KRISHNASWAMY S. PD. AND ANR. versus UNION OF INDIA AND ORS.

Citation: [2006] 2 S.C.R. 390 · Decided: 21-02-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

1 
A 
KRISHNASWAMY S. PD. AND ANR. 
...,._ .. 
v. 
LNION OF INDIA AND ORS. 
FEBRUARY 21, 2006 
B 
[ARIJJT PASAYAT AND R.V. RAVEENDRAN, JJ.) 
~ 
Income Tax Act, 1961--Section 269UD-Pre-emptive purchase of .. 
immovable property-Requirement of opportunity of hearing to intending 
c 
purchaser and intending seller read into Section 269UD by this Court in C.B. 
Gautam 's case-Applicability of-Held: Not applicable to transuctions which 
have become final or transactions where the department has already auctioned 
the acquired property-./n the instant case, only the intending purchaser had 
challenged the order of pre-emptive purchase-No relief can be granted to 
him as the acquired property had already been sold by public auction before 
D the decision in C.B. Gautam's case, and as there was no challenge by owner 
of th~ property-Income Tax Rules, 1962-Rule 48L--Maxims-"Actus Curiae 
Neminem Gravabit" and "Lex Non Cogit Ad impossibilia". 
• 
' -
The Income Tu Department passed an order for pre-emptive 
E 
purchase of immovable property under S.269-UD of the Income Tax Act, 
1961. Appellants, the intending purchaser filed writ petitions pleading that 
the order of pre-emptive purchase was liable to be quashed inasmuch as 
it was non-reasoned and gave no opportunity of hearing to the affected 
parties. Owner of the property however did not put up any challenge. High 
Court initially stayed the order of pre-emptive purchase, t,ut later vacated 
F the stay and directed the owner to deliver possession to the Department 
It further left it open to the Department to sell the property by public 
~ 
auction. Accordingly, the owner delivered the title deeds relating to the 
property to the Department and accepted the entire sale consideration paid 
by it. The acquired property was auctioned by the Department. Meanwhile 
this Court in C.B. Gautam 's case*, held that that before an order is made 
G under Section 269-UD, the intending purchaser and the intending seller 
must be given a reasonable opportunity of showing cause against the order; 
and that an order under Section 269-UD is required to be supported by 
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reasons in writing. Notwithstanding that decision, High Court dismissed 
j, 
the writ petitions filed by the appellants which had been taken up for 
H 
390 
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J 
._, 
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KRISHNASWAMY S. PD. v. U.0.1. 
391 
hearing subsequently . 
. The question which arose for consideration in the present appeals is 
whether the appellants were entitled to any relief in view of the decision 
in C.B. Gautam's case. 
..., 
Dismissing the appeals, the Court 
HELD: 1. An unintentional mistake of the Court which may 
prejudice the cause of any party must and alone could be rectified. 
(399-D] 
South Eastern Coalfields Ltd. v. State of MP. and Ors., [2003) 8 SCC 
648, referred to • 
Freeman v. Tranah. I 2 C.B. 406, referred to. 
2. The maxim of equity, namely, actus curiae neminem gravabit -
an act of court shall prejudice no man, is founded upon justice and good 
sense which serves a safe and certain guide for the. administration of law. 
The other relevant maxim is, lex non cogit ad impossibilia - the Jaw does 
not compel a man to do what he cannot possibly perform. The law itself 
and its administration is understood to disclaim as it does in its general 
aphorisms, all intention of compelling impossibilities, and the 
administration of law must adopt that general exception in the 
consideration of particular cases. (399-E-F] 
Mis U.P.S.R.T.C. v. Jmtiaz Hussain, (2006) 1 SCC 380, Shaikh Salim 
Haji Abdul Khayumsab v. Kumar and Ors., (2006) 1 sec 46, Mohammad 
Gazi v. State of MP. and Ors., (2000) 4 SCC 342 and Gursharan Singh v. 
New Delhi Municipal Committee, [1996) 2 SCC 459, relied on. 
3. One thing is crystal clear from the order of High Court (by which 
the earlier interim order was vacated) that the appellants wanted to take 
back the money that had been paid to the prospective vendor. Submission 
was made on behalf of the appellant that a sum of Rs.6 lakhs paid by way 
·of advance may be refunded. By seeking the return of the advance, the 
appellants have acquiesced to the property being sold in auction. In the 
order it was clearly mentioned that it was open to the writ petitionen 
(Appellants) to seek refund of the same from the transferor namely, 
respondent No. 4. (399-H; 400-A] 
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392 
SUPREME COURT REPORTS 
[2006] 2 S.C.R. 
A 
4.1. Looking at the controversy from another angle, it is clear th

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