Shri. Shailesh K Bothara And Ors vs State Of Maharashtra Thru Prin. ...
2023 Latest Caselaw 9408 Bom

2023:BHC-AS:26365-DB


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                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                       801.WP1633_2019.pdfCIVIL APPELLATE JURISDICTION

                            REVIEW PETITION (STAMP) NO.21969 OF 2023
                                               IN
                                 WRIT PETITION NO. 4365 OF 2023

             Shailesh K. Bothra & Ors.                          ..       Petitioners
                   v/s.
             The State of Maharashtra & Ors.                    ..       Respondents
                                                     ....

             Mr. Sridharan, Senior Advocate a/w. Mr. Sahil Parghi, Mr.Parag Tilak and
             Ms. Shivani Samel, for the Petitioners.

             Mr. Vinay Sonpal, Special Counsel, a/w. Ms. Sneha D. Vyas, 'B' Panel
             Counsel for Respondent State.
                                                    ....
                                                  CORAM: G.S. KULKARNI &
                                                         JITENDRA JAIN, JJ.

DATE : 7th SEPTEMBER, 2023

P.C:-

1. We have heard Mr. Sridharan, learned Senior Advocate for the Review Petitioners and Mr. Vinay Sonpal, Special counsel for the State.

2. The original petitioners have filed the present Review Petition praying for review of our judgment and order dated 12 th July 2023 rendered in Writ Petition No.4365 of 2023.

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3. At the outset, we may observe that insofar as petitioner no. 3 is concerned, the present proceedings can be described to be a third bite at the cherry, and insofar as petitioner nos. 1 and 2 are concerned, it appears that as to what they intend is a second round of litigation under the garb of review petition.

4. We have perused the grounds raised in the review petition. However, only two grounds are urged by Mr. Sridharan. The first ground as urged by him is drawing our attention to ground no.(k) as raised in the writ petition to contend that the property in question, as sold by Petitioner No.3 to Petitioner Nos. 1 and 2, did not suffer attachment of the Sales Tax Department under Section 37 of the Maharashtra Value Added Tax Act, 2022 (for short, "MVAT Act"). This on the ground that the proper procedure under the Maharashtra Land Revenue Code, 1966 (for short, "MLRC") and Rule 11(2) of the Maharashtra Realisation of Land Revenue Rules, 1967 (for short, "MLR Rules") was not complied, in as much as, there was no proclamation of attachment. In support of such contention, Mr. Sridharan would contend that if such proclamation was not made, then the attachment cannot be held to be valid. The second contention of Mr. Sridharan is that prayer as made in the petition, namely, prayer clause (d) on the validity of the impugned attachment order dated 11 August 2017 has remained to be addressed in the judgment under review. These are the only contentions as raised by Mr. Sridharan.

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5. Mr. Sonpal, learned Counsel for the Respondent Revenue, has opposed Mr. Sridharan's contentions. He has taken us through our judgment to contend that all the contentions as advanced by the Petitioners have been considered and are appropriately addressed. He submits that the contentions as raised by the petitioners, can never be grounds to maintain review proceedings. Mr. Sonpal has prayed that the review petition be dismissed.

6. Having heard Mr. Sridharan on the only grounds as canvassed in the present proceedings and as noted by us above, at the threshold we need to observe that it cannot be heard from the petitioners and that too in the review proceedings that the attachment in question which was subject matter of assail for the first time in petitioner No.3's Writ Petition no.4365 of 2023 leading to the orders dated 10 January 2020, was in any manner illegal for more than one reason.

Firstly, petitioner No.3 had accepted the attachment and subject to which petitioner No.3 accepting the said orders dated 10 January 2020 passed by the First Bench of this Court in Writ Petition No.4860 of 2019 proceeded to sell the property asserting petitioner No.3's first charge on the property in favour of petitioner Nos.1 and 2.

Secondly, petitioner Nos.1 and 2 having purchased the property with open eyes in law, cannot claim higher rights than the seller i.e. petitioner No.3 and having purchased the said attached property, cannot assert anything contrary to what was asserted by petitioner

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No.3.

All these are our observations in the judgment under review and which are sought to be re-canvassed by the petitioners.

7. Petitioner Nos.1 and 2 also cannot be heard to contend anything to cover up any case which petitioner No.3 could have or failed to canvass, however, petitioner No.3 taking care of its interest did not canvass the same. This is what appears to be the whole intention of petitioner Nos.1 and 2 under the garb of the present review petition.

8. Be that as it may, Mr. Sridharan is not correct in his contention that the contentions of the Petitioners in regard to the proper procedure being not followed by the Sales Tax Department and, more particularly, the procedure under the MLRC and MLR Rules not being followed, is totally untenable. Dealing with such contentions and by noting the rules in question, we had made the following categorical observations in paragraph 39 to 42 of our judgment:-

"39. Thus, under Section 34(1)(i) of the MVAT Act the Commissioner of Sales Tax is empowered to exercise all powers and perform all the duties of the Commissioner under the Maharashtra Land Revenue Code, for the purpose of effecting recovery of amount of tax, penalty, interest, amount forfeited or any other similar dues or recoverable from dealer or other person or under the provisions of the Act as arrears of land Revenue. Section 37 provides for liability under the MVAT Act to be the first charge which begins with a non-obstante clause and ordains that notwithstanding anything contained in any contract to the contrary, but subject to any provision regarding creation of first charge in any Central Act for the time being in force, any amount of tax, penalty, interest, sum forfeited, fine or any other sum, payable by a dealer or any other person under the Act, shall be the first charge on the property of the dealer or, as the case may be, such person. Thus,

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Section 37 of the MVAT Act clearly provides that for the liability under the MVAT Act, to be the first charge, is itself, subject to any provision regarding creation of first charge in any Central Act for the time being in force. This pre-supposes that when under a Central enactment there is a provision creating first charge, then in such case, the Sales Tax Department for the purpose of Section 37 shall not have the first charge.

40. Rule 11 of the Maharashtra Realisation of Land Revenue Rules, 1967 provides for the manner of attachment of immovable property which provides that the order shall take effect as against purchasers for value in good faith and against all other transferees from the defaulter from the date the said order is made as provided in sub-rule (3).

41. On a perusal of the order of attachment of the said property dated 11 August, 2017, it is seen that the attachment is made in pursuance of the demand notice issued under Section 178 read with Section 267 of the Maharashtra Land Revenue Code,1966 read with Section 34 of the MVAT Act and referring to Rule 11 of the Maharashtra Realisation of Land Revenue Rules,1967 as noted above.

42. The attachment is for recovery of an amount of Rs.10,31,38,003/- being the sales tax dues payable by the dealers/borrowers - M/s.Taurus Autodeal Pvt. Ltd.. The attachment notice was never challenged by the said dealers and its directors. For such reason in the hands of petitioner no. 3, the property stood as a property as attached by the Sales tax department, however, subject to the first charge of petitioner no. 3 to realise its dues as a secured creditor. A copy of the said attachment notice was also forwarded to the City Survey Office, Pune, and the Talathi, Haveli, Pune, with the following common remarks :-

" With request to inform this office about the present ownership of the above property in the Land record available in your office. He is further requested to withhold any sale or Transfer of the above property and make necessary entries in land record and forward the Copy thereof to this office."

9. It is, thus, clear from our observations that the procedure of MLRC, as also under Rule 11 of the Rules, attachment of the property in question was made. This apart, we had categorically observed in paragraph 42 of our judgment that at all material times, Petitioner Nos.

1 and 2 were made aware by Petitioner No.3 in regard to the lien of the Sales Tax Department and with open eyes Petitioner Nos.1 and 2 had

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purchased the property. In fact, Petitioner No.3, accepting the attachment of the property by the Sales Tax Department, had sold the property to Petitioner Nos. 1 and 2.

10. Thus, Petitioner Nos.1 and 2 on one hand and Petitioner No.3 on the other, cannot get together to be heard and that too in the review proceedings that the attachment is not as per law and referring to the factual matrix in some cases, which came to be decided in light of the law laid down by the Full Bench of this Court, each of the cases will stand independently and in the facts and circumstances of its case.

11. We are also not in agreement with Mr. Sridharan when he contends that we have not considered the Petitioners' contentions that the attachment order dated 11th August 2017 is declared to be illegal. On the reading of our judgment, we have clearly held that the attachment was legal and valid and there is abundance of reasoning as contained in the judgment as to why the attachment was legal and valid which also accepted by Petitioner No.3 and by Petitioner Nos.1 and 2 in purchasing the property. In such context, our observations as made in paragraph 66, are required to be noted, which reads thus:-

"66. The foregoing discussion would lead us to conclude that this is a clear case in which the Sales Tax Department had a charge on the said property as purchased by petitioner Nos.1 and 2, in view of attachment order dated 11 August 2017, which has remained to be valid and subsisting. Further the position in law is also clear that after the recognition of the first charge of petitioner No.3 as a secured creditor, the charge of the Sales Tax

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Department to recover the sales tax dues would be valid and subsisting, which would empower the Sales Tax Department to enforce the same."

12. We are, thus, of the clear opinion that none of the contentions, as urged by Mr. Sridharan are tenable, more particularly, considering the jurisdiction the Petitioners have invoked namely the review jurisdiction, under well settled parameters prescribed by the provisions of Order 47 Rule 1 of the Code of Civil Procedure.

13. Before parting, we may observe that the judgment rendered by the Court is required to be holistically read by considering appreciation of the facts and the analysis and reasons as set out. Such reasoning may not be to the satisfaction of litigant and/or in the precise manner the litigant would intend to have. Such perception of the litigant can never make any ground for any review proceedings except from their imaginity. In any event, the review proceedings cannot be converted into a challenge to the judgment itself.

14. In the light of the above discussion, we are certain that the present review petition is not maintainable. It is, accordingly, rejected.

15. Writ petition is dismissed. No costs.

(JITENDRA JAIN, J.)                             (G.S. KULKARNI, J.)

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