Madras H.C : who had entered into an agreement to purchase the property. By order dt. 23rd May, 1999, the first respondent herein, in exercise of its powers of preemptive purchase, under s. 269UD(1)

High Court Of Madras

K.T. Venkatesan & Anr. vs. Appropriate Authority & Ors.

Section 269UC, 269UD

P.D. Dinakaran & Mrs. Chitra Venkataraman, JJ.

Writ Appeal No. 3661 of 2002

13th March, 2007

Counsel Appeared :

A.K. Lakshmi Narayanan, for the Appellants : Naresh Kumar & Mrs. Chitra Sampath, for the Respondents

JUDGMENT

Mrs. CHITRA VENKATARAMAN, J. :

This writ appeal is against the order of the learned Single Judge dt. 31st Oct., 2002, [reported as K.T. Venkatesan & Anr. vs. Appropriate Authority & Ors. (2003) 179 CTR (Mad) 584—Ed.] dismissing the writ petition preferred against the order of the Appropriate Authority the first respondent herein. The writ appellants herein are the transferees who had entered into an agreement to purchase the property. By order dt. 23rd May, 1999, the first respondent herein, in exercise of its powers of preemptive purchase, under s. 269UD(1) of the IT Act, ordered purchase of a property for a consideration of Rs. 27,60,670.

It is seen that the transferor C.R.Venkatachalam, petitioner in W.P.No. 9793 of 1999, was the owner of the premises at No. 3, Krishnamachari Avenue, Adyar, Chennai. The transferees are the writ petitioners in W.P.No. 9956 of 1999. The transferor and transferees entered into an agreement to sell and purchase the property for an apparent consideration of Rs. 28 lakhs on 10th Feb., 1999. The parties filed their statement in Form 37-I in respect of the agreement dt. 10th Feb., 1999. A show-cause notice under s. 269UD(1A) dt. 23rd April, 1999 was issued along with the valuation report citing two comparable sale instances calling upon them to show-cause as to why the property should not be purchased by the Department under s. 269UD of the IT Act,. After the receipt of objections, the first respondent passed an order under s. 269UD(1) on 28th May, 1999 exercising its pre-emptive right to purchase the property for a consideration of Rs. 27,60,670. The Appropriate Authority, the first respondent herein, concluded that the value of the subject-matter of the property was 38.6 per cent lower compared to the land rate as per the sale instances. Challenging the said order, writ petitions were filed before this Court contending that the property was a tenanted property; the property had no commercial value and that there was no undervaluation of the property. It was also contended that the properties, which were taken as comparative sales, were subject of the proceedings under Chapter XX-C and that the same should not have been taken into consideration.

The claim of the writ petitioners was countered by the respondent that the Appropriate Authority had exercised its powers after due deliberation and that there was no ground for interfering with the reasoning of the Appropriate Authority. Considering the scope of Art. 226 of the Constitution of India, the remedial judicial review could not be equated to a remedy of appeal. The respondents placed reliance on the decisions in Devesh Behari Saxena vs. Dy. CIT & Anr. (1995) 124 CTR (All) 165 : (1994) 208 ITR 637 (All), Appropriate Authority & Anr. vs. Smt. Sudha Patil & Anr. (1998) 150 CTR (SC) 405 : (1999) 235 ITR 118 (SC), Ramesh Bhai J. Patel vs. Union of India (2000) 164 CTR (SC) 648 : (2001) 247 ITR 182 (SC) and Union of India vs. Shatabadi Trading & Investment Ltd. & Ors. (2001) 169 CTR (SC) 408 : (2001) 251 ITR 93 (SC) : (2001) 6 SCC 748.

In the course of the proceedings before this Court, the wife and the daughter of the transferor impleaded themselves seeking a direction to deposit the money due to them in respect of the decree passed at the instance of the wife and daughter against the transferor. This Court referring to the decision of the Supreme Court in Appropriate Authority & Anr. vs. Kailash Suneja (2001) 169 CTR (SC) 401 : (2001) 6 SCC 563, followed in Appropriate Authority vs. R.C. Chawla (2001) 167 CTR (SC) 467 : (2001) 4 SCC 710 and Union of India vs. Shatabadi Trading & Investment (P) Ltd. & Ors. (supra) took the view that in the light of the guidelines given by the apex Court, this Court’s jurisdiction to examine the contentions is very limited in that the jurisdiction is not that of an appellate forum. Learned Single Judge also pointed out that admittedly there was no complaint of procedural violation or violation of principles of natural justice while passing the impugned proceedings. On the question of comparable instances, the learned Single Judge also found the reasoning as correct and was not disputed. It was also seen that the subject property and the comparable sale instances were similar and could not be questioned as in comparable. Hence, the learned Judge held that the contention did not deserve any further consideration. As regards the downward trend in the real estate market, the learned Single Judge pointed out that the competent authority had taken note of the fall in the real estate market. Referring to the compelling circumstances which necessitated the sale of the property, this Court found that the suit was of the year 1997. The decree was of the year 1998 and the agreement was entered in 1999. Learned Judge pointed out that the wife and the daughter were not paid as per the decree, but then the contention that it was a distress sale could not be accepted and rightly so, the respondent had taken the view that the sale was not a distress sale. Learned Judge also rejected the plea that there was a tenancy in the premises.

7. On the question of jurisdiction raised by the transferee, learned Single Judge held that the same could not be sustained that merely because the agreement stipulated a lesser time, it could not be said that Chapter XX-C could not be invoked when the transactions attracted Chapter XX-C. In the circumstances, taking the view that there were relevant materials before the competent authority to order the pre-emptive purchase, the writ petitions were dismissed. As regards the claim made by the wife and the daughter of the transferor, ordering the impleading petitions, this Court ordered in the direction petitions that the Appropriate Authority would pay a sum of Rs. 17 lakhs with proportionate interest on the said sum earned by virtue of the deposit till the date of the order of this Court.

The writ appeal is preferred by the transferees. There is no appeal from the transferor. The grievance of the writ appellants is that s. 269UC, as it then stood, required that the agreement would be not less than three months [sic- four months] before the intended transfer, but the agreement entered into between the appellants and the transferor provided only fourteen weeks. Hence, when the agreement was not in accordance with s. 269UC(1), the first respondent had no jurisdiction to act on the circumstances, and the order in the writ petition amounts to conferring legality on an agreement that contravene s. 269UC(1). The appellants also questioned that the first respondent had not furnished the documents relied upon. In the circumstances, he prayed for setting aside the order of the learned Single Judge and thereby, the order of the Appropriate Authority. Although the appellants had raised other grounds in the writ appeal, except for the contention on the jurisdiction as stated above, the appellant has not raised any other objection in the course of arguments before this Court.

The contentions of the appellants were countered by the learned standing counsel, contending that the transferee, as such, has no locus standi to maintain the writ appeal when the vendor had not preferred any appeal challenging the order of the learned Single Judge upholding the order of the Appropriate Authority. Quite apart, he referred to the jurisdiction of this Court under Art. 226 of the Constitution of India and submitted that the learned Single Judge, on a consideration of the entire case, had rightly come to the conclusion on every aspect of the matter now projected and consequently prayed that the appeal be dismissed.

We agree with the submission made by the respondents. A perusal of s. 269UC(1), no doubt, states that no transfer of any immovable property shall be effected after an agreement for transfer is entered into between the transferor and the proposed transferee in accordance with the provisions of sub s. (2) at least three months [sic-four months] before the intended date of transfer. Conscious of the provisions under s. 269UC, yet, the parties herein had entered into an agreement of sale on 10th Feb., 1999 fixing a shorter time-limit of fourteen weeks for the validity of the agreement and that the time might be extended further by mutual consent. Accordingly, the parties had filed Form 37-I in accordance with the provisions of the Act. A perusal of the provisions as stated above shows that the emphasis in the section is to the time factor prescribed for filing Form 37-I. The date of entering into the agreement must have proximity of time with the proposed transfer of property as defined in cl. (f) of s. 269UA. It is clear, hence, that whatever be the private agreement entered into between the parties, it is a proforma agreement signed by the parties which must be filed before the Appropriate Authority within fifteen days of signing thereof. The limitation has to be with reference to the date of signing of the agreement and not with reference to the intended period in the agreement. Consequently, we do not find any ground to accept the plea of the appellant herein that the competent authority had no jurisdiction in this matter. Quite apart from this, as rightly contended by the learned counsel appearing for the respondents, if at all there could be any grievance, it could be only from the vendor who had not raised a dispute. In the circumstances, we do not find any justification in the contention of the appellant transferee. Considering the parameters of the jurisdiction under Art. 226 of the Constitution of India, and there being no irrationality in the view of the Appropriate Authority, as rightly found by the learned Single Judge, we do not find any justification to accept the submissions of the appellants herein. In the circumstances, the appeals are dismissed, thereby confirming the order of the learned Single Judge.

12. In W.A.M.P. No. 1963 of 2003, one Vandana Venkatachalam, had prayed for impleading herself as fourth respondent in the writ appeal. She had stated that in view of the decree obtained for maintenance and the charge given over the property, they impleaded themselves in the course of the writ proceedings. The deponent had stated that in spite of favourable orders, they had not received the amount payable under the decree. The deponent’s mother, who was also the beneficiary therein, died on 4th Dec., 2002 without receiving the money. The deponent states that she is pursuing her studies with great difficulty. In the circumstances, she has prayed for impleading herself as respondent No. 4 and also prayed for vacating the order of stay granted in the writ appeal. In view of the dismissal of the writ appeal, the order passed earlier in the writ proceedings directing payment of the amount to this petitioner stands affirmed. The respondents are hereby directed to release the fund payable to the fourth respondent at the earliest without any delay.

In the result, the writ appeal is dismissed. No costs.

Connected W.A.M.P. No. 6135 of 2002 is closed. W.A.M.P. No. 1963 of 2003 is hereby ordered.

[Citation : 298 ITR 47]

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