IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY EIGHTH DAY OF JULY TWO THOUSAND AND NINE PRESENT HON'BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE and HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 384 of 2009 Between: 1 The Commercial Tax Officer, Eluru Bazar circle, Guntur Division, Guntur, 2 The Deputy Commercial Tax Officer, Eluru Bazar circle, Guntur Division, Guntur, ..... PETITIONER(S) AND 1 The Authorised Officer, The Catholic Syrian Bank, Arundelpet Branch, Guntur 2 The Manager, The Catholic Syrian Bank, Arundelpet Branch, Guntur 3 Kanamarlapudi Veeraiah Firm, D.No.23-4-34, Eluru Bazar, Guntur. 4 Kanamarlapudi Ramalingeswara Rao, S/o. Veeraiah, R/o. Agraharam, Guntur. 5 Kanamarlapudi Venkata Seeta Rama Rao, S/o. Veeraiah, R/o. Sangadigunta, Near Hanuman Temple, Guntur. 6 Kanamarlapudi Srimannarayana, S/o. Veeraiah, R/o. Mantirvari Street, Sangadigunta, Guntur. 7 Kanamarlapudi Prabhu Haranadh, S/o. Veeraiah, R/o. Mantirvari Street, Sangadigunta, Guntur. 8 Kanamarlapudi Sri Krishna Paramatma, S/o. Veeraiah, R/o. Mantirvari Street, Sangadigunta, Guntur. 9 Kanamarlapudi Sai Kumar, S/o. Veeraiah, R/o. mantirvari Street, Sangadigunta, Guntur. .....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 or order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the first respondent in bringing the immovable properties of the 3rd respondent firm pursuant to auction notice dated 17.12.2008 published in Hindu, english Daily on 20.12.2008 as illegal, void and in operative and set aside the same and consequently declare that under the provisions of the Section 16(c) of the APGST Act 1957 read with Section 26 and Section 80 of APVAT Act 2005, the petitioner has got the first charge over the property of the 3rd respondent defaulting deler for recovery of arrears of tax under APGST Act Counsel for the Petitioner: Sri A.V. Krishna Kaundinya (SPL.SC FOR CT) Counsel for Respondent No.1: Sri K. Gopala Krishna Murthy The Court made the following: ORAL ORDER: (Per Sri Anil R. Dave, CJ) The petitioners have challenged the validity of the notification issued by respondent No.1, an officer of the Catholic Syrian Bank, whereby properties belonging to respondent No.3 – partnership firm were to be sold by holding an auction on 21-01-2009. 2. It is the case of the petitioner authorities that they have to recover dues from respondent No.3 firm under the provisions of the Andhra Pradesh General Sales Tax Act, 1957 (for short, ‘the Act’). Respondent Nos. 4 to 9 are the partners of respondent No.3. The properties of respondent No. 3 were sought to be sold by holding an auction by respondent No.1, though according to the petitioners, they have a right over the said properties in view of the provisions of Section 16-C of the Act. 3. According to the learned advocate appearing for the petitioners, the properties of respondent No.3 cannot be sold by respondent No. 1 – Bank, in view of the provisions of Section 16-C of the Act, which reads as under: “Liability under this Act to be the first charge:- Notwithstanding anything to the contrary contained in any law for the time being in force, any amount of tax, Government loan extended to the dealer due to treating deferred tax as deemed to have been paid, penalty, interest and any other sum if any, payable by a dealer or any other person under this Act, shall be the first charge on the property of dealer, or such person.” 4. It has been further submitted that even according to the judgment delivered by the Hon’ble Supreme Court in the case of Central Bank of India vs. State of Kerala and others[1], the petitioners - revenue authorities have a first charge over the properties in question. 5. Be that as it may, by virtue of stay granted by this Court, the auction did not take place as per the notification and even according to the learned advocates, some other proceedings are pending before the Debts Recovery Tribunal, wherein some orders have been passed in relation to the disposal of the properties in question. 6. In view of the above facts, especially, when the properties have not been sold in pursuance of the impugned notification, in our view, the petition would not survive and it is accordingly disposed of. 7. Needless to say that it would be open to the petitioners to take appropriate action, in accordance with law for recovering the amount of tax and/or penalty from respondent No.3. ANIL R. DAVE, CJ R.SUBHASH REDDY, J 28th July, 2009 ks [1] (2009) 21 VST 505 SC