TaxTMI 
TaxTMI 
2017 (12) TMI 1130
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....,800/- square yards by way of registered sale deeds in the year 1970. The petitioner applied for and was admitted to the membership of the said society. Since the petitioner was not allotted any plot, he was constrained to file Lavad Suit No.1240 of 1999 before the Board of Nominees under section 96 of the Gujarat Cooperative Societies Act, 1961. 3. By an order dated 3.5.2005, the Board of Nominees allowed the suit and directed the defendants therein, viz., the respondents No.4 and 5 to allot a plot admeasuring 300 square yards to the petitioner. Since the respondents No.4 and 5 did not handover the possession of a plot admeasuring 300 square yards to the petitioner in compliance with the directions issued by the Board of Nominees, the petitioner was constrained to file Execution Application No.459 of 2011 before the City Civil Court, at Ahmedabad. By an order dated 7.3.2014, the executing court observed that the petitioner was entitled to possession of 300 square yards of land and directed that the petitioner be handed over possession of a plot admeasuring 300 square yards, the particulars whereof were contained in the map placed before the court through the Court Commissioner. P....
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....nder sub-rule (6) of rule 11 of the Second Schedule to the Act, before the civil court and not before this court. 6. On the other hand, Mr. Navin Pahwa, Senior Advocate, learned counsel for the petitioner assailed the impugned order by submitting that the Tax Recovery Officer has treated the application made by the petitioner to be a grievance application and not an application under rule 11 of the Second Schedule. Referring to the impugned order, it was submitted that the Tax Recovery Officer has not recorded any independent findings and has merely referred to the opinion of the senior standing counsel and filed the application. It was submitted that in either case, even if the application is treated as an application under rule 11 of the Second Schedule, since the Tax Recovery Officer has not exercised the jurisdiction vested in him, this petition under Article 226 of the Constitution of India would be maintainable. 6.1 The learned counsel has made further submissions on the merits of the case; however, considering the view that the court is inclined to take in the matter, it is not necessary to enter into the merits of the same. 7. Insofar as the maintainability of the petiti....
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....not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Tax Recovery Officer shall make an order releasing the property, wholly or to such extent as he thinks fit, from attachment or sale. (5) Where the Tax Recovery Officer is satisfied that the property was, at the said date, in the possession of the defaulter as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the Tax Recovery Officer shall disallow the claim. (6) Where a claim or an objection is preferred, the party against whom an order is made may institute a suit in a civil court to establish the right which he claims to the property in dispute; but, subject to the result of such suit (if any), the order of the Tax Recovery Officer shall be conclusive." 9. Thus, under sub-rule (1) of rule 11 of the Second Schedule, if an objection is made to attachment or sale of property in execution of a certificate, on the ground that such property is not liable to such attac....
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....ng to the attachment. He has thereafter referred to the manner in which the attachment was made. In paragraphs 3 and 3.1 of the order, the Tax Recovery Officer has thereafter referred to the contentions raised by the petitioner. In paragraph 4, he has recorded that another application for release of property had been made by one Shri Darshan V. Raval. In paragraph 5 of the order, reference is made to the development agreement dated 30.7.1997 executed between Kundannagar Cooperative Housing Society Ltd. and M/s Panchdeep Consultants as well as the fact that the attachment of the entire property was made on the basis of the affidavit given by the partner. 13. In paragraph 6 of the impugned order, the Tax Recovery Officer has recorded that as the matter was involving complicated issues, as to whether attachment of immovable property of Shri Ghanshyam R. Raval can be kept or not, he had sought the opinion of a standing counsel for the Income Tax Department, who, in turn, had raised certain queries, pursuant to which the petitioner was called upon to furnish the details called for by the senior standing counsel. It appears that thereafter, the concerned senior standing counsel asked th....