Case: Tharoo Mal Vs. Puran Chand Pandey &amp; Others

carried out by the Board. 5. As regards the first contention, we find it difficult to permit the appellant to advance it here for the first time. It is not found in his writ petition. It was not advanced in that form before the High Court. It is not even found in the special leave petition in this particular form. However, even if we were to allow this question to be argued, we find that the objections filed by the petitioner on 16 September, 1972, were really objections to the original proposal and not to the modified proposal at all. Section 132(3) gives a right only to actual objectors to the modified proposals to have their objections dealt with under section 132(1) of the Act. This necessarily means that the objections should be at least before the Board when it passes the resolution on modified proposals. After all, that section 132(1) indicates about the manner in which the objections are be dealt with is that they should be considered before the passing of the special resolution. Now, if the objections are not there at all when the initial special resolution is passed or even when the modified proposals were passed, it is impossible for the Board to deal with them in the manner prescribed by section 132(1) of the Act. Since the duty to send objections could arise only subsequent to the procedure prescribed by section 132(1) of the Act the contention that the objections should have been sent to the Prescribed Authority to be considered because of any mandatory duty resulting from the provisions of section 132(1) and (3) of the Act must fail. It may be mentioned that we are not concerned here with the validity of any of the provisions on the ground of their reasonableness or otherwise No, such question has been argued before us. We have, therefore, to proceed on the assumption that the provisions of the Act are valid.So far as section 132(4) is concerned, it may be possible to so interpret the provisions as to confine objections to be sent to the Prescribed Authority to only those which the Board took into consideration. Nevertheless, when we examine the wide language in which section 132(4) is couched conferring a right to object, without any restriction, we find it difficult to exclude the right of the petitioner to have his objections sent to the Prescribed Authority. Apparently, section 132(4) covers any objections whatsoever, whether made within a fortnight or beyond a fortnight, provided they are sent in before the matter is submitted to the Prescribed Authority. Indeed, we find no statutory bar against the Prescribed Authority itself considering the objections which may be filed before it if the interests of justice go require. But, the question which arises before us is whether the non-observance by the Board of a duty to send the appellants objections to the Prescribed Authority, assuming it is there, would invalidate the imposition of the modified tax. This , we think, would depend upon whether we interpret provisions of section 132(4) as mandatory or as directory so far as submission of objections, not submitted within sufficient time so as to be considered by the Board, are concerned. 6. As we have already observed, no provision of the Act has been Challenged. Section 1 35 (3) of the Act reads as follows:" 135. Imposition of tax.- (1)........................ (2)............. ......................... (3) A notification of the imposition of a tax under sub section (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act." 7. It is true that, if there is such a gross breach of the rules that the proposal sanctioned could not be deemed to be "imposition of a tax" at all, section 135(3) may not bar the consideration of such basic infirmity in the proceedings which make them no proceedings at all in the eyes of the law. This is the most that can be said on the strength of Buland Sugar v. Municipal Board, ([1965](1)S.C.R.970.) which is strongly relied upon by Mr. Chitale.Mr. Yogeshwar Prasad, appearing o n behalf of the Municipal Board however, pointed out that the Buland Sugar case was decided before the proviso to section 132(2) was added in 1964. It does appear to us that the effect of the proviso is that, by dispensing with even the publication of the modified proposals, no such right of the appellant is violated as could be considered a condition precedent to the validity of the proceedings. Nevertheless, if the petitioner could have made out a case of such injustice due to some irregularity that we should deem the imposition of the tax to be vitiated by the non-consideration of a vital matter, we could have taken the view that section 135(3) will not bar consideration of a vital infirmity, in as much patent injustice has resulted from it, in the imposition of a tax. If it could be argued that there is no imposition of the tax at allas contemplated by law, section 135(3) may not have cured the irregularity. But, no such infirmity has been pointed out to US. The result is that, whatever irregularity there may be in not forwarding the objections of the appellant to the Prescribed Authority, as the Board should have done under section 132(4 ) of the Act, the irregularity seems to be cured by an application of the provisions of section 135(3) of the Act as the Government had notified the imposition of the tax. 8. It may perhaps also be pointed out that, if the incidence of a tax is unfair, a representation can be made to the Government under section 137 of the Act even after the imposition. Therefore, if there is any gross injustice, which the petitioner has not been able to make out before us he can still approach the Government for relief in case he can make out a case for relief under section 137 of the Act.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]As regards the first contention, we find it difficult to permit the appellant to advance it here for the first time. It is not found in his writ petition. It was not advanced in that form before the High Court. It is not even found in the special leave petition in this particular form. However, even if we were to allow this question to be argued, we find that the objections filed by the petitioner on 16 September, 1972, were really objections to the original proposal and not to the modified proposal at all. Section 132(3) gives a right only to actual objectors to the modified proposals to have their objections dealt with under section 132(1) of the Act. This necessarily means that the objections should be at least before the Board when it passes the resolution on modified proposals. After all, that section 132(1) indicates about the manner in which the objections are be dealt with is that they should be considered before the passing of the special resolution. Now, if the objections are not there at all when the initial special resolution is passed or even when the modified proposals were passed, it is impossible for the Board to deal with them in the manner prescribed by section 132(1) of the Act. Since the duty to send objections could arise only subsequent to the procedure prescribed by section 132(1) of the Act the contention that the objections should have been sent to the Prescribed Authority to be considered because of any mandatory duty resulting from the provisions of section 132(1) and (3) of the Act must fail. It may be mentioned that we are not concerned here with the validity of any of the provisions on the ground of their reasonableness or otherwise No, such question has been argued before us. We have, therefore, to proceed on the assumption that the provisions of the Act are valid.So far as section 132(4) is concerned, it may be possible to so interpret the provisions as to confine objections to be sent to the Prescribed Authority to only those which the Board took into consideration. Nevertheless, when we examine the wide language in which section 132(4) is couched conferring a right to object, without any restriction, we find it difficult to exclude the right of the petitioner to have his objections sent to the Prescribed Authority. Apparently, section 132(4) covers any objections whatsoever, whether made within a fortnight or beyond a fortnight, provided they are sent in before the matter is submitted to the Prescribed Authority. Indeed, we find no statutory bar against the Prescribed Authority itself considering the objections which may be filed before it if the interests of justice go require. But, the question which arises before us is whether the non-observance by the Board of a duty to send the appellants objections to the Prescribed Authority, assuming it is there, would invalidate the imposition of the modified tax. This , we think, would depend upon whether we interpret provisions of section 132(4) as mandatory or as directory so far as submission of objections, not submitted within sufficient time so as to be considered by the Board, are concernedIt is true that, if there is such a gross breach of the rules that the proposal sanctioned could not be deemed to be "imposition of a tax" at all, section 135(3) may not bar the consideration of such basic infirmity in the proceedings which make them no proceedings at all in the eyes of the law. This is the most that can be said on the strength of Buland Sugar v. Municipal Board, ([1965](1)S.C.R.970.) which is strongly relied upon by Mr. Chitale.. Yogeshwar Prasad, appearing o n behalf of the Municipal Board however, pointed out that the Buland Sugar case was decided before the proviso to section 132(2) was added in 1964.It does appear to us that the effect of the proviso is that, by dispensing with even the publication of the modified proposals, no such right of the appellant is violated as could be considered a condition precedent to the validity of the proceedings. Nevertheless, if the petitioner could have made out a case of such injustice due to some irregularity that we should deem the imposition of the tax to be vitiated by the non-consideration of a vital matter, we could have taken the view that section 135(3) will not bar consideration of a vital infirmity, in as much patent injustice has resulted from it, in the imposition of a tax. If it could be argued that there is no imposition of the tax at allas contemplated by law, section 135(3) may not have cured the irregularity. But, no such infirmity has been pointed out to US. The result is that, whatever irregularity there may be in not forwarding the objections of the appellant to the Prescribed Authority, as the Board should have done under section 132(4 ) of the Act, the irregularity seems to be cured by an application of the provisions of section 135(3) of the Act as the Government had notified the imposition of the taxIt may perhaps also be pointed out that, if the incidence of a tax is unfair, a representation can be made to the Government under section 137 of the Act even after the imposition. Therefore, if there is any gross injustice, which the petitioner has not been able to make out before us he can still approach the Government for relief in case he can make out a case for relief under section 137 of the ActIt does appear to us that the effect of the proviso is that, by dispensing with even the publication of the modified proposals, no such right of the appellant is violated as could be considered a condition precedent to the validity of the proceedings. Nevertheless, if the petitioner could have made out a case of such injustice due to some irregularity that we should deem the imposition of the tax to be vitiated by then of a vital matter, we could have taken the view that section 135(3) will not bar consideration of a vital infirmity, in as much patent injustice has resulted from it, in the imposition of a tax. If it could be argued that there is no imposition of the tax at allas contemplated by law, section 135(3) may not have cured the irregularity. But, no such infirmity has been pointed out to US. The result is that, whatever irregularity there may be in not forwarding the objections of the appellant to the Prescribed Authority, as the Board should have done under section 132(4 ) of the Act, the irregularity seems to be cured by an application of the provisions of section 135(3) of the Act as the Government had notified the imposition of the