TMI Blog2006 (8) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the Andhra Pradesh General Sales Tax Act, 1957 (for short, the APGST Act ). For recovery of the said arrears of Rs. 28,58,830 the property of the fourth respondent (guest house situated at Pitapuram, East Godavari District) was brought to sale under the provisions of the Revenue Recovery Act, 1864. On more than one occasion, the sale was intercepted by the fourth respondent invoking the jurisdiction of this court under article 226 of the Constitution of India. It may not be necessary to go into the details of various orders passed by this court earlier, but suffice to say that this court stayed the auction on more than one occasion on condition that the fourth respondent makes certain payments towards the arrears of the tax, but the fourth respondent never complied with those conditional orders. Therefore, the second respondent once again issued an auction notification, dated December 19, 2005 calling upon the interested persons to make an appropriate application. The relevant portion of the auction notification reads as follows: OFFICE OF THE COMMERCIAL TAXES DEPARTMENT: TUNI EAST GODAVARI DISTRICT. OPEN AUCTION NOTIFICATION This is to inform to the public that fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 2 to confirm the auction in his favour and convey the property. However, the respondents did not convey the property to the petitioner. In the meanwhile, the petitioner came to know that the third respondent issued proceedings cancelling the above mentioned auction. The petitioner asserted on oath in the writ petition at para 6 that such a decision was taken by the third respondent without any prior notice to him and he came to know about such a decision through a daily newspaper ( Eenadu Telugu newspaper), dated January 23, 2006. Hence, the writ petition. The second and third respondents filed their counter-affidavits. The second respondent admitted all the material allegations made by the petitioner. He further stated in the counter-affidavit that, on receipt of the entire amount of sale consideration from the petitioner, he informed the same to the third respondent on January 6, 2006 and requested the third respondent to confirm the auction as per section 38(3) of the Revenue Recovery Act, 1864. It is further stated by the second respondent in his counter-affidavit as follows: It is submitted that the Deputy Commissioner (CT), Kakinada in Ref. G3/1146/94, dated Janua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmercial Taxes, Hyderabad, dated December 29, 2005. The proceedings of the third respondent, dated January 6, 2006, reads as follows: PROCEEDINGS OF THE DEPUTY COMMISSIONER (CT): KAKINADA PRESENT: SRI AHMAD NADEEM, I.A.S. Ref: G3. 1146/94, Dated: 6-1-2006 Sub: The Kirlampudi Sugar Mills Ltd.s, Pithapuram Auction of their guest house is cancelled The dealer's request is accepted and Installments granted Orders Regarding. Ref: (1) Representation filed by the dealer requesting for grant of installments addressed to the Commissioner (CT) Hyderabad, Dated 28-12-2005. (2) Telephonic instructions of the Commissioner (CT), Hyderabad dated 29-12-2005. (3) Telephonic instructions of the DC (CT) Kakinada, dated December 29, 2005 and DC (CT) Ref. No. G5/ 1146/94, dated December 30, 2005. (4) CTO, Tuni Ref. B6/1323/2000, dated December 30, 2005. ORDER Sri C. Raghuram, Managing Director of M/s. Kirlampudi Sugar Mills Limited, Pithapuram is assessee on the rolls of the Commercial Tax Officer, Tuni and fell in arrears of interest of Rs. 28,58,830 under the APGST Act, 1957, for the year 1994-95. The dealer requested for grant of installments vide h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Taxes, not to proceed with the auction of the property in question, certain complaints including several adverse news items published on the manner of conduct of the auction, were received, but it is not specified, by whom and what is the nature of the complaint. The counter of the third respondent in this regard reads as follows: It is submitted here that the auction was not conducted in a proper manner and the whole auction took place contrary to the instructions of higher authorities. Even workers of the fourth respondent who are opposing the auction were removed by taking the help of police. In view of the above irregularities I have ordered the cancellation of auction/sale proceedings recorded in favour of the petitioner who participated in the auction/sale held on behalf of Government of Andhra Pradesh under the powers vested in me under section 38 of the Revenue Recovery Act and accordingly I have communicated the same to the first respondent to take necessary further action under the Revenue Recovery Act. Therefore, the third respondent issued the proceedings referred to earlier cancelling the auction. Three questions arise for consideration of this court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Government Pleader for Commercial Tax, relied upon section 38 of the A.P. Revenue Recovery Act, 1864, which reads as follows: Application to set aside sale: (1) At any time within thirty days from the date of sale of the immovable property, application may be made to the Collector to set aside the sale on the ground of some material irregularity, or, mistake or fraud, in publishing or conducting it; but, except as otherwise as hereinafter provided no sale shall be set aside on the ground of any such irregularity or mistake unless the applicant proves to the satisfaction of the Collector that he has sustained substantial injury by reasons thereof. (2) If the application be allowed, the Collector shall set aside the sale and may direct a fresh one. (3) Order confirming or setting aside sale: On the expiration of thirty days from the date of the sale, [if no application to have the sale set aside is made under section 37A or under clause (1) of this section] or if such application has been made and rejected, the Collector shall make an order confirming the sale provided that, if he shall have reason to think that the sale sought to be set aside notwithstanding that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In spite of service, the fourth respondent never chose to file counter-affidavit nor does the order dated January 6, 2006 of the third respondent make any reference to any application made by the fourth respondent. Obviously, the decision was taken by the third respondent on his own, in which case the decision is referable to sub-section (3) of section 38 of the Act, which obligates the third respondent to record the reasons for such a decision. The order, dated January 6, 2006, insofar as it is material for the present purpose reads as follows: PROCEEDINGS OF THE DEPUTY COMMISSIONER (CT): KAKINADA PRESENT: SRI AHMAD NADEEM, I.A.S Ref. G3/1146/94 Dated: 06012006 Sub: R.R. Act 1864 Attachment of property of M/s Kirlampudi Sugar Mills Ltd., Pithapuram situated in D. No. 11145, Pithapuram Auction held on 29 12-2005 Auction is cancelled Orders Issued Reg. Ref: Telephonic instructions of DC (CT), Kakinada dated 29-12-2005 (2) Representation filed by the dealer requesting for grant of installments addressed to CCT, Hyderabad, dated 29-12-2005. (3) This office Ref. G5/1146/94, dated 30-12-2005. (4) CTO, Tuni ref. B6/1323/2000, da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erstand as to why the third respondent took one week's time to communicate the same decision in writing both to the fourth respondent and to the petitioner. All these factors make the court to draw an inference that both the proceedings dated January 6, 2006, issued by the third respondent are not issued bona fide. As admitted, by January 4, 2006 the entire amount of sale consideration was paid by the petitioner, the details of which are admitted in the counter-affidavit of the second respondent. In such a case, the cancellation of the auction is not permissible. Dealing with the question, whether the sale conducted in execution of the decree of a civil court could be declined to be confirmed on the ground that the decree is reversed, in appeal the Supreme Court held in Janak Raj v. Gurdial Singh AIR 1967 SC 608 that the confirmation cannot be declined. At para 24 it was held as follows: For the reasons already given and the decisions noticed, it must be held that the appellant-auction purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of he sale the decree had been set aside. The policy of the Legislature seems to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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