TMI Blog1979 (11) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... appen to be partners of M/s. Reshamwala Market in which the shops were situated. By a deed of conveyance dated November 26, 1973, they conveyed the right, title and interest in the shops together with the land to one Smt. Shilaben Kanchanlal Rana of Surat for a consideration of Rs. 1,05,500. Since in the opinion of the competent authority the apparent consideration stated in the deed of conveyance was less than the fair market value, he initiated the acquisition proceedings by a notice on May 18, 1974, which was published in the Central Government Gazette on August 31, 1974. Individual notices on the transferor and transferee, as required under s. 269D(2)(a) of the I.T. Act, 1961 (hereinafter referred to as " the Act"), were served on June 1, 1974, while it was served on the occupier of the said shops (A branch of Dena Bank at Surat) on December 13, 1974. The locality notice, as required under s. 269D(2)(b) of the Act, was published by affixation as well as by beat of " theli " on December 13, 1974. The transferee filed objections before the Competent Authority, who on consideration of all the materials before him reached the conclusion that the apparent consideration as stated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority started initiation of acquisition proceedings by a public notice of May 18, 1974. The individual notices, however, to the transferor and transferee preceded the public notice. However, individual notice to the occupier, viz., the branch of Dena Bank at Surat, and the locality notice were served and published respectively on December 13, 1974, i.e., 3 1/2 months from the date of the public notice. The Tribunal, therefore, was of the view that since the service of the individual notices on the occupier as well as the publication of the locality notice were admittedly beyond the period of limitation of 45 days prescribed under s. 269E of the Act for the purpose of filing objections by the interested and/or affected persons, the condition precedent for initiation of acquisition proceedings was not satisfied, for the obvious reason that the late publication of the aforesaid two notices would inevitably result in depriving the interested or affected persons of the right to file objections within the prescribed period of limitation. This view of the Tribunal is now no more good in view of the decision of this very Division Bench in CIT v. Smt. Vimlaben B. Patel [1979] 118 ITR 134 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een brought to the notice of the interested or affected persons and for that matter the Govt. Gazette should be made immediately available to them. The learned Govt. pleader also pointed out that the Division Bench of the Allahabad High Court which decided the case of U. S. Awasthi [1977] 107 ITR 796 has conceded this position that it is the publication of the public notice in the Official Gazette within a period of nine months from the end of the month in which the sale deed was registered which confers jurisdiction upon the competent authority to initiate the proceedings. The ultimate view of the Division Bench that if the Gazette in which the notice for initiation of acquisition proceedings is published, is not available to the interested or affected persons it would result in loss of jurisdiction and no acquisition proceedings can be validly initiated, was contrary to the view of this Division Bench in Vimlaben's case [1979] 118 ITR 134 (Guj). In any case, there is no requirement of law that the Gazette in which the notice in question is published, should be made known to or, for that matter, should be made available to the interested or affected persons. In support of his cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, it has been urged on behalf of the Commissioner, the appellant before us, that the Tribunal has read more than what is prescribed in law. It is no doubt true that the notice for initiation of acquisition proceedings is to be published for the information of the persons interested or affected but if the mode of publication is prescribed by the statute and if that mode has been adopted, it cannot be successfully urged, much less can be sustained, that there is no valid publication. Before we decide this short controversy, we may read the relevant provision of the section by which the acquisition proceedings can be initiated, which is as follows: " 269D(1). The Competent Authority shall initiate proceedings for the acquisition, under this Chapter, of any immovable property referred to in section 269C by notice to that effect published in the Official Gazette: Provided that no such proceedings shall be initiated in respect of any immovable property after the expiration of a period of nine 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 (16 of 1908): ........ " It can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them he was carrying gold slabs weighing 34 kilos approximately and it was found that he was a passenger bound for Manila. He was, therefore, prosecuted for the customs offence. In that context, a contention was urged on behalf of respondent, George, in that case, relying on the judgment of Bailhache J. in Johnson v. Sargant Sons [1918] 1 KB 101 (KB), that till this notification published on November 24, 1962, by the Reserve Bank of India was brought to the actual knowledge of the respondent, George, it could not be said to have been legally published and, therefore, he could not be held liable for breach thereof. The passage on which reliance was placed on behalf of the respondent, George, from the judgment of Bailhache J. was in the following terms : " ' I have no reason to suppose that any one in the trade knew about it on May 16...... While I agree that the rule is that a statute takes effect on the earliest moment of the day on which it is passed or on which it is declared to come into operation, there is about statutes a publicity even before they come into operation which is absent in the case of many orders such as that with which we are now dealing; indeed, if certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovember, and the ignorance of it by the respondent who is a foreigner is, in our opinion, wholly irrelevant ...... Where there is a statutory requirement as to the mode or form of publication and they are such that, in the circumstances, the court holds to be mandatory, a failure to comply with those requirements might result in there being no effective order the contravention of which could be the subject of prosecution but where there is no statutory requirement we conceive the rule to be that it is necessary that it should be published in the usual form, i.e., by publication within the country in such media as generally adopted, to notify to all the persons concerned the making of rules. In most of the Indian statutes, including the Act now under consideration, there is provision for the rules made being published in the Official Gazette. It, therefore, stands to reason that publication in the Official Gazette, viz., the Gazette of India, is the ordinary method of bringing a rule or subordinate legislation to the notice of the persons concerned. As we have stated earlier, the notification by the Reserve Bank was published in the Gazette of India on November 24, 1962, and hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Gazette of September 28, 1974, in which the notice for initiation of the acquisition proceedings was published, was not despatched from the Govt. Press at Faridabad till several days after 28th September, 1974, and was received in the office of the Controller of Publications, Civil Lines, Delhi, on October 4, 1974, and that it was available for sale at the counter to the public only on 14th October, 1974. Now, such facts, in the first instance, have not been established at all before the Tribunal. The Tribunal presumably proceeded that because the Gazette in which the notice for the initiation of the acquisition proceedings was published on August 31, 1974, it could not have been, in the very nature of things, available to the persons concerned for at least a couple of days and, therefore, the initiation of the acquisition proceedings was beyond the period of limitation and, therefore, bad in law and void. Apart from this factual infirmity, we are of the opinion that the entire contention urged on behalf of the transferor and the transferee that till the Gazette in which the notice is said to have been published is made available and known to the persons concerned, there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such property under s. 269D(1) of the Act. These are two termini provided for the purpose of deciding whether additional compensation should be made for improvements made during this period. What bearing it can have on the question as to whether there is valid initiation of the aquisition proceedings or not, is not clear to us from the arguments of the learned advocate for the transferor and transferee who are respondents before us. He has tried to impress upon us that if a notice for initiation of acquisition proceedings has been published in a gazette, without that gazette being made available or known to the person concerned, it may happen in a given case that a person, in ignorance of the proposed acquisition, may carry out some improvements for which he would not be entitled to additional compensation, since the improvements might have been made after the publication of the notice for the proposed acquisition in the Official Gazette. We have not been able to comprehend as to what is the real submission in this behalf. If the legislature has provided for additional compensation for the improvements made during a particular period, how can that provision have a bearing on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a statute which is an all India statute. This very Bench also in CIT v. Garden Silk Wvg. Factory [1975] 101 ITR 658 adopted a similar practice. At page 667 this Bench referred to a similar contention and has held as under : " Mr. Shah, therefore, urged that there is no ruling on this point except the one of the Bombay High Court in Ballarpur Collieries Company's case [1973] 92 ITR 219 and, therefore, on the principle of the comity of judicial decisions, though we may not be completely agreeing with the view taken by the Bombay High Court, we must accept it in the interest of the assessees of these two adjoining States, namely, Maharashtra and Gujarat, which are separated by a common border only, as otherwise it would work to the prejudice of the assessees in these States. We would have been inclined to accept the submission of Mr. Shah provided there are no other views in the field." We do not think that in view of the legal position clearly established by the Supreme Court, the publication of a legislation or delegated legislation or any order thereunder should be actually brought to the notice of the person affected before he can be held liable under it. We do not think, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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