IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TENTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.PRAKASH RAO And THE HON'BLE MR JUSTICE C.Y.SOMAYAJULU WRIT PETITION NO.7785 of 2008 Between: 1 Adapala Dayakar Reddy S/. Raja Gopal Reddy, R/o. 1-6-126, Chaitanyapuri Colony, Dilsukhnagar, Hyderabad. 2 Smt,. Gangula Laxmi W/o. Late Narsaiah R/o. 9-7-3/4. Road No.2 Yadagiri Nagar, Opp. Durga Bhavani Community Hall, Hyderabad. 3 Gangula Praveen Kumar S/o. Late Narsaiah R/o. 9-7-3/4. Road No.2 Yadagiri Nagar, Opp. Durga Bhavani Community Hall, Hyderabad. ...PETITIONERS AND 1 The Commercial Tax officer, Jagtial, Jagtial, M.R. Jagtial, Karimnagar District. 2 Gangula Ramesh S/o. Narsaiah R/o. H.No. 1-8-121, Adarshnagar,Metpalli, M.R.Metpalli, Karimnagar District. (2nd Respondent is not necessary party to this Petition) ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction more particularly a writ in the nature of Mandamus declaring the action the respondent No.1 herein issuing notice in G.I.No. 19309/1992-93 dt.30-1-2008 directing the petitioner No.1 to pay the arrears due from M/s. Sri Sainath Saw Mill, Raghavapet of which the 2nd Respondent is proprietor/defaulter seeking to proceed against the House No. 1-10-151 of Metpalli Town , M.R. Metpalli, Karimnagar District under the provisions of A.P. Revenue Recovery Act as illegal, arbitrary, colourable exercise of power and without jurisdiction and liable to be set aside and be pleased to pass such other order or orders Counsel for the Petitioners: MR.P.V.NARAYANA RAO Counsel for the Respondents: SPL GP FOR TAXES The Court made the following: THE HON'BLE MR JUSTICE B.PRAKASH RAO And THE HON'BLE MR JUSTICE C.Y.SOMAYAJULU WRIT PETITION NO.7785 of 2008 ORDER: (Per the Hon’ble Mr Justice B.Prakash Rao) Heard Sri P.V.Narayana Rao, learned counsel appearing on behalf of the petitioners and Sri A.V.Krishna Koundinya, learned Special Government Pleader for Tax appearing on behalf of the respondents. At their request, the Writ Petition itself is taken up for disposal at the admission stage. The petitioners, who claim to be the owners of the property in question, filed this Writ Petition, inter alia, seeking a Writ of Mandamus to declare the action of the first respondent in issuing notice in G.I.No.19309/1992-93 dated 30.01.2008 directing the first petitioner to pay the arrears due from M/s.Sri Sainath Saw Mill, Raghavapet of which the second respondent-proprietor/defaulter seeking to proceed against House No.1-10-151 of Metpalli Town, M.R.Metpalli, Karimnagar District under the provisions of A.P.Revenue Recovery Act as illegal, arbitrary, and without jurisdiction and sought a further direction to set aside the same. The main contention urged on behalf of the petitioners is that the petitioners are not concerned with the shares and it is only the second respondent whose share is totally negligible, which is totally unsustainable. Further, having regard to the earlier mortgage on 06.02.2002 and subsequent mortgage on 28.12.2004 for a loan of an amount of Rs.5,00,000/- (Rupees five lakh only) after the death of the original owner, Gangula Narsaiahm, the petitioners have already filed an objection petition dated 19.03.2008. The said objection petition, however, is not disposed of. It is contended that having regard to the shares held by the parties as per the Personal Law, the question of proceeding with the entire properties does not arise and further, learned counsel sought to place reliance on Central Glass Factory v. Special commercial Tax Officer, wherein it was held by this Court as under. “In the eye of law, all the partners are joint owners of the entire partnership property, be it movable or immovable. No one partner can point to any tangible item of partnership property as exclusively belonging to him. Therefore, it is not possible in law to proceed against any tangible property of a partnership firm to recover the debt due from any one of the partners. The Government as the creditor of a partner cannot claim a larger right or interest in the partnership property than the debtor-partner himself is entitled to claim.” Hence, the Writ Petition. Learned Special Government Pleader appearing on behalf of the respondents strenuously opposed the relief as sought for and stated that it is only to stall the proceedings at the stage of sale, this Writ Petition is filed. Even otherwise, all these questions cannot be decided by this Court under Article 226 of the Constitution of India. He also pointed out that the petitioners have already filed W.P.No.3186 of 2006, which was allowed by the learned Single Judge of this Court on 28.02.2007 where they sought a declaration by way of Mandamus against the Sub-Registrar in not registering the sale deed, which is proposed to be executed by the petitioners in favour of their purchasers in respect of the very same property. While disposing of the same, this Court already observed that any such sale shall be subject to the payment of tax. Hence, the Writ Petition is liable to be dismissed. Having heard on either side and on perusal of the material available on record, we are of the view that the petitioners approached this Court at this late hour, after disposal of their own Writ Petition, where there was already an observation that the sale shall be subject to the payment of tax. Further, having regard to the fact that the questions as sought to be raised in regard to the share, right, title or interest or even the shares held by the petitioners, they are required to be gone into by the said parties only and not by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. Admittedly, the petitioners filed an objection petition dated 19.03.2008, which could not come to their rescue. Since it has been observed in the same decision that it is not possible in law to proceed against any tangible property of a partnership firm to recover the debt due from any one of the partners, the property in question as such the asset of the partnership firm, incidentally, the share, which is held by the legal heirs, has to be given. The sale is already fixed on 06.06.2008. Since the respondents are proceeding with the auction, the sale conducted shall be subject to the ultimate decision or the final orders passed in the objection petition. The Writ Petition is, therefore, disposed of directing to dispose of the objection petition dated 19.03.2008 in accordance with law, after giving notice and opportunity to both the sides. It is needless to mention that the said objection petition shall be disposed of uninfluenced by any of the observations made in these proceedings. Further, the sale conducted shall be subject to the ultimate decision or final orders passed in the objection petition. No costs. _________________ (B.PRAKASH RAO, J) __________________ (C.Y.SOMAYAJULU, J) 10th April 2008 RRB