HONOURABLE JUSTICE UJJAL BHUYAN
AND
HONOURABLE Dr. JUSTICE CHILLAKUR SUMALATHA
WRIT PETITION No.5926 of 2006
ORDER: (per Hon'ble Dr. Justice Chillakur Sumalatha)
Aggrieved by the notice dated 30.01.2006 that is issued by the
Deputy Commercial Tax Officer, Khammam under Section 25 of the
Andhra Pradesh Revenue Recovery Act, 1864, the petitioner has
invoked the writ jurisdiction of this Court seeking to declare the action
of respondent No.1 in attaching her property under the guise of the
said notice as illegal and arbitrary.
2. Submitting the grievance of the writ petitioner, the learned counsel appearing on her behalf contended that the petitioner is the lawful owner of the house which is a part of the subject property of the impugned notice. The petitioner has nothing to do with the liability of either respondent No.3 or his father and that, it is not the petitioner who evaded the revenue that is due to respondent Nos.1 and 2. Therefore, proceeding against the property of the petitioner is illegal and arbitrary and as such, exercising the powers under Article 226 of the Constitution of India, a writ of Mandamus should be issued declaring the action of respondent No.1 in attaching the petitioner's property as void being unjustifiable.
3. Contradicting the said submission, the learned Government Pleader for Commercial Tax submitted that in spite of best efforts made by the Commercial Tax Department to recover the arrears of tax that fell due under the Andhra Pradesh Government Sales Tax Act, the WP.No.5926 of 2006 2 Central Sales Tax Act and the Andhra Pradesh Rural Development Cess Act, the department could not recover the amount; the amount that is liable to be paid is Rs.8,29,956/- and as there is necessity on the part of the Commercial Tax Department to take steps for realisation of the said amount as provided under law, the Department made enquiries with regard to the availability of immovable property standing in the name of the defaulter and found that the defaulting party has got 900 square yards of land at Wyra Village in which there exists a pucca R.C. house. On the strength of the material obtained including the Encumbrance Certificate, the property was sought to be attached under the Andhra Pradesh Revenue Recovery Act. The entire procedure was taken up as per the norms provided under law. Petitioner has no locus standi to challenge the notice issued and therefore, the writ petition is not maintainable.
4. Having given anxious consideration to the above said submission and the materials available on record including the writ petition filed by the petitioner and the counter-affidavit filed by respondent No.2, the points that fall for consideration are:-
(1) Whether the petitioner has got the locus standi and whether there exists any cause of action to challenge the notice titled "Demand prior to attachment of land"
dated 30.01.2006 issued by the Deputy Commercial Tax Officer, Khammam?
WP.No.5926 of 2006 3 (2) Whether the petitioner has made out a case to grant the relief sought for by invoking the jurisdiction of this Court under Article 226 of the Constitution of India?
Point No.1:-
5. The case of the petitioner, as could be culled out through her affidavit, is that she is the owner of the house bearing No.11-103/1, which is constructed in 181 square yards of land, having purchased the same on 18.6.2003 from respondent No.3 for a sale consideration of Rs.3,50,000/-. She continues to be in possession and enjoyment of the said property. Respondent No.3 executed an irrevocable General Power of Attorney in the year 2003 whereafter she got her name mutated in the revenue records and started paying tax. Her vendors are in possession of another 900 square yards of open site and that, she was unaware of the subject matter basing on which the impugned notice was issued. When she got knowledge about the attachment proceedings, immediately herself and her husband approached respondent No.3 and enquired about the said proceedings. An assurance was given by respondent No.3 that he would take care of the impugned notice, but he failed to do so and hence, she filed a representation under Section 35 of the Andhra Pradesh Revenue Recovery Act before respondent No.2 requesting him to delete the house property which she purchased, but no action was taken basing on her representation. According to the petitioner, she is a bona fide purchaser of the property as she got registered the property in her name through document No.112/2006, and hence, respondent No.2 WP.No.5926 of 2006 4 has no right over the said property. Respondent No.2 issued the impugned notice without verifying the title and as such, the action of the department in attaching her property under the guise of the impugned notice has to be declared illegal.
6. The version of respondent No.2 is that one registered dealer by name Sri Lagadapati Suryam Paddy and Rice Mill, Wyra became a defaulter of a sum of Rs.8,29,956/- as arrears of tax and in spite of the best efforts of the department, the said dues could not be recovered. On enquiry, it was found that the said dealer has got 900 square yards of land at Wyra Village which includes a pucca R.C. house and on the strength of the Encumbrance Certificate that was obtained on 29.12.2005, the said property was sought to be attached under the Andhra Pradesh Revenue Recovery Act and accordingly, Form-4 was issued, which is a notice prior to attachment. The defaulting party, after accrual of tax dues, had gifted the said property to his son i.e., respondent No.3 herein and therefore, the said deed of gift is void in the light of Section 17-A of the Andhra Pradesh Government Sales Tax, 1957 and further, the property was gifted by the defaulting party to his son only with an intention to defraud the revenue. The property was registered only in February, 2006 in the name of the petitioner, whereas the impugned notice under Form-4 of the Andhra Pradesh Revenue Recovery Act was issued on 30.01.2006. Knowing fully well about the notice of attachment, respondent No.3 registered the property in favour of the petitioner to defraud the revenue. Writ WP.No.5926 of 2006 5 Petition has not been filed bona fide. There is absolutely no merit in the writ petition, which should be dismissed.
7. In the light of the above stand taken by the contesting respondent, it has to be seen whether there exists any cause of action for the petitioner to file the present writ petition.
8. "Cause of action" is an equation of bundle of facts which gives a right to the claimant to claim the relief against the opposite party.
9. In Halsbury Laws of England (Fourth Edition), it has been stated as follows:
"Cause of action is a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action."
10. Hon'ble Apex Court in Appeal (Crl.) No.786 of 2006 between Om Prakash Srivatsava Vs. Union of India made a further observation as follows:-
"The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person. (See Black's Law Dictionary). In Stroud's Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to WP.No.5926 of 2006 6 an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf."
11. In the case on hand, as per the version of the petitioner herself, the property was got registered in her name in the year 2006. Of course, her version is also that she came into possession of the property through irrevocable General Power of Attorney in the year 2003 and therefore, she got mutated her name in the relevant revenue records. The General Power of Attorney would not confer any title to the property and even if the contention of the petitioner that she got title to the property in the year 2003 has to be believed upon, there may not be any necessity to get the property registered in her name in the year 2006. That itself goes to show that the petitioner became the absolute owner of the property in the year 2006. The petitioner conveniently kept silent about the exact date in the year 2006 on which she perfected her title over the property in question. There is no denial of the averments made at para 8 of the counter-affidavit that the property was got registered in the month of February, 2006. Further, the petitioner herself in the written representation submitted to respondent No.2, which forms part of record and which was submitted by the petitioner herself, made a mention that by paying the balance sale consideration, she got the property registered in her name on 15.02.2006. Undisputedly, the impugned notice was issued on WP.No.5926 of 2006 7 30.01.2006. Thus, by the said date, no cause of action accrued to the petitioner. Even subsequently also, there is no cause of action for the petitioner in view of the discussion that would proceed further on point No.2. Therefore, this point is answered with an observation that the writ petition is filed by the petitioner without any cause of action.
12. Point No.2:-
The notice under challenge which is titled "Demand prior to attachment of land" is issued by the Deputy Commercial Tax Officer, Khammam, who is respondent No.2 herein, under Section 25 of the Andhra Pradesh Revenue Recovery Act.
13. The Andhra Pradesh Revenue Recovery Act, 1864, is an Act framed to regulate and recover the arrears of revenue together with interest and costs by sale of the defaulter's movable and immovable property or by execution against the person of the defaulter in the manner enumerated.
14. The case on hand revolves around Section 25 of the Andhra Pradesh Revenue Recovery Act. Section 25 reads as follows:-
"Demand notice to be served prior to attachment of land- Mode of service- Before a Collector, or other officer empowered by the Collector in that behalf, proceeds to attach the land of the defaulter or buildings thereon, he shall cause a written demand to be served upon the defaulter, specifying the amount due, the estate or land in respect of which it is claimed, the name of the party in arrear, the batta due to the person who shall serve the demand and the time allowed for payment which shall be fixed with reference to the distance from the land on which the arrear is due to the place at which the money is to be WP.No.5926 of 2006 8 paid. Such demand shall be served by delivering a copy to the defaulter, or to some adult male member of his family at his usual place of abode, or to his authorised agent or by affixing a copy thereof on some conspicuous part of his last known residence or on some conspicuous part of the land about to be attached."
15. Thus, Section 25 notice is a written demand that is to be served upon the defaulter giving details of the amount due, enumerating the estate or land in respect of which the amount is claimed fixing the time for payment.
16. Section 26 of the Andhra Pradesh Revenue Recovery Act lays down that when the amount due remains unpaid, in spite of the said demand that is made under Section 25 thereof and no arrangement for securing the same is made, then the concerned authority would be at liberty to proceed to recover the arrears by attachment and sale of the land of the defaulter that is mentioned in the notice issued under Section 25 thereof. Thus, it is clear that the notice under challenge in this writ petition is only a demand that is made to the defaulter. The writ petitioner has got nothing to do with the said notice. In the writ petition, the petitioner has projected as if through the impugned notice the property was attached. The relief sought for is only to declare the action of respondent No.1 in attaching her property as illegal. Indeed, no attachment was effected through the impugned notice.
17. The law is well settled that in appropriate cases in spite of availability of alternative remedy, the High Court may still exercise its writ jurisdiction where the writ petitioner seeks enforcement of any of WP.No.5926 of 2006 9 the fundamental rights, where there is violation of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or where the vires of any Act is under challenge. (vide the judgment of the Hon'ble Supreme Court in Harbanslal Sahnia And Anr. vs Indian Oil Corpn. Ltd. And Ors1 and Radha Krishan Industries v. State of Himachal Pradesh and others2.
18. But, in the case on hand, the petitioner seeks the indulgence of this Court to restrain a competent authority from performing his duties which he is bound to perform under the statute. As such, the writ jurisdiction cannot be invoked.
19. Therefore, in the light of the foregoing discussion, this Court concludes that the relief sought for cannot be granted invoking the jurisdiction of this Court under Article 226 of the Constitution of India which should be exercised only in appropriate and befitting cases. Thus, the writ petition fails.
20. Resultantly, the writ petition stands dismissed. Interim stay granted earlier stands vacated.
21. Pending Miscellaneous Petitions, if any, shall stand closed. No costs.
_____________________ JUSTICE UJJAL BHUYAN _________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA 19 .11.2021 dr 1 (2003) 2 SCC 107 2 (2021) 6 SCC 771