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TMI Blog2011 (2) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... minors, namely, Sagar Sharma, Vishal Sharma and Gagan Sharma, all three sons of the late Harishchandra N. Sharma (H. N. Sharma). The said trust was settled by two settlors Mr. Atul Desai and Mr. Shamit Mazumdar with an initial corpus of Rs. 20,000. Thereafter, the said trust received Rs.10 lakhs as a donation from one Mr. S. L. Sharma from Dubai. The trust claimed to have purchased two flats Nos. 14A and 14B situated on 14th floor of Vidya Apartments, Off C. Loyalka Marg, Chowpatty Band Stand, Mumbai-400 006 and shares of Hotel Horizon Pvt. Ltd. from the funds received by it. The said trust is assessed to income-tax and wealth-tax ; wherein the trust claimed to have disclosed the details of the funds received and investments made and that they were examined and accepted by the tax authorities from time to time. 3. The petitioners' claim that M/s. Ekta Trust distributed its income, funds and properties to its beneficiaries from time to time and that the beneficiaries used the monies received from the said trust to purchase shares of M/s. Hotel Horizon Pvt. Ltd., which, according to the petitioners, were disclosed by the beneficiaries in their income-tax and wealth-tax retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d requested for lifting attachment and prohibitory order. It appears that respondent No. 3, vide letter dated December 14, 2009, informed the petitioners that no further orders were necessary since the matter had already been decided. 10. On January 14, 2010, respondent No. 2 issued a proclamation of sale fixing the public auction of the flats belonging to the said trust on February 16, 2010 at 3 p.m. 11. Being aggrieved by the aforesaid action of the Department, the petitioners filed W. P. No. 263 of 2010 before this court with identical prayers incorporated in the present petition. The said writ petition was disposed of by this court vide order dated February 10, 2010 recording an arrangement that the petitioners shall file their reply to the show-cause notice issued by the Tax Recovery Officer, respondent No. 2 under rule 11 of the Second Schedule to the Act and respondent No. 2 was directed to consider the same on its own merits within a period of twelve weeks from the date of receipt of the reply that may be filed by the petitioners making it clear that in the event the order is adverse to the petitioners no coercive steps to be taken by the respondents for a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department and the petitioners and went on to urge that the entire action of the respondents is bad and illegal. 16. Mr. Dastoor placed heavy reliance on the Division Bench judgment of this court in the case of Sunderlal Daga v. TRO [1997] 225 ITR 10 (Bom) and urged that sub-rules (4) and (5) of rule 11 of the Second Schedule to the Act bring out the real scope of an enquiry under rule 11 by the Tax Recovery Officer upon objections raised to the sale of immovable property in recovery proceedings. According to him, sub-rule (3) states that the bur-den is on the claimants to adduce evidence and to prove that the property at the relevant time was in their possession independent of the defaulter. Thus, according to him, the central point to be adjudicated in a proceeding under rule 11 being possession, the said issue ought to have been decided by the Tax Recovery Officer which, according to him, he failed to consider. 17. Mr. Dastoor further urged that adjudication of title is not warranted in an enquiry under rule 11. The question of title may become relevant incidentally to decide the character of the possession. The role of title in relation to rule 11 is limited to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eficiary, Mr. Gagan Sharma, as such no order running counter to the impugned order can be passed by this court. In other words, in the same lis there cannot be two contradictory or inconsistent orders running counter to each other. He, thus, submits that the present petition is liable to be rejected at the threshold for non-joinder of necessary parties. Incidentally, he urged that even the title holder, M/s. Ekta Trust, is also not a party to the petition. Under these circumstances, the said petition is liable to be dismissed on this count also. In support of his submission, he placed reliance on the judgment of the Division Bench of this court in the case of Sheela Wd/o Vijay Choudhary v. Central Bank of India [1998] 4 All MR 173. 20. In rejoinder, Mr. Dastoor urged that Mr. Gagan Sharma, who has one-third undivided interest, is not a necessary party to the petition because the earlier Writ Petition No. 263 of 2010 challenging the attachment and the threatened sale of the properties was filed only by the present petitioners. In other words, according to him, Mr. Gagan Sharma had not filed any objection under rule 11 as such Mr. Gagan Sharma could not have filed writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. At this juncture, it is relevant to note that the tenor of the objections raised on February 20, 2010 by the petitioners in reply to the show-cause notice dated October 28, 2003 would show that the objections were on behalf of Sagar, Vishal and Gagan Sharma, which is clear from the averments incorporated therein extracted here below : "In view of the facts stated above, attachment brought out by you on the abovementioned assets owned by Ekta Trust, Sagar Sharma, Vishal Sharma and Gagan Sharma is patently illegal and therefore you are requested to kindly withdraw the same immediately." (emphasis supplied) The objections though were signed by Mr. Sagar and Mr. Vishal Sharma, none the less the fact remains that they were for and on behalf of all the three brothers. In this view of the matter, the contention raised by Mr.Choudhary leading to non-joinder of necessary party needs consideration in depth. 25. If one has to understand the concept of trust the owner of the trust property in Indian law is one and one alone, namely, the trustee. In Chhatra Kumari Devi v. Mohan Bikram Shah, AIR 1931 PC 196, the Privy Council observed as under : "The trustee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h others. They are not co-owners as envisaged in sections 44 and 45 of the Transfer of Property Act, each having a distinct or apportionable share. The trustees of the trust property are joint owners of the whole. 32. In Vedakannu Nadar v. Nanguneri Taluk Singikulam Annadana Cha-tram, AIR 1938 Mad 982, the court held that no suit in regard to trust properties would be maintainable by only one or some of the trustees, if the other trustees are not before the court, either as plaintiffs or even as defendants, because the office of trustees is a joint one and co-trustees altogether form one trustee. This view appears to be a settled view affirmed by the Supreme Court in the case of L. Janakirama Iyer v. P. M. Nilakanta Iyer, AIR 1962 SC 633. 33. In the case of Bakshish Singh v. Arjan Singh [1966] 3 SCR 295, one Mathra Singh, plaintiff No. 1 and defendants Nos. 1 to 13 were partners of the factory known as Modern Ice Factory at Gurdaspur. A suit was filed for dissolution of partnership and rendition of accounts. The trial court dis-missed the suit and the appeal was also dismissed. While a second appeal was pending, two of the partners died and their legal representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entertained at the instance of only two joint beneficiaries, especially, in the absence of the third joint beneficiary. 36. At this juncture, it is relevant to mention that during the course of hearing, the petitioners were asked by this court as to whether they would like to join the third beneficiary as a party respondent to the petition. In reply, the doctrine of domnius litis was pressed into service and reliance was placed on the judgment of this court in the case of Devchand Constructions v. Board of Trustees of the Port of Mormugao [2006] 5 Mah LJ 644 to contend that the petitioners cannot be forced to join any party against their desire. That is how unwillingness to join left out beneficiary was demonstrated. 37. In the above view of the matter, in our view, the law relating to joining of the necessary party is very much applicable to the writ petition. This petition, therefore, cannot be entertained since the impugned order to the extent of the undivided one-third interest of one of the co-beneficiaries (Mr. Gagan Sharma) has become final and conclusive against him. No inconsistent order in the same lis can be passed by this court. 38. The next ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act." 41. In State of H. P. v. Gujarat Ambuja Cement Ltd. [2005] 142 STC 1 ; AIR 2005 SC 3836, the apex court observed as under (page 18 of STC) :"We shall first deal with the plea regarding alternative remedy as raised by the appellant-State. Except for a period when article 226 was amended by the Constitution (Forty-second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, con-venience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing of the alternative remedy provided the High Court shou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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