Uttarakhand High Court
Mohammed Ahsan And Another vs State Of Uttarakhand And Others on 27 February, 2017
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No. 12/2013
1. Mohammed Ahsan
S/o Mohammed Asgar
R/o Mohalla Killa, Manglore, Pargana Manglore,
Post Manglore, Tehsil Roorkee,
District Haridwar.
2. Mohammed Sayeed
S/o Shakoor Ahmed
R/o Mohalla Killa, Manglore, Pargana Manglore,
Post Manglore, Tehsil Roorkee,
District Haridwar. .... Appellants
Versus
1. State of Uttarakhand through Collector, Haridwar.
2. Tehsildar, Roorkee, District Haridwar.
3. Bijendra Kumar Agarwal S/o Lala Bhagwat Prasad,
R/o 95 Railway Road, Roorkee,
Pargana & Tehsil Roorkee, District Haridwar.
4. Ansar Hasan S/o Abdul Hasan
R/o Pathan Pura, Manglore, Tehsil Roorkee,
District Haridwar.
.... Respondents
Mr. Arvind Vashistha, Senior Advocate, assisted by Smt. Monika
Pant, Advocate for the appellants.
Mr. I.P. Kolhi, Brief Holder, for the State/respondents 1 & 2.
None for any other intervener.
February 27, 2017
Hon'ble Servesh Kumar Gupta, J.
By means of this appeal, the judgment and order dated 9.1.2013, rendered by the first appellate court, has been assailed whereby such appeal filed by State of Uttar Pradesh/Tehsildar, Roorkee was allowed and the decree dated 5.2.1996 passed in the O.S. No. 103/1995 was set aside.
Before reproducing the substantial questions of law, as have been formulated on the order sheet, it seems necessary to highlight the background facts of the controversy between the parties.
2It is undisputed that the property, in question, was originally owned by Ansar Hasan, the defendant no. 4, who sold the same to the defendant no. 3 Bijendra Kumar Agarwal vide sale deed dated 3.8.1992. Mr. Agarwal, in turn, sold the same property to the present appellants Mohammed Ahsan and Mohammed Sayeed vide sale deed dated 29.6.1993. Thus, they became the owners of the same. When the State/Tehsildar, Roorkee attached such property on 28.2.1994 and proceeded to auction the same on 24.8.1994 pursuant to a sale tax liability against Ansar Hasan, then the present appellants instituted an Original Suit No. 103/1995 seeking injunction against all the defendants including Ansar Hasan restraining them not to interfere in their possession.
The suit was decreed, as indicated above. It was assailed in Civil Appeal No. 15/2003, which was allowed by the first appellate court. Such judgment of the lower appellate court is under challenge before this Court.
Following substantial questions of law were formulated:
(i) Whether the land in question of the plaintiff/appellants can be attached against the demand raised against the defendant no. 4 of sales tax dues which has already been sold by that person?
(ii) Whether the appellate court was right in holding that the suit is barred by Sections 330-C and 287-A of U.P.Z.A. & L.R. Act?
(iii) Whether the appeal against respondent no. 4 stood abated on account of failure of the State of Uttarakhand to substitute the legal heirs of deceased respondent no. 4 and whether the appeal against the present appellant also stood abated?
3Having heard the rival contentions of the learned Senior Counsel on behalf of the second appellants and learned State Counsel for the respondents 1 and 2, I feel that these questions should be dealt hereinbelow.
Question No. 1:
Learned Counsel on behalf of State has drawn the attention of this Court towards Section 34(1) of the U.P. Trade Tax Act, 1948, which contemplates that where, during the pendency of any proceeding under this Act, any person liable to pay any tax or other dues creates a charge on or transfers, any (movable or immovable) property belonging to him in favour of any other person with the intention of defrauding any such tax or other dues, such transfer or charge shall be void as against any claim in respect of any tax or other dues payable by such person as a result of completion of the said proceedings. So, on the basis of this provision, it has been argued that since the proceedings of exigibility of tax was pending against Ansar Hasan, so the transfer made by him on 3.8.1992, pertaining to the ownership of the property in question, is not only voidable, but void altogether.
I think this provision is not attracted in the present controversy for the simple reason that it is admitted that the demand of sale tax liability was made on 14.12.1993. So, pendency of any proceeding by itself before the competent officer of the sales tax does not make the assessee liable to pay any tax or other dues. He shall be deemed to be liable to pay any tax or other dues on the moment he is made acquainted about the exigibility of any arrears of tax against him. Having been made acquainted of such tax liability, if he creates any charge or transfers his property against any claim, then only such transfer shall be void. It is nowhere on the record that Ansar Hasan does 4 not have any other property, but was the owner of this sole property which he transferred vide sale deed dated 3.8.1992.
So, I think this property which was transferred on 3.8.1992 and then further on 29.6.1993 could not have been attached on 28.2.1994. I answer the first substantial question of law accordingly.
Question No. 2:
Now, the finding of the appellate court that the suit was barred by Section 330-A and 287-A of the U.P.Z.A. & L.R. Act does also suffer with infirmity in my view for the simple reason that the suit would have been barred had it been initiated by Ansar Hasan against the assessment of collection of land revenue against him. Since it was not instituted by him, but he had transferred the property, in question, much earlier/at least 3 years before, then there is no question of applicability of the bar as have been contemplated in the said provisions of the U.P.Z.A. & L.R. Act. So, I answer this question accordingly.
Question No. 3:
Now, the question remains whether the appeal against Ansar Hasan stood abated on account of failure of State of Uttarakhand (first appellant) to substitute the legal heirs of deceased Ansar Hasan and whether the appeal against the present appellants also stood abated?
It is undisputed that Ansar Hasan died on 28.8.2007 during the pendency of first appeal, which was presented way back in 2003 and could be adjudicated after almost 10 years on 9.1.2013. It can be noticed that Ansar Hasan had died more than five years ago when the decision in the first appeal came, but the State 5 Government/Tehsildar, Roorkee never took any steps to substitute his legal heirs.
Learned Counsel on behalf of the State/respondents has drawn the attention of this Court towards the provisions contained under Order 41 Rule 4 of the CPC, which reads as under:
"One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.--Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."
That apart, a precedent of Constitution Bench of Hon'ble Calcutta High Court, rendered in Santosh Kumar Mondal & others v. Nandalal Chakrapani & others, AIR 1963 Calcutta 289, has also been relied upon. In this precedent, Hon'ble Calcutta High Court has interpreted the scope of Order 41 Rule 4 of the Civil Procedure Code and has concluded that whether there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on a ground common to all the plaintiffs or to all the defendants, and two or more of the defendants appeal from the decree, the death of one of the appellants does not affect the right of the other appellants to proceed with the appeal from the whole decree, and the appellate Court may reverse or vary the entie decree in 6 favour of all the surviving plaintiffs or defendants and the legal representative of the deceased plaintiff or defendant as the case may be.
I think that the above precedent also hardly has any applicability in the present controversy for the simple reason that the tax liability against Ansar Hasan was his absolute liability. It could have been executed either against him or from his property. This was not the case that Ansar Hasan was the owner of the property which was attached pursuant to a demand notice on 14.12.1993 and he did not have any other property. If the State could not recover the tax liability from Ansar Hasan, then certainly such tax could not have been recovered from his successors.
So, I answer this third question holding that the appeal stood abated not only against Ansar Hasan, but also against the present appellants on account of failure on the part of the State to move the appropriate substitution application.
As a result, this second appeal is allowed. Impugned judgment and order passed by the first appellate court is set aside.
All pending miscellaneous applications stand disposed of.
Let the LCR be sent back.
(Servesh Kumar Gupta, J.) Prabodh