COMMISSIONER OF INCOME TAX Vs. PREMANAND INDUSTRIAL CO OPERATIVE SERVICE SOCIETY LIMITED
LAWS(GJH)-1979-12-32
HIGH COURT OF GUJARAT
Decided on December 13,1979

COMMISSIONER OF INCOME TAX Appellant
VERSUS
Premanand Industrial Co Operative Service Society Limited Respondents

JUDGEMENT

DIVAN, J. - (1.) IN this group of six appeals the order of the Tribunal is common and the appeals arise out of the acquisition under Chap. XX -A of three open plots of land sold or purported to be sold by the same transferors to three different co -operative societies. The transferors in these three transactions are Ramanlal Motiram and three others who were all co -owners of the three plots of land situated on the outskirts of Surat. The three transferee -co -operative societies are Nand Industrial Co -operative Service Society Ltd., Anand Industrial Co -operative Service Society Ltd. and Paramanand Industrial Co -operative Society Ltd. By three sale deeds, the transferors sold to the respective industrial co -operative service society different plots of land roughly admeasuring about ten or eleven thousand square yards on the outskirts of Surat for considerations which were mentioned in the respective sale deeds. These sale deeds were registered on December 31, 1973. The District Valuation Officer found on his valuation report that the properties were worth Rs. 4,75,000 or so and thereafter the competent authority functioning under S. 269D(1) of the I.T. Act issued notices to the transferors and the transferees. The notice under S. 269D(1), which is a condition precedent to the initiation of proceedings for acquisition under this Chap. XX -A, was published in the Official Gazette on September 28, 1974. The notices were served on the transferors and the transferees in November, 1974, that is, on 22nd November, 1974, and 26th November, 1974, and the proclamation was made at the site and also on the notice board of the competent authority and by the beat of thali on December 14, 1974. No objections were filed either by the transferors or the transferees and it appears from the report of the competent authority that repeated opportunities were given to the transferors and the transferees and to their chartered accountant for putting forward the views of the parties regarding the proposed acquisition. The reports of the Valuation Officer were made available but no objections as contemplated by the provisions of S. 269E were filed either by the transferors or the transferees within the time contemplated by law and whatever comments were offered were not pressed and no arguments were advanced by the chartered accountant. Ultimately, the competent authority passed the orders in the three different matters acquiring these properties which were sold to the respective co -operative societies. Against the decision of the competent authority appeals were filed by the transferors and the transferees to the Income -tax Appellate Tribunal and by a common order the Tribunal held that inasmuch as the members of the three co -operative societies were not served with notices inviting objections, the acquisition orders were vitiated. The Tribunal directed that notices under S. 269D(1) should also have been served by the competent authority on the individual members of the transferee co -operative societies. The appeals were allowed and the three cases were restored to the file of the competent authority with direction to dispose of the matter afresh according to law after service was effected on the individual members of the three co -operative societies. It is against these orders of the Income -tax Appellate Tribunal that this group of six appeals has been filed by the Commissioner of Income -tax. It may be pointed out that in First Appeals Nos. 242, 246 and 247, the respondents are the three different co -operative societies and in First Appeals Nos. 243, 244 and 245 the transferors in respect of the three different transactions are the respondents, namely, Ramanlal Motiram and three others.
(2.) THE main argument which appealed to the Income -tax Appellate Tribunal was that the individual members of the three transferee co -operative societies were persons interested and since those interested persons were not served with individual notices as required by S. 269D(1) the orders of acquisition passed by the competent authority were vitiated. Now, for the purpose of Chap. XX -A, S. 269D(1) is the definition section and under clause (g), 'person interest' in relation to any immovable property includes all persons claiming, or entitled to claim, an interest in the compensation payable on account of the acquisition of that property under that chapter. It is thus clear that the definition in S. 269A(g) is an inclusive definition. In Dilworth v. Commissioner of Stamps [1899] AC 99 (PC), the interpretation to be given to such inclusive definitions has been clearly laid down by the House of Lords. In the interpretation of statutes it is well known that when the Legislature wants to enlarge the natural meaning of the words or phrase, it uses the word 'includes' and in such a context an inclusive definition means that over and above the natural meaning of the words, the specially provided meaning of the word will also have to be attributed for the purpose of interpretation of that particular statute or that particular chapter, as is the case before us. 'Person interested' is a phrase not unknown to other statutes. In S. 3(b) of the Land Acquisition Act, the expression 'person interested' includes all persons claiming an interest in compensation to be made on account of the acquisition of land under that Act and a person shall be deemed to be interested in land if he is interested in an easement affecting the land. We are not concerned with the last part of the definition for the purpose of the Land Acquisition Act but the first part of S. 3(b) of the Land Acquisition Act is in pari materia with the definition in S. 269A(g) of the I.T. Act, and since both these definitions occur in the context of acquisition of property, whatever interpretation has been given to the words 'person interested' in the context of the Land Acquisition Act will also help us in considering the meaning to be attributed to the words 'person interested' in the context of Chap. XX -A of the I.T. Act. In Sunderlal v. Paramsukhdas, : [1968]1SCR362 , the Supreme Court has pointed out that the definition of 'person interested' is an inclusive definition. It is not necessary that in order to fall within the definition a person should claim an interest in land which has been acquired. A person becomes a person interested if he claims an interest in compensation to be awarded. That interpretation on the words 'person interested' was given by the Supreme Court in the context of the Land Acquisition Act, S. 3(b), and, as we have pointed out earlier, it will have a bearing in the context of S. 269A(g) of the I.T. Act as well. Therefore, we have to ask ourselves whether the members of the three individual co -operative societies can be said to be 'persons having an interest' in the land or the 'person having an interest' in the compensation to be awarded for the acquisition of the lands or immovable property. Under the provisions of the Gujarat Co -operative Societies Act, 1961, every co -operative society registered under the Act is a body corporate having a common seal and a perpetual succession and, therefore, primarily it is the co -operative society which is the owner of the land which it purchased and which is transferred to it. The members of the society will have rights or interest in that land only if under the bye -laws of the society it can be said that the members have an interest in that land. Mr. Shah appearing for the respondents in First Appeals Nos. 242, 246 and 247, namely, the transferees, has contended that the legal position is that the members of a co -operative society have an interest in the immovable property belonging to the society. It must be pointed out that so far as co -operative housing societies are concerned, there are different types of co -operative societies, one is what is known as tenant -owner society where the individual member of the co -operative society is allotted a plot or a portion of land from the lands belonging to the society and the member puts up a superstructure on that land at his own cost and is the owner of the superstructure. Another type of society is what is known as a tenant -co -partnership society where, particularly in big urban centres like Bombay and now even in Ahmedabad, the land belongs to the co -operative society and all the members of the co -operative society in co -partnership put up a structure over the land. In such an eventuality, different rights inter se in the light of the bye -laws will emerge as between members on the one hand and as between the members and the co -operative society on the other.
(3.) WE will now take up the decisions on the point in a chronological order. In Sakarchand Chhaganlal v. CED : [1969]73ITR555(Guj) the question before this High Court was of a co -operative housing society of the tenant -ownership type and there, after examining the bye -laws of the society, it was found that out of the land belonging to the society, plot may be allotted and given by the society on lease to a member who holds at least five shares and the member may build his own house upon it. The plot would continue to be held by the member so long as he is a member. If he ceased to be a member for any reason by expulsion or otherwise, the society can determine the lease and take back the plot and if it does so, the building built by the member on the plot would also go to the society with the plot and the society would be bound to pay the value of the member's interest in the house. In this context, it was held by the Division Bench of this High Court of which I was a member that, unlike the English Law, the law in India recognises dual ownership, the land belonging to one person and the structure upon it belonging to another, and, therefore, though the land of the plot was owned by the society, the superstructure upon it belonged to the deceased. It was further held (p. 562) : '..... since the deceased being lawfully in possession had constructed on the land belonging to the society, the only right which the deceased had in regard to the superstructure was to remove it, if for any reason his possession of the land came to an end.' ;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.