RAM KISHAN Vs. COLLECTOR AGRA

JUDGEMENT

(1.) THIS writ petition under Article 226 of the Constitution has been filed praying that the auction notice dated 29.10.2001 be quashed and a writ of mandamus be issued commanding the respondents not to sell house Nos. 4/279 and 4/279A. Gudai Mansoor Khan, Kachehari Ghat, Agra.

(2.) THE case set -up in the writ petition is that one Mitthan Lal was owner of houses No. 4/279 and 4/279A. He executed a sale deed of the houses in dispute in favour of the petitioner and his brother Late Tara Chand on 4.12.1971. There was a family settlement between the petitioner and his brother Tara Chand in which both the houses came in the share of the former and he also got possession over the same. A notice was pasted on the petitioner's house on 27.8.2001 that the houses would be auctioned for recovery of dues of sales tax standing against the firm M/s. Mltthan Lal Oil Stores. Chatta Bazar, Kachehari Ghat, Agra. A notice was subsequently issued on 29.10.2001 notifying that the houses would be sold through auction on 3.12.2001. The petitioner contends that he Is the exclusive owner of the houses in dispute and the same cannot be sold for recovery of dues of sales tax of firm M/s. Mitthan Lal Oil Stores. The State has filed a counter -affidavit, which has been sworn by Sri D. P. Sahu. Trade Tax Officer, Sector 3. Agra. It is averred in the counter -affidavit that there are arrears of sales tax amounting to Rs. 10,20.640 pertaining to the Assessment Years 1971 -72. 1972 -73 and 1973 -74 against M/s. Mitthan Lal Oil Mills, Chatta Bazar which are recoverable as arrears of land revenue. During the course of recovery proceeding, it was revealed that the nouses in dispute stand in the name of Mitthan Lal, who is the proprietor of the firm M/s. Mitthan Lal Oil Stores. Inquiry was also made from Nagar Nlgam and Jal Sansthan. Agra and the authorities of the aforesaid bodies informed that the houses are recorded in the name of Mftthan Lal. It is, thus, contended on behalf of the State that as the houses stand In the name of Mitthan Lal, the same can be auctioned In proceedings for recovery of arrears of sales tax from the firm M/s. Mitthan Lal Oil Stores.

(3.) SRI B. P. Singh has contended that the petitioner had purchased the houses in dispute by means of a registered sale deed on 4.12.1971 after taking due care and inquiries which showed that the houses Were free from all encumbrances. There was a tenant in a portion of the house In dispute and it was the petitioner who got the same released on the ground of personal need and the release order was passed by the Rent Control and Eviction Officer, Agra on 31.12.1981. Thereafter, the petitioner had invested huge amount of money In getting the house repaired and renovated. It has been urged that the petitioner Is the absolute owner of the houses In dispute and, therefore, the same cannot be sold In proceedings for recovery of sales tax dues which are standing against the firm M/s. Mitthan Lal Oil Stores. Sri H. R. Misra, learned standing counsel has, on the other hand, submitted that In view of Section 34 of the Trade Tax Act, the transfer made in favour of the petitioner is void. Section 34 provides that where during the pendency of any proceeding under the Act, any person liable to pay any tax or other dues creates a charge on or transfers any immovable property belonging to him in favour of any other person with the intention of defrauding any such tax or other dues, such charge or transfer shall be void as against any claim in respect of any tax or other dues payable by such person as a result of the completion of the said proceedings. On the strength of the aforesaid provision. Sri Misra has submitted that in proceedings for recovery of arrears of sales tax, the sale deed of the houses in dispute executed by Mitthan Lal in favour of the petitioner would be deemed to be void.