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Madhya Pradesh High Court · body

2013 DIGILAW 758 (MP)

SHAHJAHAN IQBAL v. STATE OF MADHYA PRADESH

2013-07-04

N.K.GUPTA

body2013
JUDGMENT : N.K. GUPTA, J. 1. The appellant has preferred the present appeal against the judgment and decree dated 5.2.2007 passed by the learned 11th Additional District Judge, Bhopal in civil suit No. 453-A/2006, whereby the suit for declaration and injunction filed by the appellant relating to a land plot No. 39, area 38 X 68 square feet situated at Punjab Bank Colony, Idgah Hills, Bhopal was dismissed. The appellant has preferred a suit before the District Court, Bhopal that a plot No. 39 of Punjab Bank Colony, Idgah Hills, Bhopal having area 38 X 68 square feet was purchased by her on 7.5.1973 by a registered sale deed from Smt. Nahid Jahan Begum. The plaintiff was a partner in M/s. International Auto Filters, Sehore, whereas Shri Zahir Hasan Qureshi, the defendant No. 6/respondent No. 6 was second partner in that firm. Due to dispute between the partners that partnership was dissolved on 31.8.1982. A civil suit relating to dissolution of partnership was also pending before the District Court. The High Court vide order dated 12.4.1984 directed to appoint a receiver on the property of the partnership firm. The respondents were the officers of Sales Tax Department and for recovery of tax of Rs. 75,000/-, the plot in question was attached by Sales Tax Officer and Additional Tahsildar on 18.1.1983. Thereafter, the Deputy Commissioner, Sales Tax vide order dated 19.4.1983 directed the Sales Tax Officer not to auction the plot but, to have a negotiation with the plaintiff for the remaining sales tax. Thereafter, on 4.6.1987, a demand notice of Rs. 97,838/- as well as attachment notice was issued to the plaintiff and it was shown that both the notices were served by affixing them. Notices were affixed on 6.6.1987 and 3 days time was given for payment in demand notice. However, on 6.6.1987, the respondent officer had also issued an auction notice that the plot would be auctioned on 10.7.1987. Thereafter, auction was adjourned for 13.8.1987. On that day, the plot was auctioned in the name of one Ishteyaq Ali. The respondent No. 5 is wife of the purchaser Ishteyaq Ali. Due to death of Ishteyaq Ali, the certificate of sale was duly registered before the Registrar, Deeds and Documents on 1.3.1988. Thereafter, auction was adjourned for 13.8.1987. On that day, the plot was auctioned in the name of one Ishteyaq Ali. The respondent No. 5 is wife of the purchaser Ishteyaq Ali. Due to death of Ishteyaq Ali, the certificate of sale was duly registered before the Registrar, Deeds and Documents on 1.3.1988. Auction was illegal and without adopting the appropriate procedure therefore, the plaintiff wrote various letters to the higher authorities and also filed an appeal before Regional Sales Tax Commissioner but, it was dismissed and therefore, the plaintiff prosecuted a suit for declaration of her title on the property and to get a perpetual injunction that no interference may be done in her possession. She also sought for compensation for that proceeding. 2. The officers of the Sales Tax Department (Defendants No. 3 and 4) in their written statement have submitted that no sanction was received by the plaintiff before filing the suit, which was required u/s 48(1) of M.P. General Sales Tax Act, 1958 (hereinafter it will be referred to as 'The Act'), whereas no suit was filed within three months of the cause of action as provided u/s 48(2) of the Act and therefore, the suit was barred by limitation. The defendant No. 5 had already received the possession of the property and sale was also confirmed. Therefore, without seeking any relief for possession, no declaratory decree can be given in violation to the provisions of section 34 of the Specific Relief Act. It was also pleaded that the property was auctioned for recovery of land revenue and Sales Tax officer was invested with the powers of Tahsildar under M.P. Land Revenue Code and therefore, if any appeal was required to be filed then, it was to be filed before the SDO. 3. The defendant No. 5 in the written statement denied the claims of the plaint and it was pleaded that the defendant No. 5 was in possession of the land and civil Court has no right to entertain the suit. No declaratory decree can be given in absence of possession. Therefore, it was prayed that the suit may be dismissed. 4. The defendant No. 6 in his written statement raised so many objections relating to the procedure adopted by the plaintiff. No declaratory decree can be given in absence of possession. Therefore, it was prayed that the suit may be dismissed. 4. The defendant No. 6 in his written statement raised so many objections relating to the procedure adopted by the plaintiff. He has pleaded that a suit relating to dissolution of partnership property is pending and the suit property was in possession of the purchaser and therefore, the suit was not maintainable. 5. The learned Additional District Judge after framing issues on various counts and recording the evidence of the parties, dismissed the suit mainly on the ground that it was not maintainable and it was barred by limitation. 6. I have heard the learned counsel for the parties finally and also heard on I.A. No. 5649/2013, an application under Order XLI Rule 27 of the CPC filed by the respondent No. 5. 7. After perusal of the evidence and considering the submissions made by the learned counsel for the parties, it is apparent that the land in question was attached by the officers of Sales Tax Department on 18.1.1983 for recovery of Rs. 75,000/-, being revenue due towards the partnership firm. Since the suit is pending between the partners of the partnership firm and the powers of Sales Tax officer being Additional Tahsildar are wide and therefore, it is not required to discuss as to whether the present plot, which was the personal property of one partner could be attached or not. However, it is apparent that vide order dated 19.4.1983, Deputy Commissioner, Sales Tax directed the respondent No. 3 to inform the details about the computation of sales tax of the plaintiff and it is apparent that no order was passed by the respondent No. 3 thereafter. However, a demand notice was given to the plaintiff, which was served by affixing. Also, a fresh order of attachment of that property was issued on 4.6.1987, which was allegedly served by affixing on 6.6.1987. Looking to the procedure adopted by the respondent No. 3, it is apparent that the respondent No. 3 had waived the attachment done in the year 1983 and therefore, a fresh attachment order was issued. It is also clear that service of any notice or order by substituted service can be done at the last stage where all previous methods failed. It is also clear that service of any notice or order by substituted service can be done at the last stage where all previous methods failed. If the person, to whom a notice is to be served, refuses to take the notice or not found in the house then, a substituted service can be done by affixing a notice upon the conspicuous part of house of that person. If the document, Ex. P/24 and Ex. P/25 are perused then, it would be apparent that serving officer did not mention the reason as to why the service of such notice was done by affixing. If address mentioned on the notice, Ex. P/24 and Ex. P/25 is perused then, the address of the appellant is mentioned through the partnership firm at Sehore and presently, at Idgah Hills, Bhopal. No house or street no. etc. was given in the notice, hence and no complete address was given in the notice, whereas the plaintiff was residing in a colony at Shymala Hills, Bhopal and such address was known to the respondents No. 3 and 4. She was not residing at Idgah Hills, Bhopal. However, the plot was there at Idgah Hills, Bhopal. As discussed above, the notices were to be affixed on the house of the concerned person as last alternate. If notices were affixed on the open plot of the plaintiff, where she was not residing then, such type of service cannot be accepted. It is apparent that the plaintiff was doing correspondence with the respondent No. 3 as well as the higher officers therefore, her correct address was known to the respondent No. 3. It is strange that no notice was sent to the correct address of the plaintiff but, without giving any specific address, a report is given relating to service of notice that notices were served by affixing. It is no where mentioned that on which house those notices were affixed. The serving officer did not inform as to how the notices were affixed on an open plot. There is no procedure prescribed in any law that the affixing can be done on an open plot. Under such circumstances, notices of demand and attachment of the property were not served to the appellant in the eye of law and therefore, without serving the notice of demand, neither the suit property could be attached, nor it could be auctioned. There is no procedure prescribed in any law that the affixing can be done on an open plot. Under such circumstances, notices of demand and attachment of the property were not served to the appellant in the eye of law and therefore, without serving the notice of demand, neither the suit property could be attached, nor it could be auctioned. Gross negligence has been done by the respondent No. 3 and possibility cannot be ruled out that such procedure was adopted due to connivance of the respondents No. 3, 4, 5 and 6, as alleged by the plaintiff. 8. Similarly, if method of auction is examined then, it is strange that date of auction was fixed and intimation of auction was given to the public in general by beating of drums. One person is directed to announce about the auction in the city of Bhopal with help of a loud speaker in an auto-rickshaw. If there is a village of limited population then, such type of publication of future auction can be done by beating of drums or by such methods as adopted by the respondent No. 3 but, in a big city like Bhopal, it was required that intimation of auction be published in some prominent newspaper. The publication relating to auction was failed, which was shown by the records of the respondent No. 3 itself, that on the given date, no one came to participate in the auction. A memo, Ex. P/20 was prepared by the auction officer that none appeared on 10.7.1987 to participate in the auction and therefore, next date 13.7.1987 was fixed. Date of auction was again informed to the public in general by aforesaid method, which was not applicable in the city like Bhopal. Thereafter, on 13.7.1987, the land was sold for the sum of Rs. 72,300/- to Ishteyaq Ali. Only 7 persons were shown as bidders. No offset price was fixed by the respondent No. 3. It is established by the plaintiff before the trial Court that at that time, the property of Idgah Hills was costly. It was available at the rate of Rs. 200/- per square feet and therefore, cost of the plot was around Rs. 2 Lacs at that time. However, it was auctioned in a meager amount. It is established by the plaintiff before the trial Court that at that time, the property of Idgah Hills was costly. It was available at the rate of Rs. 200/- per square feet and therefore, cost of the plot was around Rs. 2 Lacs at that time. However, it was auctioned in a meager amount. The procedure adopted by the respondent No. 3 for the auction was neither transparent nor in accordance with the principles of natural justice. Possibility cannot be ruled out that the land was auctioned by the respondents No. 3 and 4 with the connivance of the respondent No. 6. The respondents No. 5 and 6 have engaged a common counsel before this Court, whereas, the respondent No. 6 was a partner of the plaintiff, who was also required to deposit the tax due upon the firm and therefore, the possibility cannot be ruled out that the partner of the plaintiff got the plot auctioned in such a manner, so that it may be given to his friend or companion Ishteyaq Ali. If there was no relation between the respondents No. 5 and 6 then, there was no possibility to engage a common counsel for both of them. On the contrary, the respondent had no reason to contest in the present appeal because tax due towards him was already recovered. 9. Under such circumstances, it is apparent that neither the plot in dispute was attached according to the provisions of law, nor notice of attachment was served to the plaintiff. No opportunity was given to pay the remaining tax and thereafter, the plot was auctioned with illegal procedure. However, in the present appeal there are three main points to be considered. Firstly, that whether the suit was maintainable without obtaining permission of the State Government. Secondly, whether the suit was under limitation, and thirdly, that whether the plaintiff could get the declaratory decree, without any consequential relief. 10. For the maintainability of the suit, the learned Additional District Judge considered this point in so many different issues and he gave different findings on different provisions relating to maintainability of the suit. However, he did not give his finding on the provisions of section 48(2) of the Act. He simply clubbed the point of limitation with that issue and consolidately found that suit was barred by limitation. However, he did not give his finding on the provisions of section 48(2) of the Act. He simply clubbed the point of limitation with that issue and consolidately found that suit was barred by limitation. The learned counsel for the respondents No. 5 and 6 has submitted that for prosecuting a suit u/s 48(2) of the Act, a sanction is required from the State Government. In this connection, the learned counsel for the respondents No. 5 and 6 relied upon the order passed by the single Bench of this Court in case of "Kamruddin Vs. C.R. Pancholi, Regional Commissioner of Sales Tax, Ujjain", [(1974) M.P. L.J. S.N. 87]. Actually, if the provisions u/s 48(1) and 48(2) of the Act are considered then, it would be clear that these are two different provisions to prosecute a suit. As mentioned in the order passed by the single Bench of this Court in case of Kamruddin (supra) it is apparent that the provision u/s 48(1) of the Act is an analogous provision to section 197 of the Cr.P.C. If someone wants to prosecute any Sales Tax Officer or to file a suit for his misconduct then, a sanction is required from the side of the State Government and therefore, provisions of section 48(1) of the Act is analogous to section 197 of the Cr.P.C. However, in that provision, it is no where mentioned that suit may be filed against the State Government under that provision. Provisions u/s 48(1) and 48(2) of the Act may be read as under:- Section 48. PROTECTION OF PERSONS ACTING IN GOOD FAITH AND LIMITATION OF SUIT AND PROSECUTION. (1) No suit, prosecution or other proceedings shall lie against any officer or servant of the State Government for any act done or purporting to be done under this Act, without the previous sanction of the State Government. (1-a) No officer or servant of the State Government shall be liable in respect of any such act in any civil or criminal proceeding if the act was done in good faith in the course of the execution of duties imposed on him or the discharge of function entrusted to him by or under this Act. (1-a) No officer or servant of the State Government shall be liable in respect of any such act in any civil or criminal proceeding if the act was done in good faith in the course of the execution of duties imposed on him or the discharge of function entrusted to him by or under this Act. (2) No suit shall be instituted against the State Government and no prosecution or suit shall be instituted against any servant of the State Government in respect of anything done or intended to be done under this Act unless the suit or prosecution has been instituted within three months from the date of the act complained of; (Provided that in computing the period of limitation under this sub-section, the time taken for obtaining sanction under sub-section (1) shall be executed). By perusal of the such provisions, it is apparent that the provisions of section 48(1) of the Act provides for the suit and criminal proceedings against the officers of Sales Tax Department. Such provision does not provide for any proceeding against the State, which indicates that if any prosecution is required for any officer of that department or any compensation is also required to be claimed from that officer then, such criminal proceeding or suit cannot be prosecuted without the sanction of the State Government but, the scope of section 48(2) is wider. It provides for a civil suit against the officer as well as against the Government. If suit is of such a nature that a compensation is required to be sought from the officer then, sanction will be required and therefore, in proviso of section 48(2) of the Act, it is mentioned that the period consumed in obtaining the sanction shall be adjusted in the limitation given in section 48(2) of the Act but, if a suit is filed against the Government because of the Act done by its officer then, no sanction is required. It is not possible that the State, which is required to be made a defendant may be permitted to give such a sanction for its own liability and therefore, the provisions of section 48(2) of the Act indicate that the portion relating to the sanction is required only if the suit is filed against the officer of the State. It is not possible that the State, which is required to be made a defendant may be permitted to give such a sanction for its own liability and therefore, the provisions of section 48(2) of the Act indicate that the portion relating to the sanction is required only if the suit is filed against the officer of the State. If a suit is filed against the State for any misconduct done by the officer or in proceeding done by the officer, which was not legal then, no sanction is required to prosecute a civil suit against the State. 11. By considering the aforesaid provisions, if a suit is filed, without getting any sanction against the officer concerned then, no relief can be given to the plaintiff against the officer but, relief can be given against the State and therefore, the suit filed by the plaintiff was maintainable against the State Government for deeds done by the officer but, no relief could be given against the concerned officer in his personal capacity. The learned Additional District Judge did not consider such a preposition in a separate manner and therefore, nothing has been mentioned in the judgment passed by the trial Court as to why the decree could not be given against the State. 12. An aggrieved person can seek two different types of reliefs in a matter where any illegality was done by the officer. He could get the compensation or he could initiate a penal action against that officer. On the other hand, he could get the cancellation of the act done by that officer, without seeking any penalty against the officer in particular. If relief is sought against the officer in person then, provision of section 48(1) of the Act shall apply but, if the relief sought is of composite nature then, provisions of section 48(2) of the Act would apply and if relief is sought of the second nature that only the action taken by the officer is to be nullified then, such relief can be given against the State and provisions relating to sanction shall not be attracted. Under such circumstances, in the present case, the respondent No. 3 cannot be made liable personally for the illegality done by him because no sanction was received by the plaintiff u/s 48(1) of the Act. Under such circumstances, in the present case, the respondent No. 3 cannot be made liable personally for the illegality done by him because no sanction was received by the plaintiff u/s 48(1) of the Act. However, the plaintiff can get the relief against the State for the illegality done by its officers. 13. So far as the question of limitation is concerned, it was for the plaintiff to show as to how the suit was within the limitation. The learned counsel for the appellant has submitted that mainly the appellant challenges the auction of her plot and that sale (auction) could be completed when the sale deed was registered. It is true that the plaintiff did not bring the suit within three months from the date of auction etc. but, looking to the procedure adopted in service of the various notices, she had no knowledge of auction of the plot and therefore, her limitation may be counted from the date of knowledge. On the other hand, the learned G.A. for the State has submitted that the plaintiff had done a lot of correspondence and also filed an appeal against the order of auction and therefore, her knowledge relating to auction was established by her own prosecution of revisions etc. and therefore, suit was barred by limitation. 14. As provided u/s 48(2) of the Act, the learned counsel for the respondents No. 5 and 6 has also submitted in the same tune. The learned senior Advocate has also submitted that the plaintiff had challenged the sale (auction) of the plot and sale was completed by registration of the sale certificate and registration of sale certificate was done on 1.3.1988 and therefore, suit filed on 24.3.1988 was within the limitation. The contention of the learned senior Advocate appears to be acceptable because before the registration of the sale certificate, sale could be cancelled at any stage and therefore, sale was completed when the sale certificate was registered. If for any auction, bid is finalised and a sale certificate is issued but, the sale certificate has no legal value unless, it is registered by the Registrar, Deeds and Documents. The sale certificate may be treated as an agreement to sale, unless it is registered or it may be treated as an unregistered sale deed, which has no legal value. The sale certificate may be treated as an agreement to sale, unless it is registered or it may be treated as an unregistered sale deed, which has no legal value. Under such circumstances, sale was completed on 1.3.1988 when the sale certificate issued in favour of the respondent No. 5 was registered and therefore, the suit filed on 28.3.1988 was filed within 3 months from that date and therefore, it was within the limitation. The learned Additional District Judge has committed an error in finding that suit was not within limitation. 15. The learned counsel for the respondents No. 5 and 6 has submitted that no declaratory decree can be given without any consequential relief and it was for the plaintiff to seek a relief of possession in the civil suit. In this context, if the judgment passed by the learned Additional District Judge is perused then, there is no discussion about the possession of the property. Such point was not specifically raised before the trial Court. However, in the first appeal, the appellate Court is entitled to consider the objections raised on the basis of the fact and law simultaneously and therefore, objections raised by the learned counsel for the respondents No. 5 and 6 is required to be considered. After an auction, it is necessary to give the possession of the property to the person, who purchased the property in the auction. The defendants did not submit any document to show that the respondent No. 5 had received the possession of the property after execution of the sale certificate or registration of the sale certificate and therefore, it was a mere allegation of the respondents No. 5 and 6 that the plaintiff was not in possession of the property. It was for them to prove that the possession of the property was handed over during the sale or after the sale. Prima facie, before the auction of the property, the property was in the possession of the plaintiff and therefore, the burden of proof was upon the purchaser that the purchaser received the possession of the property from the plaintiff but, unfortunately, no such "Panchnama" is produced from the side of the respondents No. 5 and 6 that the possession of the property was handed over to Ishteyaq Ali or the respondent No. 5. Under such circumstances, it shall be presumed that the possession of the property was with the plaintiff and therefore, she was not required to seek for possession in her suit. Hence, a suit for declaration and perpetual injunction could be prosecuted. Since she had applied for consequential relief of perpetual injunction, therefore, it cannot be said that a mere declaratory decree could not be given according to the provisions of section 34 of the Specific Relief Act. 16. The respondent No. 5 has submitted an application under Order XLI rule 27 (I.A. No. 5649/2013) that a certified copy of an affidavit executed by the plaintiff may be taken on record, in which she has stated that she made a "Hiba" in the name of her son Mohd. Rehan Siddiqui on 28.6.1982. Order XLI rule 27 of the CPC provides a right to produce additional evidence in the appeal but, either such evidence may have been produced before the trial Court and trial Court has refused to accept it or that evidence was obtained by the concerned party after disposal of the suit and the document must be relevant and necessary for the disposal of the suit. I don't understand as to why this document was produced by the respondent No. 5 with an application under Order XLI rule 27 of the CPC. Copy of the affidavit, which is filed with the application is not at all required for the disposal of the suit. The learned counsel for the respondent No. 5 has submitted that the plaintiff had already transferred the land in question to her son by "Hiba" and she had no right to prosecute the present suit because she had lost her right on the suit property. The contention of the learned counsel for the respondent No. 5 cannot be accepted on three different counts. Firstly, that evidence in a civil suit shall be considered according to the pleadings of the party. If any evidence is produced before the Court without making any pleadings then, such evidence cannot be read in the matter. In the present case, the respondent No. 5 did not submit any cross objection or she did not raise any such objection in the written statement that the plaintiff had already made "Hiba" of the suit property and hence, she was not entitled to prosecute a suit. In the present case, the respondent No. 5 did not submit any cross objection or she did not raise any such objection in the written statement that the plaintiff had already made "Hiba" of the suit property and hence, she was not entitled to prosecute a suit. If there is a variance between the pleadings and proof then, the evidence which is given away from the pleadings cannot be accepted or seen by the civil Court. Under such circumstances, in absence of the pleadings, the documents required to be produced with an application under Order XLI rule 27 of the CPC cannot be read in the evidence. 17. Secondly, if it is accepted as such that the plaintiff had done "Hiba" of the suit property in the name of her son, prior to the demand notice and attachment of the property in the year 1987 then, at that time of "Hiba" the attachment done in the year 1983 was not waived by the respondent No. 3 and therefore, a property which was attached for recovery of revenue for the Government could not be transferred to defeat that recovery and therefore, any Hiba done by the plaintiff to her son was illegal. It makes not effect in the present case. Also, alleged Hiba was done in the year 1982 and if it was done then, the attachment of the property which was done in the year 1983 must have been challenged on the ground that the suit property could not be attached because it was not of the appellant but, it was of her son but, no such objection was raised by the appellant before the sales tax authorities. 18. Thirdly, if it is presumed that the appellant had done Hiba in the year 1982 and the document filed by the respondents No. 5 is accepted then, by such a document, it is proved that at the time of the first attachment, the property was not of the appellant and therefore, it could not be attached. Under such circumstances, the attachment, auction and transfer of the property turn infructuous and therefore, the right accrued to the respondent No. 5 goes away and therefore, filing of such document is not in the interest of the respondent No. 5. Under such circumstances, the attachment, auction and transfer of the property turn infructuous and therefore, the right accrued to the respondent No. 5 goes away and therefore, filing of such document is not in the interest of the respondent No. 5. On the basis of the aforesaid three reasons, the document which is required to be filed by the respondent No. 5 is not related to the present case. It creates no effect on the evidence adduced by the respondents No. 5 and 6. Consequently, the application under Order XLI rule 27 of the CPC (I.A. No. 5649/2013) filed by the respondent No. 5 cannot be accepted. Hence, it is hereby dismissed. 19. On the basis of the aforesaid discussion, it is apparent that an illegal procedure has been adopted by the officer of the State in attaching the property in question for recovery of sales tax and forcing its auction. Therefore, the proceeding of attachment and auction were not according to the law and such proceeding cannot be sustained. By such proceeding, no effect was caused on the ownership of the plaintiff on the suit property and therefore, a declaration may be given in favour of the plaintiff, relating to the suit property. Similarly, the officers of the State has created the third party interest (interest of respondent No. 5) on the property and the officers of the State as well as the respondents No. 5 and 6 were interested to dispossess the plaintiff from the property by adopting illegal method and therefore, it is a case in which a perpetual injunction may also be issued in favour of the plaintiff. However, as discussed above, the plaintiff cannot get any relief against the officer concerned because no sanction was received by the plaintiff u/s 48(1) of the Act and therefore, no compensation can be granted to the plaintiff for illegality caused by the respondent No. 3. Consequently, the appeal filed by the appellant is hereby partly allowed. It is declared that the suit property i.e. Plot No. 39, Punjab Bank Colony, Idgah Hills, Bhopal having area 38 X 68 square feet is of the plaintiff and its attachment and auction as done by the respondent No. 3 was void and illegal, which makes no effect upon the title of the appellant. It is declared that the suit property i.e. Plot No. 39, Punjab Bank Colony, Idgah Hills, Bhopal having area 38 X 68 square feet is of the plaintiff and its attachment and auction as done by the respondent No. 3 was void and illegal, which makes no effect upon the title of the appellant. It is further directed that no respondent shall interfere in the possession of the appellant by either personally or by the agents. They are prohibited to interfere in the possession of the appellant in the suit property. The appellant shall be entitled to get the cost of the suit as well as this appeal from the respondent No. 1 State of Madhya Pradesh. The respondents shall bear their own cost of the appeal as well as of the suit. The appellate decree be drawn accordingly. A copy of the judgment and appellate decree be sent to the trial Court alongwith its record for information and compliance.