C.B. Gautam Vs. Uoi and ors. - Court Judgment

Excerpt:
- indian penal code, 1890section 376 (2)(g) explanation: [dr.arijit pasayat & asok kumar ganguly,jj] gang rape applicability of deeming fiction under held, deeming fiction cannot be applied to rope in woman. rape by woman is conceptionally inconceivable. she cannot even have such intention she is liable to be acquitted. . - 14 of the constitution must therefore, fail. 269ud--meaning--reasons to be incorporated in the order as well as communicated to the affected parties.order under s. 269ud--effect on monthly tenancies.held :monthly tenants are also lessees in law although their right is a very limited one. if the agreement to sell does not provide for vacant possession or the determination of monthly tenancies such tenancies would continue even on an order of purchase by the central government being made by the appropriate authority concerned under s. 269ud(1); but such tenants would lose the protection given to tenants under the rent protection laws because such laws are not made applicable to properties owned by the central government with the result that their tenancies could be terminated by the central government. the loss of the protection of the rent control acts cannot be regarded as an interest for which any compensation is liable to be paid.application :also to current assessment years.income tax act 1961 s.269ud constitutional validity--chapter xx-a, it act--provisions therein regarding pre-emptive purchase--not violative of art. 14, constitution.held :before resorting to the provisions of chapter xx-a, ethe competent authority must have reason to believe that the fair market value of the property of more than rs. 25,000 exceeds the apparent consideration stated in the instrument of transfer and the parties have agreed to make the untrue statement with the ulterior motive of tax evasion or concealment of income. the satisfaction of the competent authority for initiation of the acquisition proceedings is a subjective satisfaction of the objective facts set out above. the reason for formation of belief must have a rational and direct connection with the material coming to the notice of the competent authority, though the question of sufficiency or adequacy of the material is not open to judicial review. it cannot, therefore, be said that the provisions of said chapter confer an unfettered discretion on the appropriate authorities to order the purchase by the central government of immovable properties agreed to be sold and hence they cannot be regarded as conferring arbitrary or unfettered discretion on the appropriate authorities. the challenge to the provisions of the said chapter as being violative of art. 14 of the constitution must therefore, fail.application :also to current assessment years.constitution of india art 14 constitutional validity--`free from all encumbrances' in s. 269ue--having no nexus with the legislative object, violative of art. 14, constitution liable to be struck down.held :the expression `free from all encumbrances' in sub-s. (1) of s. 269ue is struck down and sub-s. (1) of s. 269ue must be read without the expression `free from all encumbrances' with the result the property in question would vest in the central government subject to such encumbrances and leasehold interest as are subsisting thereon except for such of them as are agreed to be discharged by the vendor before the sale is completed. if under the relevant agreement to sell the property is agreed to be sold free of all encumbrances or certain encumbrances it would vest in the central government free of such encumbrances. similarly, sub-s. (2) of s. 269ue will be read down so that if the holder of an encumbrance or a lessee is in possession of the property and under the agreement to sell the property it is not provided that the sale would be free of such encumbrances or leasehold interest, the encumbrance holder or the lessee who is in possession will not be obliged to deliver the possession of the property to the appropriate authority or any person authorised by it and the provisions of sub-s. (3) also would not apply to such persons. if the provisions of s. 269ue are read down in the manner indicated above then, the provisions of sub-s. (6) of that section do not present any difficulty because the vesting in the central government would be subject to such encumbrances and leasehold rights.application :also to current assessment years.income tax act 1961 s.269ue compulsory purchase of immovable property by central government--opportunity of being heard--to be given to the intending puchaser and seller.held :the requirement of the opportunity to show cause being given before an order for purchase by the central government is made by an appropriate authority under s. 269ud must be read into the provisions of chapter xx_c. there is nothing in the language of s. 269ud or any other provision in the said chapter which would negate such an opportunity being given. moreover, if such a requirement were not read into the provisions of the said chapter, they would be seriously open to challenge on the ground of violations of art. 14 on the ground of non-compliance with principles of natural justice. the provision that when an order for purchase is made under s. 269ud reasons must be recorded in writing is no substitute for a provision requiring a reasonable opportunity of being heard before such an order is made. application :also to current assessment years.income tax act 1961 s.269ud statute--interpretation--doctrine of reading down--not attracted when it negatives the express terms of the statute.held :in order to save a statute or a part thereof from being struck down it can be suitably read down. but such reading down is not permissible where it is negatived by the express language of the statute. reading down is not permissible in such a manner as would fly in the face of the express terms of the statutory provisions. application :also to current assessment years. words and phrases--`for reasons to be recorded in writing'--in s. 269ud--meaning--reasons to be incorporated in the order as well as communicated to the affected parties.held :sec. 269ud(1), in express terminology, provides that the appropriate authority may make an order for the purchase of the property `for reasons to be recorded in writing'. sec. 269ud(2) casts an obligation on the authority that it 'shall cause a copy of its order under sub-s. (1) in respect of any immovable property to be served on the transferor'. it is, therefore, inconceivable that the order which is required to be served by the appropriate authority under sub-s. (2) would be the one which does not contain the reasons for the passing of the order or is not accompanied by the reasons recorded in writing. it may be permissible to record reasons separately but the order would be an incomplete order unless either the reasons are incorporated therein or are served separately along with the order on the affected party. reasons for the order must be communicated to the affected party.application :also to current assessment years.income tax act 1961 s.269ud words and phrases--`persons interested'--in s. 269ua(2)(e)--include holders of encumbrances and leasehold interests.held :where an agreement for sale provides that the property is intended to be sold free of all encumbrances or leasehold rights, the order for purchase of such property under s. 269ud(1) would result in the said property vesting in the central government free of such encumbrances or leasehold interest. in such a case the holders of the encumbrances and leasehold interest would have to obtain their compensation from the amount awarded as the purchase price to the owner of the property. this appears to be a fair construction because in such a case the apparent consideration can be expected to include the value of such leasehold interests or encumbrances. the holders of the encumbrances and leasehold interests which would be destroyed in this manner can be said to be persons interested as contemplated in cl. (e) of sub-s. (2) of s. 269ua. application :also to current assessment years.income tax act 1961 s.269ua

Judgment:
ORDER

UNDER S. 269UD--Effect on monthly tenancies.

HELD :

Monthly tenants are also lessees in law although their right is a very limited one. If the agreement to sell does not provide for vacant possession or the determination of monthly tenancies such tenancies would continue even on an order of purchase by the Central Government being made by the appropriate authority concerned under s. 269UD(1); but such tenants would lose the protection given to tenants under the rent protection laws because such laws are not made applicable to properties owned by the Central Government with the result that their tenancies could be terminated by the Central Government. The loss of the protection of the Rent Control Acts cannot be regarded as an interest for which any compensation is liable to be paid.

APPLICATION :

Also to current assessment years.

Income Tax Act 1961 s.269UD

Constitutional validity--CHAPTER XX-A, IT ACT--Provisions therein regarding pre-emptive purchase--Not violative of art. 14, Constitution.

HELD :

Before resorting to the provisions of Chapter XX-A, Ethe competent authority must have reason to believe that the fair market value of the property of more than Rs. 25,000 exceeds the apparent consideration stated in the instrument of transfer and the parties have agreed to make the untrue statement with the ulterior motive of tax evasion or concealment of income. The satisfaction of the competent authority for initiation of the acquisition proceedings is a subjective satisfaction of the objective facts set out above. The reason for formation of belief must have a rational and direct connection with the material coming to the notice of the competent authority, though the question of sufficiency or adequacy of the material is not open to judicial review. It cannot, therefore, be said that the provisions of said Chapter confer an unfettered discretion on the appropriate authorities to order the purchase by the Central Government of immovable properties agreed to be sold and hence they cannot be regarded as conferring arbitrary or unfettered discretion on the appropriate authorities. The challenge to the provisions of the said Chapter as being violative of art. 14 of the Constitution must therefore, fail.

APPLICATION :

Also to current assessment years.

Constitution of India art 14

Constitutional validity--`FREE FROM ALL ENCUMBRANCES' IN S. 269UE--Having no nexus with the legislative object, violative of art. 14, Constitution liable to be struck down.

HELD :

The expression `free from all encumbrances' in sub-s. (1) of s. 269UE is struck down and sub-s. (1) of s. 269UE must be read without the expression `free from all encumbrances' with the result the property in question would vest in the Central Government subject to such encumbrances and leasehold interest as are subsisting thereon except for such of them as are agreed to be discharged by the vendor before the sale is completed. If under the relevant agreement to sell the property is agreed to be sold free of all encumbrances or certain encumbrances it would vest in the Central Government free of such encumbrances. Similarly, sub-s. (2) of s. 269UE will be read down so that if the holder of an encumbrance or a lessee is in possession of the property and under the agreement to sell the property it is not provided that the sale would be free of such encumbrances or leasehold interest, the encumbrance holder or the lessee who is in possession will not be obliged to deliver the possession of the property to the appropriate authority or any person authorised by it and the provisions of sub-s. (3) also would not apply to such persons. If the provisions of s. 269UE are read down in the manner indicated above then, the provisions of sub-s. (6) of that section do not present any difficulty because the vesting in the Central Government would be subject to such encumbrances and leasehold rights.

APPLICATION :

Also to current assessment years.

Income Tax Act 1961 s.269UE

Compulsory purchase of immovable property by Central Government--OPPORTUNITY OF BEING HEARD--To be given to the intending puchaser and seller.

HELD :

The requirement of the opportunity to show cause being given before an order for purchase by the Central Government is made by an appropriate authority under s. 269UD must be read into the provisions of Chapter XX_C. There is nothing in the language of s. 269UD or any other provision in the said Chapter which would negate such an opportunity being given. Moreover, if such a requirement were not read into the provisions of the said Chapter, they would be seriously open to challenge on the ground of violations of art. 14 on the ground of non-compliance with principles of natural justice. The provision that when an order for purchase is made under s. 269UD reasons must be recorded in writing is no substitute for a provision requiring a reasonable opportunity of being heard before such an order is made.

APPLICATION :

Also to current assessment years.

Income Tax Act 1961 s.269UD

Statute--INTERPRETATION--Doctrine of reading down--Not attracted when it negatives the express terms of the statute.

HELD :

In order to save a statute or a part thereof from being struck down it can be suitably read down. But such reading down is not permissible where it is negatived by the express language of the statute. Reading down is not permissible in such a manner as would fly in the face of the express terms of the statutory provisions.

APPLICATION :

Also to current assessment years.

Words and phrases--`FOR REASONS TO BE RECORDED IN WRITING'--In s. 269UD--Meaning--Reasons to be incorporated in the order as well as communicated to the affected parties.

HELD :

Sec. 269UD(1), in express terminology, provides that the appropriate authority may make an order for the purchase of the property `for reasons to be recorded in writing'. Sec. 269UD(2) casts an obligation on the authority that it 'shall cause a copy of its order under sub-s. (1) in respect of any immovable property to be served on the transferor'. It is, therefore, inconceivable that the order which is required to be served by the appropriate authority under sub-s. (2) would be the one which does not contain the reasons for the passing of the order or is not accompanied by the reasons recorded in writing. It may be permissible to record reasons separately but the order would be an incomplete order unless either the reasons are incorporated therein or are served separately along with the order on the affected party. Reasons for the order must be communicated to the affected party.

APPLICATION :

Also to current assessment years.

Income Tax Act 1961 s.269UD

Words and phrases--`PERSONS INTERESTED'--In s. 269UA(2)(e)--Include holders of encumbrances and leasehold interests.

HELD :

Where an agreement for sale provides that the property is intended to be sold free of all encumbrances or leasehold rights, the order for purchase of such property under s. 269UD(1) would result in the said property vesting in the Central Government free of such encumbrances or leasehold interest. In such a case the holders of the encumbrances and leasehold interest would have to obtain their compensation from the amount awarded as the purchase price to the owner of the property. This appears to be a fair construction because in such a case the apparent consideration can be expected to include the value of such leasehold interests or encumbrances. The holders of the encumbrances and leasehold interests which would be destroyed in this manner can be said to be persons interested as contemplated in cl. (e) of sub-s. (2) of s. 269UA.

APPLICATION :

Also to current assessment years.

Income Tax Act 1961 s.269UA