High Court Of Allahabad
Kishan Lal vs. Inspecting Assistant Commissioner & Ors.
H.N. Seth & B.N. Sapru, JJ.
CMWP No. 448 of 1979
12th October, 1982
S. Nigam, for the Petitioner : Ashok Gupta, for the Respondents
N. SETH, J.:
By this petition under Art. 226 of the Constitution, the petitioner seeks to challenge the validity of the proceedings under Chap. XX-A of the IT Act, 1961 (hereinafter referred to as “the Act”), for the acquisition of the property purchased by him under a sale deed registered on 18th March, 1974. The petitioner claims that the said acquisition proceedings are barred by time. According to him the Order of acquisition has been passed without statutory notice to him and as such also the entire proceedings stands vitiated. He contends that he came to know about the acquisition proceedings only when the respondents wanted to take possession of the property in pursuance of the order of acquisition made under s. 269F of the Act. He has accordingly approached this Court for relief under Art. 226 of the Constitution.
2. Sec. 269D(1) of the Act enables the Competent Authority to initiate proceedings for acquisition under Chap. XX-A of any immovable property referred to in s. 269C by a notice to that effect published in the Official Gazette. A proviso added to that sub-section provides that no such proceedings are to be initiated in respect of any immovable prorerty after the expiration of a period of 9 months from the end of the month in which the instrument of transfer in respect of such property is registered under the Registration Act, 1908. Facts which are no more in controversy are that the sale deed in respect of the properties sought to be acquired was registered in the office of the Registrar on 13th March, 1974. The Competent Authority purported to initiate proceedings for acquisition of the same by means of a notice which was published in the Gazette dated 21th December, 1974. The petitioner has filed a letter dated 26th September, 1979, from the Asstt. Controllar, Supplies, in the Depratment of publication Government of India as annex.2 to the writ petition wherein it has been stated that the copies of the Gazette of India, Part III, s. 1, dated December 21, 1974, were made available to the public on 16th January, 1975. He contends that the publication in the Gazette of the notice for acquisition should be taken to have been made on 16th January, 1975, and as this date fell beyond 9 months of the end of the month in which the sale deed in question was registered (dated the 18th March, 1974), the Competent Authority was wholly incompetent to initiate the acquisition proceedings.
Sri M. Katju, learned counsel for the respondents, however, contended that so long as the notice was published in the Gazette dated 21st December, 1974, well within nine months of the end of March, 1974, the proceedings stood initiated within time, irrespective of the date on which the said Gazette was made available to the pulic.
A similar question came up for consideration before a Division Bench of this Court in the case of U. S. Awasthi vs. IAC (1975) CTR (All) 273 : (1977) 107 ITR 796 (All). This Court, after taking into consideration that the publication of a notification for initiating proceedings for acquisition under Chap XX-A of the IT Act, 1961, is complete only when the Gazette containing the said notification becomes available to the public held that as in that case the Official Gazette containing the notice under s. 269D was not available to the public before the end of the nine month period prescribed by the said section, the proceedings had not been commenced within the statutory period and the Competent Authority had no jurisdiction to continue the sane. Following the decision of this Court in U. S. Awasthi’s case (supra), we are clearly of opinion that the proceedings in the instant case also were initiated beyond the period prescribed for the same in s. 269D of the Act and were as such without jurisdiction. In this view of the matter it is not necessary for us to go into the further controversy raised by the petitioner with regard to the present proceedings being vitiated also for the reason that the provisions of the Act concerning service of notice upon him have not been complied with.
In the result, the prtition succeeds and is allowed. The entire proceedings for acquisition of the proprety in dispute initiated on the basis of the notification published in the Gazette dated 21st December, 1974, which was made available to the public only on 16th January, 1975, are quashed.
During the pendency of the writ petition the petitioner sought interim order from this Court restraining the respondents from taking possession of the property from him. The petitioner was, vide this Court’s order dated 12th October, 1979, directed to pay respondent No. 2 a sum of Rs. 250 per month by the 7th of each month beginning with 7th November, 1979. The order further directed that in case the writ petition ultimately succeeded, the respondents were to refund all the money deposited under it. As the petition has succeeded, we direct that respondent No. 2 should refund all the amounts deposited by the petitioner under this Court’s order dated 12th October, 1979, forthwith.
The petitioner shall be entitled to his costs in this petition.
[Citation : 142 ITR 312]