9911796707
TMI Blog2005 (8) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the said suit schedule theatre and the date of auction was notified as March 17, 2005. The property was auctioned as scheduled on March 17, 2005, wherein, the respondents-defendants in the suit (hereinafter referred to as "the respondents") were declared as highest bidders. It is stated that when the respondents attempted to interfere with the possession of the applicant-plaintiff, a writ petition in W.P. No. 10094 of 2005, was filed by the applicant on March 22, 2005, as against the Income-tax Department for a writ of mandamus, to restrain the Income-tax Department from interfering with the applicant-plaintiffs possession except as provided in rule 40 of the Income-tax (Certificate Proceedings) Rules, 1962, and the said writ petition was disposed of on March 28, 2005, holding that the Department should not interfere with the possession of the applicant except after invoking rule 40 and that the said order was subsequently modified on April 8, 2005, leaving open the question relating to application of rule 40. The auction held on March 17, 2005, was stated to have been confirmed on May 4, 2005, in favour of the respondents who also paid the entire sale consideration. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of 2005 and A. No. 2302 of 2005 came to be passed and the relevant part of the order reads as under: "3. From the above, it is seen that the defendants have already approached the Commissioner, Income-tax Department, Chennai, to set aside the auction sale on the ground that there were irregularities in the sale. In view of such categorical stand, there need not be a specific order of injunction as granted by this court and accordingly the application for interim injunction is closed with liberty to the plaintiff to approach this court for appropriate orders in future, if necessary. Consequently, the application for vacating the interim injunction is also closed." Subsequently W.P.M.P. No. 19093 of 2005 which was in the list on July 13, 2005, came to be adjourned by four weeks as the applicant was not represented by its counsel due to general abstention from court work by advocates. On July 13, 2005, after issuing a notice of the same date, the Income-tax Department and the respondents are stated to have directed the applicant to hand over physical possession of the suit schedule theatre within one hour and it was in the above stated manner, the applicant was dispossessed from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would apply and if that be so, the procedure followed by the Income-tax Department while taking possession of the schedule theatre from the applicant on July 13, 2005, cannot be faulted. Mr. S. Vasudevan, learned counsel appearing for the respondents, would contend that the remedy of the applicant-plaintiff as against the auction held on March 17, 2005, as well as the sale certificate dated May 4, 2005, are by taking recourse to the procedure prescribed under the provisions of the Income-tax Act themselves and, therefore, the applicant cannot be heard to question the action of the Income-tax Department in the suit more so in the present applications. Learned counsel would contend that such remedies as available to the applicant are provided under rules 60, 61 and 62 of the Second Schedule to the Income-tax Act, 1961. Learned counsel also contended that under section 293 of the Income-tax Act, the jurisdiction of the civil court having been barred as against the orders passed by the Income-tax Department, and when the suit itself is not maintainable, the lesser relief as prayed for by the applicant cannot be granted. Learned counsel would point out that if at all the civil court j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grievance of the respondents did not survive and that the order of the Tax Recovery Officer can be confirmed. The order ultimately states that the appeal itself was dismissed as infructuous since possession had already been handed over to the respondents. Significantly there is no whisper in the order about the stand of the respondents in the memo filed by them in O.A. No. 543 of 2005 which was closed on the basis of the said memo. On a cumulative consideration of the above facts, viz., the non-extension of injunction granted in W.P.M.P. No. 19093 of 2005 beyond June 29, 2005, and the subsequent order obtained by the respondents in O.A. No. 543 of 2005 based on a memo filed at their instance on June 21, 2005, and the subsequent conduct of the respondents through their counsel before the appellate authority in stating that in the light of possession secured on July 13, 2005, no further orders are necessary in the appeal and that it can be closed, only lead to the inevitable conclusion that the respondents did not act in a bona fide manner while securing such possession through the officials of the Income-tax Department. In my considered view, the said conduct of the respondents b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... junction granted on April 20, 2005, in W.P.M.P. No. 19093 of 2005 was not extended beyond June 29, 2005. Even then, I am of the considered opinion that when the very question as to which of the rules would be applicable, whether rule 39 or rule 40 of the Income-tax (Certificate Proceedings) Rules, 1962, was the moot question to be considered in the main writ petition in W.P. No. 17576 of 2005, it was wholly inappropriate on the part of the Income-tax Department also to have taken the stand that since the injunction order not having been extended beyond June 29, 2005, it had every authority to invoke rule 39 and dispossess the applicant-plaintiff. It is also relevant to point out that the applicant filed a reply affidavit dated July 7, 2005, which is stated to have been served on learned standing counsel for the Income-tax Department which fact is also not disputed by learned standing counsel for the Income-tax Department wherein, in para. 10, the applicant pointed out about the memo filed by the respondents in having stated in categoric terms that they were not interested in the property. In such circumstances, in all fairness, the Income-tax Department ought not to have proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l possession without having recourse to a court. No person can be allowed to become a judge in his own cause.' The above view was followed by the Supreme Court in Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620, in which the Supreme Court followed the decision of the Privy Council in Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy, AIR 1924 PC 144, in which, the Privy Council observed: 'In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court.' In Rame Gowda's case [2004] 1 SCC 769, the Supreme Court, after referring to the decisions in Munshi Ram v. Delhi Administration, AIR 1968 SC 702; Puran Singh v. State of Punjab [1975] 4 SCC 518 and Ram Rattan v. State of U.P. [1977] SCC (Crl.) 85, drew a distinction between 'settled possession' and possession which is not settled and observed as follows: 'If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to aid of a person in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No. 19093 of 2005 ought to have appropriately apprised this court of the legal position before attempting to dispossess the applicant, instead of carrying it out in an unceremonious manner as has been done by it on July 13, 2005. In the light of the fact that the rival contentions of the parties as regards the entitlement of the applicant on the one side to remain in possession as well as the prayer of the Income-tax Department to invoke rule 39 on the other side can be considered only while dealing with O.A. No. 543 of 2005 as well as W.P.M.P. No. 19093 of 2005 and W.P. No. 17576 of 2005, I refrain myself from analysing those contentions in detail in these applications since for the present such a detailed consideration is uncalled for. One other relevant factor is that anticipating any complication being created by the respondents on a future date, in the order dated June 21, 2005, while closing the application in O.A. No. 543 of 2005, the learned judge has specifically held in para. 3 as under: "3... In view of such categorical stand, there need not be a specific order of injunction as granted by this court and accordingly the application for interim injunction is closed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between him and his employer is a matter to be adjudicated in his application filed under Order 21, rules 98 and 99, CPC. At this stage, it is premature to go into and record any finding in that behalf. Learned counsel for the first respondent also repeatedly sought to bring to our notice that on account of the orders of the Court Officer passed by the High Court the maintenance cost has been mounting up due to the delay in disposal of the proceedings in various courts. Even with regard to that, we are not impressed with the same. Since the letter of the law should strictly be adhered to, we find that highhanded action taken by respondents 1, 3 and 6 in having the appellant dispossessed without due process of law, cannot be overlooked nor condoned. The court cannot blink at their unlawful conduct to dispossess the appellant from the demised property and would say that the status quo be maintained. If the court gives acceptance to such high-handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law-abi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as under in para. 14: "14. In many cases it may so happen that even when the petitioner succeeds in the writ petition, the alienation if any made during the pendency of the writ petition shall have to remain unaffected, the order passed under articles 226 and 227 of the Constitution would be rendered infructuous, or ineffective. The parties would be deprived of the fruits of the litigation. In this connection, we must also remember the principle underlying the doctrine of lis pendens. The underlined principle is that no immovable property which is a subject-matter of the litigation can be transferred or dealt with by any party to the suit or proceeding to the detriment of the other party. In this case, Sri Revaji who sold the suit land to the plaintiff was a party to the writ petition. He could not have sold the suit land without the permission of the High Court as the right to the suit land was directly and specifically involved in the proceeding before the High Court in W.P. No. 2332/65. Thus, taking into consideration all the aspects, we are of the view that a proceeding instituted under articles 226 and 227 of the Constitution which is not collusive and in which any right t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India, AIR 1992 SC 248 at page 295, the hon'ble Supreme Court has held in para. 76 as under: "76. But, in the present case, section 144, CPC, does not in terms apply. There is always an inherent jurisdiction to order restitution a fortiorari where a party has acted on the faith of an order of the court. A litigant should not go back with the impression that the judicial-process so operated as to weaken his position and whatever it did on the faith of the court's order operated to its disadvantage. It is the duty of the court to ensure that no litigant goes back with a feeling that he was prejudiced by an act which he did on the faith of the court's order. Both on principle and authority it becomes the duty of the court-as much moral as it is legal-to order refund and restitution of the amount to the UCC-if the settlement is set aside." (d) In Karnataka Rare Earth v. Senior Geologist, Department of Mines and Geology [2004] 2 SCC 783 at page 790, the hon'ble Supreme Court has held in para. 10 as under: "10. In South Eastern Coalfields Ltd. v. State of M.P. [2003] 8 SCC 648 this court dealt with the effect on the rights of the parties who have acted bona fide, protected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Income-tax Department to forthwith restore possession of the suit schedule theatre premises comprising land and building, viz., M/s. Good luck 2-IN-1 Theatres at Old No. 18, 5th Cross Street, Lake Area, Nungambakkam, Chennai-600 034, with all the machinery and other accessories as it existed as on July 13, 2005, to the applicant-plaintiff forthwith pending further orders. In order to ensure proper compliance with this order and to restore status quo ante as on July 13, 2005, Mr. M. Vijayaraghavan, No. 187, R.K. Mutt Road, Second Floor, Mandaveli, Chennai-28, the learned advocate is appointed as Advocate-Commissioner who shall take ah inventory of all the machinery removed and now to be resorted to its original status as on July 13, 2005, and also ensure the restitution in favour of the applicant-plaintiff as ordered herein and submit a report to this court. In order to comply with the directions of this order if the Advocate-Commissioner needs the assistance or protection of police authorities, the same shall be extended to him on being requisitioned by him. The applicant-plaintiff shall pay an initial remuneration of Rs. 25,000 to the Advocate-Commissioner for carrying ..... X X X X Extracts X X X X X X X X Extracts X X X X
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