TaxTMI 
TaxTMI 
2024 (3) TMI 1278
X X X X Extracts X X X X
X X X X Extracts X X X X
....ri or any other appropriate writ or direction in favour of the petitioner 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he petitioner conveyed his acceptance. (vii) It is the case of the petitioner that a plot No. 11, Block B in Malviya Nagar Extension Residential 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 lea....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... submits that it is not disputed that the land of the petitioner ad-measuring 12 bigha 6 biswa recorded in Khewat Khatoni 20/47, khasra Nos. 352 in Jamabandi of the year 1950-51 in village Yakootpur in Delhi near the present 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 pre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the show cause notice dated 08.02.1982. It is this cancellation and the rejection of the request of restoration that is the subject matter of the present petition. 8. Learned Senior Counsel submits that the plot at Defence Colony 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....terial fact nor is there any misrepresentation in the affidavit. 11. Learned Senior Counsel next referred to an affidavit claimed to have been signed on 20.02.1962 and attested on 15.08.1965 by the Assistant Director Training, Development and 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as to be quashed and struck down by this Court. 14. The other leg of the argument of the learned Senior Counsel was with respect to the insurmountable delay on the part of the respondent to issue show cause notice, as late as in the year 1982 and the 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 be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urt to the written submission filed on behalf of the respondent particularly to para 5, to submit that the defence taken by the petitioner regarding not owning a residential plot either in his name or in the name of his wife or dependent children, is not available for the reason that 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 sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... eligibility criteria is read as under:- "1. The persons who are RECORDED OWNER prior to issue of notification under Section 4 of the Land Acquisition Act. 2. The persons whose lands have been acquired must have received the compensation as rightful owners from the LAC/Court and the Govt. has 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 controve....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e affect of placing property in the common hotchpotch of HUF when considered in the light of the eligibility conditions contained in the 1961 Scheme. 29. There is no literal definition provided in the Hindu Law to the word "HUF" nor is there any provision describing the said word. However, the word "person" includes HUF as stipulated in Clause (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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stituting it, in the context of arrest and detention and other proceedings for the purpose of Section 222 of the Income Tax Act, 1961. In Ram Kumar Ram Niwas Nanpara vs. Commissioner of Income Tax & Ajmer Merwara, Lucknow, reported as (1952) 22 ITR 474, the Allahabad High Court held in para 14 as under :- 14. The next point for consideration is whether 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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the HUF property. Thus, the father of the petitioner herein, as the Karta of the HUF, was entitled to mortgage the HUF property. The son(s) or other member(s) of the HUF need not be consenting parties to the mortgage. Post alienation, a coparcener may challenge the act of a Karta, if the alienation is not for legal necessity or for betterment of the estate, which is not the 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt family or coparcenary property, the true position in law is that the members collectively own it, each having an interest. One of the distinctive features of such "coparcenary property" is in its passing on death of a member. According to Hindu law, the interest of a dead member passes by survivorship to other existing members of the family. It does not devolve on his personal heirs." (emphasis supplied) 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tted to them. What would amount to partition for the purposes of the section is contained in the Explanation to the section which defines partition as under: "Explanation.- In this section,- (a) 'partition' means- (i) where the property admits of a physical division, a physical division of the property, but a physical division of the income without a physical division of the property producing the income shall not be deemed to 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 expl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....annot terminate the status of HUF unless it is shown that the joint family property was physically divided in accordance with the agreement or a decree of the Court. In other words, the property of the HUF may be disrupted by agreement of partition by private settlement; by arbitration; or through Court's decree. In fact, the family was also at liberty to share the income from the property according to their respective share. 33. From the overall conspectus of the observations 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 con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e age of majority, my date of birth being 9-6-1919 (Nineth day of June Nineteen hundred and Nineteen. sd/- Deponent I, Pritam Singh Bhinder Wing Commander aforesaid solemnly affirm and say that the facts mentioned above are true to my knowledge and nothing is false therein and that no material fact has been concealed. sd/- Deponent Place: New Delhi. Dated:- 5-7-1972." From a perusal of the contents of the aforesaid affidavit, it is clear that the petitioner has given solemn declaration 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f any previous cause or right of re-entry upon the Residential plot hereby demised and the buildings thereon, to re-entre upon and take possession of the Residential Plot and the buildings and fixtures thereon, and there-upon this Lease and every thing herein contained shall cease and determine and the Lessee shall not be entitled to any compensation whatsoever nor to the return of any premium paid by him." Condition 5 of allotment letter: "5. The allotment is subject to the conditions that you or your wife/husband or any of your dependent relations including 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 condit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e effect of an affidavit as required under the Policy and the context in which the government had brought the 1961 Scheme into force. More particularly, the observations in para 12 and 13 would be pertinent and are extracted hereunder:- "13. In a Full Bench judgment of this Court reported as AIR 1987 Delhi 46 Shiv Devi v. Lt. Governor, this provision had been interpreted and the relevant extract of the aforenoted order reads herein as under:- "This shows that a plot can only be allotted to a person whose wife/husband or any of his/her dependent relations, including unmarried 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 th....