Madras High Court
R. Shanmuganathan And Ors. vs Appropriate Authority (No. 1) on 26 November, 1998
Equivalent citations: [2000]242ITR648(MAD)
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu
JUDGMENT R. Jayasimha Babu, J.
1. The petitioners are aggrieved by the compulsory purchase of the property belonging to them as co-owners. The petitioners are parties to a decree in which the shares possessed by them in that property were declared. The extent of shares had been set out by them in Form No. 37-I in column No. 4 which requires disclosure of the names of persons interested in that property and in the consideration, specifying the shares and the basis thereof.
2. The shares of two of the petitioners Kalyankumar and Senthilkumar, were 1/33 each of the value of Rs. 1,21,212. The share of the petitioner Loganayaki was 4/33 and was of the value of Rs. 4,84,850. The share of the petitioner Parvathavardhini was 3/33 of the value of Rs. 3,63,636. The share of Shanmuganathan was 11/33 and was of the value of Rs. 13,33,333. The share of the petitioner Kanakasabapathy was 13/33 and was of the value of Rs. 15,75,707.
3. The shares of these parties had been declared by the order of the Subordinate Court, Coimbatore, in a partition suit to which the petitioners were parties. Thus, the agreement entered into by all of them was in effect, an agreement entered into by each one of them with the proposed transferee for the sale of their respective shares in the property. For the purpose of Chapter XX-C it is not the aggregate of all the shares that is required to be taken into account. Having regard to these circumstances, the jurisdiction under Chapter XX-C could be invoked by the authority only in respect of those shares the value of which was in excess of Rs. 10,00,000.
4. The authority, however, proceeded to treat all the shares together as one undivided whole while directing acquisition. However, while making payment, it sought to treat not only the shares of persons whose specific shares have been declared as separate but also treated the shares of the minor children of Kanakasabapathy and Shanmuganathan as separate and separate cheques were issued. The amount of the cheque to be tendered to each one of the parties on the very last date for payment, namely February 26, 1993, was less than Rs. 10,00,000 in each case.
5. Learned counsel for the petitioners submitted that the order of the authority is patently illegal in so far as it purports to acquire the shares of Kalyankumar, Loganayaki and Senthilkumar and also Parvathavardhini, the value of whose shares is less than Rs. 10,00,000. The submission made by learned counsel for the petitioners merits acceptance, as the authority has no jurisdiction in respect of the shares belonging to them and transferred by them, as the value of their shares was less than Rs. 10,00,000. The fact that there was no partition by metes and bounds prior to that sale is not of any consequence, as by that time, the respective shares in the property had been declared and defined as that of co-owners. The order of the authority in so far as they are concerned must be set aside and is set aside.
6. So far as the shares of Shanmuganathan and Kanagasabapathy are concerned, it is the submission of learned counsel for the petitioner that tendering of the amounts in respect of those shares, even as admitted in respect of other shares, was not made in accordance with Section 269UG of the Income-tax Act. The amount tendered to them by cheque on the 26th was not the whole of the amount required to be paid to them and consequently they refused to receive those cheques. It is the case of the Revenue that though such refusal was recorded by the petitioners at Coimbatore by 6 pm. on the 26th, on the same day, the Chief Commissioner arranged to have issued a cheque on the evening of the 26th at Madras by the Accounts Officer of the Field Pay Unit and that cheque was delivered to the appropriate authority on the same day and on the following day, i.e., on 27th, the cheque was deposited in the Reserve Bank of India. That cheque was for the discounted consideration for the entire property and had been made out in favour of the appropriate authority. An affidavit of the member of the appropriate authority setting out these facts has been filed and having perused the same I find no reason to disbelieve any of its contents.
7. The property in question is a residential property and the property still remains with the Revenue, in view of the stay order that was issued by this court, after this writ petition was admitted. Even before the writ petition was filed, the authority had taken possession of the property and shortly before the petition was filed had paid to each of them their amounts in proportion to their shares in the property. The petitioners received the monies only by reason of the fact that the possession had been obtained by the authority and not because they had agreed to or accepted compulsory purchase. Even if it can be held that the petitioners had willingly received the amounts, having regard to the fact that the shares of such of the petitioners the value of which shares was less than Rs. 10,00,000, their shares could not have been compulsorily acquired by the authority under Chapter XX-C.
8. The payment of money to them and the acceptance thereof cannot be held against those petitioners, as such, payment was only a consequence of the order passed by the authority. If the order is found to be one without jurisdiction, that order can be set aside at the instance of those petitioners provided they had approached the court in proper time. This writ petition was filed within a short time after possession was taken. Those petitioners by their act of receiving the money could not and did not confer jurisdiction on the authority to acquire their shares in the manner sought to be done under the impugned order.
9. The shares of Shanmuganathan and Kanakasabapathy even if regarded as having been validly acquired, it can only result in the purchase of their undivided share in the property and the authority still has to sue for partition by metes and bounds of the property. The property has an area of 15,572 sq. ft. together with a residential building thereon. What prompted the authority to purchase the property compulsorily was the assumption made by it that it would be in a position to acquire the whole of the property and not merely a part. That is evident from the manner in which it has proceeded to acquire the whole of the property. It is unlikely that the authority would have proceeded to consider compulsory purchase of an undivided share of a residential building only for the purpose of getting involved in long drawn litigation in having to file a suit for partition and after inevitable delay in the court in respect of such litigation, proceeded to execute the decree for partition.
10. The power of compulsory purchase was not meant to be utilised for involving the authority or the Central Government in such litigation. The impugned order, having regard to these special circumstances, must be and is set aside as a whole. Learned counsel for the petitioners were asked as to whether the petitioners were willing to refund the money received from the Revenue. Learned counsel for the petitioners expressed readiness on the part of the petitioners to do so. The petitioners shall refund to the respondent authority the entire amount received by them together with interest at the rate of 15 per cent. from the date on which they received the money till the date they refund the money to the respondent authority. After they repay the monies with interest, the authority shall hand over possession of the residence in the same manner as it was subject to reasonable wear and tear between the date of taking possession and the date of re-delivery to the petitioners. Learned counsel for the petitioners prayed for three months time within which to make the payment. Such time is granted. The petition is allowed. It is made clear that besides the contentions dealt with in this order, learned counsel for the petitioners sought to raise other contentions which I have considered unnecessary to advert to in this order, in view of my finding that the petitioners are entitled to the relief on the grounds set out in the above paragraphs. No costs.