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TMI Blog1991 (4) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... d that she had executed a will on May 22, 1987, and appointed the petitioners as executors and had directed them to dispose of the property and distribute the sale proceeds among certain named charities. It is said that the petitioners entered into an agreement of sale dated December 14, 1989, with the third respondent for a consideration of Rs. 15,60,000. Inasmuch as the apparent consideration was above Rs. 10 lakhs, the petitioners submitted the said agreement to the first respondent at Bangalore as required by section 269UC of the Act. By an order under section 269UD(1), the first respondent ordered the purchase of the said property by the Central Government for the discounted price of Rs. 15,31,640 and the property stood vested in the second respondent under section 269UE(1) with effect from February 16, 1990, free from all encumbrances. The petitioners were directed to deliver possession of the property to the second respondent within 15 days from the date of receipt of the said order. At that stage, the petitioners vendors filed W. P. No. 2978 of 1990 questioning the validity of the said order. It appears that the provisions of the Act relating to compulsory acquisition have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out and fulfil all procedural matters concerning the obtaining of necessary permission from the Competent Authority and the income-tax clearance certificate from the appropriate authorities is on the unstamped paper and no general power of attorney has been executed by the executors in favour of Mrs. Roshan M. Patel and Mr. B. K. Batliwala In view of the above, as the property is not free from dispute as to the title to receive the amount of consideration, a sum of Rs. 15,31,640 has been paid to the Appropriate Authority, Bangalore, as per provisions of section 269UG(3) of the Income-tax Act." It is this order that is mainly challenged in the writ petition. It is argued by Sri C. Ramakrishna, for the petitioners, that the reasons mentioned in the abovesaid order do not bring the case under section 269UG(3) of the Income-tax Act and that, therefore, the deposit in question cannot be treated to be an apparent deposit, that it has to be ignored and, therefore, the provisions of section 269UH come into operation. For the purpose of deciding the above question, it is necessary to refer to the provisions of section 269UG of the Income-tax Act in so far as they are material for our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of deposit of the consideration before the appropriate authority under sub-section (3) of section 269UG. Coming to the said subsection, it is clear that notwithstanding anything contained in sub-section 269UG(1), if the person entitled to the amount of consideration does not consent to receive it, or if there is "any dispute" as to the title to receive the amount of consideration, the amount could be deposited with the appropriate authority within the period specified in sub-section (1). It is not the case of either of the parties that the petitioners did not consent to receive the consideration. Therefore, the question will be whether it is case falling under the second limb of sub-clause (3), viz., "whether there is any dispute as to the title to receive the amount of consideration". If we read the impugned order passed by the second respondent on March 30, 1990, it will be noticed that he had given four reasons. The first reason is that the petitioners have not handed over the original will dated May 22, 1987. The second reason is that the petitioners have not taken probate in respect of the will in question. The third reason is that the petitioners who filed Writ Petition No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to carry on the actual routine or day to day administration including taking charge and realisation of my properties, execution of documents, receipts and payments of monies, operation of bank accounts, representation of the estate in all proceedings whether in court, Tribunals, Government office Departments, or elsewhere, etc., etc., and they are hereby authorised and empowered to do so." The resolution passed by the executors on December 8, 1989, which the second respondent refused to accept as it was on unstamped paper is, therefore, nothing but a resolution passed pursuant to the directions in the will itself. The will is a registered one. Therefore, the fact that the resolution is unstamped does not invalidate the authorisation nor is it necessary that any separate general power of attorney should have been executed. We are of the view that the fourth reason given in the impugned order is also erroneous in law on its face. Coming to the third reason, viz., that the original of the will dated May 22, 1987, has not been handed over by the executors, it will be noticed that, in the letter dated March 23, 1990, exhibit P-15, the executors informed the office of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will is clearly explained to the authorities. The second respondent committed an error of law in thinking that the petitioners could have produced the will. During the course of the arguments, learned counsel for the Department tried to argue that the originals of two other documents dated January 4, 1955, and September 30, 1937, were not produced before the second respondent even by March 26, 1990. But, inasmuch as there is no such doubt raised in the impugned order in regard to the copies of the said documents submitted to the second respondent earlier, we cannot permit counsel to raise such a question for the first time during the arguments. Even in the counter-affidavit filed in this writ petition, it has not been contended that the absence of the originals of these two other documents was the cause for passing the impugned order. For the aforesaid reasons, the first reason, viz., regarding non-supply of the will, also is a clear error of law. The only other reason that remains is the fourth one relating to the filing of the writ petition, W. P. No. 2978 of 1990, wherein the provisions of Chapter XXC of the Act were questioned and also the order dated February 16, 1990, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the title to receive the compensation". and these words are similar to those in section 269UG(3). So far as the manner in which the authority could invest the amount by way of deposit is concerned, the provisions are contained in sub-section (4) of section 269UG and these provisions somewhat correspond to section 33 of the Land Acquisition Act. In this context, it is useful to refer to the relevant rulings under the Land Acquisition Act, 1894. The Supreme Court in Dr. G. H. Grant v. State of Bihar, AIR 1966 SC 237, held that sections 18(1) and 30 of the Land Acquisition Act empower the Collector to refer a dispute to the court for apportionment of compensation or as to the persons to whom it is payable. While the period is fixed for seeking reference under section 18, no such period is prescribed under section 30. Further, under section 18, the Collector is bound to make a reference while, under section 30, there is no such obligation and the Collector may require the person raising the dispute to agitate the same in a suit. The Supreme Court also mentioned, so far as section 31 is concerned, as follows (p. 244) : "Payment of compensation, therefore, under section 31 to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omitted to decide the question whether the sole claimant appearing before him is or is not entitled to the compensation. Therefore, in spite of the fact that the natural meaning of the word "dispute" presupposes two persons and section 30 uses the word "persons" in the plural, section 31(2) must be construed as covering the case where the Collector is unable or unwilling or has omitted to decide whether the sole claimant appearing before him is or is not entitled to the property acquired and the compensation therefor. Similarly, it has been held in State of Madras v. B. V. Subramania Iyer, AIR 1962 Mad 313, that the word "dispute" is used in the context of section 30 in a wide and not in a literal sense and implies any controversy as to title, whether as between the actual claimants or with respect to a single claim as appearing from the documents made by the Government. We respectfully agree with the abovesaid decisions. We, however, dissent from the contrary view of the Gauhati High Court in Phongseh Misao v. Collector of Land Acquisition, AIR 1977 Gauhati 47, wherein the learned judges took the view that the word "dispute" mentioned in section 30 of the Land Acquisition Act mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered as to the vires of the provisions or as to the validity of the order of vesting. If a deposit could, therefore, be made under section 269UG(3), the provisions relating to revesting in the apparent manner under section 269UH would not be attracted. The position is similar to a case where a person files a writ petition and challenges the validity of section 4 of the Land Acquisition Act or a notification made thereunder. Such a person cannot, while the writ is pending, seek to receive the compensation. So also if a vendor is challenging an agreement of sale executed by him as bad, he cannot, before the said question is decided, seek to receive the entire consideration. The position here is analogous. If the amounts are paid, in the meantime, before the said disputes are decided, it might indeed become difficult to recover them back again. We have already mentioned that Writ Petition No. 2978 of 1990 is pending in this court. If the said writ petition is to be allowed, the position would be that the vesting would be bad and if in the meantime, the money is tendered within the period mentioned in the Act under section 269UG(1) and paid without security, it would be difficult f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the writ petitioners are entitled to receive the amount of consideration. In our view, the said averment in the affidavit filed by the Department in the earlier writ petition cannot be cut into two parts, omitting the second part relating to the condition mentioned by the Department in the said application. The Department wanted the petitioners to withdraw the money only subject to furnishing security or bank guarantee. That was only a conditional offer. The petitioners cannot take advantage of the offer and avoid the condition imposed. The very imposition of the condition shows that the respondents entertained a doubt as to the entitlement of the petitioners to receive the consideration pending disposal of the writ petition, though the respondents did not otherwise dispute the title of the petitioners. For the aforesaid reasons, the said conditional offer in the affidavit of the respondents in the earlier writ petition cannot help the petitioners. For all the aforesaid reasons, the writ petition is liable to be dismissed. However, if the petitioners are prepared to withdraw the earlier writ petition, Writ Petition No. 2978 of 1990, or furnish a bank guarantee, the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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