9911796707
TMI Blog2024 (3) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... y for the purposes of Income Tax and may hold a property in its own name, yet it cannot be said that the individual members constituting it, do not have any share in the said property. The share in such property on devolution may change or vary in proportions with the increase or decrease in the members constituting the HUF. This surely cannot mean that the individual members do not have any rights whatsoever over the HUF property. It is clear that the HUF under the Income Tax Act, 1961 is a juridical person. However, the right or entitlement of the individual members constituting such HUF in respect of any property owned by it, has also been accepted. The role of karta in respect of such property is also clearly delineated - All the analysis leads this Court to the firm conclusion that the property belonging to the HUF also belongs to each of the individual constituents in the proportionate share. In another words, every member of the HUF has some share in the said property. Thus, it is clear that though the Defence Colony Property was placed in the common hotchpotch of the HUF in the year 1962, yet the shares of the petitioner as also his wife and two minor children, as they then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 - SUPREME COURT] , whereby it was categorically laid down that fraud vitiates all solemn acts . On the strength of this, this Court is of the considered opinion that the petitioner had obtained the allotment of an alternate plot by concealment of material facts amounting to fraud and as such cannot be heard to say that the respondents have delayed adjudication of the show cause notice. In that view of the matter, the said argument has no substance. There is no merit in the writ petition and the same is dismissed. - HON'BLE MR. JUSTICE TUSHAR RAO GEDELA Advocates who appeared in this case: For the Petitioner : Mr. Harish Malhotra, Senior Advocate with Mr. Rajender Agarwal and Mr. Anoop Kumar, Advocates, Advocates For the Respondent : Mr. Anish Dhingra, Advocate JUDGMENT TUSHAR RAO GEDELA, J. [The proceeding has been conducted through Hybrid mode] 1. The present petition has been filed under Article 226 of the Constitution of India, inter alia, seeking the following reliefs:- It is, therefore, most respectfully prayed that this Hon ble Court may kindly be pleased to issue: A) a writ of a certiorari or any other appropriate writ or direction in favour of the petitioner and aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his Hindu Undivided Family (hereinafter referred to as HUF ) on 20.02.1962 and thereafter it were always treated as a HUF property and not an individual property. (iv) It is the case of the petitioner that from the year 1962 onwards, the construction was completed and the premises was let out for rent in the name of HUF. The petitioner stated that from 1962 onwards the Defence Colony Property has always been assessed in the hands of HUF and ultimately the Defence Colony Property was also mutated by the Land and Development Officer (hereinafter referred to as L DO ) in the name of the HUF on 26.10.1979. (v) It is the case of the petitioner that a notification under Section 4 of the Land Acquisition Act, 1984 was issued on 04.02.1964 in respect of Yakootpur land belonging to the petitioner and on 18.11.1964, the notification under section 6 of the Land Acquisition Act, 1984 was made, whereunder the said land was fully acquired. On 28.04.1965, the award was made and possession was taken by the government. (vi) The petitioner states that the Land Building Department of Delhi Administration vide letter dated 02.12.1971 informed the petitioner that the petitioner can be leased out a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property was in the name of HUF, therefore, no action could be taken. (xiv) The petitioner stated that vide letter dated 26.07.2000, he sought extension of time for construction from the respondent and also offered to pay the necessary penalty amount for grant of such extension. Thereafter, the petitioner sent reminders and in the meantime, Urban Land Ceiling Act, 1976 was repealed and therefore, no clearance was required. (xv) It is the case of the petitioner that he received a letter dated 12/31.05.2003 from the respondent that the lease of the petitioner has been cancelled in respect of the said plot on the ground of giving wrong affidavit, which was the subject matter of the show-cause notice dated 08.02.1982. (xvi) The petitioner stated that he made representation dated 28.04.2003 to withdraw the cancellation and restore the allotment. (xvii) It is the case of the petitioner that vide a letter dated 04.02.2005, the respondent intimated to the petitioner that his request for restoration of allotment cannot be acceded to. Hence, the present petition. CONTENTIONS OF THE PETITIONER 3. At the outset, Mr. Harish Malhotra, learned Senior Counsel appearing for the petitioner submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79 was issued to the petitioner seeking cancellation of the lease on account of not erecting a building within the time specified in the lease. To this, the petitioner had given a reply on the ground that a permission under Urban Land Ceiling Act, 1976 was pending in the absence whereof, no construction could be commenced. It was only when the respondent issued impugned show cause notice dated 08.02.1982 seeking cancellation of the allotment of the alternate plot on the ground of concealment of the petitioner owning property in his own name, i.e., Defence Colony Property at the time of filing the application along with the affidavit seeking allotment of alternate plot of land. 7. Learned Senior Counsel submits that though the petitioner had submitted a detailed reply dated 10.05.1982 pointing out that there was no misrepresentation, as the petitioner was not holding any plot of land or property in his individual name but in the name of HUF, yet the respondent sought cancellation of the allotment. Despite such reply and other further representations, the respondent sent a communication dated 12/31.05.2003 cancelling the lease of the subject plot on the basis of the show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g unmarried children did not own in full or in part, on free hold or lease hold basis, any residential plot or house in the urban areas of Delhi, New Delhi or Delhi Cantonment either on the date you applied for the allotment of an alternative developed plot or at any time thereafter till the execution of the lease-deed and you will be required to furnish an affidavit in the prescribed form within a fortnight of the receipt of this letter. In support of the aforesaid contention, learned Senior Counsel referred to the affidavit dated 05.07.1972 filed subsequent to the aforesaid allotment letter, whereby the petitioner had categorically deposed and declared that neither he nor his wife or any of the dependent relations including unmarried children do not own and will not own in full or in part on free hold and lease hold basis any residential plot or house in the urban areas of Delhi, New Delhi or Delhi Cantonment on the date of the application and at anytime thereafter. He submits that the affidavit is in consonance with the condition stipulated in Condition 5, and as such, apparently there is neither any concealment nor suppression of material fact nor is there any misrepresentation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondents have contended that the petitioner is a shareholder to the extent of 81.25 sq. yards in the HUF property and as such, is disentitled from allotment of alternate plot of land. This argument, according to the learned Senior Counsel, is factually incorrect. He submits that the Defence Colony property being the property of HUF, the petitioner could not be stated to be a shareholder in the said property, muchless to the extent of 81.25 sq yards in the said property. Mr. Malhotra, learned Senior Counsel vehemently contended that an HUF property does not belong to a single individual and even if one were to assume that there is some interest of the persons constituting such HUF, the interest or the shareholding in such property could not be ascertained till such property became subject matter of partition. In that view of the matter, he submits that the respondents could not have calculated the share of the petitioner to the exact figure of 81.25 sq yards. Thus, the action of respondent in cancellation of lease as also the allotment of the alternate plot is arbitrary, whimsical, unjust and unconstitutional and has to be quashed and struck down by this Court. 14. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otment of alternate plot, in case, as on the date of allotment of Nazul Land such person owned or was allotted or had a house on a plot of land, which is less than 67 sq. mtrs. He submits that as on the date of allotment, the petitioner did not own any plot of land and it was only the HUF which owned the Defence Colony property and as such even under the Nazul Rules, the petitioner could not be denied the alternate plot of land. Looking at it any which way, learned Senior Counsel submits that the cancellation of lease of subject alternate plot is arbitrary, whimsical, unjust and unconstitutional and has to be quashed and struck down by this Court. CONTENTIONS OF THE RESPONDENT 18. Mr. Anish Dhingra, learned counsel appearing for the respondent submitted that in the present case, this Court has to consider as to whether the petitioner had submitted a bona fide and genuine affidavit at the time of submission of his application seeking allotment of alternate plot of land in lieu of the compulsory land acquisition of his property. 19. Learned counsel brought attention of this Court to the written submission filed on behalf of the respondent particularly to para 5, to submit that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice, which led to passing of the impugned order. He submits that the writ petition should be dismissed with costs. ANALYSIS AND CONCLUSIONS :- 22. This Court has heard the submissions of the learned counsel appearing for the parties, perused the record minutely and considered the judgments relied upon. 23. There is no dispute to the fact that on the Large Scale Land Acquisitions initiated by the Central Government in early 1960s, the land admeasuring 12 bigha 6 biswa of the petitioners recorded by khevat khatauni No. 20/47, khasra Nos. 352 in Jamabandi of 1950-1951 in Village Yakootpur in Delhi was compulsorily acquired by the Central Government for the planned development of Delhi. It is also not disputed that apart from the entitlement to various components of compensation in accordance with the provisions of LA Act, the 1961 Scheme also provided for allotment of alternative plot of land in lieu of compulsory acquisition, subject to certain conditions. 24. It would be essential to consider the various eligibility conditions as per the 1961 Scheme. The eligibility criteria is read as under:- 1. The persons who are RECORDED OWNER prior to issue of notification under Section 4 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either the petitioner or his family members individually or jointly. The petitioner attempted to impress upon this Court that viewed in such manner, the impugned action vide letter dated 12/31.05.2003 cannot withstand the scrutiny of law and has to be necessarily quashed and set aside. And consequently, according to the learned Senior Counsel, the petitioner would be entitled to re-allotment and re-execution of the perpetual lease deed in respect of the property bearing subject plot. 27. As an alternate, the petitioner claims that the show cause notice being issued on 08.02.1982, the Nazul Rules which came into effect in the year 1981 would primarily govern the subsequent action. Having regard thereto, Rule 6 and 17 of the Nazul Rules have to be read in manner which would entitle the petitioner for the allotment of alternate plot of land. Consequently, the action is untenable both on fact as on law. 28. In order to appreciate the controversy, it would be appropriate to consider the issue as to the affect of placing property in the common hotchpotch of HUF when considered in the light of the eligibility conditions contained in the 1961 Scheme. 29. There is no literal definition prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amily for his arrest and detention. It is true that if properties of the family moveable and immovable are to be attached, proceedings may be started against the Hindu undivided family and the manager represents the family in proceedings before the Tax Recovery Officer. But by the clearest implication of the statute the assessee alone may be deemed to be in default for non-payment of tax, and liability to arrest and detention on failure to pay the tax due is also incurred by the assessee alone. The manager by virtue of his status is competent to represent the Hindu undivided family, but on that account he cannot for the purpose of Section 222 of the Act of 1961 be deemed to be the assessee when the assessment is made against the Hindu undivided family and certificate for recovery is issued against the family. (emphasis supplied) In the aforesaid judgment the Supreme Court had clearly drawn distinction between HUF as a taxable entity vis-a-vis the individual members constituting it, in the context of arrest and detention and other proceedings for the purpose of Section 222 of the Income Tax Act, 1961. In Ram Kumar Ram Niwas Nanpara vs. Commissioner of Income Tax Ajmer Merwara, Luckn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of the Supreme Court dismissing SLP No (s). 21476-21477/2023 on 03.10.2023 in N.S. Balaji vs. the Presiding Officer Debt Recovery Tribunal and Others by relying upon its judgement in Sri Narayan Bal vs. Sridhar Sutar reported in (1996) 8 SCC 54, which held as under :- In the present case, the petitioner claims that the property in question was a joint family property/Hindu Undivided Family (HUF) property, which was mortgaged by the petitioner s father as one of the guarantors. The petitioner also states that his father was the Karta of the HUF. The position on the rights of a Karta vis- -vis an HUF property is well settled. This Court in Sri Narayan Bal v. Sridhar Sutar has held that the Karta has the right to sell/dispose of/alienate an HUF property, even if a minor of the family has undivided interest. The reason is that an HUF is capable of acting through its Karta or an adult member of the family in the management of the HUF property . Thus, the father of the petitioner herein, as the Karta of the HUF, was entitled to mortgage the HUF property. The son(s) or other member(s) of the HUF need not be consenting parties to the mortgage. Post alienation, a coparcener may ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y; but a Hindu undivided family has no independent existence apart from the individuals who constitute the same. Statements sometimes made in decided cases and text books that a Hindu joint family is a sort of corporation in dealing with questions relating to enjoyment of the property of the family (see for instance Anali Narhar Kulkarni v. Ramchandra Ravji Kulkarni [I.L.R. 10 Bom. at pp. 39 and 78.] and Mayne a Hindu Law 11th Edition, Art. 243, at page 305) do not justify the view that a Hindu undivided family is a corporation . His Lordship emphasised that the property is the property of the coparceners who for the time being constitute the Hindu undivided family. 14. Hindu Law does not recognise a joint Hindu family or coparcenary as a juristic personality capable of holding property, as an entity separate from the members of the family. When it is popularly said that a property is joint family or coparcenary property, the true position in law is that the members collectively own it, each having an interest. One of the distinctive features of such coparcenary property is in its passing on death of a member . According to Hindu law, the interest of a dead member passes by survivo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent, the status of HUF was not disrupted and that status continued for the purposes of assessment during the relevant assessment years. Under Section 171 a Hindu family assessed as HUF, is deemed for the purposes of the Act to continue as HUF except where partition is proved to have been effected in accordance with the section. The section further provides that if any person at the time of making of assessment claims that partition total or partial has taken place among the members of the HUF, the Income Tax Officer is required to make an inquiry after giving notice to all the members of the family, and to record findings on the question of partition. If on inquiry he comes to the finding that there has been partition, individual liability of members is to be computed according to the portion of the joint family property allotted to them. What would amount to partition for the purposes of the section is contained in the Explanation to the section which defines partition as under: Explanation . In this section, (a) partition means (i) where the property admits of a physical division, a physical division of the property, but a physical division of the income without a physica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciples of Hindu law. It contains a deeming provision under which partition of the property of HUF is accepted only if there has been actual physical division of the property, in the absence of any such proof, the HUF shall be deemed to continue for the purpose of assessment of tax. Any agreement between the members of the joint family effecting partition, or a decree of the court for partition cannot terminate the status of HUF unless it is shown that the joint family property was physically divided in accordance with the agreement or decree of the court. (emphasis supplied) The Supreme Court, in the context of Explanation to Section 171 of the IT Act, held that, any agreement between the members of the joint family effecting partition, or a decree of the Court for partition cannot terminate the status of HUF unless it is shown that the joint family property was physically divided in accordance with the agreement or a decree of the Court. In other words, the property of the HUF may be disrupted by agreement of partition by private settlement; by arbitration; or through Court s decree. In fact, the family was also at liberty to share the income from the property according to their r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot disputed by the petitioner that in the affidavit filed in support of the application, this fact regarding the Defence Colony property was not disclosed. It would be apposite to extract the entire affidavit for clarification, which is as under :- Affidavit. I, Pritam Singh Bhinder Wing Commander son of Late Shri Aman Singh resident of 662 Luxmibai Nagar, New Delhi, solemnly declare and affirm that I or my wife or any of my dependent relations including unmarried children do not own and will not own, in full or in part on free-hold or lease hold basis, any residential plot or house in the Urban areas of Delhi, New Delhi or Delhi Cantonment, on the date of application for the allotment of the plot and at any time thereafter. I have attained the age of majority, my date of birth being 9-6-1919 (Nineth day of June Nineteen hundred and Nineteen. sd/- Deponent I, Pritam Singh Bhinder Wing Commander aforesaid solemnly affirm and say that the facts mentioned above are true to my knowledge and nothing is false therein and that no material fact has been concealed. sd/- Deponent Place: New Delhi. Dated:- 5-7-1972. From a perusal of the contents of the aforesaid affidavit, it is clear that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any time be in arrears and unpaid for one calendar month next after any of the days whereon the same shall have become due, whether the same shall have been demanded or not, or if it discovered that this Lease has been obtained by suppression of any fact or by any mis-statement, mis-representation or fraud or if there shall have been, in the opinion of the lessor, whose decision shall be final, any breach by the Lessee or by any person claiming through or under him of any of the covenants or conditions contained herein and on his part to be observed or performed, then and in any such case, it shall be lawful for the Lessor, not-withstanding the waiver of any previous cause or right of re-entry upon the Residential plot hereby demised and the buildings thereon, to re-entre upon and take possession of the Residential Plot and the buildings and fixtures thereon, and there-upon this Lease and every thing herein contained shall cease and determine and the Lessee shall not be entitled to any compensation whatsoever nor to the return of any premium paid by him. Condition 5 of allotment letter: 5. The allotment is subject to the conditions that you or your wife/husband or any of your depen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force till 1981 when Nazul Rules were brought into force. That so far as the ratio laid down by the Full Bench of this Court in Ramanand (supra) relied upon by the learned Senior Counsel particularly para 17 is concerned, there is no quarrel that Nazul Rules are deemed to have impliedly repealed the 1961 Scheme. However, it is relevant to note that in the present case the allotment was under the 1961 Scheme and as such the reliance on Ramanand s judgment is misplaced. 40. The Coordinate Bench of this Court in Surender Singh Maan Vs. Govt. of NCT of Delhi reported in 2017 SCC Online Del 10194 had succinctly considered the effect of an affidavit as required under the Policy and the context in which the government had brought the 1961 Scheme into force. More particularly, the observations in para 12 and 13 would be pertinent and are extracted hereunder:- 13. In a Full Bench judgment of this Court reported as AIR 1987 Delhi 46 Shiv Devi v. Lt. Governor, this provision had been interpreted and the relevant extract of the aforenoted order reads herein as under: This shows that a plot can only be allotted to a person whose wife/husband or any of his/her dependent relations, including unm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the delay firstly in respect of the show cause notice being issued in the year 1982 whereas the allotment was sanctioned in the year 1972 to submit that the action is barred by delay and laches. To this, the respondent had explained that it was only upon the petitioner not commencing construction over the said plot despite number of notices having been issued in that context, it took time for the respondent to procure files and collate all the requisite information. Once having collated the facts, the respondent issued the show cause notice in the year 1982 putting the petitioner to notice as to why the said allotment ought not to be cancelled. 43. This aspect, to the mind of this Court, is a satisfactory explanation keeping in view the fact that the petitioner himself had concealed material facts while seeking allotment of alternate plot. Apart from this, learned Senior Counsel had also argued that the respondents had taken inordinate time in passing the impugned order in the year 2003 while the show cause notice was issued in the year 1982. Suffice it to state that there is no doubt that there was a delay however, keeping in view the ratio down by the Supreme Court in S.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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