Gujarat High Court
Bil Metal Industries Limited vs State Of Gujarat on 29 July, 2021
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/10593/2018 JUDGMENT DATED: 29/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10593 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BIL METAL INDUSTRIES LIMITED
Versus
STATE OF GUJARAT & 8 other(s)
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Appearance:
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
MS.URMILA A. DESAI, ASSISTANT GOVERNMENT PLEADER/PP(99) for
the Respondent(s) No. 1
MR.VARUN K.PATEL(3802) for the Respondent(s) No. 6
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 7
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4,5,7.1,7.2,7.4,7.5,9
NOTICE UNSERVED(8) for the Respondent(s) No. 7.3
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 8
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 29/07/2021
ORAL JUDGMENT
1. With the consent of the learned advocates for the respective parties, the present writ petition is taken up for final disposal.
2. Issue Rule, returnable forthwith. Ms.Urmila A. Desai, learned Assistant Government Pleader waives service of notice of Rule on Page 1 of 8 Downloaded on : Fri Sep 10 02:41:25 IST 2021 C/SCA/10593/2018 JUDGMENT DATED: 29/07/2021 behalf of respondent Nos.1 to 5. So far as respondents No.7.3 and 8 are concerned, affidavit dated 14.02.2020, has been filed seeking deletion of said respondents. Accordingly they have been deleted. Respondents No.7.1, 7.2, 7.4, 7.5 and 9, though served have not entered appearance.
3. The issue in the present writ petition, revolves around the land bearing Block No.62/Paiki-1 (hereinafter referred to as the 'land in question'). The land was initially purchased by Baroda Ginning and Processing Company Limited; however, it appears that it could not pay the loan of Bank of Baroda, which led to institution of Suit No.258 of 1962. Accordingly, the land in question was auctioned. M/s. Neha Builders Private Limited, purchased the same in the auction proceedings for which, Certificate dated 03.08.1979 was issued. Thereafter, the petitioner, vide registered Sale Deed dated 11.08.1999, bearing registration no.5090, purchased the land from the original owners and M/s. Neha Builders Private Limited, as confirming party. From the record, it reveals that Baroda Ginning and Processing Company Limited was having dues of the Income Tax Department, which aspect, is reflected in the revenue record vide entry no.634 dated 15.02.1960 with respect to Revenue Survey No.62/2, 67 and 68/2. Another entry no.1293 dated 04.09.1975 was also mutated in the revenue record.
3.1 Apropos the execution of the registered Sale Deed dated 11.08.1999 in favour of the petitioner, it applied for posting entry in the revenue record; however, in the first round, the same was rejected. Thereafter, again in the year 2007, the petitioner applied for mutation of the entry no.3723; however, the same was rejected on the ground that the dues of the Income Tax Department are still outstanding. Once again entry no.3909 dated 10.09.2008 was requested to be mutated; however, the same was also rejected on Page 2 of 8 Downloaded on : Fri Sep 10 02:41:25 IST 2021 C/SCA/10593/2018 JUDGMENT DATED: 29/07/2021 the ground that Sale Deed/the copy of the Index are not produced. The petitioner being aggrieved by the rejection of the entry, preferred an appeal before the Deputy Collector. Deputy Collector, vide order dated 20.06.2012, rejected the appeal on the ground that in view of the entry no.634 dated 15.02.1960, entry no.1293 dated 04.09.1975 and the fact of Income Tax dues having been recorded, no error has been committed while rejecting the entry nos.3723 and 3909.
3.2 The said order dated 20.06.2012, was unsuccessfully challenged before the Collector and in Revision before the Special Secretary, Revenue Department (Appeals) (hereinafter referred to as 'SSRD'). The SSRD, did not interfere mainly because of the entry no.634 dated 15.02.1960 and entry no.1293 dated 04.09.1975. Being aggrieved, the petitioner has filed the captioned writ petition.
4. Mr.Nishit P. Gandhi, learned advocate appearing for the petitioner has submitted that apropos the registered Sale Deed dated 11.08.1999, the petitioner applied for mutation of the entry; however, the same was rejected on the ground that there are outstanding dues of the Income Tax Department and no evidence has been produced substantiating the factum of clearing the dues. Again in the year 2008, the petitioner applied; however, the same was also rejected on the ground that the copy of the Index has not been produced as well as there is an endorsement against the entry no.3723 about the outstanding dues and no evidence is available indicating the payment of the dues. It is submitted that the Deputy Collector, while not accepting the case of the petitioner, rejected the appeal so also the Collector, vide order dated 15.10.2013. The SSRD also did not consider the case of the petitioner and rejected the revision by recording that in view of the entry no.634 dated 15.02.1960 as well as entry no.1293 dated 04.09.1975, there are Page 3 of 8 Downloaded on : Fri Sep 10 02:41:25 IST 2021 C/SCA/10593/2018 JUDGMENT DATED: 29/07/2021 outstanding dues of Income Tax Department. Further, it has also been observed that if there are outstanding dues of any Bank and/or Government, the same are required to be recovered so also the outstanding dues of the Income Tax Department. It is submitted that by observing thus, the SSRD, has rejected the revision application vide order dated 18.05.2018.
4.1 Mr.Gandhi, learned advocate submitted that it was not permissible to the authorities not to mutate the entries inasmuch as, the petitioner was having registered Sale Deed in its favour. It is submitted that at the most, the Revenue Authorities, ought to have continued the endorsement of outstanding dues in the column of the other rights; however, it was not open to the authorities concerned to have cancelled the entries no.3723 dated 16.10.2007 and 3909 dated 10.09.2008.
4.2 While inviting the attention of this Court to the Certificate dated 20.07.2012 issued by the Tax Recovery Officer, Range-2, Baroda, Office of the Tax Recovery Officer, it is submitted that the department, has revoked the office attachment order No.TRO/SR/83 to 86/R.K.P./75-76 dated 03.09.1975 with respect to Block No.62 bearing Survey No.62/2, 63 and 68/2. It is submitted that even the respondent No.6, has now filed an affidavit indicating about the passing of the order dated 20.07.2012, revoking the order dated 03.09.1975. It is submitted that before the order was passed by the Collector dated 15.10.2013, in the interregnum, entry no.4393 dated 09.08.2012, has been mutated whereby, the aspect of the order dated 20.07.2012 has been recorded. It is thus submitted that in view of the Certificate dated 20.07.2017, and the entry no.4393 dated 09.08.2012, the authority concerned, shall mutate the entry in the revenue record in the name of the petitioner.
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5. On the other hand, Mr.Varun K. Patel, learned advocate appearing for the respondent No.6, has submitted that since the outstanding Income Tax dues of the Department were paid, the order of attachment dated 03.09.1975 has been revoked and therefore, the Income Tax Department at present has no interest or charge or lien or encumbrance or attachment in any manner whatsoever on the land i.e. Block No.62 bearing Survey No.62/2, 67 and 68/2. It is therefore urged that Income Tax Department has nothing to say so far as the mutation of the entries in the revenue record in the name of the petitioner is concerned.
6. Ms.Urmila A. Desai, learned Assistant Government Pleader appearing for the respondent authorities, has submitted that since now there is communication dated 20.07.2012 passed by the Tax Recovery Officer, Range-2, Baroda, Office of the Tax Recovery Officer so also the affidavit, the petition be relegated to the Mamlatdar for passing the order in accordance with law.
7. Heard Mr.Nishit P. Gandhi, learned advocate appearing for the petitioner, Ms.Urmila A. Desai, learned Assistant Government Pleader appearing for the respondent authorities and Mr.Varun K. Patel, learned advocate appearing for the respondent No.6.
8. Vide registered Sale Deed dated 11.08.1999, the petitioner had purchased the land in question from Harmanbhai Naranbhai Patel - original owner and M/s. Neha Builders Private Limited, as confirming party. Apropos the execution of the registered Sale Deed, the petitioner had applied for mutation of the entry; however, it appears, that the entries were mutated in the revenue record namely entry no.3223 dated 03.12.1999, entry no.3334 dated 25.10.2002 and entry no.3413 dated 03.10.2003; however, the entries were rejected for reasons as indicated therein. One of the reasons being outstanding dues of the Income Tax Department.
Page 5 of 8 Downloaded on : Fri Sep 10 02:41:25 IST 2021C/SCA/10593/2018 JUDGMENT DATED: 29/07/2021 Again, entry no.3413 was mutated in the revenue record, but the same was also cancelled against which, an appeal was preferred before the Deputy Collector, which was remanded vide order dated 15.12.2005 to the Mamlatdar to mutate the entry if the applicant, produces the Certificate of the Income Tax Department certifying that there are no outstanding dues. It appears that the petitioner, without obtaining the Certificate of the Income Tax Department, has once again applied for the mutation of the entry no.3723 dated 16.10.2007 as well as entry no.3909 dated 10.09.2008; however, both the entries came to be cancelled only on the ground that no evidence has been produced substantiating the aspect of clearing the dues of the Income Tax Department. The Deputy Collector, was of the opinion that in absence of No Dues Certificate from the Income Tax Department, the entries have rightly not been mutated in the revenue record. The Collector, vide order dated 15.10.2013, did not entertain the appeal so also the SSRD, therefore, the only ground which weighed with the authorities concerned, was absence of any evidence and/or Certificate about no outstanding dues from the Income Tax Department.
9. In the interregnum, as can be seen from the record, the Tax Recovery Officer, Range-2, Office of the Tax Recovery Officer, has issued a communication dated 20.07.2012, relevant extracts whereof read thus:
"Please refer to this office attachment order No.TRO/SR/83 to 86/RKP/75-76 dated 03/09/1975 in respect of the following properties:-
'Block No.62 bearing S.No.62/2, 67 & 68 of village- Samiyala, Opp-Bhaili Railway station, Vadodara (owned by (i) Ratilal Kashibhai Patel, (ii) Shantaben Ratilal Patel, (iii) Janakbhai Ratilal Patel and (iv) Others of Baroda Ginning & Processing Co.
The aforesaid order is hereby revoked with immediate effect as there is no due outstanding in the above cases."Page 6 of 8 Downloaded on : Fri Sep 10 02:41:25 IST 2021
C/SCA/10593/2018 JUDGMENT DATED: 29/07/2021
10. Apropos the communication dated 20.07.2012, an entry no.4393 dated 09.08.2012 has been mutated recording that in view of the communication dated 20.07.2012 and the fact that the attachment order dated 03.09.1975, has been revoked, the department has removed the charge of the Income Tax Office, from the Block No.62 (old Revenue Survey No.62/2, 67 and 68/2).
11. The respondent No.6, has also filed an affidavit wherein, in paragraph 2, it has been stated thus: -
"2. It is submitted that the dispute raised in the present petition pertains to the land being Block No.62 bearing Survey no.62/2, 67 and 68 of village Samiyala, Opp. Bhayli Railway Station, Vadodara owned by (i) Ratilal Kashibhai Patel (ii) Shantaben Ratilal Patel (iii) Janakbhai Ratilal Patel and (iv) Others of Baroda Ginning & Processing Co. At the relevant time, the aforesaid land was attached by the Income Tax Department vide attachment order no.TRO/SR/83 to 86/RKP/75-76 dated 03.09.1975. The said attachment order is later on revoked by revocation order no.BRD/TRO-2/SR.83 to 86/2012-13 dated 20.07.2012 (page 49). The Land Revenue Department of the State has given the effect to the said revocation order in their record. It is thus submitted that in view of above, the Income Tax Department at present has no interest or charge or lien or encumbrance or attachment in any manner whatsoever on the aforesaid land i.e. Block No.62 bearing Survey no.62/2, 67 and 68 of Village Samiyala, Opp. Bhayli Railway Station, Vadodara."
12. Pertinently, the objection, which was raised for rejecting the entry no.3723 in the Village Form No.6, was to the effect that no evidence has been produced for payment of the Income Tax dues. Entry no.3909 has been rejected/cancelled on the ground that registered document and copy of Index has not been produced so also the non furnishing of evidence for payment of dues.
13. It is pertinent to mention that the charge, was on Block No62 and the Block No.62 was further divided into 62/Paiki-1 and 62/Paiki-2. The charge, has been removed from the Block No.62 itself. Further, during the pendency of the proceedings, the Income Page 7 of 8 Downloaded on : Fri Sep 10 02:41:25 IST 2021 C/SCA/10593/2018 JUDGMENT DATED: 29/07/2021 Tax Department itself, has issued the communication/certificate dated 20.07.2012 and has also filed the affidavit. Hence, the objection as regards outstanding dues, now, does not survive. Under the circumstances and in view of the stand of the respondents, the petition deserves to be allowed and is accordingly allowed. The Mamlatdar, is directed to mutate the entry in the revenue record in the name of the petitioner with respect to the land in question, that is, Block No.62/Paiki-1 strictly in accordance with law.
14. Rule is made absolute to the aforesaid extent. No order as to costs.
15. Direct service, is permitted.
Sd/-
(SANGEETA K. VISHEN,J) RAVI P. PATEL Page 8 of 8 Downloaded on : Fri Sep 10 02:41:25 IST 2021