THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT APPEAL No.163 of 2023
JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. A.Sanjeev Kumar, learned Special
Government Pleader attached to the office of learned
Additional Advocate General representing the appellants
and Md. Arshad Ahmed, learned counsel for respondent
No.1/writ petitioner.
2. This writ appeal is directed against the order dated 16.08.2022 passed by the learned Single Judge allowing Writ Petition No.15834 of 2021 filed by the 1st respondent as the writ petitioner.
3. 1st respondent had filed the related writ petition assailing the order dated 25.06.2021 passed by the Deputy Commissioner of Prohibition and Excise, Mahabubnagar Division confiscating the Mahindra Bolero Maxi Truck Plus 2 HCJ & NTRJ W.A.No.163 of 2023 bearing registration No.TS06UA6053 belonging to the 1st respondent as illegal and arbitrary. 1st respondent further sought for a direction for release of the seized vehicle.
4. Initially an interim order was passed by the learned Single Judge on 13.07.2021 to the effect that no sale certificate should be issued and the confiscated vehicle should not be handed over to the auction purchaser.
5. It was contended by the 1st respondent before the learned Single Judge that there was violation of the procedure prescribed under Section 46(4) of the Telangana Excise Act, 1968 (briefly referred to hereinafter as 'the Excise Act') read with Rule 6 of the Telangana Excise (Disposal of Confiscated and Other Articles) Rules, 1969 (briefly referred to hereinafter as 'the Rules'). It was contended that auction notice was issued on 11.07.2021 scheduling the auction on the very next day i.e., 12.07.2021, that too, without publishing the same in the local newspaper.
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6. On the other hand, the 4th appellant being the contesting respondent had submitted counter affidavit. It was contended that auction notice was displayed in the notice boards of the Tahsil office as well as Excise office.
Thus, there was sufficient compliance to the requirement of Section 46(4) of the Excise Act.
7. In the course of the hearing, learned Special Government Pleader representing the 4th appellant had submitted that the auction sale was successfully conducted on 12.07.2021 wherein the confiscated vehicle was sold to the 2nd respondent for a total amount of Rs.1,56,800.00 whereafter the sale certificate as well as the vehicle were handed over to the auction purchaser on 12.07.2021.
8. After hearing learned counsel for the parties and on perusal of the materials on record, learned Single Judge held as follows:
"12. Firstly, it is to be noted that as per Section 46F of the Act, when an order of confiscation is passed against 4 HCJ & NTRJ W.A.No.163 of 2023 any property and such order becomes final, the property vests in Government and would thus become Government Property.
13. Secondly, Section 46(4) of the Act and Rule 6 of the Rules of 1969 made thereunder prescribe the manner and method of disposal of confiscated goods, which have not disposed of departmentally are required to be done thorough public auction therein. The requirement of disposal of public auction would mean sufficient notice to general public to take part therein. Further, the notice of public auction should be given wide publicity by causing the same published at least in the local newspaper which has not been done in the present case, as admitted by the respondents in their counter-affidavit. Though, by the additional counter, the 4th respondent claims to have issued notice for publication in two newspapers, the same however was not published and in spite of non-publication, 10 people have participated at the auction held on 12.07.2021, pursuant to the putting up of notice in Tahsil office and excise office on 11.07.2021, as sufficient intimation to general public, cannot be accepted, as being in compliance with the statutory requirement of property being disposed of in public auction, for the general public to be aware of the public auction for the reasons recorded herein below.
14. As per the notice dt.11.07.2021, the auction was scheduled to be held on 12.07.2021 - i.e. Monday. It is not shown to this Court as to urgency for the respondents to have over work on a Sunday i.e. on 11.07.2021 to issue notice scheduling the auction on the following day. Further, 5 HCJ & NTRJ W.A.No.163 of 2023 it is also surprising to note that in order to accommodate the respondents for affixing notice in the notice board, the Tahsil office is kept open on a Sunday. Even assuming that the respondents worked overtime on a Sunday, being a public holiday, the affixation of notice either at the Tahsil office or Excise office on 11.07.2021 and the auction being on the following day, the same would not get noticed by general public enabling them to take part in such action on 12.07.2021.
15. Further, the claim of respondents of issuing notice for publication in newspapers as copy of the notice dt.11.07.2021 allegedly acknowledged by the representative of the newspaper would only show the same being given as a news item to be published and not for causing advertisement inviting quotations by releasing advertisement with due sanction of the concerned authority to enable the newspapers to claim its charges. Thus, the claim of the respondents in this regard in the additional counter affidavit is liable to be rejected.
16. Further, a perusal of the documents enclosed to the counter-affidavit would also indicate that though the subject sale is stated to have been confirmed in favour of the auction purchaser and the auction purchaser being handed over with the possession of the vehicle, the challan of payment of the auction price by the auction purchaser would indicate that the said payment has been made into the State Treasury on 14.07.2021 which is two days after the alleged date of auction and the alleged issue of sale certificate and handing over of the vehicle to the auction purchaser. Even the same would indicate that the 6 HCJ & NTRJ W.A.No.163 of 2023 respondents-authorities have handed over the vehicle to the auction purchaser even before they received the auction proceeds from the auction purchaser.
17. All these above aspects would only go to show that the respondents-authorities did not act in accordance with the provisions of Section 46(4) of the Act as well as Rule 6 of the Rules of 1969 in conducting auction and disposing of the confiscated goods, namely vehicle bearing No.TS 06 UA 6053, and on the other hand, fudged the record to over come the interim order of this Court dt.13.07.2021 and also to mislead this Court. Those actions on the part of the respondents, in particular respondent Nos.3 and 4 would amount to interfering with the administration of justice.
18. Even though the auction purchaser has been impleaded as the 5th respondent and notice has been served on him, he remained absent. The above said fact would also go to show that the 5th respondent has acted in connivance with respondent Nos.3 and 4 to show as if an auction has taken place, whereat he stood as a successful bidder. The entire process of auction stated to have been conducted by the respondents-authorities is vitiated and cannot be upheld. Thus, the claim of the respondents- authorities that the subject vehicle was put to auction cannot be accepted and the said auction shown as held on 12.07.2021 is liable to be declared as illegal, arbitrary and in contravention of the provisions of the Act and the Rules. Therefore, the auction of the vehicle bearing No.TS 06 UA 6053, stated to have been held on 12.07.2021, is set aside.
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19. Since, this Court is now setting aside the auction sale conducted by the respondents on 12.07.2021 and the petitioner is willing to pay the price at which the subject vehicle was sold in auction, this Court is of the view that ends of justice would be met, if the petitioner is directed to remit the total amount at which the respondents claim to have sold the subject vehicle in auction and upon the petitioner making such payment, the respondents- authorities shall repossess the vehicle immediately and handover the same to the petitioner, including issue of sale certificate if necessary to get it re-registered in his name.
20. Learned counsel for the petitioner submits that during the pendency of the writ petition, the petitioner has paid an amount of Rs.15,000/- and the credit of the same may be given against the payment to be made in respect of the value of the auctioned vehicle. Subject to the respondents verifying the said payment, the petitioner shall make the balance payment of the given value as noted herein above.
21. With the above observations and directions, the Writ Petition is allowed. No order as to costs.
22. Since, the actions of the 4th respondent, as noted hereinabove, in particular paras 17 and 18 are highly contumacious and contemptuous, the 1st respondent is directed to initiate disciplinary action against the 4th respondent and other officers involved with the said respondent and enter the action taken thereon in their service record(s)."
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9. Mr. Sanjeev Kumar, learned Special
Government Pleader representing the appellants submits that there is no statutory requirement of the auction notice to be published in the newspaper. Therefore no fault can be found with the procedure adopted by the 4th appellant.
10. We are afraid we cannot accept such a contention of the learned Special Government Pleader. As pointed out by the learned Single Judge, the auction notice was issued on 11.07.2021 scheduling the auction on 12.07.2021 i.e., on the very next day. That apart, the notice was issued on a Sunday, which is a holiday. There could not have been any justifiable reason for issuing an auction notice on a holiday and that too by affixing the notice in the notice board of the Tahsil office. Learned Single Judge further noted that despite such short notice, about 10 persons had participated in the auction which only supported the contention of the 1st respondent that the entire auction sale was stage-managed.
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11. We do not find any error or infirmity in the view taken by the learned Single Judge and consequently in nullifying the auction sale. Interestingly enough, the auction purchaser who can be said to be an aggrieved person due to such nullification of the auction is not before us. We are further of the view that learned Single Judge was justified in granting liberty to the 1st respondent to pay the auction sale price and thereafter get the confiscated vehicle restored to him.
12. At this stage, learned counsel for the 1st respondent submits that in paragraph 20 of the judgment, there is an error in the figure noted by the learned Single Judge. 1st respondent had paid an amount of Rs.1,50,000/- during the pendency of the writ petition which was erroneously recorded as Rs.15,000.00.
13. Without expressing any opinion in this regard, we are of the view that if there is any typographical error, 1st respondent can move the learned Single Judge for rectification of the same.
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14. Till paragraph 21 of the judgment under appeal, we are in agreement with the views expressed by the learned Single Judge. However, we are unable to persuade ourselves as to the course of action suggested by the learned Single Judge in paragraph 22 of the judgment under appeal. Learned Single Judge has directed the 1st appellant to initiate disciplinary proceeding against the 4th appellant and other officers involved and thereafter to record the outcome of such disciplinary action in their service books.
15. In our opinion, such direction of the learned Single Judge was not called for. Before holding a party in contempt, it is necessary that opportunity of hearing should be granted to such a party. That apart, such direction of the learned Single Judge appears to have gone beyond the subject matter of the writ petition.
16. That being the position, direction of the learned Single Judge in paragraph 22 of the judgment and order 11 HCJ & NTRJ W.A.No.163 of 2023 dated 16.08.2022 is set aside. However, the rest of the judgment and order of the learned Single Judge upto paragraph 21 is upheld.
17. Writ Appeal is accordingly disposed of.
However, there shall be no order as to costs.
18. As a sequel, miscellaneous applications pending, if any, in this Writ Appeal, shall stand closed.
_______________________ UJJAL BHUYAN, CJ _______________________ N.TUKARAMJI, J Date: 06.02.2023 KL