Sanganagouda vs The State

Aravind Kumar, J.—Heard Sri Avinash A. Uploankar, learned Advocate appearing for petitioner and Sri Manvendra Reddy, learned Government Advocate for respondents. This writ petition by the petitioner has to be construed as one filed at the instance of a creditor (father of petitioner) who owes Kist to the Government i.e., dues towards Excise and he has instigated his son-petitioner herein to stave-off the credit due and payable to State Exchequer.

Petitioner has sought for quashing of notice/order dated 20.09.2012-Annexure-C whereunder it is notified by first respondent that property referred to therein is being brought for auction towards excise dues to the tune of Rs. 49,81,606/- together with interest thereon and has called upon the public to participate in the proposed auction to be held on 06.10.2012, inter alia contending that properties described therein are joint family properties and petitioner is having right, title and interest over the same and respondent-authorities can sell only the property belonging to creditor and they cannot bring property belonging to joint family for sale.

Sri Avinash A. Uploankar, learned Advocate appearing for petitioner would also contend that under clause (c) of sub-section (1) of Section 63 of Karnataka Excise Act, 1965, amount due to the Government from any person can be recovered from only the said person who is due to the Government and not from others like petitioner herein who possess right, title and interest over the property, which has been brought to sale by auction.

Per contra, learned Government Advocate would support the action of the Government by contending huge arrears have been allowed to accumulate and in spite of all efforts by the authorities to recover said amount due from father of petitioner having failed. State has taken as a last resort, the auctioning of the property belonging to creditor which is now claimed to be joint family property and if petitioner is willing to pay the said amount property will not be auctioned.

Having heard the learned counsel appearing for parties and on perusal of writ papers as also statutory provisions, it would emerge that father of petitioner was carrying on the business of arrack vending in Bhalki Taluk, Bidar District and Shorapur Taluk, Yadgir District and arrears of rentals had accumulated to be paid to Deputy Commissioner, Excise and on account of non-payment of due to Excise department, proceedings came to initiated against father of petitioner and having failed in their attempts to recover amount due to the State, first respondent has brought the property for being auctioned namely property described in the sale notice dated 20.09.2012 - Annexure-C which is impugned in the present writ petition.

As noted herein above, present litigation has been ignited at the instance of creditor (father of petitioner). I say so for the reason the said sale notice - Annexure-C is addressed to the fourth respondent and not to the petitioners. The original of said notice is available on record as Annexure-C would clearly establish that it is the creditor who has instigated petitioner to challenge this notice and so also to file a suit for partition in O.S. No. 100/2012 which has been filed on 24.09.2012 just prior to receiving notice on 25.09.2012. If at all petitioner has any right over the properly which is brought to auction, it is for them to establish in the suit O.S. No. 100/2012 and this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India would not be in a position to examine as to whether petitioner is having any undivided right, title and interest over property in question. Hence, this Court would not interfere with proceedings initiated against father of petitioner by bringing property to auction as per sale notice dated 20.09.2012 - Annexure-C.

It is no doubt true that under clause (c) of sub-section (1) of Section 63 of Karnataka Excise Act, 1965 it is the property belonging to creditor alone which can be brought to sale and that is what has been done by respondents, it is for the petitioner to establish that property in question is a joint family property and not exclusive property of creditor in the suit filed by him i.e., O.S. No. 100/2012. Said exercise cannot be undertaken by writ Court. Without expressing any opinion on the claim of petitioner and also in view of the fact that petitioner has already filed an application seeking injunctive relief against respondents in the pending suit O.S. No. 100/2012 this Court refuses to issue any writ or order as sought for in this writ petition since writ petition itself lacks merits.

Hence, writ petition is dismissed.