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TMI Blog2014 (4) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... ent made to the section is more comprehensive in nature - the scope of Section 293 of the Act has been widened and improved and it is not merely confined to set aside or modify the order - the form of suit is not relevant - It is the substance which has to be seen - when the statute prescribed certain proceedings thereunder are held and order passed, it is difficult to accept a contention that the proceeding and/or order can be modified or set aside in a civil suit filed by a third party - Section 293 is specific and does not admit filing of a suit which has the effect of even indirectly setting aside or modifying any proceeding taken under the Act - what relief cannot be claimed directly, cannot be claimed indirectly - If the relief of declaration as sought by the plaintiff is granted, it would amount to permitting the plaintiff to question the proceedings initiated by the appropriate authority, which is clearly barred under Section 293 of the Act. The 'Notes of Clauses' to the finance Act, 1986 provided that any order made by the appropriate authority u/s 269UD or any order made by the appropriate authority u/s 269UF shall be final and conclusive and shall not be calle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the affirmative 2 Whether the law of limitation bars the present suit? Need not be answered 3 Whether the plaintiff has the locus standi to maintain the present suit as pleaded in paragraph 11 of the written statement and/or is estopped from instituting the present suit? Need not be answered 2. For the purpose of deciding these three issues, it would be appropriate to refer to the relevant facts emerged from the pleadings and documents filed by both the parties. None of the parties have led any oral evidence on these three issues. 3. Plaintiff is engaged in business of investment in properties. First defendant is the appropriate authority constituted under the provisions of chapter XXC of the Income Tax Act, 1961 (hereinafter referred to as the said authority). Defendant no. 2 is Union of India. Defendant nos. 3 to 19 have alleged to have entered into a deed of conveyance dated 16th May, 2006 and have sold their rights, title and interest in the suit property to the plaintiff. Defendant no. 3 to 19 have been impleaded as parties to the sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 passed by the said authority. 9. By an order dated 11th June, 2002, this court disposed of the writ petition filed by Trikaya Investment Ltd. quashing and setting aside the order dated 29th June, 1993 and remanded the matter back to the said authority with a direction that in case the said authority decides again to compulsorily purchase the suit property, Trikaya Investment Ltd. will be free to approach this court if necessary against such decision of the authority. The authority was directed to give a fresh hearing and decide within a period of three months from the date of the said order. 10. By an order dated 12th Sept. 2002, the said authority passed a fresh order under section 269UD(1) of the said Act for Compulsory purchase of the suit property. It is the case of the plaintiff that the said order was not passed within the time prescribed by this court by its order dated 11th June, 2002 which expired on 10th Sept. 2002. 11. It is the case of the authority that pursuant to the order dated 29th October, 1991, the authority deposited a sum of Rs.7,64,03,644/with the Prothonotary and senior Master of this court. This court modified the order in writ petition no. 314 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity will carry out their part of obligation, under the agreement by depositing Rs.7,74,00,000/with M/s.Kanga and Co. advocates for the coowners. 14. By a letter dated 4th October, 2002 the defendant no.6 acting on behalf of the vendors called upon the authority to deposit the apparent consideration with their advocates M/s.Kanga Co. It is case of the plaintiff that the authority however neither offered the consideration to the vendors nor the vendors refused to accept the same nor the authority deposited the said amount anywhere after the third order of compulsory purchase passed on 12th September 2002. 15. On 12th December 2002 Trikaya addressed a letter to the authority and contended that the order dated 12th September 2002 was invalid by virtue of the said authority having passed the said order after the time stipulated by this court while disposing of the earlier petition and therefore the said order was ultra virus thereof. In the alternative it was contended that since the authority had failed to tender the amount of sale consideration in accordance with section 269UG, the suit property even if was validly vested with defendant no.2 consequent to the order for compul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nveyance dated 16th May 2006, plaintiff had purchased the suit property and from Mulanis and Mr. Omprakash Navani for total consideration of Rs.18.25 crores which consideration has been already paid to the vendors. The said deed of conveyance is duly registered. 23. Mr. Setalwad learned Additional Solicitor General appearing for the Appropriate Authority submits that under section 9 of the Code of Civil Procedure, 1908, the court shall have jurisdiction to try all suits of a civil nature except suits of which their cognizance is either expressly or impliedly barred. It is submitted that order dated 12th September, 2002 of compulsory acquisition of the suit property under section 269UD (1) of the said Act is final and conclusive and cannot be questioned in any proceedings under the said Act. Learned ASG placed reliance on section 269UN and 293 of the said Act and would submit that the present suit would fall within the ambit of the words any proceedings under this Act . The reliefs sought in the present suit are pursuant to the provisions of the Income Tax Act and are therefore, barred. It is submitted that the term any proceeding is used in the widest amplitude by the legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appropriate authority, and to question its validity by reference to those reasons. That the Revenue can produce the reasons already recorded for scrutiny of the court, whenever demanded by the court, is not a substitute for passing and communicating a reasoned order to the affect party. Neither on the plain language of the section nor on the application of the rule of natural justice , can be stand of the Revenue be countenanced. 26. Learned ASG placed reliance on the judgment of the Madras High Court in case of Rangamall and others Versus Union of India (1963) 48 ITR 598 (Madras) and in particular paragraph 2 and 4 thereof in support of his submission that though the plaintiffs have asked for a declaration that the suit property is revested in the vendors and the order of compulsory purchase are abrogated, such reliefs would be barred under section 293 of the Income Tax Act. It is submitted that Madras High Court in the said judgment had considered section 67 of the Income Tax Act, 1922 which was in para materia with section 293 of the Income Tax Act, 1961. Para 2 and 4 of the said judgment of Madras High Court read thus : 2. Two main questions arose for consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be no order as to costs. 27. Learned ASG submits that various provisions in several Acts which are in para materia with section 293 of the Income Tax Act, 1961 have been construed by Supreme Court and this court which provides for a bar against filing of a civil suit for impugning various orders. The learned ASG placed reliance on the judgment of this court in case of Bales Sardara Paracha Versus Municipal Corporation of Greater Bombay 2005 (4) Bombay Cases Reporter 577 and in particular paragraphs 10, 11, 15 to 24 and submits that language of section 293 and section 269UN is unambiguous and clear and clearly bars the filing of a civil suit. It is submitted that section 149 of the Maharashtra Regional Town Planning Act which in para materia with section 293 of the Income Tax Act, 1961 has been construed and interpreted by this court and has held that the suit on the ground cannot be entertained in view of section 149 of the MRTP Act. Paragraph 10, 11, 15 to 24 of the said judgment read thus : 10. Mr. J. Xavier, the learned counsel for respondent No. 1 / defendant No.1, on the other hand, contended that the trial court has correctly appreciated the relevant provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Development Authority under the MRTP Act, reads thus: Finality of orders. Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act shall be final and shall not be questioned in any suit or other legal proceedings. 16. In my opinion, the language of Section 149 is unambiguous and clear. The bar is clear and admits of no confusion. If Section 149 is read in the light of the Supreme Court's judgment in Illuri Subbayya's case, there can be no doubt that jurisdiction of the civil court is barred. 17. It is, however, necessary to deal with Mrs. Moily's contention that the MRTP Act provides no adequate and effective alternative remedy, and, therefore, the exclusion of jurisdiction of the civil court cannot be inferred. 18. In Dhruv's case (supra), on which the learned counsel has placed reliance, the Supreme Court was dealing with Section 13 read with Section 10A of the Punjab Village Common Lands (Regulation) Act, 1961 ( the Act , for short). A suit was filed by the respondent therein, ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy is available or not. However, in cases where the order complained of is a nullity, even if the jurisdiction of the civil court is barred expressly or impliedly, the court would still retain its power to entertain the suit. There can be, therefore, no doubt that since in the present case, Section 149 creates an express bar whether the alternative efficacious remedy is available or not need not be investigated into. 20. On the basis of the judgment of the Supreme Court in Shiv Kumar's case (supra), Ms. Moily contended that the notice issued by defendant No. 1 under Section 149 of the M.R.T.P. Act is a nullity and, therefore, civil court could entertain the suit. It is, therefore, necessary to see what the Supreme Court has said in Shiv Kumar's case. 21. In Shiv Kumar's case, on which the learned counsel has placed reliance, the Supreme Court was dealing with the Delhi Municipal Corporation Act, 1957 ( the Corporation Act , for short). Section 347E of the Corporation Act contained the provision regarding bar of jurisdiction of courts. Subsection (5) of Section 343 of the Corporation Act provided that no court shall entertain any suit or application or order or pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the words void ab initio and nullity are equivalent, since I have already held that there is no jurisdictional error in exercise of power by defendant No.1 while issuing the impugned notice, this argument of Ms. Moily must also fail. 23. Having read the relevant provisions of the MRTP Act, I am of the confirmed opinion that Section 149 of the MRTP Act clearly excludes the jurisdiction of civil courts so far as the challenge to the orders passed or directions issued by the State Government or orders passed or notices issued by any Regional Board, Planning Authority or Development Authority under the MRTP Act are concerned. I am supported in my view by a decision of this Court (F.I. Rebello, J.) dated 18th October, 2002 in Appeal from Order No. 912 of 2002 and judgment dated 29th November, 2004 in Dr. Mohan N. Bhawe v. The Municipal Corporation of Greater Bombay, delivered by Smt. Nishita Mhatre, J., in Appeal from Order No. 634 of 2003. 24. In view of the above, in my opinion, the trial court has rightly dismissed the plaintiff's suit on the ground that in view of Section 149 of the MRTP Act, it cannot be entertained. There is no merit in the appeal. The appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on more comprehensive in nature. Direct effect of the decree in the suit would be that the gold ornaments, subject matter of this suit, would be taken out of the order of the Income Tax Officer under Section 132(5) of the Act and would not be available to be applied in proceedings under Section 132B of the Act. It is immaterial if the proceeding under Section 132 gives no finality to the order passed under Section 132(5) or 132(11) of the Act. It is not the case of the Revenue that Income Tax Authority can grant decree for partition. It is not also material for the decision of the case if the will now set up by the plaintiff was genuine or not. The question that felt squarely for consideration was the right or the plaintiff as a third party in the proceedings under Section 132 of the Act. If we analyse the section, the following steps are visualised: (1) search is conducted under the authorisation of the named authority; (2) seizure of the assets, books of accounts, documents etc. in pursuance thereto; (3) to examine on oath any person during the course of search or seizure operations who is found to be in possession or control of any of the assets, books of account, docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid 7 principles for the courts to see if the suit was barred under Section 9 of the Code or not. It is not necessary to set out all the 7 principles as we find that the present suit would be barred under the second principle laid by this Court which we reproduce as under: Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. 17. We have seen above that the scope of Section 293 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty stood abrogated on and from 31st October, 2002 which is a direct attempt or in any view of the matter an indirect attempt of the plaintiffs to set aside the order dated 12th Sept. 2002 which is clearly barred. The suit has been filed with a view to set aside the order dated 12th Sept. 2002 and the proceedings initiated under chapter XXC of the Income Tax Act, 1961. It is submitted that the declaratory relief prayed by the plaintiff in this suit including possession would fall under section 269UH (ii) of the Income Tax Act, 1961. Learned ASG submits that all other reliefs sought by the plaintiff in the present suit flow from the said relief sought by the plaintiff and are consequential reliefs. It is submitted that section 269UN and section 293 of the Income Tax Act, 1961 interdict the present action of the plaintiff. This court has no jurisdiction to entertain this suit. The original vendor had filed a writ petition admittedly impugning the earlier two orders passed by the authority under section 269UD(1) and not a civil suit. The learned ASG submits that this court shall consider the averments made in the plaint and the prayers sought meaningfully to ascertain the intention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the fact that by operation of law, the order dated 12th September, 2002 stood abrogated as on 31st October, 2002 and the suit property in respect of which the said order was passed, stood revested in defendant no.3 to 19. Learned senior counsel submits that since the Central Government failed to tender the consideration amount not only within the time i.e. 31st October, 2002 by virtue of section 269UG(1) but even till today and as a result thereof the valid and legal order passed under section 269UD(1) stood abrogated by virtue of section 269UH(I) and the suit property accordingly stood revested in defendant nos. 3 to 19. 33. It is submitted by the leaned senior counsel that under section 269UH(2)(a) of the Act, once abrogation takes place the appropriate authority is obliged to make a declaration in writing to the effect that the order passed under section 269UD(1) is abrogated and the property in question revests in the transferor. The appropriate authority is obliged to deliver the immovable property to the persons mentioned in the order pursuant to declaration made under section 269UH(2)(a). 34. Mr. Jethmalani, learned senior counsel submits that the plaintiff is neithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the Income Tax Act, 1961. 37. The relevant provisions of Income Tax Act, 1961 are reproduced below : 269UD(1) : The appropriate authority, after the receipt of the statement under Subsection (3) of Section 269UC in respect of any immovable property, may, notwithstanding anything contained in any other law or any instrument or any agreement for the time being in force, and for reasons to be recorded in writing, make an order for the purchase by the Central Government of such immovable property at an amount equal to the amount of apparent consideration: Provided that no such order shall be made in respect of any immovable property after the expiration of a period of two months from the end of the month in which the statement referred to in Section 269UC in respect of such property is received by the appropriate authority: 269UE(1) : Where an order under Subsection (1) of Section 269UD is made by the appropriate authority in respect of an immovable property referred to in Subclause (i) of Clause (d) of Section 269UA, such property shall, on the date of such order, vest in the Central Government free from all encumbrances. (2) The transferor or any other person who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any immovable property by the Central Government is made under this Chapter, no claim by the transferee shall lie against the transferor by reason of such transfer being not in accordance with the agreement for the transfer of the immovable property entered into between the transferor and transferee: Provided that nothing contained in this section shall apply if the order for the purchase of the immovable property by the Central Government is abrogated under Subsection (1) of Section 269UH. Order of appropriate authority to be final and conclusive. 269UN : Save as otherwise provided in the Chapter, any order made under subsection (1) of section 269UD or any order made under subsection (2) of section 269UF shall be final and conclusive and shall not be called in question in any proceeding under this Act or under any other law for the time being in force. 293. Bar of suits in civil courts. No suit shall be brought in any civil court to set aside or modify any proceeding taken or order made under this Act, and no prosecution, suit or other proceeding shall lie against the Government or any officer of the Government for anything in good faith done or intended to be do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 9 of the Code of Civil Procedure or not. One of such principle laid down by the Supreme Court in case of Dhulabhai (supra) is adverted to by the Supreme Court in case of Commissioner of Income Tax Bhubaneshwar And Anr. Vs. Parmeshwari Devi Sultania Ors. (supra). 42. A perusal of the plaint in this suit indicates that it is one of the submission of the plaintiff that the action of the appropriate authority in not confirming that the order of compulsory purchase dated 12th September 2002 stands abrogated is illegal and unlawful. It is contended that if defendant No.2 fails to tender the whole or any part of the amount of consideration required to be tendered between the period specified, then the order to compulsory purchase the said property shall stand abrogated and the property with all rights shall stand revested with the transferors. It is also submitted that as a consequence of the order of compulsory purchase standing abrogated and the suit property stood revested in the transferors and consequently in the plaintiff by reason of the provisions contained in Section 269UH (2)(ii) of the Income Tax Act 1961. 43. It is case of the plaintiff in the plaint that it was incu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the time prescribed. In my view, the consequence of the appropriate authority not tendering or depositing a consideration amount would lead to a question whether order to purchase the immovable property by the Central Government shall stand abrogated and movable properties shall stand revested in the transferors after the expiry of the period provided under Section 269. The further steps to be taken by the appropriate authority under Section 269UH(2)(a) and (b) would arise only if the appropriate authority not tendering and/or depositing the consideration amount within the time prescribed under Section 269UH(1) and in view of such default, order passed by the appropriate authority under Section 269UD(1) shall stand abrogated. 46. In my view, for considering the prayer of the plaintiff for a declaration that the order dated 12th September 2002 of the compulsory purchase passed under 269UD(1) stood abrogated or not and if this Court comes to the conclusion that the said order stood abrogated, this Court will have to further declare that the said order dated 12th September 2002 stood annulled, cancelled or set aside. If such prayer is granted, this Court will have to declare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable and attracted to the facts of this case. 49. On perusal of the 'Notes of Clauses' to the finance Act, 1986 which provided that any order made by the appropriate authority under Section 269UD or any order made by the appropriate authority under Section 269UF shall be final and conclusive and shall not be called into question in any proceeding under the Income Tax Act or any other law for the time being in force, it clearly indicates the intention of legislature that such orders are final and cannot be called into question in any proceedings under Income Tax Act or any other law for the time in force. In my view, civil suit is clearly barred for claiming such declaration as prayed by the plaintiff. I am not inclined to accept the submission of Mr Jethmalani learned senior counsel that reliefs claimed for declaration are under the provisions of the Specific Relief Act and not under the provisions of Income Tax Act 1961. 50. Even earlier two orders passed by the appropriate authority under Section 269UD(1) were impugned by the vendors by filing writ petitions under Art. 226 of the Constitution of India which was proper and appropriate remedy exercised by the ven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority under Chapter XXC and also makes an attempt to challenge the order passed by appropriate authority under Section 269UD(i) which in my view is clearly barred under Section 269UN and 293 of Income Tax Act 1961. In my view, the learned senior counsel is not correct in his submission that cause of action in the suit is based on the fact that by oppression of law, the order dated 12th September 2002 stood abrogated and the suit property is revested in defendant Nos.3 to 19. I am therefore of the view that in view of Section 9 of the Code of Civil Procedure, 1908 this Court has no jurisdiction to try this suit in view of such suit being barred under Section 269UN and 293 of the Income Tax Act, 1961, not maintainable and deserves to be dismissed on that ground alone. 56. The learned senior counsel appearing for both the parties made submissions on the other two issues framed under Order 14 Rule 2 of the Code of Civil Procedure. This Court, however having found that this suit itself is not maintainable being barred, this Court need not deal with the other two issues framed by this Court and are thus not required to be answered. Issue No.1 is accordingly answered in affirmativ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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