DEVAKI AMMAL (DECD) Vs. TAX RECOVERY OFFICER

JUDGEMENT

(1.) The above writ petitions have been filed by the same writ petitioner, who claims to be the wife of the late M. Natesan, who was an assessee to income-tax and the defaulter. After her death, the legal representatives have been brought on record. Common submissions have been made and, therefore, the writ petitions are dealt with together.

(2.) The income-tax dues recoverable from the late M. Natesan having fallen into arrears, the ITO concerned appears to have issued a certificate dt. 22nd March, 1971, pursuant to which the properties bearing door No. 15, Kandappa Pillai Street, Madras-31, and door No. 4, Dr. Guruswami Mudaliar Road, Madras-31 came to be attached in terms of the provisions contained in Schedule II to the IT Act, 1961 (hereinafter referred to as "the Act"), for attachment and sale of the immovable properties of the defaulter. On 2nd Jan., 1985, the petitioner and her sons appear to have been issued with a notice for settling the terms of sale proclamation of the property situate at No. 15, Kandappa Pillai Street, Madras-31, since by then the defaulter had died. The petitioner appears to have given a letter agreeing to have the property bearing door No. 15, Kandappa Pillai Street, Madras-31, sold in public auction. On 18th March, 1985, the sale notice in respect of that property has been issued along with a proclamation of sale of even date. On 25th April, 1985, the petitioner appears to have presented a petition to the CIT (Tax Recovery), praying for postponement of the auction sale. The sale was fixed originally to be held on 26th April, 1985, and it was proceeded with and conducted on that day, in which the third respondent, who got subsequently impleaded as a party respondent, was the successful bidder for a sum of Rs. 70,500. There is no controversy over the position that the successful bidder has remitted the amounts due in respect of the purchase made by him in accordance with law. While that be the position, on 9th May, 1985, the petitioner presented a petition under r. 61 of the Rules in the Second Schedule to the Act praying for setting aside the sale, but without complying with the stipulation contained in proviso (b) which obliges an application made by the defaulter under the rule to be disallowed unless the applicant deposits the amount recoverable from him in execution of the tax recovery certificate. By an order dt. 13th June, 1985, the application dt. 9th May, 1985, came to be rejected for non-compliance with the proviso (b) to r. 61 of the Second Schedule. Thereupon, on 17th June, 1985, an order of confirmation of sale was also made by the sale officer. While that be the position, the petitioner has moved this Court on 2nd July, 1985, praying for a writ of certiorari to call for and quash the proceedings of the first respondent dt. 13th June, 1985, rejecting the application. On 23rd July, 1985, this Court in WMP No. 10724 of 1985, granted stay of further proceedings. On 25th March, 1987, the stay petition came up for orders along with an application filed by the third respondent for vacating the stay and by an order dt. 25th March, 1987, it was directed that the issue of sale certificate be stayed pending disposal of the writ petition. The writ petitioner also filed WP No. 7089 of 1985, for a writ of declaration declaring that the proviso to r. 61 of the Second Schedule to the Act which imposed a condition of pre-deposit of the arrears as a condition precedent for entertaining an application for setting aside the sale as unconstitutional.

(3.) During the pendency of the above writ petitions on 2nd July, 1992, the petitioners appear to have paid to the Department the entire arrears as per the recovery certificate, as a consequence of which, on 16th July, 1993, the attachment in respect of the other property bearing door No. 4, Dr. Guruswami Mudaliar Road, Madras-31, was said to have been raised. The first respondent, as also the third respondent, has filed separate counter-affidavits opposing the claim of the writ petitioner on several grounds, both factual and legal. At the time of hearing of the writ petitions, learned counsel for the petitioner has to fairly concede that he cannot substantiate the challenge with reference to the provisos to r. 61. A cursory perusal of provisos (a) and (b) to r. 61 of the Second Schedule to the Act would go to show that they are almost akin to similar provisions contained in rr. 89 and 90 of Order XXI of the Civil Procedure Code, 1908. That apart, imposing a condition of the nature obliging the defaulter to pay the arrears as per the tax recovery certificate is meant to avoid frivolous and routine applications being mechanically filed for setting aside a sale and such stipulations cannot be considered to be either arbitrary or unreasonable. For all the reasons stated, I do not see any merit in WP No. 7089 of 1985 and the same shall stand dismissed.