Dismissed

Jakkidi Nirmala v. The State of Telangana

Telangana HC7 Apr 2022WP/4825/2022

Case brief

AI extract

What is this about?

High Court dismissed a writ petition wherein a non-defaulting co-owner sought registration of a partition deed from property where her husband's share was attached for tax recovery. The Court held that without consent from the attachment authority, partition prejudicing government recovery cannot be entertained.

What did the court decide?

Writ petition dismissed as the relief of entertaining and registering the partition deed is rejected; appeal to revenue authorities is clarified for the petitioner's undivided share.

Jakkidi Nirmala Vs The State of Telangana — Landlord and Tenant | Telangana HC (2022)

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HIGH COURT FOR THE^{STATE OF TELANGANA AT HYDERABAD} (Special Original Jurisdiction)

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THURSDAY ,THE SEVENTH^{DAY OF APRIL} TWO THOUSAND AND TWENTY^TWO

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PRESENT

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THE HONOURABLE SRI^{JUSTICE B.VIJAYSEN REDDY}

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WRIT PETITIO N NO:^{4825 OF 2022}

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Between:

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JAKKIDI NIRMALA,^{W/o.J. Kondal Reddy Age- 33 years, Occ- Business R/o'} ri.r.ri. s-at, Neai Gandhi^{Park, Chinnakondur Road, ChoutuppalVillage and} tvlandal Nalgonda^{(Bhuvanagiri Yadadri) District}

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.,.PETITIONER

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AND

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The State of Telangana,^{Rep. by its Secretary Stamps and Registration} Department, Secretariat,^Hyderabad

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The District Collector, Yadadri^{Bhuvanagiri District, Bhongir Town Yadadri} Bhuvanagiri District

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The District Registrar,^{stampsand Registration Department, Bhongir. Yadadri} Bhuvanagiri District

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The Sub Registrar, Stamps^{and Registration Department,Choutuppal,} Yadadri Bhuvanagiri District

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The Deputy Commissioner,^{Commercial Taxes Nalgonda}

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The Commercial Tax officlr,^{Bhongir Circle, Nalgonda DivisionH No 3-4-} 202, Meenanagar, Opp. K.J.R.^{Talkies' Bhongir.}

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The DeDutv Commercial^{Tax Officer, Bhongir Circle, Nalgonda Division H'No'} 3-4-202, M'eenanagar, Opp.^{K.J.R.Talkies,Bhongir.}

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...RESPONDENTS

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Petition under Article 226 of^{lhe constitution of India prayingthat in the} circumstances stated in the^{affidavit filed therewith,the High Courtmay be} pleased to lssue a writ of Mandamus or any^{other appropriatewrit, order or} direction declaring^{impugned actionof the 4th Respondent in not entertaining the} Partition Deed^{presentedby Petitioner her and my husband and having accepted} challan No. 751LPQ290921^{dated 25.09.2021towards requisitefees on the} ground that the land is in^prohibitory list as^{per District Gazette No.61dated} 06.0S.2021 that^published the^{Notice on . Form-V of7thRespondent}

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Rc.No.A2l36568842416 daled 28.07.2021 which does not attach^{her shareof 50%} of land and also the Respondents 5 and 6 not considering^{her representation} dated 30.09.2021 without following due^process of law as illegal, arbitrary^and violative of principles of natural^justice etc and consequently direct the Respondents 3 and 4 to delete the 50%^portion of land our of Ac.O.20^{guntas from} the list of Prohibitory^properties entered^pursuant to the District Gazette^No.61 dated 06.09.2021 that^published the Notice on Form-V of 7th Respondent Rc.No.A2136568842416 daled 28.07.2021 and register the^{partitiondeed} submitted along with Challan No.7511PQ290921 dated 29.O9.2021^.

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lA NO: 1 OF 2022

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Petition under Section 151 CPC^praying that in the circumstances statedⁱⁿ the affidavit filed in support of the^petition, the High Court may be^pleased to direct the Respondent No.4 to take on file the^partition deed submitted by the Petitioner and her husband along with Challan No. 7511PQ290921 dated 29.09.2021 pending disposal of the above Writ Petition.

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Counsel for the Petitioner:SRl. N.V.ANANTHA KRISHNA

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Counsel forthe Respondent No's. 1 to 4: GP FOR REVENUE

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Counsel for the Respondent No's. 5 to 7: GP FOR COMMERCIAL TAX The Court made the following: ORDER

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HONOURABLE^{SRI JUSTICE B' VIJAYSEN REDDY} WRITP^{ETITIONNo.4825OF2022}

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ORDER:

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This^{writ petitionis filed questioning the impugned action of} respondent^{No.4 - the Sub Registrar' Stamps and Registration} Department,^{Choutuppal'Yadadri BhuvanagiriDistrict in not} entertaining^{partition deed for registration' presented by the} petitioner^{and her husband'on the groundthat subjectland is in the} prohibitory^{list as per District GazetteNo'61 dated 06'09'2021'}

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The^{case of the petitioner is that she has presented} partition^{deed before respondent No'4 alongwithrequisite fee vide} Challan^{No.751LPQ290921dated 29'09'2021for registrationof} the document.^{Ho*evei' respondentNo'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'61dated} 06.09.2021.

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(i) The^{petitionersubmitsthat eror crept at the end of the} respondents'^{authorities as 50oh share of the petitioneris not the}

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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 % guntas in Survey No.98/Ee1/1/2, Ac.0.03 % guntas in Survey No.98/Ee1/3/2, Ac.0.03 % guntas in Survey No.98/Eel/5/2, Ac.0.03 % guntas in Survey No.98/Eel/412, Ac.0.03 % guntas in Survey No.9S/Eel/6/2, Ac.0.03 % guntas in Survey No.98/Eell2l2, totaliy admeasuring Ac.00-20 guntas. Out of the total extent of the land, the petitioner is^joint owner of the land ofan extent of Ac.00-10 guntas.

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(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 Vitlage 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

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respondent No.6 - the Commercial^{Tax Officer, BhongirCircle,} Nalgonda Division, Bhongir, seeking^{assistance for uploading his} commercial tax returns.^{Respondent No.7 -the Deputy} Commercial Tax Officer,^{Bhongir Circle,NalgondaDivision,} Bhongir, issued a notice in Form^{- 4 Demandprior to attachmentof} land under Revenue Recovery^{Act to her husbandon20.03.2027,a} revised notice dated 20.04.2021, final^{notice dated 01.04.2021} issued by respondent No.6. On^{05.07.2021, a revisedForm - V} notice dated 05.07.2021^{was issued by respondentNo.7.} Respondent No.7 issued^{proceedingsNo.Rc.A2l365688424161} 2}lg-20 dated2l .09.2021^{enclosing a copy of the DistrictGazette} No.61 dated 06.09.2021^{issuedby respondentNo'2 calling upon} the petitioner and her husband^{to attend a survey of the subject} land. However, the survey^{was postponed on 03.10.2021as per the} proceedings dated29.09.2021.^{The said DistrictGazette published} notice on Form - V by^{respondentNo'7 vide proceedings in} Rc.No.A2l365 688424^{| 6 dated28.07 .202 1. The petitionercameto} know about the claim of^{respondent No.6 over the subject land}

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through these^proceedings

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(iiD Attachment proceedings^{were issued againstthe} husband of the petitioner.^{The petitioner along with her husbalci} wanted to get a^{partition deed executedto avoid confusionand} approached respondent No.6^{with the documentby paying requisite} fee through challan^{No.751LPQ290921dated29.09.202L} However, respondent^{No.6 did not entertainregistrationstating that} total extent of Ac.0-20^guntas of^{land is in the prohibitory list as} reflected in the impugned District^Gazette.

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

--.-.-*.

t''r

)

(i) The petitioner and her^{husbandJakkidiKondal Reddyare} joint owners of the subject^{land admeasuringAc'0-20 guntas'} Hence, revised^{Form - V dated 05.07.2021under the RR Actwas} issued attaching^{50Yo of the subject landbeing500/oshare ofthe} defaulter Mr.^{Jakkidi KondalReddy, husband of the petitioner'} Respondent No.2^{- the District collectorand Magistrate, Yadadri} Bhongir District^{was accordingly requestedto arrangeto publish} Form-VintheDistrictGazeetteofYadadriBhongirDistrictsoas to conduct auction^{of the said 50% of the land to recoverlegitimate} taxes due to^{the Government.}

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(ii) Accordingly,^{RevisedForm - V was published in} Gazette No.6l^{dated 06.09.2021 .The petitioner and her husband} were requested^{vide letter dated 2l'07 '2021to appear ln person on} 27.Og.2O2ltolocate50%oftheshareofeachofthem'Inresponse to the said letter,^{the petitioner and her husbandfiled letter dated} 3O.Og.2O2l^{stating that they appeared before the Private Land} Surveyor^{personally on 27 .09.2021and the saidLand Surveyor has} drawn the^{extent of the land held by them i'e'' 50%o each}

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admeasuring Ac.0-10 guntas each. In support of ti-reir clairn, they filed partition plan.

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(iii) The area to the extent of 50Yo land marked and partitioned towards half share of the petitioner has been shown with width of 66.2 feet on the Northem side, 69.6 feet on the Southem 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 ofthe petitioner is rear side of the portion of the land allotted to the petitioner. There is a 10 feet passage to the 50o% portion of the land allotted to the husband of the petitioner.

On further, enquiry, it^{is revealed that totalsaleconsiderationof} the property is valued at^{Rs,10,00,000/- paid through cheque} bearing No.832989 dated^{12'08.2017by the husbandof the} petitioner. Hence, it is construed^{that the tax defaulter, husband of} the petitioner, has diverted^{the tax amountwhich is payableto the} Govemment and acquired^{the subject property.}

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(iv) As per the business records,^{as on the dateof execution} of the sale deed, the^{husband of the petitionerwas liable to pay tax} of Rs.23,63,881/-^{(Rupeestwenty 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 intemet website'}

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(v) Considering the above^{facts, a notice dated18'01'2022} has been issued^{to the petitioner and her husband informing that} further action will^{be taken for sale of the subjectpropertyas a} whole to recover^{the tax dues. RespondentNo'7 - the Deputy}

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Commercial^{Tax Officer, BhongirCircle, NalgondaDistrict issued} proceedings in^{Rc.No.A2l3 6 5 688424| 6 I 20 1 9-20 dated2l'09'202|} enclosing a copy of^{the District GazetteNo'61 dated 06'09'2021} issued by respondent^{No.2 requestingthe petitioner and her} husband to^{get the partition surveyreport of the land between them} vide proceedings^{dated 29.09.2021.In response to the same, the} petitioner and her husband^{filedrepresentation dated 30'09'2021} requesting for revocation^{of Ac.0-10 guntas of the land belonging} to the defaulter and^{grant timefor two monthsto arrangebank loan} to clear the outstanding^{arears of sales tax by mortgagingAc'0-10} guntas of the land belonging^{to the petitioner' In Form - V, only} 50Yo of the land^{ownedby the tax defaulter i.e', husband of the} petitioner has been^{placed under attachment' Respondent No'7} rightly proceeded^{for recovery of arrears fiom the defaulteras per} the provisions of^{the RR Act.}

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Heard Mr. N.V.^{AnanthaKrishna,leamed counselfor the} petitioner, leamed Government^{Pleader forStamps and} Registration, and Mr. L.^{VenkateshwarRao, learnedSpecial}

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Govemment^{Pleaderfor Commercial Tax, and perusedthe material}

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on record.

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The leamed^{counsel for the petitionersubmitsthat the} impugned Gazette^{Notification clarifies that only 50% of the} property is attached,^{as such, alienationof the remaining 50oh} undivided share^{(ownedby the petitioner) cannot be prohibited} under Section^{22-A of the RegistrationAct 1908'However'} respondent Nos.3^{and 4 entered entireextentof Ac'0-20guntas of} land in the Gazette^{Notification' Aggrievedthereby,the petitioner} has submitted^{an applicationdated 30'09'2021to respondentNo'6} for deletion of^{50o/o of the land belonging to her out of Ac'0-20} guntas from the^{prohibitory list'However, the same is not} considered.

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Having^{perusedthe contents of the partition deed dated} 29 .09 .2021and^{the sketch planattachedthereto,this Court is of the} view that the^{same cannot be permittedto be registered' moreso'} as the respondents^{have objection for the same' As contendedby} the learned^{Special GovemmentPleaderfor Taxes, it is apparent}

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I I 1

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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 propefty} 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 proper-ty. However, such share is^undivided one. By merely entering into some understanding between the petitioner and her husband, the interest of the lespondents 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 dced. Without their consent, the^petitioner and her husband - tax defaulter^cannot be permitted to enter into some sofi of understanding or partition deed which would prejudice the interest of the respondents.

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Therefore, this Coufi holds that the relief sought by the petitioner for entertaining partition deed vide Chalian 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

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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.

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With the above observations and directions, the writ

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petition is disposed of. No order as to costs.

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As a sequel thereto, miscellaneous petitions, if any, pending

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in the writ petition stand closed.

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SD/-T.KRISHNA KUMAR ASSISTANT REGISTRAR

,TRUE COPY'

secrrWrrcea

To,

The Secretary, Stamps ar?d Registration Department, State of Telangana, Secretariat, Hyderabad

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The District Collector, Yadadri Bhuvanagiri District, Bhongir Town Yadadri Bhuvanagiri District

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The District Registrar, Stamps and Registration Department, Bhongir. Yadadri Bhuvanagiri District

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The Sub Registrar, Stamps and Registration Department, Choutuppal, Yadadri Bhuvanagiri District

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The Deputy Commissioner, Commercial Taxes Nalgonda

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The Commercial Tax Officer, Bhongir Circle, Nalgonda Division H.No. 3_4-

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_^{202,tVeenanagar, Opp. K..l.R. Talkr:es.} B;;;;j;'""' /. rhe Deputy Commercial Tar..OIS"! Bhongirtircle, Nalgonda Division H.No.

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^{3-4-202. Meenanagar,opp.K.J.R. i"lti".,"en"";tr.}

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1. one cc ro sRt. r.r.v nr.rnivrHn-xniir]'r.tini,l"isale topuct 9. Two CCs to Gp FoR REVENUE Hiil ilil;r",-ni of Telansana. louTl ",","

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'10.Two CCs to cp FOR COIUMERCIAL TAX,High Court for the State of Telangana. [OUT]

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1 1. Two CD Copies. 12.One Spare Copy.

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GB LS \

HIGH COURT

BVR,J

DATED:0710412022

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ORDER

WP.No.4825 ot 2022

DISPOSING OF THE WP

WITHOUT COSTS. o*#-

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Jakkidi Nirmala v. The State of Telangana

Case brief

What is this about?

What did the court decide?

Jakkidi Nirmala v. The State of Telangana

Case brief

What is this about?

What did the court decide?

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