Jakkidi Nirmala vs State Of Telangana

This writ petition is filed questioning the impugned action of respondent No.4 - the Sub Registrar, Stamps and Registration Department, Choutuppal, Yadadri Bhuvanagiri District in not entertaining partition deed for registration, presented by the petitioner and her husband, on the ground that subject land is in the prohibitory list as per District Gazette No.61 dated 06.09.2021.

The case of the petitioner is that she has presented partition deed before respondent No.4 along with requisite fee vide Challan No.751LPQ290921 dated 29.09.2021 for registration of the document. However, respondent No.4 did not entertain the said document for registration on the ground that the subject land is in the prohibitory list as per the District Gazette No.61 dated 06.09.2021.

(i) The petitioner submits that error crept at the end of the respondents’ authorities as 50% share of the petitioner is not the subject property to be attached as it does not come under attachment pursuant to the impugned Gazette and that representation of the petitioner dated 30.09.2021 is not considered. The petitioner submits that she and her husband have purchased land admeasuring Ac.0-20 guntas situated at Tupranpet Village, Choutuppal Mandal, Nalgonda District through registered sale deed bearing document No.6399 of 2017 dated 27.10.2017. The land comprises of an extent of Ac.0.03 ¼ guntas in Survey No.98/Ee1/1/2, Ac.0.03 ¼ guntas in Survey No.98/Ee1/3/2, Ac.0.03 ¼ guntas in Survey No.98/Ee1/5/2, Ac.0.03 ¼ guntas in Survey No.98/Ee1/4/2, Ac.0.03 ¼ guntas in Survey No.98/Ee1/6/2, Ac.0.03 ¼ guntas in Survey No.98/Ee1/2/2, totally admeasuring Ac.00-20 guntas. Out of the total extent of the land, the petitioner is joint owner of the land of an extent of Ac.00-10 guntas.

(ii) The husband of the petitioner is the dealer of ESSAR Oil Limited under the name and style of M/s. Kohara Fuel Service, Yellagiri Village of Choutuppal Mandal, Yadadri Bhuvanagiri District Telangana. The petitioner does not have any interest in the said business. During 2018, her husband submitted a letter to respondent No.6 - the Commercial Tax Officer, Bhongir Circle, Nalgonda Division, Bhongir, seeking assistance for uploading his commercial tax returns. Respondent No.7 - the Deputy Commercial Tax Officer, Bhongir Circle, Nalgonda Division, Bhongir, issued a notice in Form - 4 Demand prior to attachment of land under Revenue Recovery Act to her husband on 20.03.2021, a revised notice dated 20.04.2021, final notice dated 01.04.2021 issued by respondent No.6. On 05.07.2021, a revised Form - V notice dated 05.07.2021 was issued by respondent No.7. Respondent No.7 issued proceedings No.Rc.A2/36568842416/ 2019-20 dated 21.09.2021 enclosing a copy of the District Gazette No.61 dated 06.09.2021 issued by respondent No.2 calling upon the petitioner and her husband to attend a survey of the subject land. However, the survey was postponed on 03.10.2021 as per the proceedings dated 29.09.2021. The said District Gazette published notice on Form - V by respondent No.7 vide proceedings in Rc.No.A2/36568842416 dated 28.07.2021. The petitioner came to know about the claim of respondent No.6 over the subject land through these proceedings.

(iii) Attachment proceedings were issued against the husband of the petitioner. The petitioner along with her husband wanted to get a partition deed executed to avoid confusion and approached respondent No.6 with the document by paying requisite fee through challan No.751LPQ290921 dated 29.09.2021. However, respondent No.6 did not entertain registration stating that total extent of Ac.0-20 guntas of land is in the prohibitory list as reflected in the impugned District Gazette.

In the counter affidavit filed by respondent Nos.5 to 7, it is submitted that husband of the petitioner Mr. Jakkidi Kondal Reddy is sole proprietor of Kohara Fuel Services (Essar Oil Limited - Petrol Bunk) situated at Survey No.156/B, Yellagiri Village, Choutuppal Mandal, Nalgonda District fell in arrears of sales tax to a tune of Rs.1,42,95,192/- (Rupees one crore forty two lakhs ninety five thousands one hundred and ninety two only). After exhausting all the steps for collecting arrears, final action under the Revenue Recovery Act 1864 has been initiated.

(i) The petitioner and her husband Jakkidi Kondal Reddy are joint owners of the subject land admeasuring Ac.0-20 guntas. Hence, revised Form - V dated 05.07.2021 under the RR Act was issued attaching 50% of the subject land being 50% share of the defaulter Mr. Jakkidi Kondal Reddy, husband of the petitioner. Respondent No.2 - the District collector and Magistrate, Yadadri Bhongir District was accordingly requested to arrange to publish Form - V in the District Gazeette of Yadadri Bhongir District so as to conduct auction of the said 50% of the land to recover legitimate taxes due to the Government.

(ii) Accordingly, Revised Form - V was published in Gazette No.61 dated 06.09.2021. The petitioner and her husband were requested vide letter dated 21.07.2021 to appear in person on 27.09.2021 to locate 50% of the share of each of them. In response to the said letter, the petitioner and her husband filed letter dated 30.09.2021 stating that they appeared before the Private Land Surveyor personally on 27.09.2021 and the said Land Surveyor has drawn the extent of the land held by them i.e., 50% each admeasuring Ac.0-10 guntas each. In support of their claim, they filed partition plan.

(iii) The area to the extent of 50% land marked and partitioned towards half share of the petitioner has been shown with width of 66.2 feet on the Northern side, 69.6 feet on the Southern side facing the road; the length is 158.1 feet. The portion allotted to the petitioner is abutting the main road and fetches more value than the land allotted to her husband. The land allotted to the husband of the petitioner is abutting a Muslim Dargah. In view of the same, no prospective purchaser will buy the proposed share of land of the petitioner’s husband. Thus, the proposed partition is mala fide in nature and to deceive the Government revenue. Hence, rejected the proposed partition deed by the letter dated 18.01.2022. If the proposed registered partition deed is registered, it will be very difficult for the respondents to auction the land allotted to the husband of the petitioner. The 50% of the land allotted to the husband of the petitioner is rear side of the portion of the land allotted to the petitioner. There is a 10 feet passage to the 50% portion of the land allotted to the husband of the petitioner.

On further, enquiry, it is revealed that total sale consideration of the property is valued at Rs.10,00,000/- paid through cheque bearing No.832989 dated 12.08.2017 by the husband of the petitioner. Hence, it is construed that the tax defaulter, husband of the petitioner, has diverted the tax amount which is payable to the Government and acquired the subject property.

(iv) As per the business records, as on the date of execution of the sale deed, the husband of the petitioner was liable to pay tax of Rs.23,63,881/- (Rupees twenty three lakhs sixty three thousand eight hundred and eighty one only). As per Rule 24 of the Telangana Value Added Tax Act 2005, every VAT dealer, tax declared to be due in Form VAT - 200 shall be paid not later than 20 days after the end of the tax period by way of remittance into the Treasury or by way of online payment through internet website.

(v) Considering the above facts, a notice dated 18.01.2022 has been issued to the petitioner and her husband informing that further action will be taken for sale of the subject property as a whole to recover the tax dues. Respondent No.7 - the Deputy Commercial Tax Officer, Bhongir Circle, Nalgonda District issued proceedings in Rc.No.A2/36568842416/2019-20 dated 21.09.2021 enclosing a copy of the District Gazette No.61 dated 06.09.2021 issued by respondent No.2 requesting the petitioner and her husband to get the partition survey report of the land between them vide proceedings dated 29.09.2021. In response to the same, the petitioner and her husband filed representation dated 30.09.2021 requesting for revocation of Ac.0-10 guntas of the land belonging to the defaulter and grant time for two months to arrange bank loan to clear the outstanding arrears of sales tax by mortgaging Ac.0-10 guntas of the land belonging to the petitioner. In Form - V, only 50% of the land owned by the tax defaulter i.e., husband of the petitioner has been placed under attachment. Respondent No.7 rightly proceeded for recovery of arrears from the defaulter as per the provisions of the RR Act.

Heard Mr. N.V. Anantha Krishna, learned counsel for the petitioner, learned Government Pleader for Stamps and Registration, and Mr. L. Venkateshwar Rao, learned Special Government Pleader for Commercial Tax, and perused the material on record.

The learned counsel for the petitioner submits that the impugned Gazette Notification clarifies that only 50% of the property is attached, as such, alienation of the remaining 50% undivided share (owned by the petitioner) cannot be prohibited under Section 22-A of the Registration Act 1908. However, respondent Nos.3 and 4 entered entire extent of Ac.0-20 guntas of land in the Gazette Notification. Aggrieved thereby, the petitioner has submitted an application dated 30.09.2021 to respondent No.6 for deletion of 50% of the land belonging to her out of Ac.0-20 guntas from the prohibitory list. However, the same is not considered.

Having perused the contents of the partition deed dated 29.09.2021 and the sketch plan attached thereto, this Court is of the view that the same cannot be permitted to be registered, more so, as the respondents have objection for the same. As contended by the learned Special Government Pleader for Taxes, it is apparent from the plan attached to the partition deed that the land of the petitioner is shown with road frontage and rear-side portion is allotted to her husband having 10 feet passage. When the property is under attachment, the question of petitioner and her husband entering into partition deed does not arise. No doubt, the petitioner has 50% share in the property. However, such share is undivided one. By merely entering into some understanding between the petitioner and her husband, the interest of the respondents cannot be jeopardised. Even if the petitioner contends that value of both the shares of the land is same, it is unacceptable. Further, it is for the respondents to give consent for the partition deed. Without their consent, the petitioner and her husband - tax defaulter cannot be permitted to enter into some sort of understanding or partition deed which would prejudice the interest of the respondents.

Therefore, this Court holds that the relief sought by the petitioner for entertaining partition deed vide Challan No.751LPQ290921 dated 29.09.2021 cannot be granted and the same is rejected. However, the land to the extent of Ac.0-10 guntas undivided share of the petitioner (50%) in the Acs.0-20 guntas of land is not attached as categorically stated by the respondents. It is needless to state that if the petitioner chooses to sell her share of land i.e., Ac.0-10 guntas of undivided share, respondent No.4 shall receive the document, process and release the same if it is otherwise in accordance with law.

With the above observations and directions, the writ petition is disposed of. No order as to costs.

As a sequel thereto, miscellaneous petitions, if any, pending in the writ petition stand closed.