Assistant Director, Rajasthan Land & Building Tax Department v. Rajendra Agarwal
2005-07-11
GOVIND MATHUR
body2005
DigiLaw.ai
Judgment Govind Mathur, J.-An application under Section 8(1) of the Rajasthan Taxation Tribunal Act was preferred by the petitioner giving challenge to the order dated 27.03.1995 passed by the Additional Divisional Commissioner, Udaipur setting aside the orders dated 22.02.1986 and 22.06.1987 passed by the Deputy Director, Land & Building Tax, Jodhpur exercising reviewing powers under Section 22-A of the Rajasthan Land & Building Tax Act, 1984. The application preferred by the petitioner stood transferred to this Court on abolition of the Rajasthan Taxation Tribunal Act and is treated as writ petition. 2. The facts in brief of the case arose to present petition are that the Assessing Authority i.e., Assistant Director, Land and Building Tax, Udaipur by his order dated 26.03.1983 assessed the value of the property in question as of Rs. 9,64,700/-and determined the annual tax in a tune of Rs. 8970.50/-and also the value of Rs. 73, 300/-with annual tax of Rs. 116.50/-. The respondent No. 1 to this, being aggrieved by the assessment made and the tax liability determined, preferred appeals before the Appellate Authority i.e., Deputy Director, Land and Building Tax, Jodhpur. The appeals were registered as Appeal No. 27/1983 (with regard to the property assessed with the value of Rs. 73,300/ -), and the Appeal No. 34/1983 (with regard to the property assessed with the value of Rs. 9, 64, 700/ -). 3. The Appellate Authority by two different orders dated 30.09.1983 accepted the appeal in part and remanded the matters to the Assessing Authority to determine the value of the property afresh by taking into consideration six units in view of a partition taken place on 25.01.1972 as a consequence of family settlement made by Late Shri Panna Lal amongst his six children, the present respondents No. 1 to 6. The Appellate Authority held that there was no need for registration of the family settlement and, therefore, ordered for determination of assessment of the value of the property in question afresh and also to determine the tax accordingly. 4. The assessing authority moved applications under Section 22-A of the Rajasthan Land & Building Tax Act, 1984 for rectification of error said to be apparent in the orders passed by the Appellate Authority on 30.09.1983.
4. The assessing authority moved applications under Section 22-A of the Rajasthan Land & Building Tax Act, 1984 for rectification of error said to be apparent in the orders passed by the Appellate Authority on 30.09.1983. The Appellate Authority by an order dated 24.02.1986 decided the applications under Section 22-A by accepting the same with a direction for making requisite correction in the order dated 30.09.1983 for determination of value of the property in question by considering the entire property as one unit. The application under Section 22-A referred above was decided in absence of the respondents No. 1 to 6. 5. By an another order dated 22.06.1987, the Appellate Authority again decided the applications under Section 22-A of the Act of 1984 preferred by the respondents No. 1 to 6 holding therein that valuation of the property in question is required to be made by treating the same in six units and further on basis of rent determination method. 6. Being aggrieved by the same, Assistant Director, Land & Building Tax, Udaipur preferred before the Divisional Commissioner, Udaipur a revision petition as prescribed under Section 19 of the Act of 1984. The Additional Divisional Commissioner, Udaipur while exercising the powers of Divisional Commissioner, Udaipur set aside the orders dated 22.02.1986 and also the order dated 22.06.1986. The Divisional Commissioner held that while accepting the application under Section 22-A of the Act of 1964, the Appellate Authority travelled beyond the jurisdiction vested with him as the order passed by him was not a correction or rectification of error apparent but it was total change of the order passed and Section 22-A does not permit for the same. 7. The instant writ petition is preferred by the Assistant Director, Land and Building Tax, Udaipur being aggrieved by the order dated 27.03.1995. The contention of the Counsel for the petitioner is that the Divisional Commissioner while accepting the revision, quashed the order dated 22.06.1987 as well as the order dated 22.02.1986 which was not in challenge before him. 8. I have heard learned Counsel for the parties. 9. The sole contention of the learned Counsel for the petitioner is that the Divisional Commissioner, Udaipur erred in setting aside the order dated 22.02.1986 thought the same was not under challenge in the revision petition.
8. I have heard learned Counsel for the parties. 9. The sole contention of the learned Counsel for the petitioner is that the Divisional Commissioner, Udaipur erred in setting aside the order dated 22.02.1986 thought the same was not under challenge in the revision petition. It is contended by the learned Counsel for the petitioner that the order dated 22.02.1986 acquired finality and, therefore, there was no occasion to set aside the same by the revisional authority i.e., the Divisional Commissioner, Udaipur. It is further contended that the quashing of the order dated 22.02.1986, shall amount to restoration of an illegality to the extent that the property in question shall be valued in six units on basis of an unregistered family settlement. 10. Per contra it is submitted by the Counsel for the respondents that the Divisional Commissioner has not committed any error as he was exercising the revisional powers and he could have exercised these powers suo moto too. According to learned Counsel for the respondents, the Divisional Commissioner rightly exercised the revisional powers and set aside both the orders passed by the Deputy Commissioner (Appellate Authority), Land & Building Tax, Jodhpur. It is also contended by the learned Counsel for the respondents that on merits too, no illegality was committed by the Deputy Commissioner (Appellate Authority), Land and Building Tax, Jodhpur while remanding the matter to the assessing authority by treating the property in question as six units by taking into consideration the notional shares of the respondents No. 1 to 6. 11. It is submitted by the Counsel for the respondents No. 1 to 6 that the property in question was owned by Shri Panna Lal, the father of the respondents No. 1 to 6 and Shri Panna Lal in his life-time, partitioned the property amongst the six children by a family settlement dated 25.01.1972. The Assessing Authority while accepting the fact that the family settlement was made by Shri Panna Lal in his life-time, refused to valuate the property in six units only on the count that the family settlement referred above is not registered. 12. According to learned Counsel for the respondents, there is no need for having a family settlement registered as in the present case, an oral partition was reduced in written family settlement on 25.01.1972.
12. According to learned Counsel for the respondents, there is no need for having a family settlement registered as in the present case, an oral partition was reduced in written family settlement on 25.01.1972. To substantiate the contention, learned Counsel for the respondents has placed reliance upon a Judgment of Honble Apex Court in the case of Kale & Ors. vs. Deputy Director of Consolidation & Ors., reported in AIR 1976 SC 807 . In the case of Kale (Supra), the Honble Supreme Court prescribed the essentials of a family settlement as under:- “(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; .(2) Thesaid settlement must be voluntary and should not be induced by fraud, coercion or undue influence; .(3) The family arrangements may be even oral in which case no registration is necessary; .(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and, therefore, does not fall within the mischief of Section 17(2) (sic) (Section 17(1)(b)) of the Registration Act and is, therefore, not compulsorily registrable; .(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement.
Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same; .(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.” 13. It is well settled that a family settlement is not required to be registered. The only requirement is that the family settlement must be a bona fide one with a view to resolve family disputes and rival claims made by the persons interested in the property. The settlement must be voluntarily and should not be induce by fraud, coercion or undue influence. A family settlement which is reduced in writing after coming into force as an oral settlement does not create or extinguish any rights in immovable properties and, therefore, does not fall within the category of compulsory registrable documents under the Registration Act. 14. In view of it, I am of the considered opinion that the Deputy Commissioner (Appellate Authority), Land and Building Tax, Jodhpur rightly held that valuation of the property is required to be made by considering the same in six units and by taking into consideration the national shares of the respondents No. 1 to 6. The Deputy Commissioner (Appellate Authority), Land and Building Tax, Jodhpur, therefore, rightly remanded the matter to the Assessing Authority for making valuation of the property and for determination of tax accordingly. 15. The Divisional Commissioner though rightly set aside the order dated 22.02.1986 as well as 22.06.1987 as the powers under Section 22-A of the Act of 1984 are only to the extent of correction of error apparent. The Appellate Authority while exercising powers under Section 22-A of the Act of 1984 in fact changed the entire complexion of the original order dated 30.09.1983 and the same was not within the scope of the provision concern. 16.
The Appellate Authority while exercising powers under Section 22-A of the Act of 1984 in fact changed the entire complexion of the original order dated 30.09.1983 and the same was not within the scope of the provision concern. 16. In view of it, I do not find any reason which may warrant interference of this Court under Articles 226 and 227 of the Constitution of India. 17. Accordingly, the writ petition is dismissed with no order as to costs.