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IN THE HIGH COURT OF ALLAHABAD
Pankaj Naqvi, Piyush Agrawal, JJ.
M/S Mahalakshmi Industries - Petitioner
Versus
State Of U P And 3 Others - Respondent
WRIT - C No. - 22342 of 2020
Decided On : 20-01-2021
Constitution of India, 1950 – Article 265 – State Financial Corporation Act – Section 29 – Writ of mandamus – Transfer Deed – Writ petition has been filed for the, amongst other, reliefs to issue a writ of mandamus directing the Respondents to execute the Transfer Deed/Transfer Memorandum of Industrial Plot in favour of the petitioner – Issue a writ of mandamus directing the respondents to refund the amount paid by the petitioner to the Assistant Commissioner, C.G.S.T. Division - IV, Ghaziabad – Whether such a liability arises in law (de-hors the stipulation in Sale Deed /Agreement of Sale) having regard to the legal provisions contained in the Excise Act and State Financial Corporation Act.
Finding of the court: It is admitted case of the parties that the petitioner has purchased the plot in question from the Bank in auction proceedings and the petitioner deposited the earnest and the remaining amount within the specified time after being declared as a successful bidder. – It is also admitted between the parties that the Bank had issued sale certificate and sale deed has also been executed clearly stating therein that the said industrial plot is free from all encumbrances. – On perusal of the instructions of respondent no. 4, it also reveals that the plot in question was never tendered/attached/seized with regard to any outstanding dues as claimed by respondent no. 4. – Dues of central excise are not a charge on the plant & machinery or land & building. – The dues of central excise become payable on the manufacturing of excisable items by the erstwhile owner and therefore, these statutory dues are in respect of those products and not the plant & machinery which were used for manufacturing and the same cannot be recovered from the auction purchaser. – Respondent -UPSIDC is directed to execute the transfer deed/transfer memo of the industrial plot in question in favour of the petitioner within a month from the date of production of a copy of this order. – With regard to refund of the amount deposited by the petitioner under protest, the learned counsel for the petitioner submits that the amount was deposited under protest in order to get the matter expedited and there was no liability of the petitioner to pay the same. – Learned counsel for the petitioner further submits that under Article 265 of the Constitution of India, any amount cannot be charged/withheld without any authority of law.
Result: – Writ Petition Allowed
JUDGMENT
1. Heard Shri Kaushalendra Nath Singh for the petitioner, Shri Ashish Agrawal for respondent nos. 2 & 3, learned Standing Counsel for respondent no. 1 and Shri Ashok Singh, learned counsel for respondent no. 4.
2. This writ petition has been filed for the following, amongst other, reliefs:-
II. Issue a writ of mandamus directing the respondents to refund the amount paid by the petitioner to the Assistant Commissioner, C.G.S.T. Division - IV, Ghaziabad."
3. Learned counsel for the petitioner submits that pursuant to an advertisement, Central Bank of India invited bids for auction of Industrial Plot No. 13A/17 U.P.S.I.D.C, Loni Road, Site -II, Mohan Nagar, Sahibabad, Ghaziabad. The petitioner a successful bidder deposited the earnest and the remaining amount within the specified time. Pursuant thereto, the Bank issued sale certificate and the deed clearly stated that the said industrial plot is free from all encumbrances. On 07.09.2018, the Bank handed over the original lease deed in favour of the erstwhile owner, letter of the UPSIDC and the keys of the auctioned plot in favour of the petitioner. Thereafter, the petitioner applied for transfer of the plot in question on 11.10.2018 with all the requisite documents before respondent no. 3, but in spite of completion of all the formalities, respondent nos. 2 & 3, without any rhyme or reason, are not transferring the plot in question in favour of the petitioner. Meanwhile, the respondent -UPSIDC wrote a letter to the Assistant Commissioner, Central GST, Ghaziabad on 14.10.2019 to inquire as to whether any government dues/outstanding are pending from the erstwhile owner of the plot in question, i.e., M/s Sarthak Aqua Private Limited.
4. Learned counsel for the petitioner submits that to buy peace and to get the matter of transfer expedited, it has deposited a sum of Rs. 33,59,276/-, under protest, though the same was not liable to be paid by it, yet the transfer deed is not being executed. Hence, the action of respondent no. 2 in not transferring the plot in question in favour of the petitioner since October, 2018 is arbitrary and unsustainable.
5. Shri Ashok Singh, learned counsel for CGST has brought on record the instructions dated 06.01.2021, which are taken on record. On the strength of the instructions, Shri Singh submits that some outstanding dues are pending against the erstwhile owner, i.e., M/s Sarthak Aqua Private Limited, which are liable to be recovered from the plot in question and therefore, the letter was sent requesting respondent no. 3 not to transfer the plot in question in favour of the petitioner.
6. Shri Ashish Agrawal, learned counsel for respondent -UPSIDC submits that the Corporation has not transferred the plot in question only on the request of respondent no. 4; otherwise, petitioner has completed all the formalities.
7. The Court has perused the materials available on record.
8. It is admitted case of the parties that the petitioner has purchased the plot in question from the Bank in auction proceedings and the petitioner deposited the earnest and the remaining amount within the specified time after being declared as a successful bidder. It is also admitted between the parties that the Bank had issued sale certificate and sale deed has also been executed clearly stating therein that the said industrial plot is free from all encumbrances. On perusal of the instructions of respondent no. 4, it also reveals that the plot in question was never tendered/attached/seized with regard to any outstanding dues as claimed by respondent no. 4.
9. The Hon'ble Supreme Court in the case of Rana Girders Limited Vs. Union of India & Others (reported in (2013) 10 SCC 746) has decided a similar issue holding that the dues of central
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