W.P.(C) 37/2019 & C.M. APPL. 206/2019

7th January 2019

Petitioner Counsel: Mr. Rakesh Kumar Singh
Respondent Counsel: Mr. R. Mishra Mr. M. K. Tiwari

Cases Cited :
Para 6: J.C. Sen Gupta Vs. Appropriate Authority., W.P.(C) 9574/2005
Para 6: C.B. Gautam Vs. UOI: (1993) 199 ITR 530 (SC)
Para 13: R. D Shetty Vs. International Airport Authority of India,(1979) 3 SCC 489
Para 13: Kasturi Lal Lakshmi Reddy Vs. State of Jammu and Kashmir, (1980) 4 SCC 1
Para 13: Col. A.S. Sangwan Vs. Union of India, AIR 1981 SC 1545
Para 21: K.K. Modi Vs. K.N. Modi & Ors.: (1998) 3 SCC 573
Para 21: M. Nagabhushana Vs. State of Karnataka & Ors.: (2011)3 SCC 408

JUDGEMENT

VIBHU BAKHRU, J.

1. The petitioner has filed the present petition impugning the CBDT's instructions dated 19.07.1993. The petitioner further prays that directions be issued to the respondents to permit the petitioner to negotiate and acquire the property bearing address A-3/4, Vasant Vihar, New Delhi (hereafter referred to as 'the said property'). In the alternative, the petitioner prays that directions be issued to the respondents for immediately auctioning the said property.

2. The petitioner also claims compensation at the rate of Rs1.5 lacs per month with effect from 01.01.2016 till, the finalisation and disposal of the said property by public auction.

3. This is the third round of litigation instituted with respect to the said property and has been instituted after the two previous petitions preferred by the petitioner's predecessor failed to meet with any success.

4. The petitioner's father was a tenant in the first floor of the said property (hereafter 'the tenanted premises') pursuant to a lease deed dated 15.11.1976 executed with the landlord/owner of the said property. The said lease had expired and the landlord had instituted an eviction petition which was dismissed.

5. Sometimes in the year 1996, the landlord/owner of the said property entered into an agreement to sell with a third party. As required under Chapter XXC of the Income Tax Act, 1961, the landlords / owners filed Form 37-I before the appropriate authority on 27.09.1996. The Central Government exercised its powers to acquire the said property and, on 26.03.1997, passed an order under Section 269UD(1) of the Income Tax Act, 1961, to purchase the said property. As stated above, this also included the tenanted premises, which had earlier been leased to the petitioner's father (Late Group Captain J.C. Sen Gupta).

6. After acquiring the said property, the Appropriate Authority attempted to auction the same but the said efforts failed. Thereafter, the Appropriate Authority issued a notice dated 24.02.2005, directing that the physical possession of the said property be handed over to it. The petitioner's father impugned the said notice by way of a writ petition - W.P.(C) 9574/2005 captioned J.C. Sen Gupta v. Appropriate Authority before this Court. Group Captain. J.C. Sen Gupta (the petitioner therein) expired on 28.03.2006, during the pendency of the petition. The aforementioned writ petition was thereafter pursued by the petitioner's mother - Smt. Shiela Sen Gupta who has also since expired. The said petition, W.P.(C) 9574/2005, was disposed of by this court by an order dated 23.11.2011. This Court held that the tenancy rights, being an existing encumbrance, would not be disturbed. The aforesaid issue had also been examined by the Constitution Bench of the Supreme Court in C.B. Gautam v. UOI: (1993) 199 ITR 530 (SC). However, this Court also held that since the said property stood vested with the Central Government, it was entitled to initiate eviction proceedings under the Public Premises (Eviction of Unauthorized Occupation) Act, 1971 and the protection of the Delhi Rent Control Act, 1956 was no longer available in respect of the said property.

7. At the material time, the tenanted premises were occupied by the petitioner's late mother (the widow of Late Group Captain J.C. Sen). She was of an advanced age of over 83 years and appealed to this Court to permit her to stay in the said property for further a period of two years. She also undertook that she would vacate the premises on or before 30.11.2012. The said request was accepted by this Court in its order dated 23.11.2011. The relevant extract of the said order is set out below:-

“8. In view of the stand taken by the Revenue in the counter affidavit it is apparent that it is not the intention of the Revenue to physically and by force throw out the petitioner from the portion in his occupation but they shall evict him/her legally as per law i.e. by due process of law. This right and power vests with Central Government and they are entitled to initiate eviction proceedings under the Public Premises (Eviction of Unauthorized Occupation) Act, 1971 and the protection of Delhi Rent Control Act, 1956 is no longer available. If we carefully read the impugned order/letter dated 20.5.2005 the same states that the petitioner was requested to vacate the premises within 10 days. It also states that petitioner was an unauthorized occupant and therefore, should vacate the property.
9. At this stage, ld. counsel for the petitioner states that the petitioner is a widow and about 83 years of age. She has been staying in the property since 1976. He states that the petitioner and her children will file an undertaking in this Court that they shall vacate the premises on or before 30th November, 2012. The said undertaking will be filed by Shiela Sen Gupta within two weeks and by her children within 4 weeks as it is stated that one of the children is residing abroad. The property will not be sub-let or transferred. The petitioner will continue to pay rent/occupation charges/damages at the rate of existing rate. In case there are any arrears, the same will be paid within a period of one month.
10. We are inclined to accept the said undertaking keeping in view the old age of the petitioner and also the factum that proceedings under Public Premises (Eviction of Unauthorized Occupation) Act, 1971 may take some time before an order is passed. The undertaking will bring this litigation to an end and curtail any further proceedings which may arise. It is clarified that in case there is any breach in the undertaking it will be open to the respondent to forcefully evict the petitioner or any person in occupation of the premises without taking recourse to eviction proceeding under the Public Premises (Eviction of Unauthorized Occupation) Act, 1971. Undertaking will be executed as an eviction order under the said Act. Copy of the undertaking will be also furnished to the ld. counsel for the Revenue.”

8. Despite, agreeing to vacate the tenanted premises and being granted two years time to do so, the petitioner's mother filed a Special Leave Petition before the Supreme Court impugning the aforesaid judgment dated 23.11.2011 passed by this Court. The said Special Leave Petition was disposed of by the Supreme Court by an order dated 16.07.2012. The said order is set out below:-

“Delay condoned. After having heard learned senior counsel for the petitioner and after having gone through the impugned order and the record, we find no ground to interfere against the impugned order passed by the High Court. However, as a very special case and looking to the facts and features of the case and keeping in mind that the petitioner is 87 years old, we deem it fit and proper to grant two year's time from today to the petitioner to vacate the suit premises and handover its peaceful possession to the respondent, subject to her filing usual undertaking in the Court within four weeks from today. But it may not be treated as precedent for other cases. With the aforesaid direction, this special leave petition stands disposed of.”

9. It is apparent from the above that this Court did not interfere with the this Court's view that the protection envisaged under the Delhi Rent Control Act, 1956 was not available in respect of the property and that the petitioner (Smt Shiela Sen Gupta) could be evicted by following the procedure under the Public Premises (Eviction of Unauthorized Occupation) Act, 1971. However, keeping in view her advanced age, the court permitted the petitioner's mother to continue to occupy the premises for a further period of two years from the date of the order. This order concluded the first round of litigation.

10. There is clearly no dispute that the lease in respect of the tenanted premises had expired and the petitioner's parents were unauthorised occupants of the said property. They were, however, continuing to occupy the tenanted premises under protection of the Delhi Rent Control Act, 1956, which was no longer applicable with respect to the property being purchased by the appropriate authority.

11. Just prior to expiry of the period of two years as granted by the Supreme Court, the mother of the petitioner (since deceased), Smt. Shiela Sen Gupta filed another writ petition (W.P.(C) 4120/2014), inter alia, impugning the CBDT's instruction No. 1908 dated 19.07.1993. It is relevant to note that this instruction is also impugned in the present petition.

12. In terms of the aforesaid instructions, the Income Tax Department was prohibited from entering into direct negotiations with any individual for disposal of the property acquired by it. The efforts to auction the property at the material time had failed and the petitioner's mother was desirous of purchasing the said property by means of a private negotiations.

13. The aforesaid writ petition was disposed of by the Division Bench of this Court by an order dated 07.07.2014. The operative part of the said order is relevant and is set out below:-

“9. The CBDT is conferred the authority to issue circulars and instructions for proper administration of the Income Tax Act, under Section 119. A circular is thus merely an administrative instruction, and can be challenged if it overrides or seeks to supplant the parent statute. It is nobody's case that the impugned circular overrides the Act. Instead, what is sought to be argued is that the impugned circular violates Article 14, by permitting the CCIT to enter into negotiations for disposal of property purchased under Chapter XX-C, with only a class of entities i.e. State/Central Government Departments and public sector undertakings. This Court finds that the CBDT circular reflects a policy of the Central Government that cannot possibly be judicially reviewed, except on very narrow considerations of unreasonableness or arbitrariness. See R. D Shetty v. International Airport Authority of India,(1979) 3 SCC 489; Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, (1980) 4 SCC 1; Col. A.S. Sangwan v. Union of India, AIR 1981 SC 1545. However, the challenge of the petitioner is that her right under Article 14 is violated since the impugned circular authorises negotiations for sale with PSUs and Government Departments, and not all private individuals. In other words, the classification is sought to be challenged. This is impermissible when the State action challenged is a policy decision.
10. This Court notes that no argument was advanced on grounds of arbitrariness of the circular. Indeed, one need not go far to seek clarity on whether this policy is arbitrary or not. That the Government/CBDT has the discretion to decide what mode of sale to adopt, to dispose of property purchased under Chapter XX-C is indubitable. Whilst it is true that public auction is a stipulated mode of sale for one particular set of immovable properties under Part III, Schedule II, i.e. immovable properties of defaulters that are attached under the Act, that fact alone does not bar the Government from prescribing public auction as a mode of sale, for disposal of immovable properties that come into the Government's hands by other proceedings under the Act. The silence of the Act on modes of disposal of property that are pre-emptively purchased under Chapter XX-C cannot be, by any stretch, presumed to limit or constrain the Government's discretion in disposal of the property.”

14. As is apparent from the above, this Court clearly rejected the contention that the CBDT's instruction dated 19.07.1993 was arbitrary or unreasonable. It is also apparent from the plain reading of the aforesaid order that this Court did not accept that the petitioner therein had any rights in respect of the said property and expressly clarified that the observations made by the Court would not confer any advantage on the petitioner therein or release her from the undertaking she had furnished.

15. The petitioner's mother (who was the petitioner in W.P.(C) 4120/2014) impugned the aforesaid decision before the Supreme Court by filing a Special Leave Petition (SLP No. 19936/2015). The said petition was dismissed by an order dated 03.08.2015, which is reproduced below:-

“We are informed that the possession of the premises is handed over to the Income Tax Department by the petitioner. In case the said property is put to auction by the Income Tax Department or dispose of the property, it would be open to the petitioner to claim participation therein and whenever such request is made, the same shall be considered.
The special leave petition is dismissed with the above observation.”

16. The aforesaid order concluded the second round of litigation. It is clear from the above that there is no room for any doubt that the case set up by the petitioner's mother was not accepted. However, the Supreme Court had clarified that in case the said property was put to auction, it would be open for the petitioner therein to participate in the same. Clearly, the same did not confer any additional rights on the petitioner's late mother.

17. The petitioner's mother expired on 01.01.2016. Thereafter, the petitioner continued to pursue the Appropriate Authority for information regarding disposal of the property. It is stated that on 03.11.2017, the petitioner received a letter from the Appropriate Authority for participating in a public auction for the said property. The property was listed for public auction on 12.12.2017 on a reserve price of Rs30 crores but was subsequently removed from the public auction.

18. The petitioner has filed the present petition as the Income Tax Department continues to use the said property without any immediate timelines to dispose of the same.

19. Insofar as the challenge to the CBDT's Policy (CBDT's Instructions dated 19.07.1993) is concerned, the said issue is no longer res integra. The challenge to the same had been rejected by the Division Bench of this Court in its order dated 07.07.2014, which was subsequently upheld by the Supreme Court in its order dated 03.08.2015. The petitioner's endeavour to once again re-litigate the issues is clearly an abuse of the process of law.

20. The petitioner has premised the other reliefs in the present petition on an assumption that she had acquired any rights as a legal heir of Smt. Shiela Sen Gupta on account of the observations made by the Supreme Court in its order dated 03.08.2015. Plainly, the said assumption is wholly incorrect. The Supreme Court had observed that in case the property was put to auction, the petitioner therein could also claim participation. The said observation did not confer any right on the petitioner's late mother to insist that the said property be put to auction. The said issue had also been decided by this Court in its order dated 07.07.2014.

21. In the case of K.K. Modi v. K.N. Modi & Ors.: (1998) 3 SCC 573 the Supreme Court has observed as under:

“44. One of the examples cited as an abuse of the process of court is re-litigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of court.”
The above view was also reiterated by the Supreme Court in M. Nagabhushana v. State of Karnataka & Ors.: (2011)3 SCC 408.

22. This Court is of the view that the present petition is an abuse of the process of this Court and such speculative petitions, which are clogging the docket of this Court, ought to be discouraged.

23. Considerable time of this court has been taken up by the petitioner and the petitioner must be held accountable to the same. In view of the above, the present petition is dismissed with costs quantified at Rs50,000/-. The cost shall be deposited with the Delhi High Court Legal Services Committee within a period of two weeks from today.

24. The application filed by the petitioner is also disposed of.

25. List for compliance on 28.01.2019.