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Judgment
D.A. Mehta, J.—The applicants herein, 19 in number, filed Misc. Civil Application No. 1200 of 2009 with the following prayers:
The applicants therefore pray that:
That the Honourable Court will be pleased to allow this application;
That this Honourable Court will be pleased to order to review and recall order dated 09.02.2009 passed by this Honourable Court in Special Civil Application No. 22581 of 2006 and further be pleased to hear the said writ petition after directing the original petitioner to implied the present applicants as party respondents.
Pending admission hearing and final disposal of this application, this Honourable Court may be pleased to suspend the operation and implementation of the order at Annexure-A to the application;
That this Honourable Court may be pleased to pass such other and further relief as the nature and circumstances of the case may require.
Thereafter, realizing that the applicants were not a party to the judgment and order dated 09.02.2009 made by the High Court in Special Civil Application No. 22581 of 2006 the applicants preferred second application being Misc. Civil Application No. 2593 of 2009 with the following prayers:
The applicants therefore pray that:
That the Honourable Court will be pleased to allow this application;
That the Honourable Court will be pleased to permit the applicants to pray for review/recalling or the order dated 9.2.2009 passed by this Honourable Court in Special Civil Application No. 22581 of 2006 and further be pleased to permit the applicants to pursue Misc. Civil Application No. 1200/09.
Pending admission hearing and final disposal of this application, this Honourable Court may be pleased to suspend the operation and implementation of the order dated 9th February 2009 passed in Special Civil Application No. 22581/06 (Annexure-A).
(CC) This Honourable Court may be pleased to restrain Respondent No. 1 herein from transferring, alienating or creating third party rights in the property in question till and pending hearing and final disposal of this application.
That this Honourable Court may be pleased to pass such other and further relies as the nature and circumstances of the case may require;
Be pleased to condone the 189 day''s delay.
Heard learned senior advocate appearing for the applicants. It was submitted that the applicants were successful bidders at the auction conducted by Income Tax Department and were thus necessary party in the main petition, which had been filed by the defaulter, whose property was put up for auction sale. Referring to the historical backdrop of litigation between the tax defaulter and Income Tax Department learned Counsel submitted that the applicants had also sought impleadment in the civil suit filed by the tax defaulter as well as in earlier writ petition filed by the tax defaulter. Therefore, the petitioner of the main petition was aware about the interest of the applicants in the property in question and the applicants ought to have been impleaded. Having not been impleaded the applicants had no opportunity to point out that there was no error committed by the Income Tax Department in conducting the auction proceedings. In support of the submission reference was invited to provisions of Rules 60 and 61 of Part-III of Schedule-II of the Income Tax Act, 1961 (the Act) to submit that the petitioner had failed in obtaining relief under the statutory alternative remedy provided by the said Rules and, therefore, the petition was not required to be entertained. It was further contended that the ground on which the petition had been allowed by the High Court was a ground which would be available only to a successful auction purchaser and could not be a ground available to a tax defaulter for having an auction sale set aside. That it was always within the powers of the High Court to recall and review its order in a case where there was violation of principle of natural justice when affected party was not heard or there was miscarriage of justice due to the correct party not being brought before the Court. In support of various submissions made following three decisions of the Apex Court have been relied upon:
Essar Oil Ltd. Vs. Halar Utkarsh Samiti and Others,
Shivdeo Singh v. State of Punjab & Haryana 1961 (O) GLHEL-SC 26454; AND
Asit Kumar Kar v. State of West Bengal 2009 (0) GLHEL-SC 42788;
It was further submitted that though it was correct that Income Tax Department had already moved the Apex Court by Special Leave Petition, pendency thereof per se would not render the present applications infructuous and High Court is entitled to decide the same on merits. For this purpose attention was invited to Supreme Court judgment in case of Kapoor Chand and others Vs. Ganesh Dutt and others,
Learned advocate appearing for the original petitioner as well as Income Tax Department have been heard. On behalf of the original petitioner it was submitted that sale had not been completed as no sale certificate had been issued and, therefore, the applicants cannot seek to be treated as affected parties, the dispute being primarily between the petitioner and the Income Tax Department. Various other objections as stated in the affidavit-in-reply have been raised.
There can be no dispute with the legal propositions enunciated in the aforesaid judgments. However, on facts ratio of the said judgments is not applicable for the reasons recorded herein below.
Both the applications have been heard together by the Court. The second application, which was filed first in the point of time, namely, Misc. Civil Application No. 1200 of 2009 itself indicates that the applicants are seeking review of the judgment after recalling the same on the basis of various disputed issues, more particularly in relation to interpretation of Rules 60 and 61 of Part-III of Schedule-II to the Act. Whether the provisions of Rule 61 are attracted or not, and if attracted whether said provisions stand satisfied or not are issues which are debatable in nature. It is well-settled in law that an issue which involves interpretation of provisions, on which there may be conceivably two opinions would not fall within review jurisdiction.
Furthermore, it is an accepted position that the applicants are merely highest bidders at the auction sale conducted by the Income Tax Department. Thus, in law, till the point of time the sale is confirmed and sale certificate issued in favour of the applicants by Income Tax Department the applicants would merely be offerers whose offer may or may not be accepted by Income Tax Department. In the circumstances, it is not possible to accept the contention that the applicants are persons who are directly affected by the outcome of the dispute between the tax defaulter, whose property is put up for auction sale, and the Income Tax Department.
In light of the aforesaid facts and circumstances Misc. Civil Application No. 2593 of 2009 seeking leave to file an application for review is not required to be granted. As a consequence Misc. Civil Application No. 1200 of 2009 also is not required to be granted. Accordingly both applications are rejected. Rule discharged. There shall be no order as to costs.