TMI Blog2001 (1) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... r judgment. The facts of the case in brief are that according to the petitioners' case, there had been an agreement for transfer of vacant land bearing No. 7 H.A.L. III Stage, Indiranagar, Bangalore, measuring 120 ft. East to West and 90 ft. North to South whereby the petitioner agreed that the petitioner-Bhoruka Finance Corporation, i.e., the petitioner in Writ Petition No. 12389 of 1993, agreed to sell the above land in favour of the present respondent No. 3 in Writ Petition No. 12389 of 1993 i.e., in favour of Chartered Housing, No. 6, S. J. P. Road, Bangalore, who is petitioner in Writ Petition No. 7753 of 1993 for a sale consideration-as mentioned in the agreement of sale-of Rs. 12,96,000. According to the case of the petitioner, the agreement for sale was executed between the parties on July 29, 1987. The petitioner's further case is that in pursuance of the aforesaid agreement, the seller, i.e., Bhoruka Finance Corporation, received a sum of Rs. 5,000 as advance by cheque bearing No. 170155 dated July 29, 1987, from the third respondent. i.e., Chartered Housing, namely, the petitioner in Writ Petition No. 7753 of 1993, and that cheque was drawn on Vijaya Bank, Bangalore. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned herein shall stand quashed. The statement in Form No. 37-I filed by the petitioner and respondent No. 4 on October 30, 1987, shall be treated as if it were filed today and the Appropriate Authority shall proceed to consider the same in, the light of the order made in Transferred Case No. 26 of 1987 (see [1993] 199 ITR 530) by the Supreme Court referred to earlier and in accordance with law. Rule made absolute accordingly." The decision of this court in the two writ petitions, it may be mentioned, is reported in Bhoruka Finance Corporation v. Union of India [1993] 202 ITR 723 (Kar); ILR 1993 Kar 344. According to the case of the petitioner, a show-cause notice was issued and thereunder it was stated that the value of the property would not be less than Rs. 200 per square foot as per the contents and the basis indicated in that notice and the petitioners were called upon to show as to why the property in dispute should not be compulsorily purchased by the Appropriate Authority and the Government. Notice, as mentioned earlier, was also issued to the purchaser, i.e., the third respondent in Writ Petition No. 12389 of 1993, namely, the petitioner in Writ Petition No. 7753 of 1993. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly contended that the transaction of transfer, as per the definition of transfer given in section 269UA(f), had been completed before this Chapter was given operation and was extended to this area. Learned counsel contended that when the transaction of transfer had been completed by itself by entering into an agreement for sale and delivery of possession by the transferor to the transferee on July 29, 1987, the provisions of Chapter XX-C could not be applied and did not apply to the present case and the order passed by the authorities on February 25, 1993, is without jurisdiction, illegal, null and void. It may be mentioned here before I proceed any further that this plea was sought to be raised by a written application which this court allowed by an oral order as the point is primarily one going to the root of the matter. So, the first contention of the petitioner in a nutshell is that the order impugned is illegal, null and void and without jurisdiction as according to the petitioners, the provisions of Chapter XX-C did not apply to the transaction in question on account of the transaction of transfer having been completed on July 29, 1987. To a query made by the court if the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the petitioners themselves have filed a statement. They did not raise any objection nor did they press that the transaction had been completed before the coming into force of Chapter XX-C in the area, namely, the Bangalore metropolitan area. Therefore, the provisions of Chapter XX-C did apply. Sri Seshachala further contended that as the agreement which is alleged by the petitioner did allege to have taken place before the coming into force of this Chapter, it has to be taken as per the context of law of transfer existing earlier to October 1, 1987, as to whether transfer would amount to a transfer or a completed transfer because the definition will apply to a case to which the provisions do apply or to the transaction which has taken place after the coming into force of the Act. Learned counsel contended that a perusal of the definition of transfer given under section 6 and read with section 8 of the Transfer of Property Act connotes an idea of conveying the property with all rights in the property which originally vested in the transferor and for testing on that yardstick even if the possession had been handed over before the coming into force or before the enforcement of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order in this regard nor can it pass an order issuing a no-objection certificate. Learned standing counsel very emphatically contended that the agreement to purchase or the agreement for transfer here means the agreement arrived at and recorded in the form of a statement in the prescribed form as per section 269UC and read with rule 48L that prescribes the form and learned counsel contended that the agreement relied on not having been so entered into and further could not have been entered into in Form No. 37-I as per requirement as at the time of entering into of said agreement. Chapter XX-C had not been extended and had not been made applicable to areas of Bangalore Metropolitan City. Sri Seshachala urged that to amount to a transfer, i.e., an agreement to sell under which possession is alleged to have been handed over should be one entered into in the prescribed form, i.e., Form No. 37-I. Learned standing counsel further contested the contentions of the petitioner's counsel with reference to the finding recorded by the Appropriate Authority on the question as to whether the apparent sale consideration or price mentioned in the agreement is less than the market value by more th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different areas." The language of section 269U is very clear and is free from vagueness. It does not suffer from any vagueness. It provides that the provisions contained in Chapter XX-C will be operative and will come into force only from such date which the Central Government appoints and it has been given power to appoint different dates for the coming into force of this Chapter with reference to different areas. As such, for different areas the Central Government has been required to notify the dates for the operation or coming into force of Chapter XX-C. Till the Government has notified a date for the coming into force of the Act in the area, the provisions of Chapter XX-C could not be applied. Different notifications have been issued by the Central Government with regard to different areas. In respect of Delhi and some other areas, notification was issued no doubt on October 1, 1986, but so far as the Bangalore metropolitan area is concerned, the Central Government issued notification on October 1, 1987, for the provisions of Chapter XX-C to come into fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of the term for which such lease is to be granted and the further term or terms for which it can be so extended is not less than twelve years; (ii) in relation to any immovable property of the nature referred to in sub-clause (ii) of clause (d), means the doing of anything (whether by way of admitting as a member of or by way of transfer of shares in a co-operative society or company or other association of persons or by way of any agreement or arrangement or in any other manner whatsoever) which has the effect of transferring, or enabling the enjoyment of, such property." The above quoted section 269UA starts with the expression, "In this Chapter, unless the context otherwise requires". I am of the view that if the context otherwise requires, then the definition given in section 269UA cannot be said to be conclusive. The term or the expression may be interpreted as the circumstances otherwise indicate. But unless the context otherwise requires, a definition given in the definition clause is to be taken to apply and control the meaning of the expression defined in the Act. When I so observe, I find support for my view from the following decisions of their Lordships of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 2 of the Principal Act itself suggests that any expression defined in that section should be given the meaning assigned to it therein unless the context otherwise requires'." In this case, their Lordships made a reference to the decision and interpretation given in K. Balakrishna Rao's case AIR 1980 SC 214. The same has been reiterated in the case of Whirlpool, Corporation v. Registrar of Trade Marks, AIR 1999 SC 22. Mr. Justice S. Saghir Ahmad, as he then was, while delivering the judgment on behalf of the Bench, observes as under: "28. Now, the principle is that all statutory definitions have to be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or context. That is why all definitions in statutes generally begin with the qualifying words, similar to the words used in the present case, namely, 'unless there is anything repugnant in the subject or context'. Thus there may be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be appropriate at this stage to refer to the provisions of sections 5, 7 and 8 of the Transfer of Property Act. Section 5 defines "transfer". "5. 'Transfer of property' defined.--In the following sections 'transfer of property' means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and 'to transfer property' is to perform such act. In this section 'living person' includes a company or association or body of individuals, whether incorporated or not but nothing herein contained shall affect any law for the time being in for the relating to transfer of property to or by companies, associations or bodies of individuals." Section 6 is not very material for our purpose. Section 7 reads as under: "7. Persons competent to transfer.--Every person competent to contract and entitled to transferable property, or authorised, to dispose of transferable property not his own, is competent to transfer such, property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty as a lease and the various sections of the Transfer of Property Act provide how transfer of that nature had to be made. The sale has been defined that sale is a transfer of ownership in exchange for a price paid or promised or part-part and part-promised. It further provides how it is to be made. It provides that such transfer in the case of tangible immovable property of the value of one hundred rupees and upwards, or in case of a reversion or other intangible thing, can be made only by a registered instrument. It means transfer by way of sale of tangible immovable property worth more than one hundred rupees cannot be made except by registered instrument of transfer, because this section excludes any other mode of transfer by way of sale of property worth one hundred rupees or more. The language of section 54 in this regard is very clear when the Legislature uses the expression "can be made only by a registered instrument." It excludes the possibility of transfer being made by simple delivery of possession under an agreement to sell and the effect of which is that unless a transfer by sale of immovable property worth more than one hundred rupees is made by a registered instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whom it is proposed to be transferred (hereinafter referred to as the transferee) in accordance with the provisions of sub-sections (2) at least four months before the intended date a transfer. (2) The agreement referred to in sub-section (1) shall be reduced to writing in the form of a statement by each of the parties to such transfer or by any of the parties to such transfer acting on behalf of himself and on behalf of the other parties. (3) Every statement referred to in sub-section (2) shall,-- (i) be in the prescribed form; (ii) set forth such particulars as may be prescribed; and (iii) be verified in the prescribed manner, and shall be furnished to the appropriate authority in such manner and within such time as may be prescribed, by each of the parties to such transaction or by any of the parties to such transaction acting on behalf of himself and on behalf of the other parties." Section 269UC requires and provides that no transfer of any immovable property--notwithstandirig anything contained in the Transfer of Property Act--in such area and in cases where the value of such property is exceeding five lakh rupees, as may be prescribed, shall be effected except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there are two agreements, and that the agreement to transfer is different from the one or the statement under Form No. 37-I and if we accept the contention that if possession-is transferred, under that agreement--which is not in the prescribed form, nor in part performance thereof, yet it will amount to be a transfer, then it will lead to an anomaly, anomaly in the sense, that a person may say, that I have entered into agreement to sell, I have handed over the possession and transfer has taken place. Such an interpretation may have a tendency to render the provision of section 269UC(1) otiose and nugatory. It is a well settled principle of law of interpretation of statutes that when two interpretations are possible, the interpretation which may render a provision otiose or ultra vires should be avoided and that interpretation has to be preferred which saves the provision from being rendered otiose or ineffective or ultra vires. That when there is a bar and prohibition against the transfer of any immovable property and interest, title or right therein or possession thereof by the transferor to the transferee, whether it be by registered sale deed or even under an agreement for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e agreement is furnished which has been arrived at in the prescribed form, and when it is in the form of statement as prescribed that the agreement will automatically be deemed to be integral part of the agreement under section 269UC, sub-sections (2) and (3), to be an effective agreement and is to be furnished to the Appropriate Authority. Section 269UC reveals, that it is on such an agreement in the form prescribed containing statements, as prescribed in sub-sections (2) and (3) of section 269UC being furnished, then in such cases, the authority concerned has to pass an order under section 269UD for purchase of the immovable property by the Central Government. That in cases where the authority concerned does not pass an order under section 269UD(5) within the period prescribed in cases or the order had been made under sub-section (1) of section 269UD stands abrogated, under section 269UH, then the appropriate Authority is required under section 269UL(3) to issue a no-objection certificate. So looking to the scheme of this Chapter, any agreement to be effective to operate, as transfer by virtue of delivery of possession thereunder, has to be in consonance with the requirements of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property made in contravention thereof shall be void... There is no dispute that the agreement, for transfer, which has been reduced into writing in Form No. 37-I, pertains to immovable property and amounts to transfer of immovable property within the meaning of clauses (d) and (f) of section 269UA... An 'agreement for transfer' is inter partes and that can always be changed. That the term 'agreement for transfer' in fact means statement in Form No. 37-I. we can get clue from section 269UK which says that no person shall revoke or alter an agreement for the transfer of an immovable property or transfer such property in respect of which a statement has been furnished under section 269UC. Reference to this statement is certainly to Form No. 37-I. It would mean that the agreement for transfer can be changed by the parties but they have been forbidden from doing so after statement in Form No. 37-I has been furnished.... It has, therefore, to be held that this term 'agreement for transfer' in clause (c) of sub-rule (2) of rule 48L has reference to the statement in Form No. 37-I." In the present case, as mentioned earlier, the agreement was entered into, on July 29, 1987; it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion: Whether the apparent consideration mentioned in the agreement in Form No. 37-I is the proper market value or it is deficient by 15 per cent. or more than the market value, and the authority has therefore, got jurisdiction to enter into that question. When I so observe, I find support for my view from the Division Bench decision of the Gujarat High Court in the case of Shantivan Corporation v. Sub-Registrar [1991] 189 ITR 583, where in that case, it has been found no doubt that the possession, in fact, was not transferred prior to June 1, 1989, when the provisions of Chapter XX-C were extended to Surat Urban Development Area to which area the transaction did relate. Apart from that, in that case, the question for consideration had arisen in the context that, the sale deed dated May 29, 1989, was lodged for registration on May 30, 1989, and according to the petitioner, the earnest money had been paid on May 9, 1989, as an advance sum, towards the sale consideration and the remaining money had been paid by various cheques dated June 15, 1989, June 30, 1989, and July 30, 1989. By that time, the provisions of Chapter XX-C were made applicable. The court in that case opined, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Lordships further observed at page 595, as under: "We are of the view that the term 'transfer' which is defined in clause (f) of section 269UA of the Act is to be read in the context of the provisions of Chapter XX-C, the idea being to give full effect to the scheme contained in the said Chapter. The equitable basis of part performance under section 53A of the Transfer of Property Act is that the transfer, with the transferee having acquired possession of the property in part performance of the contract and having performed or having been willing to perform part of the contract, cannot be disturbed by the transferor by claiming any right in respect of the property. The fact that, allowing the possession of such property to be taken or retained in part performance is also included in the expression 'transfer' in clause (f) of section 269UA so as to prevent even such passing of possession with effect from the date when the Chapter XX-C comes into force would not mean that, where possession is handed over prior to the coming into force of Chapter XX-C by part performance, the provisions of Chapter XX-C should not be applied where the property is being transferred by way of sale. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995] 213 ITR 744, which has been referred to by learned counsel for the petitioners appears to have concurred with the Division Bench decision of the Gujarat High Court that, mere agreement of sale would not be arrived at in respect of immovable property, and had opined that, if it were so, section 269UC would require the parties to enter into a prior agreement in the form mentioned in sub-section of that section before entering into in the agreement for sale, and such construction would be an absurd construction as the law does not recognise an agreement to agree. In that case, as per the facts of the case the agreement for sale had been entered into in the month in June, 1985, and the said transaction was for acquirement by the petitioner of the full rights of Thirani in respect of the flats to be constructed by the land owner on the real property of estate, and under those agreements for sums mentioned therein, the land owners were to construct flats (four) and to hand over possession thereof to the petitioners in the said case. The court observed that the document and the transactions were sufficiently complete and irrevocable and final for grant of all rights to title and int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight is not by way of transaction of sale, exchange or lease, etc. In other words, the letters of allotment which were issued by Competent Builders in favour of the petitioner and the other flat buyers would, admittedly, fall within the ambit of Chapter XX-A of the said Act. This being so, the contention of Shri Rajendra, on behalf of the respondents, was that the original agreement between the buyers and Competent Builders had come to an end and there was a fresh agreement which had been entered into between the buyers and the Ansals when the letters of allotment were issued in 1990. Shri Rajendra further submits that, in the fresh letter of allotment which has been issued, there is no reference to the earlier agreement which had been entered into with competent builders nor were the earlier agreements registered under the provisions of rule 48L of the Income-tax Rules. He further submitted that, in any case, the petitioner, Sanjeev Sethi, was not a party to the original agreement of 1979 and, therefore, he cannot be regarded as being one of the original allottees/buyers' and his case, in any case, will be covered by the provisions of Chapter XX-C." Their Lordships further obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and submitted that, in the form submitted under rule 48L, that is Form No. 37-I, under column 84, it is mentioned, possession taken over as part performance of the agreement. In column No. 3, which is to the effect, person in occupation of the property sought to be transferred as detailed, the name mentioned is Bhoruka Finance Corporation. A question arises when this form had been submitted on October 30, 1987, if possession would have been handed over under the original agreement dated July 29, 1987, then on the date when this form was furnished, the name of the person in occupation should not have been entered as Bhoruka Finance Corporation, instead the name of person in possession would have been Chartered Housing. This another aspect, which creates doubt as to the case of the petitioners' transferors, that the transferor had handed over possession of the property to the transferee. Not only this, in the agreement which is alleged to have been entered into on July 29, 1987, no doubt, there is mention in paragraph 6, that the vendor has placed the purchaser in vacant possession as part performance of the contract and the purchaser acknowledged having received possession. If this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is nothing in the agreement to indicate whether the vendor will be entitled to get back possession of the property itself and whether the vendee would have to hand over (return) possession to vendor on failure of the agreement for sale. When the precaution was taken about advance either being returned or being forfeited, there is no explanation as to why the agreement is silent as to this aspect, what will be the position about possession in such a case or situation. It appears to me from these circumstances, that had possession really been delivered to the vendee under the agreement annexure B dated July 29, 1987, there definitely would have been a clause for return of possession by the vendee to the vendor, i.e., making the vendee to be liable to give back the possession of property to the vendor. Taking all these circumstances, as I have referred to with reference to annexure C, the particulars of the agreement which indicate the person who is in possession i.e., the vendor Bhoruka Finance Corporation to be in possession and the other circumstances referred to above, it appears to me quite clear that, actually no possession has been handed over or had been handed over to the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority has considered the material and illustrations and discussed the question of the valuation shown by the petitioner with reference to auction of the flats by the Corporation and has arrived at a finding on a pure question of fact on the basis of appreciation of evidence. The jurisdiction of this court under article 226 of the Constitution is not that of a court of fact or of the first appellate court. At this juncture, it will be appropriate to refer to the observations of their Lordships of the Supreme Court in the case of Appropriate Authority v. Smt. Sudha Patil (1999) 235 ITR 118, where their Lordships have laid down as under: "So far as the first question is concerned, the parameters for exercise of supervisory jurisdiction of the High Court under article 226 of the Constitution, while examining the decision of an inferior Tribunal, has no connection with the question whether an appeal is provided for against the said order of the Tribunal under the statute in question. As has been held in several decisions of this court, the power being supervisory in nature in exercise of such power, a finding/conclusion of an inferior Tribunal can be interfered with if the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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