1 WP 4048.2011 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4048 OF 2011 Badve Engineering Ltd. Gut No. 63-64, Narayanpur, Ahmednagar Road, Near Waluj, Tq .: Gangapur, Dist. : Aurangabad Through its Deputy General Manager Shri Rahul Shashikant Ganu Age : 42 Yrs., Occ. Service, R/o. : Aurangabad. .... PETITIONER V E R S U S The Assistant Provident Fund Commissioner & Recovery Officer Sub Regional Office, Aurangabad. .... RESPONDENT Mr. S.V.Adwant,Advocate for the Petitioner. Mr.Bhushan Kulkarni,Advocate for the Respondent. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 22/06/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2 WP 4048.2011 - ( J ) 2. The Respondent had issued the warrant of attachment and executed it on 2/6/2011, thereby taking over possession of the movable and immovable properties as per the inventory attached. The said action is being assailed in the present Writ Petition. 3. Mr. S.V.Adwant, the learned counsel for the petitioner submits that no opportunity has been given to the petitioner in as much as even the demand notice was not issued to the petitioner prior to initiation of such an action. The petitioner is the auction purchaser, who had purchased the said property in public auction on 26/10/2010. The petitioner was put in possession of the said property on 29/11/2010 and sale certificate is also issued in his favour. The learned counsel further submits that the attachment of immovable property does not mean that physical possession of the same can be taken. That would be against the very concept of attachment. The learned counsel further contends that the petitioner is not at all liable for any of the dues as is claimed by the respondent. The respondent can, at the most, claim the amount from the sale consideration. The respondent has lodged its claim with the Liquidator and the respondent is required to prosecute its claim with the Liquidator. The respondent would be in queue before the Liquidator. 3 WP 4048.2011 - ( J ) 4. Mr. Bhushan Kulkarni, the learned counsel for the Respondent vehemently opposed the petition contending that the Respondent has followed the proper procedure. The demand notice has been issued earlier at the time when the petitioner was not the owner. Even as per Section 17- B of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952, [ For short, ‘ said Act ’ ] the petitioner is liable as he is the transferee of the establishment. The learned counsel further contends that no flaw has been committed while attaching the property and executing the warrant of attachment. The learned counsel relies on the provision of Section 8 of the said Act. 5. Whether the plaintiff is liable to pay the dues of the establishment, who owned the property which the petitioner purchased in auction, is not the subject matter of the dispute in the present Writ Petition. The present Writ Petition is restricted to the impugned action of the respondent in taking possession of the properties pursuant to the warrant of attachment. As such, the said contentions are not considered. 6. The fact that the petitioner is an auction purchaser is prima facie made out by the contentions in the petition and the documents filed on record. It is a fact that prior to executing the warrant of attachment, no 4 WP 4048.2011 - ( J ) notice is served on the petitioner. In the affidavit in reply, a copy of the letter issued by the Recovery Officer to the official Liquidator is annexed, wherein the Recovery Officer had requested the official Liquidator to remit the amount of Rs. 62,98,744/- to the Recovery Officer. After 26/10/2010, no notice appears to have been given to the petitioner/establishment and suddenly the property has been attached on 2/6/2011. The warrant of attachment dated 31/5/2011 appears to be in respect of movable and immovable property. The same is in respect of the attachment and not for taking over possession. Attachment of immovable property would not encompass in itself taking over possession, whereas in the panchanama, it appears that the respondent has put its lock and seal over the said property, which is not permissible. Attachment of movable property would include taking over possession of the movables that too with different modes, but the same is not applicable in respect of attachment of immovable property. Even if the warrant of attachment of immovable property is perused, the same only prohibits the petitioner from transferring or changing the property in any way, but the respondent has proceeded further and has put their lock and seal over the said property, which is against the concept of attachment of immovable property. 7. The said action is improper and not in consonance with the 5 WP 4048.2011 - ( J ) legal principles. As such, the said action is set aside. The Respondent shall, prior to taking any action, issue a demand notice to the petitioner. The petitioner is at liberty to represent before the respondent and after giving an opportunity to the petitioner, the Respondent may take further action as is permissible in law. The Respondent may issue demand notice within the period of fifteen ( 15 ) days from today. The petitioner shall not alienate, create third party interest or change the nature of the suit property till the petitioner receives the demand notice and represents the respondent pursuant thereto and the same is decided. 8. Mr. Kulkarni, the learned counsel for the respondent on the instructions of the Officer, who is present in the Court, states that the Respondent would complete this exercise within the period of one ( 1 ) month. 9. Rule is accordingly made absolute in above terms. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 4048.2011 - ( J )