High Court Of Madras
T. Amudha & Ors. vs. Members, Appropriate Authority & Ors.
Sections 269UC, 269UD
Bakthavatsalam, J.
WP No. 14912 of 1991
7th February, 1992
Counsel Appeared
V. Ramachandran, for M/s K. Mani, Mrs. Mallika Srinivasan & Ramakrishnan, for the Petitioners : N.V. Balasubramanian, for the Respondents
BAKTHAVATSALAM, J.:
The petitioners challenge the order of the Appropriate Authority rejecting an application of the vendors of the petitioners filed under s. 269UC of the IT Act, 1961, on the ground that the statement filed by the vendors of the petitioners was premature, invalid and not actionable for certain reasons. Notice of motion has been ordered by me on 23rd Oct., 1991. The petitioners entered into an agreement of sale on 9th Aug., 1989, with one Nagarathina Mudaliar and respondents Nos. 4, 5 and 6 for purchase of the property situate at No. 21, Haddows Road, Nungambakkam, Madras 34, for a total consideration of Rs. 1,55,43,000. This property was acquired by the said Nagarathina Mudaliar and others, it is said, in a partition of a joint family property in 1954. Since the value of the property exceeded a sum of rupees ten lakhs, the vendors and the petitioners filed before the first respondent Form No. 37-I under Chapter XX-C of the IT Act, under s. 269UC. The statement was filed on 23rd Aug., 1989. By a letter dt. 17th Oct., 1989, which is impugned before me, the Appropriate Authority rejected the statement and directed the vendors and the petitioners to file a fresh agreement and statement under Form No. 37-I after setting right certain irregularities and infirmities discussed in the order. It is also stated by the Appropriate Authority that the statement filed on 23rd Aug., 1989, is non est in law.
The petitioners alleged in the affidavit that the order of the Appropriate Authority is totally erroneous, illegal, opposed to the provisions of the Act and without jurisdiction. It is stated that the Appropriate Authority under s. 269UD can exercise the power of the pre-emptive purchase, and if the Appropriate Authority chooses not to purchase the property, and if no order of purchase is passed within the time prescribed under s. 269UC(1), no other order can be passed by the Appropriate Authority. It is also stated that the Appropriate Authority does not have the jurisdiction to vary the terms of the agreement between the parties or to improve upon the same. It is also stated that it is not open to the Appropriate Authority to question the title of the transferors or improve upon the same. It is for the transferors and transferees to satisfy themselves about the title of the property and the Department has no right to question the same. It is also stated that nowhere under Chapter XX-C is any jurisdiction vested on the Appropriate Authority to question the validity of an agreement, so to say, whether it is valid under a general law such as personal law or partnership law, etc. It is also alleged that, when the vendors did not complete the transaction of sale, the petitioners filed a suit before the original side of this Court in C.S. No. 198 of 1991, for specific performance and it was decreed on 23rd April, 1991, whereby Maruthamuthu J. has held that it is a valid agreement of sale and that the vendors are bound to perform and comply with the same. In view of the judgment and decree of this Court, when a document of sale was executed by the vendors and the same was presented for registration before the authority, the registering authority refused to register the same. It is further alleged in the affidavit that the question in the case was decided by the Court in a similar case, reported in Mount Plaza Builders Pvt. Ltd. vs. Appropriate Authority (1992) 195 ITR 750 (Mad) : (1992) 1 MTCR 1, which is in favour of the petitioners. A Division Bench of this Court also has taken the same view in the case reported in Appropriate Authority vs. Naresh M. Mehta (1992) 101 CTR (Mad) 433 : (1993) 200 ITR 773 (Mad) : (1992) 1 MTCR 142.
Mr. N.V. Balasubramanian, learned counsel appearing for the Department, has filed a counter-affidavit. It is stated in the counter that the petitioners are only agreement holders and they cannot be regarded as persons having an interest in the property and as such they have no locus standi to file the writ petition. It is also pointed out in the counter that the Supreme Court has passed an order on 4th May, 1987, that such cases should not be given a final disposal by the High Court. It is stated in the counter that the statement filed in Form No. 37-I on 23rd Aug., 1989, was found to be deficient and was not actionable. As such, a communication was sent on 17th Oct., 1989, wherein the flaws were pointed out and an option was given to the parties to file a fresh statement. It is stated in the counter that, since the title over the property was found defective and the statement was deficient, the same was not actionable. It is stated in the counter that the Appropriate Authority is bound to examine the question of title of the property in adequate detail as any prudent purchaser would do and that the Appropriate Authority was competent and justified in going into the question of title over the property. It is stated that, in the letter dt. 17th Oct., 1989, the respondents have discussed in elaborate detail, the deficiencies and infirmities in the statement. It is also stated that the Appropriate Authority has to examine the issue of title over the property so that, in cases where it decides to purchase the property, it has to satisfy itself about the title as any prudent purchaser would do. It is also stated that the Appropriate Authority has a right to pre-emptive purchase, and to exercise the same, the Appropriate Authority has to examine the title over the property, and, as such the action of the respondents is quite legal and valid. It is also stated that the Appropriate Authority has the power to reject the defective application which is deficient in details and inactionable and has to be viewed as invalid ab initio. It is pointed out that the decree of this Court in C.S. No. 198 of 1991, was passed on 23rd April, 1991, which is obviously subsequent to the letter dt. 17th Oct., 1989, and the decree passed was on the basis of consent arrived at between the parties. Under Chapter XX-C of the IT Act, it is for the Appropriate Authority to exercise the powers on the basis of facts as they existed on the date of agreement and the decree passed subsequently was not considered by the Appropriate Authority as the decree was not passed at that time. It is also pointed out that the statement filed by the vendor and the petitioners was disposed of within the time limits prescribed. As the statement was found to be deficient and invalid, the parties were advised to file a fresh statement. As such, the time limit for orders under s. 269UD has to be reckoned from the date of filing a valid statement. It is also stated that the Appropriate Authority has inherent right and power to call for and correct the defects, inasmuch as, the Appropriate Authority has the responsibility to the Government and ultimately the public of purchasing only such properties which have a clear title. It is also stated that the public money cannot be frittered away in fruitless litigation or in meeting liabilities for which adequate provisions have not been made.
Mr. V. Ramachandran, learned counsel appearing for the petitioners, contends that the impugned proceedings of the first respondent are invalid under the provisions of the IT Act and the action of the respondent not to issue no- objection certificate is arbitrary exercise of power not vested with the Appropriate Authority under Chapter XX-C of the IT Act. It is stated by learned counsel that s. 269UC provides only that the transferor and transferee should file the form before the Appropriate Authority and under s. 269UD the authority has got a power to purchase the property. If the authority does not decide to purchase the property before the expiry of two months and no order is passed on the statement in Form No. 37-I, the authority has no jurisdiction to pass any order thereafter. It is also pointed out by learned counsel that the authority cannot make a roving enquiry and pass an order vesting the property in the Government, and in the instant case, the time limit for such an order had expired, and as such, the first respondent is bound to pass an order for registration of sale. It is pointed out that this Court has passed a decree in C.S. No. 198 of 1991.
Reiterating the contentions in the counter, Mr. N.V. Balasubramanian, learned counsel for the respondent, submits that it is a case where the title itself is not valid and is defective, and as such, the Department has rejected the application filed under s. 269UC as early as October, 1989. Learned counsel further points out that the writ petition itself filed by the petitioners is not maintainable in view of the Division Bench decision of the Karnataka High Court in Rajata Trust vs. Chief CIT (1991) 97 CTR (Kar) 97 : (1992) 193 ITR 220 (Kar). It is also pointed out by learned counsel that the decree of the original side of this High Court is subsequent to the order of the Appropriate Authority rejecting the application or returning the application in October, 1989. Learned counsel relies upon a judgment in Sunil Siddharthbhai vs. CIT (1985) 49 CTR (SC) 172 : (1985) 156 ITR 509 (SC) for the proposition that, during the subsistence of a partnership, no partner can deal with the property as his own and in this case it has been done, and so the application has been returned. In this case, what has been prevented under the partnership law has been done and as such the form has been returned quite rightly by the Appropriate Authority. Learned counsel further points out that the writ petition is liable to be dismissed on the ground of laches since, when the order was passed as early as in 1989, the petitioners have chosen to come to this Court only in 1991, and there is a delay of two years in approaching this Court and this Court should take note of that and dismiss the writ petition on the ground of laches on the part of the petitioners. Learned counsel further points out that it is the duty of the Department to look into the agreement as to whether it is valid or not and prevent the purchase, and when it feels that the agreement itself is defective or void, it is open to the Department to reject the application. According to learned counsel, it is not necessary in all cases for the Department to grant a no- objection certificate straightaway or pass as order of pre-emptive purchase. There is inherent power in the Appropriate Authority to decide the issue with regard to the question of title and validity of the agreement and if he feels that the agreement is not valid it is open to the Appropriate Authority to return the application as defective as has been done in this case. Considering the arguments of Mr. V. Ramachandran, learned counsel for the petitioners, and Mr. Balasubramanian, learned counsel for the Department, the question before me is whether the writ petition filed by the purchasers is maintainable, and the issue raised in this case, is what is the jurisdiction of the IT Department under Chapter XX-C of the IT Act. It has been decided against the Department by Kanakaraj, J. in WP No. 16225 of 1990 [Naresh M. Mehta vs. Appropriate Authority (1991) 92 CTR (Mad) 219 : (1991) 188 ITR 585 (Mad)] by his order dt. 10th Jan., 1991, which has been confirmed by a Division Bench of this Court in Writ Appeal No. 128 of 1991, dt. 19th Dec., 1991, [(1992) 101 CTR (Mad) 433 : (1993) 200 ITR 773 (Mad) : (1992) 1 MTCR 142 (supra)]. This Court has taken the very same view in WP No. 17958 of 1990, dt. 2nd Aug., 1991, [Mount Plaza Builders Pvt. Ltd. vs. Appropriate Authority (supra)].
In view of the earlier judgments of this Court as well as the Division Bench judgment, the jurisdiction of the IT Department is very limited. I do not think that they can make a roving enquiry with regard to the title of the property. In my view, they have no jurisdiction at all to apply the partnership law to test the agreement in the light of the various provisions of the Partnership Act, the Transfer of Property Act and other personal laws of the land. If the Appropriate Authority is of the opinion that the agreement is invalid, in my view, the only course open to him is not to make a pre-emptive purchase of the property. It is the look out of the transferor and transferee to sort out the various clauses in the agreement, whether it is enforceable or not enforceable, whether the agreement is valid or not, etc. I do not think the Appropriate Authority has got jurisdiction to decide and say that the agreement is ab initio void and is contrary to the principles of the Partnership Act as has been done in this case. Reliance is placed by learned counsel for the Department in a case reported in Rajata Trust vs. Chief CIT (supra). The principle decided in that case is that a person who has entered into an agreement for sale of a property could not object to the purchase of the property by the Central Government. That was a case where the petitioner had challenged the order of the Appropriate Authority making an order of pre-emptive purchase of the immovable property under s. 269UD. That is not the case here. So, I do not think the principle laid down by the Division Bench of the Karnataka High Court will apply to the facts of this case. In my view, the contention raised by Mr. Ramachandran, learned counsel for the petitioner, has to be accepted that the Appropriate Authority has exceeded its jurisdiction in deciding issues which are beyond the scope of the enquiry to be done in an application filed in Form No. 37-I for a no-objection certificate under Chapter XX-C of the IT Act. In my view, if the Department is not willing to purchase the property on the ground that the title is invalid or on some other invalidity, the only course open to them is to grant a no-objection certificate and leave the matter to the parties concerned. It is for the parties to face the consequences and it is not for the Appropriate Authority to take the burden on itself and decide the issues. In this case, the Appropriate Authority has exactly done the very same thing, and as such, the impugned order is liable to be set aside.
9. A Division Bench of this Court in Appropriate Authority, Government of India vs. Naresh M. Mehta (supra) has held : “We also find that in Mrs. Satwant Narang vs. Appropriate Authority (1991) 92 CTR (Del) 163 : (1991) 188 ITR 656 (Del) referred to above, it was held that the jurisdiction of the Appropriate Authority was only limited to either pass an order, within the specified period, for purchase of the property by the Central Government for the consideration recorded in the agreement or to issue a no-objection certificate for transfer at that consideration and that, while considering the statement in Form No. 37-I, the Appropriate Authority had only to examine the adequacy of the consideration to decide whether to order purchase or to grant a no-objection certificate and that the Appropriate Authority had no jurisdiction to go into the object or the purpose of the transaction or its legality or validity.”
10. So, in this case, on the facts, it is very clear that no order has been passed within the time prescribed under the Act making an order of pre-emptive purchase. In view of that, a direction is issued setting aside the impugned order and the matter is remitted to the Appropriate Authority. The Appropriate Authority is directed to pass an order on or before 31st March, 1992, taking note of the subsequent development which has resulted in a decree in favour of the petitioners, provided the petitioners file a copy of the same application which has been submitted earlier.
[Citation : 202 ITR 525]
