Wp(C)/876/2018 Of Mohammed Niyas v. The Commisioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUESDAY, THE 6TH DAY OF MARCH 2018 / 15TH PHALGUNA, 1939 WP(C).No. 876 of 2018 PETITIONER(S) MOHAMMED NIYAS AGED 51 YEARS, S/O.LATE YAHIYA KOYA, RESIDING AT NIYAS MANZIL, KANNIMALCHERRY, KILIKOLLOOR (P.O), KOLLAM DISTRICT, PIN-691004. BY ADVS.SRI.JAWAHAR JOSE SMT.CISSY MATHEWS SRI.SARUN RAJAN RESPONDENT(S): 1. THE COMMISSIONER OF INCOME TAX AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM, PIN-695003. 2. THE TAX RECOVERY OFFICER, INCOME TAX DEPARTMENT, AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM, PIN-695003. R1-R2 BY ADV. SRI.CHRISTOPHER ABRAHAM, SC, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-03-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF THE ATTACHMENT ORDER DATED 29.11.2017.EXHIBIT P2 TRUE COPY OF THE ORDER DATED 24.2.1987.EXHIBIT P3 TRUE COPY OF THE SALE NOTICE DATED 9.1.1987.EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 24.2.1998 IN O.S.NO.32/1987 ON THE FILES OF ADDITIONAL SUB COURT, KOLLAM. 29.11.2017.EXHIBIT P2 TRUE COPY OF THE ORDER DATED 24.2.1987.EXHIBIT P3 TRUE COPY OF THE SALE NOTICE DATED 9.1.1987.EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 24.2.1998 IN O.S.NO.32/1987 ON THE FILES OF ADDITIONAL SUB COURT, KOLLAM. EXHIBIT P4(a) TRUE COPY OF THE JUDGMENT DATED 10.9.2012 OF THIS HON'BLE COURT IN A.S.NO.468/1998.EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 11.8.2016 IN W.P.(C) NO.27423/2013 OF THIS HON'BLE COURT.EXHIBIT P5(a) TRUE COPY OF THE ORDER DATED 9.11.2016 IN R.P.NO.886/2016 IN W.P.(C) NO.27423/2013 OF THIS HON'BLE COURT. HON'BLE COURT IN A.S.NO.468/1998.EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 11.8.2016 IN W.P.(C) NO.27423/2013 OF THIS HON'BLE COURT.EXHIBIT P5(a) TRUE COPY OF THE ORDER DATED 9.11.2016 IN R.P.NO.886/2016 IN W.P.(C) NO.27423/2013 OF THIS HON'BLE COURT. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 15.3.2017 IN W.A.NO.391/2017 OF THIS HON'BLE COURT. W.A.NO.391/2017 OF THIS HON'BLE COURT. EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 8.12.2017 ISSUED BY THE 2ND RESPONDENT.EXHIBIT P7(a) TRUE COPY OF THE NOTICE DATED 11.12.2017 ISSUED BY THE 2ND RESPONDENT. THE 2ND RESPONDENT.EXHIBIT P7(a) TRUE COPY OF THE NOTICE DATED 11.12.2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE JUDGMENT OF THE BOMBAY HIGH COURT REPORTED IN (2006) 281 I.T.R. 281 [CORRESPONDING TO (2006) 1 MAH.L.J 95]. COURT REPORTED IN (2006) 281 I.T.R. 281 [CORRESPONDING TO (2006) 1 MAH.L.J 95]. RESPONDENTS EXHIBITS: /TRUE COPY/ VPS PS TO JUDGE C.R. P.B.SURESH KUMAR, J.---------------------------------------------W.P.(C) No.876 of 2018--------------------------------------------- Dated this the 6[th] day of March, 2018 JUDGMENT The pivotal question in this matter relates to theinterpretation of clause (iii) of sub-rule (2) of Rule 68B of theSecond Schedule to the Income Tax Act (“the Act”). 2. The facts relevant are the following: Large RESPONDENTS EXHIBITS: /TRUE COPY/ VPS PS TO JUDGE C.R. P.B.SURESH KUMAR, J.---------------------------------------------W.P.(C) No.876 of 2018--------------------------------------------- Dated this the 6[th] day of March, 2018 JUDGMENT The pivotal question in this matter relates to theinterpretation of clause (iii) of sub-rule (2) of Rule 68B of theSecond Schedule to the Income Tax Act (“the Act”). 2. The facts relevant are the following: Large amounts were due from a company called Sreerama CashewsPrivate Limited in terms of their assessments under the Act forthe years 1977-’78 and 1978-’79. Pursuant to the RecoveryCertificates issued in this regard by the Assessing Officer, theTax Recovery Officer served demand notices to the assessee inrespect of the assessment years referred to above on 21.5.1982and on 8.7.1983 respectively, directing the assessee to pay atotal sum of Rs.45,91,888/- with interest. The assessee did notcomply with the demands. Consequently, on 16.10.1985, anitem of property measuring 2.05 acres owned by the assesseehas been attached in terms of Rule 48 of the Second Schedule. Later, the attached property was brought for sale by the TaxRecovery Officer on 25.2.1987. In the meanwhile, 90 cents, outof the attached property was sold by the defaulter to the fatherof the petitioner by two separate sale deeds and 60 cents out ofthe remaining was sold to the petitioner. The said sale deedswere executed on 10.9.1985, 13.9.1985 and 10.10.1985respectively. On coming to know of the proceedings for sale ofthe property, the petitioner along with his father preferred aclaim petition invoking Rule 11 of the Second Schedule. The saidclaim petition was rejected by the Tax Recovery Officer as perExt.P2 order on 24.2.1987, holding among others, that theattachment over the property relates back to the dates on whichthe notices to pay the arrears have been served on the defaulterand that the petitioner and his father had no right over theproperty on the dates on which demand notices were served onthe defaulter. Consequent on the dismissal of the claim petition,the property was again brought for sale on 25.2.1987 and in thesaid proceedings, one N.H.Sherief had offered to purchase theproperty and remitted 25% of the sale consideration. In themeanwhile, the petitioner and his father challenged Ext.P2 orderinO.S.No.32 of 1987 before the Subordinate Judge's Court, Kollam, invoking sub-rule (6) of Rule 11 of the Second Scheduleand obtained an order restraining the Tax Recovery Officer fromconfirming the sale. The purchaser of the property did not paythe balance sale consideration in view of the said interim order.The suit was later dismissed on 24.2.1998. In the meanwhile,the father of the petitioner transferred the property purchased byhim from the defaulter to the petitioner on 13.6.1991. Despitethe said transfer, both the petitioner and his father together filedA.S. No.468 of 1998 before this Court, challenging the decision inthe suit and the said appeal was dismissed by this Court on10.9.2012. Though the petitioner and his father filed R.P. No.678of 2013 before this Court seeking review of the judgment in A.S.No.468 of 1998, the review petition was also dismissed by thisCourt on 9.10.2013. 3. It is seen that steps have been taken thereupon by the Tax Recovery Officer to confirm the sale by collecting thebalance sale consideration from the auction purchaser. Thepetitioner then preferred W.P.(C) No.27423 of 2013 before thisCourt alleging that since the auction purchaser did not pay thebalance sale consideration, despite there being no stayinterdicting the confirmation of the sale for a considerably long 3. It is seen that steps have been taken thereupon by the Tax Recovery Officer to confirm the sale by collecting thebalance sale consideration from the auction purchaser. Thepetitioner then preferred W.P.(C) No.27423 of 2013 before thisCourt alleging that since the auction purchaser did not pay thebalance sale consideration, despite there being no stayinterdicting the confirmation of the sale for a considerably long period in between after the disposal of the suit, he is not entitledto obtain the conveyance of the property. It is specificallyundertook by the petitioner in the said writ petition that if it isfound that the auction purchaser is not entitled to obtainconveyance of the property, he is prepared to pay the entire taxarrears of the defaulter for saving the property purchased byhim. By the time when the said writ petition was filed, theauction purchaser died. The legal representatives of the auctionpurchaser who were impleaded as respondents 5 to 8 in the writpetition resisted the writ petition contending that the balancesale consideration was not paid by their predecessor on accountof the interim order passed in the suit interdicting confirmation ofsale and that they are prepared to pay the balance saleconsideration for the purpose of obtaining conveyance of theproperty. This Court held that the successors of the auctionpurchaser are not entitled to obtain conveyance of the propertyin the light of the provisions contained in Rule 58 of the SecondSchedule and consequently disposed of the writ petition in termsof Ext.P5 judgment, permitting the petitioner to liquidate the taxarrears of the defaulter. It was, however, made clear by thisCourt that if the petitioner fails to liquidate the tax arrears of the defaulter, the Tax Recovery Officer will be at liberty to proceedagainst the property. Immediately thereupon, the Tax Recoveryofficer called upon the petitioner to pay the tax arrears of thedefaulter. The petitioner then filed R.P.No.886 of 2016 seekingreview of Ext.P5 judgment contending that what was agreed tobe paid by him was the tax arrears of the defaulter, for therecovery of which the property was attached, and they are nowbeing called upon to pay not only the said arrears, but also thearrears of the defaulter accrued after the attachment of theproperty. This Court dismissed the said review petition withcertain clarifications, as per Ext.P5(a) order. Ext.P5 judgment,as clarified in Ext.P5(a) order, has been challenged by thepetitioner in W.A. No.391 of 2017 and the said writ appeal was disposed of by this Court as per Ext.P6 judgment as follows: “(i) Without prejudice to the contentions of the appellant, the appellantshould satisfy the demand of the revenue within the time frame asordered by the learned single judge. (ii) If there is any failure on the part of the appellant in doing so,revenue would be entitled to proceed further in the manner aspermitted in the judgment under appeal. (iii) Remittance of the amount as above, shall be without prejudice tothe right of the appellant to question the legality of the demand of theRevenue and to seek remedies thereon. (iv)The order in R.P.No.886/2016, is hereby set aside.” 4.Earlier while dismissing the review petition filed disposed of by this Court as per Ext.P6 judgment as follows: “(i) Without prejudice to the contentions of the appellant, the appellantshould satisfy the demand of the revenue within the time frame asordered by the learned single judge. (ii) If there is any failure on the part of the appellant in doing so,revenue would be entitled to proceed further in the manner aspermitted in the judgment under appeal. (iii) Remittance of the amount as above, shall be without prejudice tothe right of the appellant to question the legality of the demand of theRevenue and to seek remedies thereon. (iv)The order in R.P.No.886/2016, is hereby set aside.” 4.Earlier while dismissing the review petition filed in the writ petition, this Court observed that if the property isworth more than the liability and there are other amountsremaining due from the defaulter, then the Tax Recovery Officerwould be entitled to make a fresh attachment over the property.It appears that on the basis of the said observation, after Ext.P6judgment, the Tax Recovery Officer issued a fresh order ofattachment over the property for Rs.2,83,31,257/- due from thedefaulter as on the date of attachment. Ext.P1 is the said orderof attachment. Later, the Tax Recovery Officer issued Exts.P7and P7(a) notices to the petitioner requiring him to handover theproperty to the department so as to enable the department toproceed against the same. The writ petition is filed challengingExt.P1 order of attachment as also Exts.P7 and P7(a) notices onthe ground that the property cannot now be proceeded against,in the light of the interdiction contained in Rule 68B of theSecond Schedule. 5.A statement has been filed by the Tax RecoveryOfficer supporting Ext.P1 order of attachment and Exts.P7 seriesnotices. 6. Heard the learned counsel for the petitioner as alsothe learned Standing Counsel for the Revenue. The judges papers of W.P.(C).No.27423 of 2013 and W.A.No.391 of 2017 were alsocalled for and perused. 7. As noted above, the only point raised in the writpetition is that the property cannot now be proceeded againstunder the Second Schedule in the light of the interdictioncontained in Rule 68B. According to the learned counsel for thepetitioner, the said Rule prohibits sale of immovable propertyunder the Second Schedule, after the expiry of three years fromthe end of the financial year in which the order giving rise to thedemand for the recovery of which the immovable property hasbeen attached has become conclusive. It was pointed out by thelearned counsel that the order giving rise to the demands in theinstant case became conclusive, when the appeals preferred bythe defaulters against the assessment orders were finallydecided on 12/10/1989 and therefore, the period provided for insub-rule(1) of Rule 68B has to be reckoned from 31.3.1990 andsince the sale of the property did not take place within threeyears from 31.3.1990, the sale cannot now be made in the lightof Rule 68B. 8. The learned Standing Counsel for the Revenue didnot dispute the fact that in the normal course of events, the 8. The learned Standing Counsel for the Revenue didnot dispute the fact that in the normal course of events, the three year period provided for in sub-rule (1) of Rule 68B of theSecond Schedule has to be reckoned from 1.4.1990. But,according to the learned Standing Counsel, under clause (iii) ofsub-rule (2) of Rule 68B, the period commencing from the date ofpresentation of any appeal against an order of the Tax RecoveryOfficer under the Second Schedule and ending on the day theappeal is decided is liable to be excluded in the matter ofcomputing the period provided for under sub-rule (1) of Rule 68B;that all proceedings instituted by the petitioner challengingdirectly or indirectly Ext.P2 order passed by the Tax RecoveryOfficer rejecting the claim petition preferred by the petitioner andhis father including the suit, the appeal, the review petition filedin the appeal, the writ petition filed by the petitioner thereafter,the review petition filed in the writ petition and the writ appealfiled by the petitioner challenging the decision in the writ petitionas clarified in the order passed in the review petition, are to betreated as proceedings falling within the scope of the expression'appeal' contained in clause (iii) of sub rule (2) of Rule 68B andthat if the word 'appeal' contained in clause (iii) of sub rule (2) ofrule 68B is construed in the aforesaid fashion, the proceedingsnow initiated is not hit by Rule 68B of the Second Schedule. 9. It is beyond dispute that if the writ petition filed bythe petitioner after the disposal of A.S.No.468 of 1998, the reviewpetition filed in the writ petition, as also the writ appealchallenging the decision in the writ petition are reckoned asproceedings falling within the scope of the expression 'appeal'contained in clause (iii) of sub-rule (2) of Rule 68B of the SecondSchedule, the proceedings now initiated by the Tax RecoveryOfficer is not hit by Rule 68B. The question therefore, is whetherthe word 'appeal' contained in clause (iii) of sub rule (2) of Rule68B, can be given an interpretation as suggested by theRevenue. In order to consider the said question, it is necessaryto refer to Rule 68B, which reads thus: “68B Time limit for sale of attached immovable property:- (1) No sale ofimmovable property shall be made under this Part after the expiry ofthree years from the end of the financial year in which the order givingrise to a demand of any tax, interest, fine, penalty or any other sum, forthe recovery of which the immovable property has been attached, hasbecome conclusive under the provisions of section 245-I or, as the casemay be, final in terms of the provisions of Chapter XX. Provided that where the immovable property is required to bere-sold due to the amount of highest bid being less than the reserveprice or under the circumstances mentioned in rule 57 or rule 58 orwhere the sale is set aside under rule 61, the aforesaid period oflimitation for the sale of the immovable property shall stand extendedby one year. 2. In computing the period of limitation under sub-rule (1), the period- i) during which the levy of the aforesaid tax, interest, fine,penalty or any other sum is stayed by an order or injunction ofany court; or ii) during which the proceedings of attachment or sale of theimmovable property are stayed by an order or injunction ofany court; or iii) commencing from the date of the presentation of anyappeal against the order passed by the Tax Recovery Officerunder this Schedule and ending on the day the appeal isdecided, shall be excluded. Provided that where immediately after the exclusion of theaforesaid period, the period of limitation for the sale of the immovableproperty is less than 180 days, such remaining period shall beextended to 180 days and the aforesaid period of limitation shall bedeemed to be extended accordingly. i) during which the levy of the aforesaid tax, interest, fine,penalty or any other sum is stayed by an order or injunction ofany court; or ii) during which the proceedings of attachment or sale of theimmovable property are stayed by an order or injunction ofany court; or iii) commencing from the date of the presentation of anyappeal against the order passed by the Tax Recovery Officerunder this Schedule and ending on the day the appeal isdecided, shall be excluded. Provided that where immediately after the exclusion of theaforesaid period, the period of limitation for the sale of the immovableproperty is less than 180 days, such remaining period shall beextended to 180 days and the aforesaid period of limitation shall bedeemed to be extended accordingly. 3) Where any immovable property has been attached under this Partbefore the 1[st] day of June, 1992, and the order giving rise to a demandof any tax, interest, fine, penalty or any other sum, for the recovery ofwhich the immovable property has been attached, has also becomeconclusive or final before the said date, that date shall be deemed to bethe date on which the said order has become conclusive or, as the casemay be, final. 4)Where the sale of immovable property is not made in accordancewith the provisions of sub-rule (1), the attachment order in relation tothe said property shall be deed to have been vacated on the expiry ofthe time of limitation specified under this rule. As noted above, the claim petition preferred by the petitionerand his father invoking Rule 11 of the Second Schedule wasrejected by the Tax Recovery Officer as early as on 24.2.1987.Sub-rule (6) of Rule 11 provides that where a claim petition or anobjection is preferred, the party against whom the order is mademay institute a suit in a civil court to establish the right which heclaims to the property in dispute and that the order of the TaxRecovery Officer would become final and conclusive, subject tothe result of such suit. In the light of sub-rule (6) of Rule 11,there may not be any difficulty in holding that the suit which aperson who is aggrieved by an order passed by the Tax RecoveryOfficer institutes would fall within the scope of the expression'appeal' under Clause (iii) of sub-rule (2) of Rule 68B. If the suitinstituted by the petitioner and his father invoking sub Rule (6) ofRule 11 is reckoned as a proceedings that falls within theexpression 'appeal' as contained in clause (iii) of sub-rule (2) ofrule 68B, necessarily the appeal preferred against the decision insuch a suit and the petition filed seeking review of the decision insuch an appeal would also fall within the expression 'appeal' ascontained in clause (iii) of sub-rule (2) of rule 68B. As noted above, the petition filed by the petitioner seeking review of thejudgment in A.S.No.468 of 1998 was dismissed by this Court on9.10.2013. It is seen that immediately after the disposal of thesaid review petition, on 06/11/2013, the petitioner instituted W.P.(C).No. 27423 of 2013 before this Court seeking, among others,directions restraining the Tax Recovery Officer from proceedingfurther in the matter of sale of the property and obtained aninterim order on 7/11/2013 to the effect that transactions inrespect of the property over which the petitioner claims right willbe subject to the outcome of the writ petition. The said writpetition was disposed of only on 11/8/2016. It is seen thatimmediately thereafter, as directed by this Court in terms of thejudgment in the writ petition, the Tax Recovery Officer has calledupon the petitioner to pay the tax arrears of the defaulter, whichthe petitioner undertook to pay in the writ petition. Annexure A1in the review petition is the communication issued by the TaxRecovery Officer in this connection. Immediately on receipt of thesaid communication, the petitioner filed the petition seekingreview of the judgment. It is seen that in the said review petition,the petitioner sought stay of all further proceedings pursuant toAnnexure A1 notice and on 19/10/2016, this Court granted the WPC 876/18 stay sought for by the petitioner. The review petition wasdismissed on 9/11/2016. Immediately thereupon, the petitionerchallenged the decision in the writ petition as clarified in thereview petition in writ appeal and the writ appeal was disposed ofon 15/3/2017. The facts aforesaid would indicate beyond doubtthat the writ petition filed by the petitioner after the disposal ofA.S.No.468 of 1998, the review petition filed in the writ petitionas also the writ appeal challenging the decision in the writpetition, were proceedings in essence challenging the decisionsof the Tax Recovery Officer under the Second Schedule. It is seenthat the purpose of sub-rule (2) of Rule 68B is to exclude theperiod during which the Tax Recovery Officer is prevented fromcontinuing the proceedings for realisation of the tax arrears byvirtue of orders passed by Courts as also the period during whichit is inappropriate for the Tax Recovery Officer to continue theproceedings for realization of the tax arrears on account of thependency of the proceedings challenging the decisions taken bythe Tax Recovery Officer, irrespective of the fact as to whetherthere is any interim order in such proceedings or not, whilecomputing the outer time limit provided for under sub-rule (1) ofRule 68B. Looking at the issue in the above perspective, I have no doubt that the proceedings up to the decision in W.A. No.391of 2017 are liable to be treated as proceedings falling within thescope of the expression 'appeal' contained in Clause (iii) of sub-rule (2) of Rule 68B of the Second Schedule. Any otherinterpretation of the said provision would go against the principlethat he who prevents a thing from being done shall not availhimself of the non-performance he has occasioned. The questionaforesaid is thus answered accordingly. 10. That apart, according to me, the writ petition is not maintainable on various other reasons as well. As notedabove, the contention based on Rule 68B of the Second Scheduleis taken by the petitioner on the premise that the order givingrise to the liability, for the recovery of which the immovableproperty has been attached, has become conclusive on31.3.1990 and that therefore, the three year period specified insub-rule (1) of Rule 68B expired on 31.3.1993. If that be so, thatwas a ground available to the petitioner in the suit that waspending at the relevant time as also in all the subsequentproceedings instituted by the petitioner. The petitioner havingnot raised such a contention in any of the proceedings, he is notentitled to institute a writ petition solely on that ground. not maintainable on various other reasons as well. As notedabove, the contention based on Rule 68B of the Second Scheduleis taken by the petitioner on the premise that the order givingrise to the liability, for the recovery of which the immovableproperty has been attached, has become conclusive on31.3.1990 and that therefore, the three year period specified insub-rule (1) of Rule 68B expired on 31.3.1993. If that be so, thatwas a ground available to the petitioner in the suit that waspending at the relevant time as also in all the subsequentproceedings instituted by the petitioner. The petitioner havingnot raised such a contention in any of the proceedings, he is notentitled to institute a writ petition solely on that ground. 11. Further, as noted above, the defaulter was calledupon to pay the tax arrears by virtue of two separate noticesissued to them by the Tax Recovery Officer as early as in theyears 1982 and 1983. In the light of the provision contained inRule 51 of the Second Schedule, the attachment effected overthe property relates back to, and takes effect from the date ofnotice. In other words, the attachment over the propertypurchased by the petitioner has taken effect from 21.5.1982, thedate on which the defaulter was served with the notice ofdemand by the Tax Recovery Officer for the period 1977-'78.Admittedly, the sale deeds in respect of the property in favour ofthe petitioner and his father were of the year 1985. The saledeeds relied on by the petitioner and his father are thereforedocuments executed violating the provisions of sub-rule(1) ofRule 16, which interdicts the defaulter from alienating theproperties. In terms of the said rule, the documents, on the basisof which the petitioner traces title of the property are void asagainst all claims enforceable under the attachment. If that beso, the petitioner is not entitled to file a writ petition challengingthe proceedings under the Second Schedule on the basis of thesaid void documents, for it is implicit in the exercise of the WPC 876/18 extraordinary jurisdiction of this Court under Article 226 of theConstitution that the relief asked for must be one to enforce alegal right [See State of Orissa v. Madan GopalRungta(AIR1952 SC 12) and Calcutta Gas Company (Proprietory) Ltd. v.State of W.B. and Ors. (AIR 1962 SC 1044)]. 12. Further, it is well established that the remedy ofwrit under Article 226 is extraordinary and discretionary and thatthe exercise of discretion to issue a writ shall be for the purposeof granting an equitable relief to the party. It is equally wellestablished that the power under Article 226 may not beexercised by the court to strike down an illegal order or actionalthough it would be lawful to do so, if the exercise of thejurisdiction in a given matter would resurrect a grave illegality orwould work out injustice to others. In other words, the HighCourt cannot be oblivious of the conduct of the party invokingthe remedy while exercising the said jurisdiction. In the instantcase, as noted above, W.P.(C) No.27423 of 2013 was instituted bythe petitioner with an undertaking that he would liquidate theentire tax arrears of the defaulter. Had the petitioner not madesuch an undertaking when the said matter was taken up forhearing, this Court would not have entertained the said writ WPC 876/18 WPC 876/18 petition in exercise of the discretionary power and in that event,the Revenue would have at least received the balance saleconsideration from the successors of the auction purchaser whowere willing to pay the same as indicated in the judgment in thewrit petition. Having obtained a favourable order in the writpetition, the petitioner changed his stand and refused toliquidate the tax arrears of the defaulter. In the aforesaidcircumstances, I am of the view that this is not a fit case at all forexercise of the discretionary jurisdiction of this Court underArticle 226 of the Constitution. For all the aforesaid reasons, this writ petition isdevoid of merits, and the same is, accordingly, dismissed. Sd/- vps28/2 P.B.SURESH KUMAR, JUDGE /True Copy/ PS to Judge