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Sh. Satya Narain Petitioner v. Union Of India
Judgment Summary — Mahinder Narain, J.
Factual and Procedural Background
The petitioner, Satya Narain Prakash Punj, and respondents 4 to 20 purchased property No. 10, Prithvi Raj Road, New Delhi from Dr. Karni Singhji. The property is described as about 2.60 acres (12,584 sq. yards). The sale deed was dated 5-2-1973 and registered on 6-2-1973 (registered as No. 798 in Additional Book No.1, Vol. No. 3068, pages 1–97).
The petitioner challenged notice No. IAC/ACQ-2.C-6/73-74/3199 dated 10-8-1973 (Annexure D) by way of writ petition (No. 1174/73 filed on 4-9-1973), seeking quashing of that notice. The petition alleged that the impugned notice was not in accordance with the provisions of section 269-D of the Income Tax Act, 1961, as amended by the Taxation Laws (Amendment) Act, 1972.
On 6-9-1973 the Court passed an interim order (recorded in the opinion) directing a show-cause notice to respondents No.1 and 2, stay application notice to be listed, proceedings before the competent authority to be stayed meanwhile, and no fresh publication to be made in the meanwhile.
Legal Issues Presented
- Whether the initiation of acquisition proceedings under section 269-D of the Income Tax Act, 1961 can validly be effected by a notice that has not been published in the Official Gazette as required by subsection (1) of section 269-D.
- Whether the impugned notice dated 10-8-1973, which was not published in the Official Gazette prior to its communication to the petitioner and other affected persons, can serve as a valid basis for initiation of acquisition proceedings under section 269-D.
Arguments of the Parties
Petitioner's Arguments
- The impugned notice dated 10-8-1973 was not issued in accordance with section 269-D of the Income Tax Act, 1961, as amended (specifically, it was not published in the Official Gazette as required), and therefore cannot be the basis for initiating acquisition proceedings.
- The petitioner received the notice on 4-9-1973 and filed the writ petition on the same date.
Respondents' / Other Counsel Arguments
- It was not disputed by the respondents that the impugned notice had not been published in the Official Gazette prior to communication to the petitioner and respondents 4–20.
- Mr. Wazir Singh referred to the decision in Girnar Builders P. Ltd. v. I.A.C. (156 (1985) I.T.R. 403 (2))—in which a notice of acquisition had been published in the Gazette on 6-3-1982 and the petitioner there was intimated on 5-4-1982—to support a proposition regarding initiation by Gazette publication. (The court explains why that decision does not assist in the present case.)
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nazir Ahmed v. King Emperor, 1936 PC 253 at 257 (1) | When a statute requires a thing to be done in a particular manner, it must be done in that manner or not at all (the rule that where power is given to do a certain thing in a certain way, it must be done in that way). | The court applied this principle to conclude that the statutory requirement in section 269‑D (initiation by notice published in the Official Gazette) must be complied with; failure to publish the notice in the Gazette renders initiation invalid. |
| Girnar Builders P. Ltd. v. I.A.C 156 (1985) I.T.R 403 (2) | Example where initiation of proceedings was by publication in the Official Gazette and the petitioner was intimated afterwards (demonstrating correct statutory compliance). | The court observed that in Girnar Builders the notice had been published in the Gazette before intimation; therefore that decision does not help the respondents in the present case because the impugned notice here was not published in the Gazette at any time prior to communication. |
Court's Reasoning and Analysis
The court examined section 269‑D (as amended) which expressly provides that "The competent authority shall initiate proceedings for the acquisition... by notice to that effect published in the Official Gazette." The statute also contemplates service of copies on transferor/transferee and other persons, but the court emphasized that the initiation of the proceedings is effected only by the Gazette publication required by subsection (1).
The court noted the second proviso to section 269‑D and reasoned that a copy of the notice served on the transferor/transferee is a notice under subsection (1), reinforcing that publication in the Official Gazette is the essential mode of initiation.
It was undisputed that the notice dated 10‑8‑1973 (the impugned notice) was not published in the Official Gazette at any time prior to its communication to the petitioner and other affected parties. Applying the settled principle from Nazir Ahmed v. King Emperor that where a statute prescribes a mode for doing an act it must be followed, the court held that initiation of acquisition proceedings could not be validly effected by a notice that had not been published in the Official Gazette.
The court considered the cited case Girnar Builders P. Ltd. v. I.A.C. and observed that in that case the notice had indeed been published in the Gazette (on 6‑3‑1982) and the petitioner was intimated thereafter (on 5‑4‑1982). Because the statutory requirement had been complied with in Girnar Builders, that judgment did not assist the respondents where, in the instant matter, there was no Gazette publication prior to intimation.
On this statutory and precedential basis, the court concluded the impugned notice did not comply with section 269‑D and thus could not validly initiate proceedings for acquisition.
Holding and Implications
Holding: The impugned notice dated 10-8-1973 is quashed. The petition is allowed. There shall be no order as to costs.
Implications: The direct consequence is that no acquisition proceedings can be initiated on the basis of the impugned notice because it was not published in the Official Gazette as required by section 269‑D. The opinion does not purport to lay down any broader new legal principle beyond the application of the statutory requirement and established authority (Nazir Ahmed). The decision therefore resolves the dispute between the parties by invalidating the particular notice; the opinion does not announce any broader change in law.
Mahinder Narain, J.:— By this writ petition the petitioner Satya Narain Prakash Punj seeks quashing of notice No. IAC/ACQ-2.C-6/73-74/3199, dated 10-8-1973, Annexure D to the writ petition.
2. The facts giving rise to this writ petition are that the petitioner and respondents 4 to 20 had purchased property bearing No. 10, Prithvi Raj Road, New Delhi from Dr. Karni Singhji. The property comprises of land admeasuring 2.60 acres or 12,584 Sq. yards (or thereabout). The sale deed dated 5-2-1973 with respect to the transaction was registered as No. 798 in Additional Book No. 1, Vol. No. 3068 on pages 1 to 97 on 6-2-1973.
3. The writ petition came for admission on 6-9-1973 on which date the following order was passed by this Court: —
“6.9.73 Mr. T.N Sethi with Mr. S. K: Dholakia and Mr. Y.K Sabharwal.
Show cause notice to respondents No. 1 and 2. Notice of stay application for 8-10-73. Proceeding before the competent authority to be stayed in the meanwhile. Notice of stay application dated 6-9-73 also for the same date. No fresh publication to be made in the meanwhile. Notices dasti.
Sd/- P.N Khanna J.
Sd/- M.R.A Ansari J.”
4. The impugned notice was dated 10-8-1973. It is stated in the petition that it was posted on 28-8-1973. Main contention is that the impugned notice, not being in accordance with the provisions of section 269-D of the Income Tax Act, 1961, as amended by the Taxation Laws Amendment Act. 1972 — (Act No. 45 of 1972), the same cannot be the basis of initiation of the proceedings under Section 269-D, for acquisition of No. 10, Prithvi Raj Road. It is also stated in the writ petition that the notice was received by the petitioner on 4-9-1973.
The writ petition No. 1174/73 was also filed on 4-9-1973.
5. Section 269-D of the Income Tax Act, as amended reads as under: —
“269-D. (1) The competent authority shall initiate proceedings for the acquisition, under this Chapter, of any immovable property referred to in Section 269-C 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), (or, as the case may be. Section 269 AB):
Provided further that: —
(a) in a case where it is determined under sub-section (4) of section 269 B by the competent authority who has initiated proceedings for the acquisition of any immovable property under this Chapter or by the Board that such competent authority has no jurisdiction to initiate such proceedings, the competent authority having jurisdiction may initiate such proceedings within: —
(i) the period of nine months specified in the foregoing proviso, or
(ii) a period of thirty days from the date of such determination, whichever period expires later;
(b) in a case where proceedings for the acquisition of any immovable property under this chapter could not be initiated during any period of time by reason of any injunction or order of any court prohibiting the initiation of such proceedings or preventing the examination of documents or ocher materials required to be examined for the purpose of determining whether such proceedings should be initiated, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn shall be excluded in computing the period during which such proceedings may be initiated under this sub-section.
(2) The competent authority shall: —
(a) cause a notice under sub-section (1) in respect of any immovable property to be served on the transferor, the transferee, the person in occupation of the property, if the transferee is not in occupation thereof, and on every person whom the competent authority knows to be interested in the property;
(b) cause such a notice to be published: —
(i) in his office by affixing a copy thereof to a conspicuous place;
(ii) in the locality in which the immovable property to which it relates is situate, by affixing a copy thereof to a conspicuous part of the property and also by making known in such manner as may be prescribed the substance of such notice at convenient places in the said locality.
Explanation: The provisions of the Explanation to sub-section (2) of section 269 B shall shall apply for the purposes of this sub-section as they apply for the purposes of that sub-section.
6. It is clear from the second proviso of section 269-D that a copy of the notice which is to be served on the transferor/transferee is a notice under sub-section (1), of section 269-D. It is thus clear that the proceedings for acquisition can be initiated only by notice that is published in official gazette. The proceedings cannot be initiated by a notice which has not been published in the official gazette.
7. It is not disputed by the respondents that notice under action 269-D, in any case, the notice dated 10-8-1973, aforesaid, has not been published in the official gazette. The provisions of section 269-D require that initiation of the proceedings shall be by publication in the official gazette.
8. It is well settled principle of law that when a statute requires a thing to be done in a particular manner, it must be done in that manner or not at all. (Nazir Ahmed v. King Emperor, 1936 PC 253 at 257) (1). The Privy Council in the judgment said that “where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all”.
9. Section 269-D gives the power to competent authority to initiate proceedings for acquisition of any immovable properly by notice to that effect published in the official gazette. It is the notice published in the official gazette which enables initiation of proceeding under section 269-D.
10. The notice dated 10-8-1973, impugned in this writ petition is inter alia in these terms.
“Now, therefore, in pursuance of Section 269-D, I hereby initiate proceedings for the acquisition of the aforesaid property by issue of this notice under sub-section (1) of Section 269-D of the Income Tax Act, 1961 (43 of 1961) to the following persons, namely, . . .”
11. It is not disputed that this notice has not been published in the official gazette at any point or time prior to the communication of it to the petitioner or respondents 4 to 20.
12. Mr. Wazir Singh has referred to Girnar Builders P. Ltd. v. I.A.C 156 (1985) I.T.R 403 (2). In that case a notice of acquisition was in fact published in the Gazette on 6-3-1982 and the competent authority had intimated the petitioner about it on 5-4-1982. The initiation of proceedings in that case was by publication in the official gazette. In this view of the matter this judgment does not help Mr. Wazir Singh, as in instant case the requirements of the statutes have not been complied with.
13. In this view of the matter, as the impugned notice does not comply with the requirements of Section 269-D of the Income Tax Act, no proceedings can be initiated on that basis as the notice had not been published in the official gazette Prior to the intimation of alleged initiation of proceedings sent to the petitioner. The same is, therefore, liable to be quashed and is hereby quashed.
There shall be no order as to costs.
Petition allowed.
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