IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : Land Acquisition Act, 1894
WP (C) No. 2783 of 1985
and
WP (C) No. 2092 of 1985
Reserved on : December 01, 2008
Pronounced on : January 27 , 2009
1. WP (C) No. 2783/1985

Bawa Satyapaul Singh . . . Appellant
through : Mr. N.S. Vashisht with
Mr. Vishal Singh , Advocates
VERSUS
Union of India and Ors. . . .Respondents
through : Mr. Sanjay Poddar, Advocate
2. WP (C) No. 2092/1985
Ram Singh Tyagi and Ors. . . . Appellants
through : Mr. N.S. Vashisht with
Mr. Vishal Singh , Advocates
VERSUS
Union of India and Ors. . . .Respondents
through : Mr. Sanjay Poddar, Advocate

CORAM :-
THE HON’BLE MR. JUSTICE A.K. SIKRI
THE HON’BLE MR. JUSTICE MANMOHAN SINGH
A.K. SIKRI, J.
1. These two writ petitions raise identical issue with singular but important difference on a fact which has resulted in varying results.

2. Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the ‘Act’) was issued on 25.11.1980 covering six revenue estates, including the revenue estate of village Chattarpur, land whereof was sought to be acquired. The land of the petitioner is situate in village Chattarpur and was covered by that notification. Objections under Section 5-A of the Act were invited. Large number of persons filed their objections which, however, did not find favour with the Land Acquisition Collector (LAC).

On the basis of report of the LAC, declaration under Section 6 of the Act was issued by the competent authority on 7.6.1985 thereby acquiring the land. The petitioners in these two writ petitions have challenged the validity of the aforesaid notifications under Section 4 and 6 of the Act.

3. We may note that in WP (C) No. 2783/1995 the petitioner has referred to some other writ petitions which were filed at that time and pending consideration and, inter alia, submits that writ petition of the petitioner raises an identical and similar question of law as raised in those writ petitions.

Question of law which the petitioner raises is that though Section 4 notification was issued on 25.11.1980, declaration was not made within three years thereafter and on the expiry of three years, Notification under Section 4 lapsed.

Therefore, it was not open to the respondents to issue declaration under Section 6 of the Act after a lapse of three years from the date of Notification under Section 4 of the Act thereof. Thus, such a declaration is not only illegally, unconstitutional, unwarranted, but is also barred by time. It is also pointed out that the petitioner had earlier filed WP (C) No. 649/1984 (which was obviously filed before the declaration was issued under Section 6 of the Act on 7.6.1985) challenging Section 4 Notification on the ground that it had lapsed after a period of three years.

However, the petitioner withdrew the said writ petition as, according to him, when it came up for consideration, the Division Bench felt that the same was premature. We may point out that neither the date on which the petition was dismissed as withdrawn is given nor the copy of the order is placed along with this writ petition.

4. Challenge on the aforesaid ground is clearly misconceived as the matter stands covered by the Full Bench judgment of this Court in the case of Balak Ram Gupta v. Union of India, 117 (2005) DLT 753, where the vires of same Section 4 Notification was upheld.

The decision in Balam Ram Gupta (supra) was upheld by the Supreme Court in DDA v. Sudan Singh, (1997) 5 SCC 430. The petitioner, however, does not want that the matter is given a quietus on this ground. Certain subsequent developments on judicial side, which have taken place while deciding various other writ petitions, are sought to be taken advantage of by the petitioner. We may first refer to these developments.

5. The Apex Court had occasion to consider the decision in Balak Ram Gupta (supra) once again in Abhey Ram Vs. Union of India (1997) 5 SCC 421, and thereafter in Delhi Administration Vs. Gurdip Singh Uban (1999) 7 SCC 44. In these cases, the Supreme Court took the view that the benefit of the judgment of Balak Ram Gupta (supra) was available only to the 72 petitioners whose cases were decided by that judgment.

The Court laid down the principle that ratio of the said judgment can be availed of only by those who had filed objections under Section 5A of the Land Acquisition Act and those who failed to file such objections were not competent to challenge the notification.

6. What follows from the aforesaid is that the petitioner would be entitled to the benefit of Balak Ram Gupta (supra) only if he had filed objections under Section 5-A of the Act. In the present case, there is no such averment made by the petitioner that he had failed any such objections. No doubt, in certain cases, where such an averment was not taken, on the application filed under Order VI Rule 17 of the Code of Civil Procedure, 1908, during the pendency of those writ petitions, those petitioners were allowed the amendment permitting them to raise such a plea, even if not originally raised, when it was found that objections under Section 5-A of the Act were in fact filed by those petitioners.

We may point out that in certain cases such amendments were even disallowed and writ petitions dismissed. Be that as it may, in the present case, no such application is filed by the petitioner seeking amendment of the writ petition for incorporation of the plea regarding filing of objection under Section 5-A of the Act. Reason is obvious.

The petitioner, in the writ petition itself, has impliedly conceded that no such objections were filed by him inasmuch as in paras 6 to 8 of writ petition it is specifically averred that other land owners filed the objections. Interestingly, in paras 6 and 7, it is originally typed that ‘objections filed by the petitioner and other land owners’, but the words ‘petitioner’ and ‘alongwith’ are specifically scored out.

We reproduce paras 6 and 7, as typed, with the aforesaid words scored out:- ‘6. That the petitioner alongwith other land and owners in the revenue estate of Village Chattarpur, received Notices in the first week of January, 1984, purported to be under Section 5-A directing them to appear before the Collector for a personal hearing on the objections filed by the petitioner and other land owners. The said notice was received by the petitioner them after a span of more than three years from the date of publication of the notification under section 4(1) of the Act.

7. That on the date fixed under the said notice, the petitioner alongwith the other land owners appeared before the Collector and raised the following objections, inter-alia, amongst other :- ‘That the three years period from the date of publication of Notification under section 4(1) of the Act had expired and as such no declaration under Section 6 of the Act could be made’.

This clearly implies that insofar as the petitioner is concerned, he has not filed any objections. In view thereof, as per the judgment of the Supreme Court in the case of Delhi Administration v. Gurdip Singh Uban and Ors. etc. etc., AIR 1999 SC 3822, the petitioner shall not be entitled to the benefit of the judgment in the case of Balak Ram Gupta (supra), or for that matter Chatro Devi and Ors. v. Union of India and Ors., 137 (2007) DLT 14. WP (C) No. 2783/1985 is, accordingly, dismissed.

However, in WP (C) No 2092/1985, the petitioner therein has made a specific averment in para 5 that he had filed objections under Section 5-A of the Act. The petitioner subsequently also filed application under Order VI Ruler 17 of CPC (CM No. 13516/1999) with a prayer that he be allowed to amend the writ petition and incorporate the factum of filing of objections under Section 5-A of the Act. However, it appears that thereafter no specific orders were passed in this case as this writ petition was tagged along with other batch of writ petitions and common orders were passed from time to time in all these cases. Thereafter, this writ petition was adjourned to await the opinion of the third Judge in Chatro Devi (supra).

8. In any case, no such application under Order VI Rule 17 CPC was even necessary as there is already a specific plea taken in the writ petition itself that the petitioner had filed the objections under Section 5-A of the Act and in the counter affidavit filed by the respondent this averment is specifically admitted by the respondent, case of the petitioner in this writ petition shall be covered by the judgment of this Court in Balak Ram Gupta (supra) as well as in Chatro Devi (supra).

9. WP (C) No. 2092/1985 is accordingly allowed. Notification issued under Sections 4 and 6 of the Act qua the petitioner’s land in WP (C) No. 2092/1985, which is comprised in Khasra Nos. 415, 417, 418, 422, 436, 437, 440, 441, 442 and 443 measuring 42 bigha and 12 biswa in revenue estate of village Chattarpur is hereby quashed.

Sd/-
(A.K. SIKRI)
JUDGE
Sd/-
(MANMOHAN SINGH)
JUDGE

IN ABSENCE OF STAY FROM SC, DEPARTMENT CAN'T COLLECT SERVICE TAX ON RENTING OF IMMOVABLE PROPERTIES BY RESORTING TO OTHER MEANS

In absence of Supreme Court's order staying operations of High Court's judgment relating to levy of service on renting of immovable property, Revenue Department could not instruct its officers to pursue the matter with tax payers calling upon them to pay service tax on same or to resort to other means under the law to protect the Revenue.

Source of The Case Law:-

Decided by: HIGH COURT OF DELHI, In the case of: SSIPL Retail Ltd. v. Union of India, Writ Petition (Civil) No: 13861 of 2009, Decided on: December 18, 2009(SENT ON 28th Jan-2010-again-In The SUBJECT 2 imp. Judgement)

RELEVANT PARAGRAPHS-

By the Finance Act, 2007, service "in relating to renting of immovable property for use in the course or furtherance of business or commerce" was introduced within the definition of taxable service as sub-section (zzz) to section 65 (105) along with corresponding insertions to section 66 and 65 (90a) thereto. Notification dated 22-5-2007 was thereafter issued making the aforesaid amendment effecting from 1-6-2007. The said Notifications/amendments as well as circular was challenged by various tenants and landlords by filing various Writ Petitions. These writ petitions were decided by this Court on 18 -4-2009 in Home Solution Retail India Ltd. v. UOI and others (2009) 20 STT 129 by the said judgment this Court hold that aforesaid notification and circular were ultra vires the provisions of the Finance Act.

Respondent no. 1 has filed Special Leave Petition No. 1385O/ 2009 in the Supreme Court challenging the aforesaid judgment dated 18,h April. 2009 rendered by this Court, though in the Special Leave Petition till date Supreme Court has not granted any stay on the operation of that judgment. Therefore even when Special Leave Petition is pending, the judgment of this Court as of today holds and in the absence of any stay the respondents are hound to follow the same.

Grievances made in this petition is that in spite of the aforesaid position, the respondent No. l is issuing instructions to its officers throughout the' country slating that in

view of the filing and pendency of the said Special Leave Petition, the officers should safeguard the revenue by either pursuing the tax-payers to pay the service tax on renting of immovable property for use in the course of furtherance of business or commerce or resorting to means under law to protect the Revenue It is further stated on the basis of these instructions received by the officials of the Department, they are sending notices to various persons with instructions to start complying with the provisions of the aforesaid notification and circular by paying the requisite -'Service tax. One specimen of such notice is enclosed along with this writ petition which is notice dated 24\07£009 issued by the Office of the Commissioner of Service Tax, Service Tax Commissionerate, to Karnataka State Industrial Investment and Development Corporation Ltd:-

"Sub. Issue of leviability of ST on renting of immovable property - Clarification sought for - Reg.

Please refer to your letter dated IS.07.2009 on the above mentioned subject.

As pointed out above, even when the judgment of this Court is challenged by filing the SLO, till date there is no order passed by the Supreme Court staying the operation of that judgment. In these circumstances, the respondent could not instruct their officers to peruse the matter with tax payers calling upon them to pay service tax or to resort to other means under the law to protect the Revenue. The manner in which the letters are written clearly indicate that the payment of tax is demanded and the threat is also extended that if there is no compliance, Department would initiate further necessary action against them.

Mr. Chandhiok, learned ASG appearing for the respondent, assures that corrective steps shall be taken by issuing further instructions, in suppression of earlier instructions, to the officers not to write such letters demanding the payment of service tax or threatening corrective steps. On this assurance no further orders are required to be passed in this Writ Petition.

SUPREME COURT CASE LAWS

COMMISSIONER OF C.EXCISE, DELHI vs. MARUTI UDYOG LTD.

(Civil Appeal No. 3783 of 2000 with C.A. Nos. 660,3841, 5867-68 of 2000, 3913, 4082, 4455, 6072, 8455 of 2001 and 92 of 2002, decided on 27.2.2002)

"Cum-duty price, when charged, then in arriving at the excisable value of the goods the element of duty which is payable has to be excluded. The Tribunal correctly held that the amount realised by the assessee from the sale of scrap has to be regarded as a normal wholesale price and in determining the value on which excise duty is payable the element of excise duty which must be regarded as having been incorporated in the sale price, must be excluded in terms of Section 4 of Central Excise Act, 1944."

"Wholesale price which is charged is deemed to be the value for the purpose of levy of excise duty under Section 4 of Central Excise Act, 1944, but the element of excise duty, sales tax or other taxes which is included in the wholesale price is to be excluded in arriving at the assessable value."

"Sale price realised by the assessee to be regarded as the entire price inclusive of excise duty when he has, by necessary implication, taken on the liability to pay all taxes on the goods sold and has not sought to realise any sum in addition to the price obtained by it from the purchaser. Purchaser is under no obligation to pay any amount in excess of what had already been paid as the price of the scrap. Respondent (i.e. Maruti Udyog Ltd.) entitled to benefit of Section 4(4)(d)(ii) of Central Excise Act, 1944."

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CENTRE FOR DEVELOPMENT OF ADVANCED COMPUTING vs. C.C.EX., PUNE
(Civil Appeal No.2749 of 2001, decided on 27.2.2002

RESEARCH organisation - exemption whether available to commercial production of Research organisation - appellant even though a R&D organisation had a technical expertise to manufacture sophisticated equipment on the orders placed on it - as a result of its research it had acquired sufficient acumen to be able to manufacture the equipment tailor-made for the use of the purchaser - equipment so manufactured in supply cannot be regarded as beinga product of research - Section 35K of Central Excise Act, 1944.

Demand - Limitation - As per Memorandum of Association appellant was established to carry out research etc. - Department of Electronics and Ministry of Science and Technology also recognised the appellant as a research and development unit - Appellant thus under bona-fide belief that the goods manufactured by it and supplied were not liable for payment of duty - No wilful suppression for evasion of duty - extended period of limitation of five years not invokable under Section 11A of Central Excise Act, 1944.

PREVENTIVE DETENTION
NON- Placement of the order of Settlement Commission by the sponsoring authoirty before the detaining authority directing the detenu to make payment of the additional duty is not only a lapse but a serious lapse on the part of the officials resulting in the order of detention to be declared as unlawful and illegal and thus resultantly cannot be sustained. Section 3(1)(I) of COFEPOSA Act, 1974 - Sections 132 and 135 of the Customs Act, 1962.

Constitutional sanction for preventive detention cannot be said to be without any limitation - Hall mark of the concept of justice, as is available in the hustice delivery system of the country is that the conduct of the Detaining authority or as a matter of fact any governmental authority ought to be fair and reasonable - Accepted methodology of governmental working should always be in tune with the concept of fairness and not de hors the same - A person is being placed under detention without trial and there is neither any scope for overzealous nor acting in a manner without due and proper application of mind - in either of the situation Law Courts should be able to protect the individual from the administrative ipse dixit.

Non placement of the order of payment of additional duty within 30 days from the receipt of the order of the Commissioner has not only transgressed the rights of the petitioner but speaks a volume about the conduct of the officials rendering the proceedings before the Detaining authoirty vitiated and thus turned out to be illegal.

SUPREME COURT RULINGS

APPELLANT
RESPONDENT
APPEAL NO
RULING
Phoenix International Ltd
Commissioner of Customs, Raigad
C A No 4940 of 1999 (decided on 29.11.2001)
Leather cloth _ PVC leather cloth- printed PVC cloth as imported is a PVC sheet bonded with textile fabric, having regular pattern and grooves are made for cuttng to 3 pieces- pattern is clearly distinguishable and if cut through the groove, 3 patterns of shoe uppers could be separated -contention that merely because it is prnted and embossed it would not cease to be a PVC cloth is not acceptable; goods have only the general characteristics of "PVC cloth" whereas they have distinct and clear feature of shoe uppers _ classifiable under sub-heading 6406.10 of Customs Tariff Act, 1975 by virtue of Rule 2 (a) of Rules of Interpretation.

UOI
Adani Exports Ltd
C A Nos 6320-6321 of 2000 (decided on 31.10. 2001)
Writ jurisdiction _ Territorial jurisdiction cause of action _ High Court in order to entertain a Writ Petition or a Special Civil Petition or a Special Civil Application must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the court to decide a dispute which has, at least in part, arisen within its jurisdiction. Each and every fact pleaded by the respondents in the application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court's territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case-Article 226 of Constitution of India.

Enforcement Directorate
M Sambasiva Rao
Criminal Appeal Nos 1294-1300 of 1999 (decided on 9.5.2000)
FERA - Summons - refusal to comply with discretions of summons by a person summoned under Section 40 of FERA, 1973 amounts to contravention of provision of the Act and comes within the purview of Section 56 ibid and punishable thereunder.

Bipin Shantilal Panchal
State of Gujarat
Criminal Misc Petition No 862 of 2001 in SLP (Criminal) No 223 og 2000 (decided on 22.2.2001)
Bail-Trial Court to accelerate trial procedure to complete it as early as possible _ accused continuing in jail as an undertrial for a period of more than 7 years _ bail application to be disposed of by concerned court on merits - Section 439 of the Code of Criminal Procedure, 1973.

Evidence - admissibility of objection when raised regarding admissibility of any material or item of oral evidence, Trial Court to make note of such objections document subject to such objections to be decided at last stage in final judgement.

Premier Cable Co Ltd
Govt of India
C A No 2761 of 1991 (Decided on 21.1.2001)
Civil Suit -Res Judicata - finality of order- appellant challenged the assessment order by means of an appeal before the Appellate authority - appeal was dismissed on the ground of delay and the revision against the same order was also rejected _ Writ Petition filed against the same order was also dismissed _ once the Writ Petition was dismissed and the said judgement was not challenged before the Superior Court, the assessment order passed against the appellant attained finality-assessment, order having attained finality., the levy could not have been challenged by means of a separate suit in the Civil Court - Sectin 11 of Civil Procedure Code.

Civil Suit - assessment order not challenged in the plain_ orders of asessing officer, the appellate authority and the revisional authority through mentioned in the plaint but no relief was sought for setting aside those orders _ so long those orders are allowed to stand, no relief could have been granted to the appellant in the suit.

(Compiled by Mr R Venkatraman, former GM (Indirect Taxes), IOCL, Delhi)

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