TMI Blog2018 (3) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... 'appeal' contained in Clause (iii) of subrule (2) of Rule 68B of the Second Schedule. Any other interpretation of the said provision would go against the principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. The question aforesaid is thus answered accordingly. Remedy of writ under Article 226 is extraordinary and discretionary and that the exercise of discretion to issue a writ shall be for the purpose of granting an equitable relief to the party. It is equally well established that the power under Article 226 may not be exercised by the court to strike down an illegal order or action although it would be lawful to do so, if the exercise of the jurisdiction in a given matter would resurrect a grave illegality or would work out injustice to others. High Court cannot be oblivious of the conduct of the party invoking the remedy while exercising the said jurisdiction. In the instant case W.P. was instituted by the petitioner with an undertaking that he would liquidate the entire tax arrears of the defaulter. Had the petitioner not made such an undertaking when the said matter was taken up for hearing, this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng others, that the attachment over the property relates back to the dates on which the notices to pay the arrears have been served on the defaulter and that the petitioner and his father had no right over the property on the dates on which demand notices were served on the defaulter. Consequent on the dismissal of the claim petition, the property was again brought for sale on 25.2.1987 and in the said proceedings, one N.H.Sherief had offered to purchase the property and remitted 25% of the sale consideration. In the meanwhile, the petitioner and his father challenged Ext.P2 order in O.S.No.32 of 1987 before the Subordinate Judge's Court, Kollam, invoking sub-rule (6) of Rule 11 of the Second Schedule and obtained an order restraining the Tax Recovery Officer from confirming the sale. The purchaser of the property did not pay the balance sale consideration in view of the said interim order. The suit was later dismissed on 24.2.1998. In the meanwhile, the father of the petitioner transferred the property purchased by him from the defaulter to the petitioner on 13.6.1991. Despite the said transfer, both the petitioner and his father together filed A.S. No.468 of 1998 before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by him was the tax arrears of the defaulter, for the recovery of which the property was attached, and they are now being called upon to pay not only the said arrears, but also the arrears of the defaulter accrued after the attachment of the property. This Court dismissed the said review petition with certain clarifications, as per Ext.P5(a) order. Ext.P5 judgment, as clarified in Ext.P5(a) order, has been challenged by the petitioner in W.A. No.391 of 2017 and the said writ appeal was disposed of by this Court as per Ext.P6 judgment as follows: ( i) Without prejudice to the contentions of the appellant, the appellant should satisfy the demand of the revenue within the time frame as ordered by the learned single judge. ( ii) If there is any failure on the part of the appellant in doing so, revenue would be entitled to proceed further in the manner as permitted in the judgment under appeal. ( iii) Remittance of the amount as above, shall be without prejudice to the right of the appellant to question the legality of the demand of the Revenue and to seek remedies thereon. ( iv) The order in R.P.No.886/2016, is hereby set aside. 4. Earlier while dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not dispute the fact that in the normal course of events, the three year period provided for in sub-rule (1) of Rule 68B of the Second Schedule has to be reckoned from 1.4.1990. But, according to the learned Standing Counsel, under clause (iii) of sub-rule (2) of Rule 68B, the period commencing from the date of presentation of any appeal against an order of the Tax Recovery Officer under the Second Schedule and ending on the day the appeal is decided is liable to be excluded in the matter of computing the period provided for under sub-rule (1) of Rule 68B; that all proceedings instituted by the petitioner challenging directly or indirectly Ext.P2 order passed by the Tax Recovery Officer rejecting the claim petition preferred by the petitioner and his father including the suit, the appeal, the review petition filed in the appeal, the writ petition filed by the petitioner thereafter, the review petition filed in the writ petition and the writ appeal filed by the petitioner challenging the decision in the writ petition as clarified in the order passed in the review petition, are to be treated as proceedings falling within the scope of the expression 'appeal' contained in cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded, shall be excluded. Provided that where immediately after the exclusion of the aforesaid period, the period of limitation for the sale of the immovable property is less than 180 days, such remaining period shall be extended to 180 days and the aforesaid period of limitation shall be deemed to be extended accordingly . 3) Where any immovable property has been attached under this Part before the 1st day of June, 1992, and the order giving rise to a demand of any tax, interest, fine, penalty or any other sum, for the recovery of which the immovable property has been attached, has also become conclusive or final before the said date, that date shall be deemed to be the date on which the said order has become conclusive or, as the case may be, final. 4) Where the sale of immovable property is not made in accordance with the provisions of sub-rule (1), the attachment order in relation to the said property shall be deed to have been vacated on the expiry of the time of limitation specified under this rule. As noted above, the claim petition preferred by the petitioner and his father invoking Rule 11 of the Second Schedule was rejected by the Tax Recovery Officer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner sought stay of all further proceedings pursuant to Annexure A1 notice and on 19/10/2016, this Court granted the stay sought for by the petitioner. The review petition was dismissed on 9/11/2016. Immediately thereupon, the petitioner challenged the decision in the writ petition as clarified in the review petition in writ appeal and the writ appeal was disposed of on 15/3/2017. The facts aforesaid would indicate beyond doubt that the writ petition filed by the petitioner after the disposal of A.S.No.468 of 1998, the review petition filed in the writ petition as also the writ appeal challenging the decision in the writ petition, were proceedings in essence challenging the decisions of the Tax Recovery Officer under the Second Schedule. It is seen that the purpose of sub-rule (2) of Rule 68B is to exclude the period during which the Tax Recovery Officer is prevented from continuing the proceedings for realisation of the tax arrears by virtue of orders passed by Courts as also the period during which it is inappropriate for the Tax Recovery Officer to continue the proceedings for realization of the tax arrears on account of the pendency of the proceedings challenging the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of sub-rule(1) of Rule 16, which interdicts the defaulter from alienating the properties. In terms of the said rule, the documents, on the basis of which the petitioner traces title of the property are void as against all claims enforceable under the attachment. If that be so, the petitioner is not entitled to file a writ petition challenging the proceedings under the Second Schedule on the basis of the said void documents, for it is implicit in the exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution that the relief asked for must be one to enforce a legal right [See State of Orissa v. Madan Gopal Rungta (AIR 1952 SC 12) and Calcutta Gas Company (Proprietory) Ltd. v. State of W.B. and Ors. (AIR 1962 SC 1044)]. 12. Further, it is well established that the remedy of writ under Article 226 is extraordinary and discretionary and that the exercise of discretion to issue a writ shall be for the purpose of granting an equitable relief to the party. It is equally well established that the power under Article 226 may not be exercised by the court to strike down an illegal order or action although it would be lawful to do so, if th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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