SHYAM INVESTMENTS Vs. APPROPRIATE AUTHORITY

JUDGEMENT

(1.) WRIT Appeal No. 215 of 1994 is preferred against the order dated January 5, 1994, passed by the learned single judge in WRIT Petition No. 14089 of 1986 (see page 84 supra). The learned single judge has held that the clarification contained in the judgment of the Supreme Court in C. B. Gautam v. Union of India [1993] 199 ITR 530, would make inapplicable the principles laid down in the said decision, therefore, the writ petition is liable to be dismissed. Accordingly, it has been dismissed. Hence, the petitioner therein has come up in appeal.

(2.) THE facts necessary for the purpose of determining as to whether the view taken by the learned single judge is correct are as follows : THE immovable property involved in the proceeding consists of land and building situate at 23, Padmavathiar Road, Royapettah, Madras. It consists of land measuring 3 grounds and 529 square feet and a building with a built up area of 3,000 square feet. THE petitioner firm agreed to purchase the same under an agreement dated October 24, 1986, for a total consideration of Rs. 16,25,000 and paid a sum of Rs. 25,000 by way of advance by cheque number 662603 dated October 24, 1986, drawn on Indian Overseas Bank, Mylapore, Madras-600 004. THEre are other conditions contained in the agreement, which are not necessary for our purpose. Pursuant to the agreement, permission was sought for from the appropriate authority, but by the order under section 269UD(1) of the Income-tax Act, 1961, dated December 9, 1986, it chose to make a pre-emptive purchase of the property. It is the validity of that order which was challenged in Writ Petition No. 14089 of 1986 (see page 84 supra). As already pointed out, the learned single judge has rejected it. Writ Petition No. 14089 of 1986 was filed on December 22, 1986. THEre was an interim order passed on December 23, 1986, restraining the respondents from dispossessing respondents Nos. 2 and 3, who are the vendors. This interim order was again modified on January 23, 1987, and it was directed as follows :

(3.) ON a careful consideration of the clarification contained in Gautam's case , and also on going through the entire decision in that case we are of the view that the said clarification cannot be made applicable to a case, in which the order of pre-emptive purchase is challenged immediately after the order is passed and before the delivery of possession by the vendors and receiving of consideration amount from the appropriate authority. In addition to this, in this case, delivery of possession and receiving of the balance of consideration amount are subject to the result of the writ petition as has been ordered in the judgment dated October 15, 1987, passed in Writ Appeal No. 1637 of 1987. This is clear from the last portion of the order extracted earlier, which has been underlined by us. There is also another principle that the orders of court passed pending final adjudication shall not be interpreted to cause prejudice to any of the parties as the same would always be subject to the final adjudication unless otherwise specifically ordered. Therefore, when delivery of possession and payment of consideration amount have taken place, pursuant to the order of court and subject to the result of the writ petition, such an event cannot be interpreted as an event which had taken place voluntarily and as such the same would not bring the case into the clarification contained in Gautam's case . Therefore, we are of the view that in the facts and circumstances of the case, it is not possible to apply the clarification. In addition to this, it may also be noticed that in that very clarification itself, it has been stated by the Supreme Court that the compensation amount is paid to the owners of the property and accepted without protest. Here, the amount has been accepted subject to the result of the writ petition under the order of the court. Therefore, looked at from any point of view, it is not possible to bring the case within the purview of the clarification contained in the judgment in Gautam's case .