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TMI Blog1990 (3) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... on 222 of the Act, specifying the amount of arrears of tax due from the defaulter and the Tax Recovery Officer, the first defendant (the first respondent herein), served the notice contemplated under rule 2 of the Second Schedule appended to the Act (Procedure for recovery of tax) on the defaulter calling upon him to pay the amounts specified in the certificate within 15 days from the date of receipt of the notice. The defaulter failed to comply with the request contained in the said notice and, therefore, the Tax Recovery Officer got the building in dispute and the appurtenant land measuring 60 cents in extent attached under rule 48 of the Second Schedule. This attachment must be deemed to have come into force on March 6, 1983, though the order of attachment was made only on March 8, 1985, in view of the provisions contained in rule 51 of the Second Schedule. The building and the appurtenant land aforesaid were sold in public auction by the first respondent in execution of the certificate and purchased by the third respondent for a sum of Rs. 12,01,000. In the meantime, during the subsistence of the attachment, on October 10, 1984, the defaulter granted a lease of the building to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24, 1988, had directed the petitioner to pay the rent to the Department although, as per the lease deed, the petitioner was bound to pay the rent to Mr. Thomas. If that be so, counsel submits, the petitioner cannot be evicted from the building otherwise than in accordance with the provisions of the Kerala Buildings (Lease and Rent Control) Act. The appellate court, without considering any of these aspects, counsel says, has found that the suit is not maintainable. The question thus arising for consideration is : Can the plaintiff maintain the suit and get a decree restraining defendants Nos. 1 and 3 by permanent injunction from evicting her from the building otherwise than in accordance with the provisions of the Kerala Buildings (Lease and Rent Control) Act ? The answer depends upon the view this court would take in regard to the maintainability of the suit. Before we go into the merits of the case, it is necessary to restate some of the principles well-established by judicial pronouncements construing section 9 of the Civil Procedure Code. Those principles are : The exclusion of the jurisdiction of the civil court is not to be readily inferred. Where the power, however, is, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate. Such disputes shall be determined only by the order of the Tax Recovery Officer. The proviso added to this rule, however, recognises the rights of a party to institute a suit before a civil court in respect of any such question upon the ground of fraud. What are the questions that can be determined by the Tax Recovery Officer after investigation are enumerated under rule 11. This rule provides that where any claim is preferred to, or any objection is made to the attachment or sale of, any property in execution of a certificate, on the ground that such property is not liable to such attachment or sale, the Tax Recovery Officer is bound to proceed to investigate the claim or objection. The proviso to sub-rule (1) and rule 11 empowers the Tax Recovery Officer to refuse to investigate into the claim or objection if he is of opinion that the claim or objection was designedly or unnecessarily delayed. Sub-rules (3) and (4) make it clear that, only on the claimant or the objector establishing that he has some interest in, or was possessed of, the immovable property attached or proclaimed for sale at the date of service of the notice under rule 2, he can get a verdict in his favour. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery Officer would become conclusive (See sub-rule (6)). On the order of the Tax Recovery Officer thus becoming conclusive, the sale certificate within the meaning of rule 65 of the Second Schedule will be given to the purchaser. If the property sold is in the possession of a tenant within the meaning of rule 40 of the Income-tax (Certificate Proceedings) Rules then, the purchaser can get only a symbolic delivery. But, as per the order under rule 11 of the Second Schedule, if the defaulter is found to be in possession of the property, the Tax Recovery Officer is bound, on the application of the purchaser, to order delivery to be made by putting such purchaser or any person whom the purchaser may appoint to receive delivery on his behalf, in possession of the property, and if need be, by removing any person who refuses to vacate the same. So says rule 39(1) of the Income-tax (Certificate Proceedings) Rules. Forcible removal of the person in occupation, however, is subject to sub-rule (2) of rule 39. Since it is not relevant to be considered here, there is no need to deal with that provision. Rules 41, 42 and 43 relate to the proceedings the purchaser can initiate for the purpose of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal was disposed of on December 22, 1989. It is relevant in this context to note the letter No. TR. 3/CLT/83/ ETC/SOP of the Tax Recovery Officer dated December 22, 1989, authorising the third respondent to take possession of the property. The third respondent took delivery of the property, it is said, on the evening of December 22, 1989. That it is so can be seen from the letter of the third respondent addressed to the Tax Recovery Officer. It reads : "This is to inform you that, as per your letter cited above, requesting us to take possession of the property following the orders of the Additional District Judge, Calicut, in CMA/82/89 of OS No. 140 of 1989 dated December 22, 1989, we took possession of the above property on the evening of December 22, 1989. We did not experience any resistance from the so called unauthorised occupant and there was free entry into the compound and the building. We found no movable property inside the building. We have put up the sign board of "Indian Express", locked the gates and doors and put a sentry on duty there. Repair work in the premises is in full swing, and we expect to start our office functioning from the building at the earliest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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