TaxTMI 
TaxTMI 
2015 (10) TMI 2856
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....ue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent authorities to enter name of the petitioner in the revenue record for the land bearing survey no. 322 paiki and survey no. 324 paiki of village Shakat Shanala, taluka-district Morbi admeasuring about 11 acres 28 gunthas equivalent to 47347 square meters. bb) Your Lordship will be pleased to quash and set aside all the impugned entries in respect of charge and attachment in respect of alleged dues of Government of Gujarat. c) by way of interim relief, pending hearing and final disposal of the present petition, direct the respondents to cancel the charge of the sales Tax Department over the land bearing survey no. 322 paiki and survey no. 324 paiki of village Shakat Shanala, taluka-district Morbi admeasuring about 11 acres 28 gunthas equivalent to 47347 square meters and enter the name of the petitioner in the revenue record. 3. Heard Mr. Shalin Mehta learned senior advocate with Mr. Niral R. Mehta learned advocate for the petitioner, Mr. J.K. Shah learned AGP for respondents no. 1 to 3 and Ms. Dharmishta Raval learned advocate for respondent no....
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....smissed the application of the petitioner and thereby cancelled the entry No. 5450 on the ground that since the entry in respect of the rights of State Bank of India, was not made in the revenue record, the name of the petitioner cannot be mutated. The Mamlatdar, Morbi, by an order dated 11.3.2013, rejected the objections of the petitioner and certified entry No. 5798, whereby, charge of the Sales Tax Department came to be mentioned in the revenue record over the land purchased by the petitioner. It is required to be mentioned at this stage that security by way of mortgage is prior to sales tax dues. At this juncture, it is required to mention that prior to auction by the State Bank of India, two revenue entries being No. 5243 and 5020 were made in the revenue records, wherein, the charge of Sales Tax Officer was mentioned. Further, revenue entry No. 5798 ha also been made in respect to the order of the Sales Tax Department for attachment of the land purchased by the petitioner. After the registration of sale certificate under the SARFAESI Act, the petitioner approached respondent no. 2 for entering the name of the petitioner in the revenue record. The said application was register....
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....t entering the name of the petitioner in the revenue records by refusing to mutate necessary entry with regard to registered auction purchase of secured asset in the revenue records. It is further submitted that the revenue authority has not considered that the petitioner has paid amount of Rs. 14,04,00,000/- to the secured creditor for the purchase of the secured asset under auction under the SARFAESI Act. The Sale Certificate issued by State Bank of India, secured creditor, in favour of the petitioner towards the sale of the secured assets mentions that the schedule property was made free from all encumbrances, and therefore, the petitioner is not liable for any payment of other dues. Mr. Mehta learned senior advocate has submitted that the respondents authorities have not considered that Ornate Ceramic ltd. is an operational company having other activities operational from different places, however, Sales Tax Department has not thought it fit to put their charge over other premises which is in occupation and possession of Ornate Ceramic Ltd., sales tax dues of which Sales Tax Department is claiming. Mr. Mehta further submitted that the respondent authorities have not considered ....
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.... contentions raised in the petition. It is also submitted that authority constitutes under the Land Revenue Code is bound to follow the law laid down by this Court. In the present case, authority has failed to follow the statutory duty to follow the land laid down by this Court. 12. Mr. Shalin Mehta learned senior advocate further submitted that section 35 of the SARFAESI At gives overriding effect to any other provisions inconsistent with the SARFAESI Act. It, therefore, can be construed that the debts of a secured creditor and provisions of recovery of such debt under section 13 of the SARFAESI Act prevail under State Legislature and thereby having overriding effect of the sales tax dues. It is further submitted by Mr. Shalin Mehta learned senior advocate that section 137 of the Gujarat Land Revenue Code has been declared void by this Court in the case of Baroda City Cooperative Bank Ltd. vs. State of Gujarat, reported in 2002(2) GLH 525 and held that the State Government cannot recover dues under section 137 of the Gujarat Land Revenue Code. 13. Per contra, learned AGP Mr. J.K. Shah submitted that the Commercial Tax Department (earlier known as Sales Tax Department) has outsta....
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.... Dharmishta Raval learned advocate appearing for respondent no. 4- State Bank of India, has submitted that the Bank had granted loan to Ornate Ceramic Ltd. which had mortgaged the property of the firm to the Bank on 4.9.2006, therefore, the charge of the respondent over the said property of Ornate Ceramic was created in the year 2006. Thereafter, on 8.12.2008, the respondent bank issued a notice to Ornate Ceramic under section 13(2) of the SARFAESI Act calling upon Ornate Ceramic to make the payment of the amount defaulted and if within 60 days Ornate Ceramic Ltd. did not make payment then the respondent bank would amongst others take possession of the secured assets i.e. the property mortgaged to the State Bank of India. The public was also informed through a public advertisement that section 13(2) action has been initiated by the respondent bank and that no person should deal with the said property of the company. It is submitted that on 8.8.2009, the Bank has took symbolic possession of the property of the Company under sec. 13[4] of the SARFAESI Act. Thereafter, the State Bank of India issued a public advertisement for auctioning the property on 19.6.2010. In the said advertise....
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....und that the Bank has filed affidavit before the Mamlatdar, Morbi. The Bank has written a letter to the State authorities, wherein, it is very categorically stated that there was surplus amount of Ornet Ceramic Ltd. lying with the Bank and requested the State Authorities to obtain the appropriate Court order to get its share in the surplus amount lying with it. The said letter is at page 294 of the petition. The second aspect would go against the State authorities, because before the Mamlatdar, Morbi, Ornet Ceramic Ltd. has shown has shown its willingness to pay all the dues of the Sales Tax Department. It is to be noted that the Sales Tax Department has not yet calculated the dues. A specific question is asked whether the assessment of the Sales Tax dues is calculated and what steps have they taken against the Ornet Ceramic Ltd. The answer is not produced on record. This shows approach of the authority trying to recover the dues which were provisionally assessed by the authorities before 2010 i.e. before the property was put to an auction. It is true that the Sales Tax Department had written to the Bank that they have charge over the property, and therefore, the property should no....
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....he highest bid amount of Rs. 14,04,00,000/-. The successful purchaser has submitted the tender form to the Bank with the initial offer of Rs. 13,68,00,000/- as a joint offer for Lot No. 1 & 2 land & Building and Plant & Machinery. (Its Copy is enclosed herewith for the ready reference of the Hon'ble Court). In the offer letter condition No. 11 of the Terms & Conditions clearly provides that "The State Bank of India will not be held responsible for any charges, lien, encumbrance, property tax or any other dues to the Govt., Statutory or anybody else in respect of property under sale." The purchaser M/s. Amidhara Developers Pvt. Ltd. has accepted the condition. 3) The opponent no. 2 State Bank of India submit that at the time of opening the tender, in presence of all the intending purchases/bidders on the day of Public Auction dated 22.7.2010, the bank has informed all the bidders, regarding the dues of the other govt. & semi govt. dues and the notices received from the different Govt. Department for the factory of Ornate Ceramics. The Dues of Sales Tax Department, Morbi has been also informed to all the bidders as well as the successful purchaser & present Opponent No. 1 M/s. Ami....
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.... entry no. 5243 whereby respondent no. 3 had sought to create lien over the property were not certified. It is settled legal position an uncertified revenue entry does not confer any right on the Sales Tax Department. Indisputably, action of taking over possession by the respondent bank is prior in time to creation of any charge over the property." 19. Therefore, can it be said that the charge was on the property and the petitioner purchased the property with open eye, as contended by the State. The answer would be no. The documentary evidence go to show that though the Sales Tax Department was aware that the property was put to auction, but they did nothing. They even did not frame the assessment order, nor objected to auction of property as far as the pendency of dues of the Sales Tax Department are concerned,was against Ornet Ceramic Ltd., who had consented to pay the same till 2013 or even today the department except claiming charge on property for dues has done nothing, the petitioner was, therefore, constrained to file this petition as though the entry no. 5798 came to be mutated in the record of right only after they had purchased the property. The order of Mamlatdar, Morb....