhi is concerned, but nothing said in our judgment should be taken even remotely to suggest whether the case of the petitioner is covered by cl. (ccc) or not. Our decision only relates to the question of law. The question whether it is the main residential house and other requirements of cl. (ccc) are satisfied or not, has to be decided by the TRO. That is why when last time the matter came before us, we had directed the petitioner that if he wants to prove that the property in dispute is the main residential house he must file his objections before the TRO. Mr. Wazir Singh informs us that objections have been filed and are being investigated. Mr. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1934 Act, as amended, inserted cl. (ccc) in the proviso to s. 60(1) of, the Code. Under s. 222 read with r. 10 of the Second Schedule to the I.T. Act, all such property as is by the CPC, 1908, exempted from attachment and sale in execution of a decree of a civil court shall be exempt from attachment and sale under this Schedule. Hence, in proceedings before the TRO, in Delhi the provisions of cl. (ccc) in the proviso to s. 60(1) of the Code are applicable. In that view of the matter, the result will be that the sale which had been directed to be held on March 28, 1983, is cancelled for the time being. We had already stayed the publication of the notice of the sale in newspapers and that order is confirmed. But, the ultimate decision one way or the other would depend on the finding whether the house in dispute is the main residential house of the petitioner or not. Of course, if the TRO holds that this house is not the main residential house of the petitioner as required by cl. (ccc) in the proviso to s. 60(1), he may proceed to sell the property in accordance with law and the provisions of the I.T. Act and the Rules. A preliminary objection was raised by Mr. Wazir Singh that on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue-respondent, if so advised, to move the Supreme Court for obtaining any appropriate directions it may consider necessary. One of the alleged coowners, Sarit Kumar Jain, has filed a suit which is pending. After our decision on a question of law and the objections pending before the TRO, the continuance of the said suit is vexatious and frivolous. Mr. Tikku, counsel for the petitioner, on instructions says, the said suit will be got dismissed as withdrawn in a fortnight time. This assurance is taken so that there is no unnecessary multiplicity of proceedings as that will be an abuse of the process of the court. As a result, the writ petitions are allowed as above, with the directions mentioned therein. No costs. PER KHANNA J.-I agree. Taking advantage of the Voluntary Disclosure Scheme of 1976, Inder Sain Jain and his three sons, Sat Pal, Subhash Chander, Sarit Kumar along with some family members, disclosed large sums of undisclosed income. They totalled around rupees one crore. The tax payable on them under that scheme was rupees twenty lakhs. Rupees ten lakhs thereof were paid when the disclosures were made, and the balance was payable by the end of 1977. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and social structure), and with regard to properties worth crores of rupees. Be that as it may, we have to consider what protection is available to the petitioners under the law as it exists at present. The operation of the Punjab Relief of Indebtedness Act was extended to Delhi in the year 1939. However, in 1940, the Punjab Province introduced an amendment in the parent Act under which an additional exemption from attachment was allowed to main residential houses of non-agriculturists and occupied by them. Thereby cl. (ccc) in the proviso to s. 60 of the Code was deemed incorporated. The Delhi Administration too subsequently in the year 1956 made that amendment operative within its Union territory. The result was that the main residential houses of the judgment-debtors in urban areas became exempt from attachment and sale in execution of simple money decrees. Wide ranging amendments were introduced in the Code by the (Amending) Act of 1976. Section 97 of this Amending Act was to the effect that any amendment made or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act, except in so far as such amendment or pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedness Act can no longer be treated as mere State enactment, but assumes the character of a statute made operative in the territory of Delhi by Parliament itself. In this situation, it cannot be said that this enactment was hit by s. 97 of the Amendment Act of 1976. My learned brother has next made reference to the decision of the Supreme Court in the case of Mithan Lal [1958] 9 STC 417. In that case, certain provisions of the Bengal Finance (Sales Tax) Act, 1941, were struck down as being not within the competency of the State legislature. However, those very provisions with regard to Delhi were held as valid and operative as the extension of that statute in this territory was by Parliament itself. That position should as well hold good with regard to the Punjab Relief of Indebtedness Act irrespective of whether this enactment has stood repealed within the territory of Punjab or not by virtue of s. 97 of the Amending Act of 1976. Another contention raised from the side of the Revenue has been that the provisions of cl. (ccc) of the proviso to s. 60, CPC, should be treated as amended by implication on the ground that they would appear redundant. In this regard, it is pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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