ORDER UNDER S. 269UD--Condition precedent--Opportunity of being heard.
Facts :
The petitioner applied for no objection certificate in Form No. 37-I, but the appropriate authority passed order under s. 269UD without giving an opportunity of hearing therefore.
Held :
No opportunity was granted before passing the impugned orders, hence the orders are unsustainable. In the present case, an ad interim stay order is operating till date and, therefore, the supplementary direction issued by the Supreme Court also equally applies to the facts of the present case. Accordingly, the orders are set aside and the respondents are directed to pass fresh orders after giving opportunity to the petitioners.
Conclusion :
Opportunity to show cause must be afforded to intending purchaser and seller of property before making an order of compulsory purchase of the property.--Vide C. B. Gautam v. Union of India & Ors. (1993) 1 SCC 78.
Application :
Also to current assessment years.
Citation :
Income Tax Act 1961 s.269UD JUDGMENT
1. Heard learned counsel for the petitioners and learned standing counsel for the Revenue.
2. The petitioners seek quashing of the order dated December 17, 1991, annexure 2 to the writ petition, by virtue of which the authority ordered purchase by the Central Government of the immovable property in question, described in the schedule under Section 269UD(1) of the Income-tax Act, 1961, and further for a direction not to interfere with the right of the petitioners to transfer the said property.
3. At the time of filing of this petition, this court on January 3, 1992, stayed the operation of the order dated December 17, 1991 (annexures Nos. 2 and 3 to the writ petition), which is still in operation till this date.
4. In view of the exchange of affidavits between the parties, and as agreed to between learned counsel for the parties, the present petition is being disposed of finally at the stage of admission in accordance with the rules of the court.
5. The petitioners agreed to sell their land to one Shri Ajit Singh and his wife, Smt. Radhika Singh, jointly on July 25, 1991, for Rs. 14,50,000 out of which a sum of Rs. 4,25,000 was paid to the petitioners initially. Thereafter, the aforesaid transferees applied for permission for transfer of the land under Section 269UE of the Act before the appropriate authority. Thereafter, the petitioners received the impugned order dated December 17, 1991, passed by the appropriate authority intimating the petitioners that their property had been acquired and purchased by the Central Government under Section 269UD(1) of the Act and the said property vests in the Central Government. It is this order which is the subject-matter of challenge in the present writ petition.
6. The main contention raised on behalf of the petitioners is that before passing this order, no opportunity was given by the respondents, hence the said order is unsustainable.
7. A similar question was raised in the case of C. B. Gautam v. Union of India [1993] 199 ITR 530 (SC). In that case, while dealing with Section 269UD of the Act, it was held that opportunity to show cause must be afforded to the intending purchaser and seller of property before making an order of compulsory purchase of property. The Supreme Court further ordered in that case as under (at page 564) :
"We, accordingly, clarify by this supplemental direction to be read as part of the judgment that, in respect of cases other than that of the petitioner, C. B. Gautam, the period of two months referred to in Section 269UD(1) shall be reckoned with reference to the date of disposal of each of such pending matters either before this court or before the High Courts, as the case may be. Where, however, the stay orders inhibiting the authorities from taking further proceedings are vacated, the period referred to in the said Section 269UD(1) shall be reckoned with reference to the date of such vacating of the stay orders."
8. We find that the aforesaid decision in C. B. Gautam's case [1993] 199 ITR 530 (SC) fully applies to the facts of the present case.
9. From a perusal of the various affidavits, it stands admitted by the respondents that no opportunity was granted before the passing of the said impugned orders, hence the order dated December 17 ,1991 (annexures Nos. 2 and 3 to the writ petition), are unsustainable. In the present case, we find that an ad interim stay order is operating till date and, therefore, the supplementary direction issued by the Supreme Court also equally applies to the facts of the present case.
10. Accordingly, this writ petition is allowed and the orders dated December 17, 1991 (annexures Nos. 2 and 3 to the writ petition), are set aside and the respondents are directed to pass a fresh order after giving opportunity to the petitioners within the time, as referred to above. The petitioner will file a certified copy of this order before respondent No. 1 within ten days from today, who will then proceed with the matter to decide after giving the petitioners an opportunity within the specified time.