9911796707
TMI Blog2024 (3) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner and against the respondent thereby quashing the order dated 4th February, 2005 bearing reference no. F.27(13)/72/LAB(R)/128 whereby the request for restoration of allotment of alternate plot was not acceded. C) to a writ of mandamus or any other appropriate writ or direction in favour of the petitioner and against the respondent thereby directing the respondent to forthwith restore the lease of the petitioner in respect of plot no. 11, block B, Malviya Nagar Extension Residential Scheme, New Delhi and to provide NOC to the petitioner to get the plans sanctioned and raise construction thereon. D) a writ of mandamus or any other appropriate writ or direction in favour of the petitioner and against the respondent thereby restraining the respondent from in any manner allotting, selling, transferring, assigning or disposing of the plot no. 11, block B, Malviya Nagar Extension Residential Scheme, New Delhi in favour of anyone. E) cost of the writ be also awarded in favour of the petitioner and against the respondents; F) pass any other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case in favour of the petitioner and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential Scheme, New Delhi (hereinafter referred to as "subject plot") was allotted to the petitioner on 25.07.1972 and the possession of the said plot was handed over to the petitioner on 05.12.1972. (viii) The petitioner stated that a lease deed dated 26.11.1973 was executed in favour of the petitioner. However, while doing so, the petitioner was required to furnish an affidavit on a non-judicial stamp paper declaring neither the petitioner nor any of his family members including his wife hold any plot of land or a residential house in urban area. (ix) It is the case of the petitioner that Urban Land & Ceiling Act came into force in the year 1976. Since the plot in question was admeasuring 800 sq. yds., unless the clearance was obtained from the Competent Authority under the Urban Land & Ceiling Act, 1976, no construction could have been done on such plot. (x) The petitioner stated that the respondent issued a notice dated 16.03.1979 to the petitioner as to why action should not be taken for cancellation of lease on account of non-erection of building within the time specified in the lease. (xi) It is the case of the petitioner that the he submitted a reply dated 30.03.1979 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent day Kailash Colony, was acquired by the Government in the large scale land acquisitions in the year 1964 vide notifications dated 04.02.1964 and 18.11.1964 under Sections 4 and 6 respectively of the Land Acquisition Act, 1894 (hereinafter referred to as the "LA Act"). 4. Learned Senior Counsel also submits that as per the Policy known as Large Scale Acquisition, Development and Disposal of Land in Delhi Scheme, 1961 (hereinafter referred to as "1961 Scheme"), the Central Government apart from the compensation thereon, provided for entitlement of such persons to an alternate plot of land, subject to certain conditions. He asserts that under the said acquisition proceedings, the entire land of the petitioner was acquired leaving no parcel of land available for the petitioner as a consequence thereto. This aspect alone entitled the petitioner for an alternate plot of land under the 1961 Scheme. According to learned Senior Counsel, the eligibility conditions prescribed in the 1961 Scheme apart from other conditions, stipulated that the applicant should not own a house/ residential plot/ plot of out of village abadi in his/ her own name or in the name of his wife/ husband or any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ony was allotted to and purchased by the petitioner on 03.06.1952 and was thrown into the hotchpotch of the HUF, which was created by petitioner along with his family members viz., his wife and two children on 20.02.1962. Thereafter, till date, the property is continuing to remain in the name of HUF. He submitted that the said property has also been mutated in the name of HUF on 26.10.1979 by the L&DO. According to the learned Senior Counsel, once a property owned by an individual has been thrown in the common hotchpotch of the HUF, it loses its individual characteristic of having been owned by the said individual and becomes a property belonging to the HUF, which is treated as a juridical person for the purpose of Income Tax under Section 2 Clause (31) of the Income Tax Act, 1961. As a consequence, he submits that such property cannot be stated to be the property belonging to or that the petitioner has any share in it to disentitle the petitioner from an alternate plot of land as per the 1961 Scheme. 9. Learned Senior Counsel also strenuously argued that the Defence Colony Property was put into the common hotchpotch of the HUF in the year 1962, whereas the lands at Village Yakoot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Panchayat Department at Chandigarh at Punjab, to submit that the contents of said affidavit would clarify that the petitioner had of his own volition placed his self acquired Defence Colony Property into the HUF created by him by virtue of the said affidavit. This document, according to learned Senior Counsel establishes beyond doubt that the petitioner had no property in his name after the Defence Colony Property was thrown into the common hotchpotch of the said HUF. 12. Learned Senior Counsel submits that interestingly the mutation of Defence Colony Property in the name of the HUF by the L&DO, was allowed on 26.10.1979 on the application filed by the HUF on 25.01.1979. Learned Senior Counsel read through the said document, to submit that all documents including certificates issued by the Income Tax Department and Income Tax assessment orders from the years 1964 to 1978 were filed, which were taken into consideration by the Department to carry out the mutation. He submits that now to question or doubt the affidavit filed by the petitioner is an exercise of arbitrariness and wholly unjustified. 13. Learned Senior Counsel submits that in the year 1981, the Parliament promulgated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e actual cancellation having been done by issuance of the letter dated 12/31.05.2003. He submits that there is no explanation, much-less any cogent reason as to why, despite issuing a show cause notice in the year 1982, the respondents cancelled the allotment of subject plot vide the impugned letter dated 12/31.05.2003. 15. Learned Senior Counsel also submitted that in the present case, the petitioner was allotted the alternate plot way back in the year 1972 and had already taken possession of the said plot, thus, there was no reason or occasion available with the respondent to issue a show cause notice dated 08.02.1982. The action was originally initiated not on the basis of alleged false affidavit but on the non-commencement of construction on the vacant plot of land in terms of the permanent lease dated 26.11.1973. The issue regarding alleged false affidavit, was raised by the respondent subsequently, as an afterthought. This being the factual position, the action of the respondent, to now cancel the lease deed and the allotment is driven by malafide and is as such, unsustainable in law. 16. Learned Senior Counsel has relied upon the following judgments of the Supreme Court an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admittedly, the petitioner did own a self acquired property, which was claimed to have been thrown in the common hotchpotch of the HUF. As against this, learned counsel submits that as on the date of the submission of the affidavit, no permission was sought by the petitioner to transfer the Defence Colony Property in the name of the HUF. Moreover, assuming that the petitioner had indeed transferred Defence Colony Property in to the HUF, no such details were admittedly mentioned in the said affidavit. 20. Learned counsel also submits that the condition that neither the petitioner nor his wife or dependent children should hold a property in Delhi, was itself violated since the members of the said HUF admittedly were the petitioner, his wife and his minor children at the relevant time and the petitioner was a shareholder of the said Defence Colony property to the extent of 81.25 sq. yards. Since the shareholding to the aforesaid extent is more than 67 sq. mtrs. even under the Rule 6 and 17 of the Nazul Rules, the petitioner was not entitled to allotment of alternate plot of land. 21. Another argument of learned counsel was that the purpose of creating HUF in the present case by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken the possession of acquired land. 3. The applicants should not own a house/residential plot/flat out of village abadi in his/her dependent relation's name including unmarried children, nor he should be a member of any Co-operative Housing Society. 4. For awards announced prior to 3.4.86, the land acquired is not less than 150 square yards and for awards announced post 3.4.86, the land must not be less than one bigha" (emphasis supplied) For the purposes of the present dispute, Clause (3) of the eligibility conditions would be germane. As per the said Clause, the applicant should not own a house/ residential plot/ flat out of Village abadi in his/ her own name or in the name of his wife/ husband or any of his/ her dependent relations including unmarried children, nor he should be member of any Co-operating Housing Society. 25. The controversy in the present case revolves around an admitted fact that the petitioner had on 03.06.1952 been allotted a plot in Defence Colony, New Delhi admeasuring 325 sq. yards on leasehold basis by the Ministry of Defence, Re-Settlement Section, Government of India as he was serving the Indian Air Force. The petitioner claimed that by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause (ii) of sub-Section 31 of Section 2 of the Income Tax Act, 1961. It thus, could be said to be an artificial juridical person. In Kapurchand Shrimal vs. Tax Recovery Officer, Hyderabad & Ors reported in (1969) 72 ITR 623, the Supreme Court held in para 5, as under :- 5. The scheme of the Income Tax Act, 1961, is to treat the assessee failing to pay the tax due within the period prescribed a defaulter. The Income Tax Officer may, where the assessee is found to be in default, issue a certificate for recovery and forward it to the Tax Recovery Officer specifying the amount of arrears due from the assessee. The amount due may be recovered by resort to any one or more of the four modes prescribed by Section 222 of the Act. If the defaulter fails to comply with a notice issued by the Tax Recovery Officer requiring the defaulter to pay the amount within fifteen days from the date of the service of the notice, proceedings for recovery may be taken against the assessee for recovery of the tax. But under the scheme of the Act and the Rules, the assessee alone may be treated in default. The Act and the Rules contemplate that the notice for payment of the tax arrears may be issued agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a Hindu undivided family as such has a legal entity distinct and separate from that of the members who constitute it. It may be that member of a Hindu undivided family may continue to have certain personal rights and may be able to own property in his own right and enter into a contract in his own right but a Hindu undivided family is not like a corporation or a limited concern and it cannot, therefore, be said that it has a legal entity quite distinct and separate from that of those who constitute it. A joint Hindu family is a unit to which no outsider can be admitted by agreement; it is a status which can only be acquired by birth or by adoption and the head or Karta of that family has certain rights and, while acting within those rights, he can bind every member of the family by his actions or deal with the joint family property which, though it does not belong to him and belongs to all, he has been given the power to manage or dispose of, in the interest of the family. It is difficult to equate or define the position of a joint Hindu family as understood under the Hindu Law with the modern conception of a company or a firm or association of individuals for trade or business p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assertion established in the present case." (emphasis supplied) By distilling the aforesaid observations of the Supreme Court, it is clear to this Court that the karta's right of selling/ disposing of or alienating an HUF property, even if a minor of the family has undivided interest, was upheld. A coparcener to such property has a right to challenge the act of the karta, if the alienation is not for legal necessity or for betterment of the estate, post alienation. The right and entitlement of a Karta over the HUF property is undeniable. By this proposition, the petitioner admittedly being the Karta cannot claim that he or his family members did not have any share in the Defence Colony Property (HUF). 31. In the case of Chhotey Lal & Ors vs. Jhandey Lal & Anr reported in 1972 SCC OnLine All 66, it was observed that the true position in law is that all the members of the HUF collectively own the property by holding an equivalent interest. The relevant paragraph is extracted hereunder:- "13. It is thus clear that the members of the joint family collectively own the coparcenary property. Each members has an interest in such property, though his interest becomes definite on par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplied) This aforesaid view was reiterated and approved by the Supreme Court in para 19 of Gaya Din (D) Thr LRs. & Ors vs. Hanuman Prasad (D) Thr LRs & Ors, reported as (2001) 1 SCC 501. The same is extracted hereunder:- "19. There can be no controversy about the contention that the succession of the tenancy rights, special rights created under the Act, can only be under the provisions of those Acts. On Manni's death his sons Bala Prasad, Sadhau and Sheetal Prasad became entitled to 1/3rd share each. But they continued as joint Hindu family of which their children also became members. It is a well-settled principle of Hindu law that the joint and undivided family is the normal condition of Hindu society but it is not a juristic person, as such it cannot hold any property independent of the members. On a perusal of the aforementioned judgment of the Full Bench of the Allahabad High Court, we approve the following proposition laid down by it: "[T]hat the members of the joint family collectively own the coparcenary property. Each member has an interest in such property, though his interest becomes definite on partition. Till then, it is an undivided interest. The view expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a partition; or (ii) where the property does not admit of a physical division, then such division as the property admits of, but a mere severance of status shall not be deemed to be a partition." The above definition of the partition does not recognise a partition even if it is effected by a decree of court unless there is a physical division of the property and if the property is not capable of being physically divided then there should be division of the property to the extent it is possible otherwise the severance of status will not amount to partition. In considering the factum of partition for the purposes of assessment it is not permissible to ignore the special meaning assigned to partition under the explanation, even if the partition is effected through a decree of the court. Ordinarily decree of a civil court in a partition suit is good evidence in proof of partition but under Section 171 a legal fiction has been introduced according to which a preliminary decree of partition is not enough, instead there should be actual physical division of the property pursuant to final decree, by metes and bounds. The legislature has assigned special meaning to partition under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvations and ratio laid down by the Supreme Court and the Allahabad High Court in the aforesaid judgments, it is clear that the HUF under the Income Tax Act, 1961 is a juridical person. However, the right or entitlement of the individual members constituting such HUF in respect of any property owned by it, has also been accepted. The role of karta in respect of such property is also clearly delineated. The actions taken by the karta in respect of such property is also amenable to be questioned by the coparceners post any such alienation on grounds available to such coparceners. All this analysis leads this Court to the firm conclusion that the property belonging to the HUF also belongs to each of the individual constituents in the proportionate share. In another words, every member of the HUF has some share in the said property. 34. In the aforesaid backdrop, applying the principles to the present case, it is clear that though the Defence Colony Property was placed in the common hotchpotch of the HUF in the year 1962, yet the shares of the petitioner as also his wife and two minor children, as they then were, in the said property cannot be undisputed. As to what were the proportio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaration and an affirmation that neither he nor his wife or any of the dependent relations including unmarried children did not own and will not own in full or in part on free hold or lease hold basis, any residential plot or house in the urban areas of Delhi, New Delhi or Delhi Cantonment on the date of the application. The said affidavit was sworn on 05.07.1972, while submitting his application for allotment of alternate plot. As on that date, not only the petitioner but also the family members, who individually constituted the HUF had a proportionate share in the Defence Colony Property. This fact was not disclosed. In the considered view of this Court, this was a concealment of material fact, which would have otherwise disentitled the petitioner from allotment of alternate plot of land as per the 1961 Scheme. 37. The argument that the petitioner had thrown the self-acquired Defence Colony Property in the common hotchpotch of the HUF in the year 1962 even before the compulsory acquisition of his lands in the year 1964, and as such, had not committed any concealment is concerned, the same is recorded only to be rejected. The said rejection is on the basis of the aforesaid reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding unmarried children did not own in full or in part, on free hold or lease hold basis, any residential plot or house in the urban areas of Delhi, New Delhi or Delhi Cantonment either on the date you applied for the allotment of an alternative developed plot or at any time thereafter till the execution of the lease-deed and you will be required to furnish an affidavit to his effect before execution of the lease-deed, meanwhile, you may please furnish an affidavit in the prescribed form within a fortnight of the receipt of this letter (form enclosed)." The allotment letter dated 20.06.1972, particularly condition 5 stipulated that the allotment of the alternate plot of land was subject to the petitioner furnishing an affidavit in terms thereof. It is clear that such allotment was not an open ended invitation / offer of allotment of the alternate plot but dependent upon the contents of the affidavit itself. Meaning thereby, the sanctity of the declaration and solemn affirmation was to be maintained at all times. In case an applicant furnished a false declaration or concealed material facts, it would be direct violation/contravention of mandatory condition of allotment. Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... children do not own a house or plot in Delhi. Thus, the only beneficiaries under the Scheme of allotment in lieu of a plot are those who have no house in Delhi or whose dependant family members etc. do not have a house. No other person can get an allotment. If we see the scheme this way, we will understand that it has a distinct beneficial quality regarding the public. It is not a gift. It is a necessity for persons who would otherwise not possibly acquire any homes. xxxxxxxxx The Scheme visualises one house per person. When there is a situation of no house or no plot when the existing plot of that person has been acquired by the State, then it is the duty of the State to given an alternative plot. That is the purpose and the end-all and be all of the Scheme." (emphasis supplied) The Full bench of this Court in Shiv Devi Vs. Lt. Governor, reported as AIR 1987 Del 46 referred to in the aforesaid judgment had dealt with the broad parameters of the 1961 Scheme to conclude that the said scheme visualizes one house per person. When there is a situation of no house or no plot available with the persons whose land has been acquired by the State then it would be the bounden duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
