- (1.) INSTANT writ petitions have been filed by the members of M/s. Navin Grah Nirman Sehkar Samiti ("Assessee Samiti") assailing acquisition notice dt.15.03.1985 & order of acquisition of subject land dt.16.10.2002 passed by competent authority U/s 269F(6) of Income Tax Act, 1961 ("Act,1961").
(2.) IT will be relevant to record that notice of acquisition dt.15.03.1985 and order of acquisition dt.16.10.2002 passed by the competent authority came to be challenged on multiple grounds by the Samiti assessee before the Income Tax Appellate Tribunal and that was dismissed vide order dt.25.04.2003 which was further assailed by the Samiti assessee by filing DB Income Tax Appeal-95/2003 and that was dismissed on 28.03.2011, against which Special Leave to Appeal (Civil)-16303/2011 was preferred by the Samiti assessee and that came to be dismissed on 29.07.2011 and further review petition preferred before Hon'ble Apex Court bearing no.791/2012 in SLP(C)-16303/2011 which also was dismissed on 14.08.2012 and it is further to notice that DB Income Tax Misc. Application-141/2011 in DB Income Tax Appeal-95/2003 came to be filed by the Samiti assessee U/s 261 of the Act,1961 read with Sec.109 CPC for grant of certificate U/s 261 of the Act,1961 read with Art.133(1) of the Constitution certifying that it is a fit case for filing civil appeal before the Supreme Court and that came to be dismissed by the Division Bench vide order dt.26.03.2012. It is further to record that one of the allottee filed writ petition before Main Seat at Jodhpur bearing no.8987/2011 (Manju Bhandari Vs. Union of India and Ors.) assailing the notice of acquisition dt.15.03.1985, order of acquisition dt.16.10.2002 passed by the competent authority. However, taking note of the later development which took place the writ petition came to be dismissed assigning detailed reasons vide order dt.07.02.2012. During pendency of the proceedings of DB Income Tax Appeal-95/2003 arises from the judgment dt.25.04.2003 of the Income Tax Appellate Tribunal which was preferred against the order of acquisition dt.16.10.2002 some of the allottees appeared as intervener before the Division Bench in DB Income Tax Appeal-95/2003 and their contention was also considered at length and it was observed by the Division Bench in para-60 of its judgment dt.28.03.2011 that members are claiming their rights or interest through society and their existence came into being only after the society had acquired the subject land by execution of the sale deed and the society being in effective occupation and control of the subject land in dispute service of notice on the society was sufficient compliance for the purpose of Sec.269D(2) of the Act,1961. It will be further to record that the plots were allotted by the Samiti assessee to its members much after issuance of notice of acquisition U/s 269D(I) dt.15.03.1985 as evident from the list of allottees placed on record by the respondent along with reply as Annx.2/1. Counsel for petitioner submits that U/s 269D(2) the notice was supposed to be served upon the person in occupation and interested in the property in question and admittedly in the instant case notice was not served upon the person in occupation or interested in the property i.e. the members herein and accordingly the acquisition proceedings initiated by the respondent qua present petitioners (allottees) is bad in law being in violation of principles of natural justice and deserves to be quashed and set aside. Their contention advanced was considered by the Division Bench at length as the allottees appeared as intervener in para-25- 27 and taking note of the scheme of the Act,1961 it was repelled assigning detailed reasons that the members claiming to be interested only through the society and their existence came into being only after society had acquired the subject land by execution of sale deed and accordingly service of notice on the society was sufficient compliance for the purpose of Sec.269D(2) of the Act,1961 and that apart this Court would further like to observe that acquisition notice was served upon the Samiti on 15.03.1985 U/s 269D(1) of the Act,1961 and pending proceedings the Samiti allotted plots to its members as is evident from the list of allottees placed by the respondent on record along with their reply as Annx.2/1 and admittedly on the date of issuance of notice of acquisition of the subject land dt.15.03.1985 no right in any manner was accrued to either of the member allottees and as per Sec.269(E) of the Act,1961 objection with regard to acquisition of an immovable property was to be made by any person to whom notice U/s 269D(2)(a) was served within a period of 45 days from the date of publication or a period of 30 days from the date of service of notice on such person and admittedly such period expired before the allotment was made to a member by the Samiti and under these facts and circumstances the petitioners who are claiming to be members of the Samiti assessee cannot claim better right or interest vested with the Samiti and service of notice on the Samiti was sufficient compliance for the purpose of Sec.269D(2) of the Act,1961 and that being so the question which has been raised by the petitioners does not remain res-integra to be further examined by the Court in the present proceedings. In the light of DB judgment of this Court dt.28.03.2011 in DB Special Appeal-95/2003 and taking note of the judgment of Coordinate Bench in CWP-8987/2011 dt.07.02.2012, the present writ petitions preferred by the members of the society petitioners, are devoid of merit and accordingly stand dismissed.;