- (1.) R. K. Agrawal, J. By means of the present writ petition, the petitioner has challenged the order dated 14. 7. 1993 passed by the Appropriate Authority, Income Tax Department, Lucknow, respondent No. 1, whereby the property of the petitioner situate at Tonk House, Prayag Narain Road, Lucknow having land of an area of 27,520 sq. feet and the built up area of 5220 sq. feet had been purchased by the Central Government under the provision of Chapter XXC of the Income Tax Act, 1961 (hereinafter referred to as "the Act" ).
(2.) BRIEFLY stated, the facts giving rise to the present writ petition are as follows: According to the petitioner, she is the owner-in-possession of the premises, known as, Tonk House, Prayag Narain Road, Lucknow, It is a residential accommodation in which the petitioner is living alongwith her family. The bungalow was constructed on lease hold plot No. 60 of Butlerganj Scheme, Prayag Narain Road, Lucknow and was leased to one Mr. Shagir Khan of Nazirabad, Lucknow on 27. 8. 1941 for a period of 90 years. On 28. 8. 1941, Mr. Shagir Khan transferred the land in question with all his rights to Her Highness Aminuzamini Begum Maharani of Tonk, who constructed a Kothi and outhouses etc. The plot was sub-divided by the Nazul Officer. The petitioner purchased the land in question including the construction thereon from Maharani of Tonkon 15. 5. 1965. On account of some financial difficulty faced by her husband, the petitioner decided to sell the land including the construction in question to one M/s Qadir Industries Private Limited for a consideration of Rs. 27,00,000/ -. Under Section 269uc of the Act, the petitioner made an application in the prescribed form 37-I for permission/no objection. The agreement for sale was executed on 11. 7. 1990 and the application in Form 37-I was filed soon thereafter. Certain information was sought for by the Appropriate Authority, which was given. However, the Appropriate Authority, vide order dated 26. 9. 1990 directed for pre-emptive purchase of the premises in question under Section 269ud of the Act. The order dated 26. 9. 1990 was subject matter of challenge before this Court in Writ Petition No. 10634 of 1990 on the ground that the order has been passed in gross violation of equity, fair play and natural justice. This Court, vide judgment and order dated 17. 5. 1993, allowed the writ petition and set aside the order dated 26. 9. 1990 passed by the Appropriate Authority. The Court directed that the issue regarding pre-emptive purchase of the property owned by the petitioner be decided after giving an opportunity of hearing to show cause against the pre-emptive purchase. In compliance with the direction given by this Court, in its order dated 17. 5. 1993, the Appropriate Authority issued show cause notice on 17. 6. 1993 calling upon the petitioner to appear before him on 12. 7. 1993 and to submit whatever she wanted to say. The petitioner appeared before the Appropriate Authority on the date fixed and submitted her reply which was considered by the Appropriate Authority. The Appropriate Authority, however, passed an order on 14. 7. 1993 directing for presumptive purchase of the property in question. The Appropriate Authority, however, directed that while making the payment, the amount of Rs. 18,16,320/-, demanded by the Nazul Officer towards mutation and Rs. 45,408 for annual rent and any other arrears will be retained by the Central Government out of the whole consideration of Rs. 27,00,000/- agreed between the petitioner and M/s Qadir Industries Private Limited. It may be mentioned here that before the Appropriate Authority M/s Qadir Industries Private Limited, the purchaser, who had entered into an agreement to purchase the property in question with the petitioner, had given its no objection meaning thereby that it had no interest or grievance in the property if it is purchased by the Central Government under Chapter XXC of the Act. The order dated 14. 7. 1993 is under challenge in the present writ petition on several grounds. The writ petition was taken up on 30. 7. 1993 when the Court passed the following order: " Sri S. C. Misra, appearing on behalf of opposite parties states that he would be filing a counter affidavit by 3. 8. 1993. Rejoinder affidavit, if any, may be filed on 4. 8. 1993. Put up on 4. 8. 1993. Sri S. C. Misra, learned Counsel for the opposite parties, on the basis of the instructions received from the pairokar of the department present in Court, makes a statement that till the next date, the opposite parties are not going to take possession of the property or disturb the same in any manner. In view of the above, no interim order is required to be passed. "
(3.) BY way of an amendment application, which was allowed on 1. 11. 2004, a specific averment has been made in paragraph 21t that the Appropriate Authority has failed to tender or deposit the whole or any part of the amount of consideration in terms of Section 269ug (1) and as such the impugned pre-emptive purchase order deserves to be quashed. A detailed counter affidavit has been filed by the respondents denying the allegations made in the petition. So far as the averments made in paragraph 21t of the petition, as amended, is concerned, in paragraph 31 of the counter affidavit filed by Mohd. Syed Raza Qazmi, working as Income Tax Officer with the Appropriate Authority, Income Tax Department, Lucknow, it has been stated that as the property was never handed over to the Appropriate Authority and as such the question of payment of apparent consideration does not arise. It has further been stated that the petitioner is free to hand over possession of the property to the Appropriate Authority and have the payment of apparent consideration as admissible and the purchase order dated 14. 7. 1993 is liable to be maintained.;