HANSRAJ DWARKA PRASAD vs STATE OF GUJARAT
- Court
- Gujarat High Court
C/SCA/7768/2026 JUDGMENT DATED: 07/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7768 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
===================================================
Approved for Reporting Yes No
✔
===================================================
HANSRAJ DWARKA PRASAD & ANR.
Versus
STATE OF GUJARAT & ORS.
===================================================
Appearance:
MR. JAIMIN R DAVE(7022) for the Petitioner(s) No. 1,2
MS HIRVA R DAVE(10742) for the Petitioner(s) No. 1,2
MS MANVI A DAMLE(10805) for the Petitioner(s) No. 1,2
MR RAJ TANNA, AGP for the Respondent(s) No. 1,2,3
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 4
===================================================
CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 07/07/2026
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
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1. Issue Rule, returnable forthwith. Mr.Raj Tanna, learned
Assistant Government Pleader waives service of Rule on behalf of
the respondent nos.1 to 3.
2. With consent of the learned advocates appearing for the
respective parties, the present petition is taken up for final
disposal.
3. Heard Ms.Manvi Damle, learned advocate appearing for the
petitioners and Mr.Raj Tanna, learned Assistant Government
Pleader appearing for respondent nos.1 to 3.
4. By way of the present petition, the petitioners herein are
constrained to invoke Article-226 of the Constitution of India,
challenging the impugned action of respondent nos.1 to 3 of not
removing the charge over the land bearing Plot Nos.1 to 12 at
Revenue Survey No.119/3 and 156/1, Block No.191 paiki, West
side at Village:Karanj, Taluka:Mandavi, District:Surat,
admeasuring 7185 sq.mtrs. (hereinafter referred to as "the land in
question / the subject land").
5. Briefly stated that, the land in question originally belonged to
M/s.Salasar Polyfab Private Limited (hereinafter referred to as
‘the borrower company’). In the year 2006–2007, the borrower
company borrowed funds from respondent no.4 by mortgaging
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the subject land, having created a security interest qua the land
in question in favour of the respondent no.4 within the meaning
of Section 2(1b) of the Recovery of Debts and Bankruptcy Act,
1993 (hereinafter referred to as the "RDB Act") and respondent
no.4 became the secured creditor qua the subject land.
5.1. In or around 2011–2012, the borrower company defaulted in
the repayment of its debts to respondent no.4 to the tune of Rs.
85,41,51,495/-. Accordingly, the respondent no.4 filed Original
Application (OA) No. 295 of 2012 before the Debts Recovery
Tribunal-II, Ahmedabad (hereinafter referred to as "DRT"), under
the provisions of the RDB Act for the recovery of its outstanding
dues.
5.2. On 29.01.2015, the DRT allowed the said OA and issued a
recovery certificate in favour of the respondent no.4. Accordingly,
the respondent no.4 was authorized to recover the outstanding
dues, by auctioning the secured asset in accordance with the
provisions of the RDB Act and a recovery certificate was issued
under Section 18(22) of the RDB Act. In view of the aforesaid
and in accordance with the provisions of the RDB Act, by an
order dated 28.06.2019, the land in question was put for sale by
way of a public e-auction, by Recovery Officer-II, DRT-II,
Ahmedabad, at a reserve price of Rs.1,30,00,000/-.
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5.3. The petitioners herein participated in the auction proceedings
held on 29.08.2019, wherein, petitioners were declared the
highest bidders. Accordingly, the land was sold to the petitioners
for a total consideration of Rs.1,30,25,000/-. The petitioners
thereafter deposited the entire sale consideration between
29.08.2019 and 11.09.2019. Accordingly, by an order dated
27.01.2020, the DRT-II, Ahmedabad, confirmed the sale of the
land in favour of the petitioners.
5.4. The said order also stipulated that the petitioners were
entitled to the execution of a registered sale deed in their favour
and the Authorized Officer/Branch Manager of the secured
creditors were directed to appoint a Court Commissioner. The
Court Commissioner was further directed to execute the registered
sale deed, which came to be duly executed on 27.01.2020 and
sale certificate of even date, i.e. 27.01.2020 came to be issued,
are duly produced on record. The said sale has attained finality.
5.5. Upon completion of the requisite formalities, the petitioners
herein approached the Sub-Registrar's office on 30.12.2020.
Pursuant to the aforesaid, on 31.12.2020, the Sub-Registrar's
office refused to hand over the copy of the original sale deed, on
the ground that the land in question was attached by the Income
Tax Department.
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5.6. The aforesaid action became the subject matter of a
challenge by the petitioners by preferring Special Civil
Application No.10314 of 2021, wherein, by judgment dated
06.04.2022, the writ petition was allowed. Pursuant to the said
order, the respondents removed the attachment / charge of the
Income Tax Department. However, vide mutation entry No.5854,
a new charge was created over the land in question by the
respondent no.3. Under such circumstances, the writ petitioners
filed an application on 21.07.2025 for removal of the charge
created by respondent no.3 over the subject land, in view of the
judgment rendered in Special Civil Application No.10314 of 2021.
5.7. By a communication dated 09.09.2025, respondent no.2
addressed a letter to respondent no.3 seeking an opinion
regarding the removal of the charge. The petitioners made
several representations for the removal of the charge; however,
the same have not been replied to or decided by respondent
no.3, which has given rise to the filing of the present petition,
for the following prayers / reliefs:
“8. The Petitioners herein, therefore, prays that this
Hon’ble Court be pleased to issue a writ of mandamus or a
writ in the nature of mandamus or a writ of certiorari or a
writ in the nature of certiorari or any other appropriate
writ, direction or order and be pleased to:
A. The Hon’ble Court may be pleased to hold and
adjudge that statutory charge under Section 48 of
the Gujarat Value Added Tax Act, 2003 or any
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other law mutated vide mutation entry number
5854 at Annexure – “E” ceased to operate over
Plot Numbers 01 to 12 at Revenue Survey Number:
119/3 & 156/1, Block Number: 191 paiki west side
at Village: Karanj, Taluka: Mandavi, District: Surat,
Gujarat, admeasuring 7185 square meters., with
effect from date of sale in favour of the
Petitioners;
B. The Hon’ble Court may be pleased direct the
respondent authorities to delete mutation entries of
charge under the Gujarat Value Added Tax Act,
2003 or any other law from the revenue records of
Plot Numbers 01 to 12 at Revenue Survey Number:
119/3 & 156/1, Block Number: 191 paiki west side
at Village: Karanj, Taluka: Mandavi, District: Surat,
Gujarat, admeasuring 7185 square meters including
Mutation Entries 5854 at Annexure – “E”
C. The Hon'ble Court be pleased to restrain
Respondent No. 3 from exercising any power under
the Gujarat Value Added Tax Act, 2003 or any
other law to recover dues of M/s Salasar Polyfab
Private Limited by auctioning, selling or in any
manner transferring Plot Numbers 01 to 12 at
Revenue Survey Number: 119/3 & 156/1, Block
Number: 191 paiki west side at Village: Karanj,
Taluka: Mandavi, District: Surat, Gujarat,
admeasuring 7185 square meters;
D. Pending notice, admission and final hearing of this
Petition, direct respondent authorities to maintain
status quo with respect to plot numbers 01 to 12 at
Revenue Survey Number: 119/3 & 156/1, Block
Number: 191 paiki west side at Village: Karanj,
Taluka: Mandavi, District: Surat, Gujarat,
admeasuring 7185 square meters;
E. Pending hearing and final disposal of this petition,
be pleased to stay the implementation, execution
and operation of the charge recorded in Form nos.
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6, 7 and 12 of plot numbers 01 to 12 at Revenue
Survey Number: 119/3 & 156/1, Block Number: 191
paiki west side at Village: Karanj, Taluka: Mandavi,
District: Surat, Gujarat, admeasuring 7185 square
meters;
F. Any other and further relief deemed just and
proper be granted in the interest of justice;
G. To provide for the cost of this petition.”
6. Ms.Manvi Damle, learned advocate appearing for the
petitioners submits that the action of respondent nos.1 to 3 of
continuing the charge over the land, which was purchased by the
petitioners in auction proceedings under the RDB Act is patently
illegal.
6.1. It is submitted that, Section 31B of the RDB Act commences
with a non-obstante clause and has an overriding effect over all
other laws including the Gujarat Value Added Tax Act.
6.2. Placing reliance on the aforesaid submissions, it is submitted
that the said issue is no longer res integra, as the said aspect has
already been considered and decided in the case of the present
petitioners in Special Civil Application No.10314 of 2021. In view
thereof, it is submitted that it is not open for respondent nos.1
to 3 to continue the charge over the land in question.
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7. Mr. Raj Tanna, learned Assistant Government Pleader is not in
a position to controvert the aforesaid factual position, more
particularly, the fact that the charge of respondent no.3 was
created on the subject land by mutation entry no.5854 on
19.12.2020, which is prior to the judgment rendered in Special
Civil Application No. 10314 of 2021 dated 06.04.2022.
Furthermore, the said charge was created after the Amendment in
the RDB Act, wherein, Section 31B of the RDB Act was
incorporated into the said Act, with effect from 01.09.2016.
8. Having heard the learned advocates appearing for the
respective parties, the facts as referred herein-above are not
disputed and in view thereof, the same are not repeated.
8.1. It emerges from the record that the charge created by the
Income Tax Department regarding the attachment order in the
year 2013 was quashed and set aside, in case of the present
petitioners, for the same subject land, by a judgment dated
06.04.2022 in Special Civil Application No. 10314 of 2021. The
charge created by respondent no.3 on 19.12.2020 is also not
sustainable in the eyes of law, in view of the aforesaid SCA No.
10314 of 2021 as also considering Section 31B of the RDB Act,
wherein, it is provided that the secured creditors shall have
priority in the debt recovery. The aforesaid provision further
provides that secured creditors can recover their dues by selling
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secured assets ahead of all other debts, government dues, taxes
and other revenues.
8.2. In the facts of the present case, the petitioners herein are
the auction purchasers, the same having been conducted by the
respondent No.4 i.e. Bank in accordance with the provisions of
the RDB Act, shall have priority over the charge of VAT
authorities, i.e. the respondent no.3.
8.3. At this stage it is apposite to refer to Section 31B of the
RDB Act, which reads thus:
"31B. Priority to secured creditors.- Notwithstanding anything
contained in any other law for the time being in force, the
rights of secured creditors to realise secured debts due and
payable to them by sale of assets over which security interest is
created, shall have priority and shall be paid in priority over all
other debts and Government dues including revenues, taxes,
cesses and rates due to the Central Government, State
Government or local authority.
Explanation.- For the purposes of this section, it is hereby
clarified that on or after the commencement of the Insolvency
and Bankruptcy Code, 2016 (31 of 2016), in cases where
insolvency or bankruptcy proceedings are pending in respect of
secured assets of the borrower, priority to secured creditors in
payment of debt shall be subject to the provisions of that
Code."
8.4. The aforesaid issue is no longer res integra, as the same has
attained finality, as held in:
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(a) It is apposite to refer to the judgment dated 06.04.2022
rendered in Special Civil Application No.10314 of 2021. Relevant
paragraph Nos.4 to 9 of the said judgment reads thus:
“4. The short point that falls for our consideration which
otherwise no longer res integra is whether the bank will have
the precedence over the secured assets or the Income Tax
Department will have the precedence over the secured assets.
5. The Supreme Court in a recent pronouncement in the case of
Punjab National Bank Vs. Union of India and Others, Civil
Appeal No.2196 of 2012 decided on 24.02.2022 has taken the
view that once any immovable property is mortgaged /
hypothecated towards secured creditors then having regard to
the provisons contained in Section 2(zc) to (zf) of the SARFAESI
Act, 2002 read with the provisions contained in Section 13 of
the SARFAESI Act, 2002, the secured creditor will have the first
charge on the secured assets. The Supreme Court proceeded to
hold that Section 35 of the SARFAESI Act, 2002 inter alia
provides that the provisions of the SARFAESI Act shall have
overriding effect on all other laws.
6. In the case on hand, the Income Tax Department obviously
would rely upon the provisions of Section 281 of the Income
Tax Act.
7. In view of the recent pronouncement, the provisions
contained in Section 281 of the Income Tax Act would be said
subject to the provisions contained in the SARFAESI Act, 2002.
It appears that the Company was assessed for the F.Y. 2007-08.
We do not have the exact date on which the assessment order
came to be passed, but the records reveals that the Income Tax
Department proceeded to attach the plots some time in 2013.
8. In the aforesaid context, Mr. Dave invited the attention of
this Court to one another decision of the Supreme Court in the
case of Connectwell Industries Private Limited Vs. Union of
India Through Ministry of Finance and Others reported in
(2020) 5 Supreme Court Cases 373, wherein the Supreme Court
held as under:
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“9. It is trite law that, unless there is preference given
to the Crown debt by a statute, the dues of a secured
creditor have preference over Crown debts. [See:- Dena
Bank v. Bhikhabhai Prabhudas Parekh & Co., Union of
India & Ors. v. SICOM Ltd., Bombay Stock Exchange v.
V.S. Kandalgaonkar, CIT v. Monnet Ispat and Energy
Ltd.]
10. Rule 2 of Schedule II to the Act provides for a
notice to be issued to the defaulter requiring him to
pay the amount specified in the certificate, in default
of which steps would be taken to realise them. The
crucial provision for adjudication of the dispute in this
case is Rule 16. According to Rule 16(1), a defaulter or
his representative cannot mortgage, charge, lease or
otherwise deal with any property which is subject
matter of a notice under Rule 2. Rule 16(1) also
stipulates that no civil court can issue any process
against such property in execution of a decree for the
payment of money. However, the property can be
transferred with the permission of the Tax Recovery
Officer. According to Rule 16(2), if an attachment has
been made under Schedule II to the Act, any private
transfer or delivery of the property shall be void as
against all claims enforceable under the attachment.
11. There is no dispute regarding the facts of this case.
The property in dispute was mortgaged by BPIL to the
Union Bank of India in 2000 and the DRT passed an
order of recovery against the BPIL in 2002. The
recovery certificate was issued immediately, pursuant
to which an attachment order was passed prior to the
date on which notice was issued by the Tax Recovery
Officer- Respondent No.4 under Rule 2 of Schedule II
to the Act. It is true that the sale was conducted after
the issuance of the notice as well as the attachment
order passed by Respondent No.4 in 2003, but the fact
remains that a charge over the property was created
much prior to the notice issued by Respondent No.4 on
16.11.2003. The High Court held that Rule 16(2) is
applicable to this case on the ground that the actual
sale took place after the order of attachment was
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passed by Respondent No.4. The High Court failed to
take into account the fact that the sale of the property
was pursuant to the order passed by the DRT with
regard to the property over which a charge was
already created prior to the issuance of notice on
11.02.2003. As the charge over the property was
created much prior to the issuance of notice under
Rule 2 of Schedule II to the Act by Respondent No.4,
we find force in the submissions made on behalf of the
Appellant.”
9. In view of the aforesaid, this writ application succeeds and is
hereby allowed. The impugned letter / order dated 24.05.2021
and 31.12.2020 respectively at Annexure F are hereby quashed
and set aside. The respondent No.1 is directed to release the
registered sale deed bearing registration No.1016/2020 in favour
of the writ applicants with respect to the property in question.
The attachment order dated 18.04.2013, Annexure G passed by
the Income Tax Department is also hereby quashed and set
aside. The writ applicants are entitled in law to get their names
mutated in the revenue records on the strength of sale deed.”
(b). In the decision rendered by the Division Bench of this Court
in the case of Kalupur Commercial Cooperative Bank Ltd. & Anr.
vs. State of Gujarat & Anr., 2020 (1) GLR 625, relevant
paragraph nos.31 to 35 read thus:
“31. We may, at the outset, clarify that the Government of India,
Ministry of Finance, notified the provisions of Section 26(E) on 1st
September 2016. The copy of the Notification issued by the
Government of India, published in the Official Gazette Part-II,
Section 3, at Serial No.2142 dated 1st September 2016 has been
placed on record. The Notification reads as under :
"MINISTRY OF FINANCE
(Department of Financial Services)
NOTIFICATION
New Delhi, the 1st September, 2016
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S.O. 2831 (E).--In exercise of the powers conferred by sub-
section (2) of section 1 of the Enforcement of Security Interest
and Recovery of Debts Laws and Miscellaneous Provisions
(Amendment) Act, 2016 (44 of 2016), the Central Government
hereby appoints the 1st day of September, 2016 as the date
on which the following provisions of the said Act shall come
into force, namely :-
Sr. No. Sections
1 Sections 2 and 3 (both inclusive);
2 Sections 4 [except clause (xiii)];
3 Section 5 and 6 (both inclusive);
4 Sections 8 to 16 (both inclusive);
5 Sections 22 to 31 (both inclusive);
6 Sections 33 to 44 (both inclusive).
[F.No. 3/5/2016 DRT]
ANANDRAO VISHNU PATIL, Jt. Secy."
32. Section 31B has been inserted in the Recovery of Debts and
Bankruptcy Act, 1993 (herein after referred to as "the RDB Act")
by the Enforcement of Security Interest and Recovery of Debts
Laws and Miscellaneous Provisions (Amendment) Act, 2016, w.e.f.
1.9.2016, which contains a non-obsante clause and which expressly
provides that the secured debts shall be paid in priority over all
other debts and Government dues including the State taxes.
33. Apart from the fact that Section 31B of the RDB Act is a
later enactment, the language of the said provision also clearly
indicates the intention of the Parliament to give precedence even
over the Government dues notwithstanding anything to the
contrary in any other law.
34. We are sure of one thing that there exists no repugnancy in
the two legislations. The intention of the Parliament could not be
said to nullify the State enactment providing the first charge on
the property. The legislations have been made by the Central
Government and the State respectively under Entries I and II of the
Schedule and not of the Concurrent List. The amendment made by
the Parliament is to give priority to the secured creditors vis-a-vis
the State dues without speaking about the first charge. This aspect
was duly considered by the Supreme Court in the case of Central
Bank of India (supra). The amended provision, i.e. Section 26E of
the SARFAESI Act and Section 31B of the RDB Act, would have
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been different as indicated by the Apex Court in the case of
Central Bank of India (supra).
35. While it is true that the Bank has taken over the possession
of the assets of the defaulter under the SARFAESI Act and not
under the RDB Act, Section 31B of the RDB Act, being a
substantive provision giving priority to the "secured creditors", the
same will be applicable irrespective of the procedure through
which the recovery is sought to be made. This is particularly
because Section 2(la) of the RDB Act defines the phrase "secured
creditors" to have the same meaning as assigned to it under the
SARFAESI Act. Moreover, Section 37 of the SARFAESI Act clearly
provides that the provisions of the SARFAESI Act shall be in
addition to, and not in derogation of inter-alia the RDB Act. As
such, the SARFAESI Act was enacted only with the intention of
allowing faster recovery of debts to the secured creditors without
intervention of the court. This is apparent from the Statement of
Objects and Reasons of the SARFAESI Act. Thus, an interpretation
that, while the secured creditors will have priority in case they
proceed under the RDB Act they will not have such priority if they
proceed under the SARFAESI Act, will lead to an absurd situation
and, in fact, would frustrate the object of the SARFAESI Act which
is to enable fast recovery to the secured creditors.”
9. Considering the position of law as referred herein-above and
considering the provision of Section 31B of the RDB Act, it is not
in dispute that the petitioners herein are auction purchasers of
the subject matter land in question, in auction proceedings
undertaken by the respondent no.4 - Bank under RDB Act,
wherein, the charge of the Bank was created as back as in the
year 2011-12, prior to the charge created by the respodnent no.3
on 20.12.2020. Even otherwise, the charge of the secured creditor
shall precede over the charge of the VAT authority, i.e. the
respondent no.3.
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10. For the reasons as referred hereinabove, the present Petition
is required to be allowed and the same is hereby allowed. The
mutation entry of charge being no.5854 under the Gujarat Value
Added Tax Act, 2003, is directed to be removed from the land of
the petitioners, i.e. Plot Nos.1 to 12 at Revenue Survey No.119/3
and 156/1, Block No.191 paiki, West side at Village:Karanj,
Taluka:Mandavi, District:Surat, Gujarat, admeasuring 7185
sq.mtrs., within a period of 12 (twelve) weeks from the receipt of
the order. Rule is made absolute. Direct service is permitted.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(VAIBHAVI D. NANAVATI,J)
Pradhyuman/9
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