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2017 (7) TMI 1339 - RAJASTHAN HIGH COURTRecovery of debt - Auction - attachment of Land - Section 47 of the Rajasthan Value Added Tax Act, 2003 - first charge on the property is of the department - applicability of amended provisions of Section 26E of the Act of 2002 and Section 31B of the Act of 1993 - HELD THAT:- It is for the reason that both the provisions were inserted in the year 2016, whereas, attachment of the property in question to recover the dues was made by the respondent-department in the year 2014 itself. It is not the case of either of the parties that amended provision is retrospective and otherwise perusal of amended provision does not show it thus would apply prospectively. The property already attached towards recovery of State dues cannot be nullified by the subsequent legislation when it has not been given retrospective effect - The enforcement of statutory first charge by attachment cannot be nullified by subsequent auction when no priority right was existing in favour of the secured creditors at the relevant time. Section 47 of the Act of 2003 starts with non-obstante clause and creates first charge on the property. The issue about priority claim of the secured creditor vis a vis first charge on the property under the State legislation was considered by the Supreme Court in the case of CENTRAL BANK OF INDIA VERSUS STATE OF KERALA AND OTHERS [2009 (2) TMI 451 - SUPREME COURT]. If State Act creates first charge on the property then secured creditors cannot have claim against the statutory provision. Therein, consideration was also made even in reference to Section 100 of the Act of 1882. In the instant case, there exists no repugnancy in two legislations. The intention of Parliament is not to nullify the State enactment providing first charge on the property. The legislations have been made by the Central Government and State under Entry I and II of the Schedule and not out of Concurrent List - The aforesaid aspect has also been considered by the Apex Court in the case of Central Bank of India. The petitioner-company has failed to make distinction between priority right of the secured creditors vis a vis first charge. In view of the above, amended provisions cannot be applied and otherwise it was made in the year 2016, whereas, the attachment of the property was made in the year 2014. It has already been observed that if intention of the Central Government was to nullify first charge, the language of amended provision would have been in the manner indicated by the Apex Court in the case of Central Bank of India. It is otherwise a case where attachment of the property in pursuance of first charge of the State Government is much prior to the amended Act of 2002 and 1993 thus those amendments would not apply even if subsequently auction of the property was made. It is nothing but auction of the property already attached by the Government, that too, after initiation of proceedings under the Act of 1956. Petition dismissed.
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