Jafar Mohammad. Vs. SirajuddIn and ors.

Jafar Mohammad. vs SirajuddIn and ors.

Type Court Judgment Court Rajasthan Jaipur Decided Mar 29, 2011

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Citation: sooperkanoon.com/913077
Court: Rajasthan Jaipur High Court
Judge: Mahesh Bhagwati, J.
Decided On: Mar 29, 2011
Case Number: S.B. Civil Writ Petition No. 6248/2008.
Subject: Constitution

Case Summary

AI-generated summary - not the official court judgment text.

ection 11 (2): [B.N. Agrawal, G.S. Singhvi & Aftab Alam, JJ] Contribution due from employer Payment Priority given by Section 11(2) Held, The priority given to the dues of provident fund etc., in Section 11 is not hedged with any limitation or condition. Rather, a bare reading of the section makes it clear that t...

Key legal issue: Constitution
Acts & sections: Constitution of India - Article 226, 227.

Parties & Advocates

Appellant / Petitioner

Jafar Mohammad.

Advocate Mr. Vimal Kumar Jain, Adv.

Respondent

SirajuddIn and ors.

Advocate Mr. Shobhit Vyas; Mr. Ajay Gupta, Advs.

Legal References

Acts: Constitution of India - Article 226, 227.

Excerpt

.....debts held, sub-section (2) was inserted in section 11 by amendment act no.40 of 1973 with a view to ensure that payment of provident fund dues of the workers are not defeated by the prior claims of the secured and/or of the unsecured creditors. while enacting sub-section (2), the legislature was conscious of the fact that in terms of existing section 11 priority has been given to the amount due from an employer in relation to an establishment to which any scheme or fund is applicable including damages recoverable under section 14-b and accumulations required to be transferred under section 15 (2). the legislature was also aware that in case of delay the employer is statutorily responsible to pay interest in terms of section 17, therefore, there is no plausible reasons to give a restricted meaning to the expression any amount due form the employer and confine it to the amount determined under section 7-a or the contribution payable under section 8. if interest payable by the employer under section 7-q and damages leviable under section 14 are excluded from the ambit of expression any amount due from an employer, every employer will conveniently refrain from paying contribution to the fund and other dues and resist the efforts of the concerned authorities to recover the dues as arrears of land revenue by contending that the movable or immovable property of the establishment is subject to other debts. any such interpretation would frustrate the object of introducing the deeming provision and non obstante clause in section 11 (2). it cannot be said that the amount of interest payable under section 7-q and damages leviable under section 14-b do not form part of the amount due from an employer for the purpose of section 11(2) of the act, and cannot, therefore, be treated as first charge on the assets of the establishment payable in priority to all other debts within the meaning of section 11 (2). .....board, sambharlake and order dated 23.3.2007 (annexure-4) passed by respondent no. 7 additional divisional commissioner, jaipur be quashed and set-aside.(ii) any other appropriate relief which this hon'ble court may deem just and proper in the facts and circumstances of the case in favour of the petitioner. (iii) the cost of this writ petition may also kindly be awarded in favour of the petitioner.2. contextual facts of the case depict that the property situated at chhota bajar, sambharlake was entered in the name of khudabux. the respondents no. 1 and 2, who are the legal representatives of khudabux, submitted an application to the nagar palika, sambharlake for entering their name in place of khudabux. the petitioner filed the objections before the nagar palika, sambharlake. executive officer, nagar palika, sambharlake, directed the parties to get the right of ownership decided from civil court. thereafter sirajuddin deposited the house tax of the property-in-dispute with nagar palika, sambharlake, which was accepted by the executive officer. being aggrieved by the order of the executive officer, the petitioner preferred revision petition before the additional divisional commissioner, which came to be dismissed vide order dated 23.3.2007.3. heard learned counsel for the parties and carefully perused the relevant material on record including the impugned order.4. learned counsel for the petitioner canvassed that the disputed property was in the name of khudabux. the executive officer, nagar palika decided the rights and title of the parties over the disputed property, who was not competent to do so. it was the civil court only, which could decide the right and title of the parties over the disputed property. the respondents, instead of filing application before the executive officer, ought to have filed a civil suit for getting declaration of civil or legal right over the disputed property. thus, the order passed by the executive officer is arbitrary and.....

Full Judgment

1. By way of the instant writ petition, the petitioner has sought the following relief:

(i) By issue an appropriate writ, order or direction, the order dated 27.3.2006 (Annexure-3) passed by respondent no. 6 Municipal Board, Sambharlake and order dated 23.3.2007 (Annexure-4) passed by respondent no. 7 Additional Divisional Commissioner, Jaipur be quashed and set-aside.

(ii) Any other appropriate relief which this Hon'ble Court may deem just and proper in the facts and circumstances of the case in favour of the petitioner.

(iii) The cost of this writ petition may also kindly be awarded in favour of the petitioner.

2. Contextual facts of the case depict that the property situated at Chhota Bajar, Sambharlake was entered in the name of Khudabux. The respondents no. 1 and 2, who are the legal representatives of Khudabux, submitted an application to the Nagar Palika, Sambharlake for entering their name in place of Khudabux. The petitioner filed the objections before the Nagar Palika, Sambharlake. Executive Officer, Nagar Palika, Sambharlake, directed the parties to get the right of ownership decided from Civil Court. Thereafter Sirajuddin deposited the house tax of the property-in-dispute with Nagar Palika, Sambharlake, which was accepted by the Executive Officer. Being aggrieved by the order of the Executive Officer, the petitioner preferred revision petition before the Additional Divisional Commissioner, which came to be dismissed vide order dated 23.3.2007.

3. Heard learned counsel for the parties and carefully perused the relevant material on record including the impugned order.

4. Learned counsel for the petitioner canvassed that the disputed property was in the name of Khudabux. The Executive Officer, Nagar Palika decided the rights and title of the parties over the disputed property, who was not competent to do so. It was the Civil Court only, which could decide the right and title of the parties over the disputed property. The respondents, instead of filing application before the Executive Officer, ought to have filed a civil suit for getting declaration of civil or legal right over the disputed property. Thus, the order passed by the Executive Officer is arbitrary and illegal and the same deserves to be set-aside.

5. E contra, learned counsel appearing for the respondents has defended the order passed by the Executive Officer and contended that Sirajuddin only deposited the house tax of the disputed property and no rights of any of the parties have been decided by the Executive Officer.

6. Having heard the learned counsel for the parties, it is noticed that if Sirajuddin deposited the house tax with regard to a property which was in the name of Khudabux. That does not entitle him to be the owner of the property nor ousted the civil rights of the petitioner for getting declaration with regard to disputed property. Depositing the house tax is one thing and getting declaration of right and title over the disputed property by way of filing civil suit is different thing. The impugned orders are found to be just and apt. They do not call for any interference by this Court under Article 226/277 of the Constitution of India.

7. For the reasons stated above, I find no merit in this writ petition and the same being bereft of any merits, deserves to be dismissed, which stands dismissed accordingly.

Same Court & Year Rajasthan Jaipur · 2011 Same Parties Jafar Mohammad. vs SirajuddIn and ors. Same Subject Constitution Same Judge Mahesh Bhagwati, J. Acts & Sections Constitution of India - Article 226, 227.

Constitution