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TMI Blog2015 (12) TMI 1658X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.1.2002, denying the liability. However, the impugned notice dated 9.7.2002, has been issued, directing the Petitioner to settle the arrears, alleging that the Petitioner is holding the property of the defaulter and thereafter, the impugned distraint order dated 11.9.2002 under Section 8 has been filed. Hence, this Writ Petition has been filed. 3. According the the Petitioner, the Petitioner is the bona fide purchaser for value and no opportunity of hearing was given to the Petitioner and the right of the bona fide purchaser for value is protected under Section 24A of the Tamil Nadu General Sales Tax Act and relied on the decisions of the Division Bench of this Court in (i) Deputy Commercial Tax Officer, Thudiyalur Assessment Circle, Coimbatore and another v. R.K.Steels reported in 1998 (I) CTC 124 and (ii) A. Senthil Kumar and another v. Assistant Commissioner (CT) and others reported in 2011 (1) CTC 828. 4. On the other hand, it is the case of the Respondent that as per Section 24(2) of the Act, any due under this Act shall be subject to the claim of the Government in respect of the land revenue and the claim of the Land Development Bank in regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecution of a mortgage decree. When the municipality purported to exercise their charge over the property, the purchaser in court auction filed a suit for a declaration that he was the owner of the property and that therefore, the arrears of municipal taxes due by the transferor were not recoverable by attachment and sale of the property in the hands of the purchaser. A Division Bench of the Gujarat High Court accepted the case of the purchaser and decreed the suit, holding that the charge created in favour of the municipal corporation was not enforceable against the property. The apex Court upheld the said judgment and while doing so, referred to Section 100 of the Transfer of Property Act, which is as follows: "Section 100: "Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provision hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. Nothing in this section applies to the charge of a trustee on the trust property for expense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferee and a Form No.7 notice was issued the transferee filed a writ petition against the recovery proceedings. The transferee contended that they are the bona fide purchasers for value without notice of the charge. When the decision of the Supreme Court in Ahmedabad Municipal Corporation of the City of Ahmedabad v. Haji Abdul Gafur Haji Hussenbhai, was brought to the notice of the Division Bench, they purported to distinguish the same by the following observation: "Section 141(1) of the Bombay Provincial Municipal Corporation Act, 1949 merely creates a charge for the property tax. There is no provision in the Bombay Provisional Municipal Corporation Act, similar to section 24(2) of the Tamil Nadu General Sales Tax Act, 1959, providing for enforcement of the charge created under section 141(1) of the Bombay Provisional Municipal Corporation Act. Therefore, the ratio of the decision of the Supreme Court in Ahmedabad Municipal Corporation of the City of Ahmedabad v. Haji Abdul Gaful Haji Hussenbhai, cannot be applied to the facts of the present case. We are inclined to follow the decision of the Division Bench of this Court in Deputy Commercial Tax Officer v. Asha Kumari, 1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have normally referred the issue for decision by a Full Bench, but for the fact that the judgment of the Supreme Court is crystal clear. To repeat unless a provision is made in any statute contrary to the rule of section 100 of the Transfer of Property Act, a bona fide purchaser for consideration without notice of the charge is protected. This proposition of law is too very clear and so categorically emphasised by the Supreme Court in Ahmedabad Municipal Corporation case. We therefore with respect differ from the views expressed by the two Division Bench judgments referred to above and propose to follow the judgment of the Supreme Court. 16. We are not inclined to go into the other question raised by the learned counsel for the respondent relating to the institution of the suit and the technical defects in the notices issued by the appellants. No doubt, we accept the stand of the revenue that the respondent/petitioner could have filed a civil suit and challenged the revenue recovery proceedings. Inasmuch as the writ petition had already been entertained and the writ appeal has also been entertained at this belated stage, we do not want to reject the plea of the respondent that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. We do not decide the question whether under the Revenue Recovery Act only the property of a defaulter can be brought to sale. We also do not want to decide the question whether the technical defects in the notices issued by the appellants would vitiate the proceedings. We therefore, confirm the judgment of the learned single Judge though for different reasons." (emphasis added.) 9. Similarly, the another Division Bench of this Court in A. Senthil Kumar and another v. Assistant Commissioner (CT) and others reported in 2011 (1) CTC 828 has also laid down the same proposition of law. 10. Also, this Court in Rukmani v. The Deputy Commercial Tax Officer - I, Pattukottai - I, Assessment Circle, Pattukottai, Thanjavur District [W.P(MD)No.2736 of 2006, decided on 08.10.2012], while dealing with an identical issue, has held as under: "26. In the case on hand, the contention of the learned counsel for the petitioner is that prior to the purchase of the property in the year 2004, the petitioner had verified with the encumbrance details in the Registration Department and finding that there was no encumbrance over the property, she had purchased the same, which would show that she had ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evident which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it." 27. Going through the judgments relied on by both parties, this Court is inclined to accept the submissions of the learned counsel for the petitioner that the decision rendered in R.K.Steels's case (cited supra) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubted by making any allegation of fraud, being played on the revenue. 29. Though the respondent has contended that the petitioner ought to have obtained a 'No Objection' from the revenue before purchasing the property, no provisions have been quoted by the respondent in the counter affidavit. Needless to say that a purchaser in normal course would only verify from the Registration Department as to whether the property to be purchased has any encumbrance. Unless the charge is duly registered in the Registration Department, it would not be possible for any prospecting buyer to know whether there is any charge over the property, for any arrears of tax or any statutory dues to be paid to the Government or statutory body. As stated supra, no materials have been produced before this Court to prove that notice demanding arrears of tax, has been served on the defaulter. No materials have been placed before this Court to prove that steps have been taken under the provisions of the Revenue Recovery Act, against the defaulter or the subsequent first purchaser, from whom the petitioner has purchased the property in the year 2004, after six long years, since ..... X X X X Extracts X X X X X X X X Extracts X X X X
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