MEENABEN VIPESHBHAI DOSHI Vs. SHATRUSHALYASINHJI DIGVIJAYSINHJI JADEJA

JUDGEMENT

(1.) THE applicants herein, 19 in number, filed Misc. Civil Application No. 1200 of 2009 with the following prayers:

(2.) THEREAFTER, realizing that the applicants were not a party to the judgment and order dated 09. 02. 2009 made by the High Court in Special Civil Application No. 22581 of 2006 the applicants preferred second application being Misc. Civil Application No. 2593 of 2009 with the following prayers:

(3.) HEARD learned senior advocate appearing for the applicants. It was submitted that the applicants were successful bidders at the auction conducted by Income Tax Department and were thus necessary party in the main petition, which had been filed by the defaulter, whose property was put up for auction sale. Referring to the historical backdrop of litigation between the tax defaulter and Income Tax Department learned counsel submitted that the applicants had also sought impleadment in the civil suit filed by the tax defaulter as well as in earlier writ petition filed by the tax defaulter. Therefore, the petitioner of the main petition was aware about the interest of the applicants in the property in question and the applicants ought to have been impleaded. Having not been impleaded the applicants had no opportunity to point out that there was no error committed by the Income Tax Department in conducting the auction proceedings. In support of the submission reference was invited to provisions of Rules 60 and 61 of Part-III of Schedule-II of the Income Tax Act, 1961 (the Act) to submit that the petitioner had failed in obtaining relief under the statutory alternative remedy provided by the said Rules and, therefore, the petition was not required to be entertained. It was further contended that the ground on which the petition had been allowed by the High Court was a ground which would be available only to a successful auction purchaser and could not be a ground available to a tax defaulter for having an auction sale set aside. That it was always within the powers of the High Court to recall and review its order in a case where there was violation of principle of natural justice when affected party was not heard or there was miscarriage of justice due to the correct party not being brought before the Court. In support of various submissions made following three decisions of the Apex Court have been relied upon: essar Oil Ltd. Vs. Halar Utkarsh Samiti and Ors. , 2004 (2) G. L. R. 1027; shivdeo Singh Vs. State of Punjab and Haryana, 1961 (O) GLHEL-SC 26454; AND asit Kumar Kar Vs. State of West Bengal, 2009 (0) GLHEL-SC 42788;