TMI Blog2018 (9) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... out the tenant being in possession. The petitioner is no longer the employee of the respondent no. 6 since January 1, 2007. Appropriate authority had sufficient reasons not to recognize the tenancy. An impugned order is required to be adjudged on the basis of the reasons contained therein. However, it is permissible to consider the materials placed before the appropriate authority to decide whether the view expressed in the impugned order is sustainable or not. A Writ Court needs not interfere with the view expressed in an impugned order, if such view is plausible on the basis of the materials made available. It is not called upon to be an appellate authority even if there is no provision for appeal against the impugned order. As discussed above, I find no infirmity in the view expressed by the appropriate authority questioning the tenancy. No infirmity in the view expressed by the appropriate authority questioning the tenancy. at the time of valuing the property, the appropriate authority can consider an encumbrance to have been created for the purpose of defeating the provisions of Chapter XX-C of the Act of 1961 and value the property as if the same was without such encumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... underwent an amendment subsequent thereto. He has submitted that, the appropriate authority is not entitled to receive the immovable property free from encumbrances any longer. Therefore, the factum of existence of a tenancy had to be taken into consideration by the appropriate authority while valuing it. It had ignored the tenancy. It was not entitled to do so. Since the immovable property was encumbered with a tenancy, the value in respect thereof cannot be same as that of an immovable property which is without a tenancy. The valuation arrived at by the department is wrong. The decision to exercise the right of pre-emption stand vitiated. Learned Senior Advocate for the petitioner has contended that, the impugned order suffers from vice of breach of principles of natural justice. The petitioner was not afforded sufficient time to reply to the show-cause notice. It is dated July 21, 1993. The same was received by the petitioner on July 26, 1993. The petitioner was given a hearing on July 27, 1993. He has submitted that, the authorities did not furnish the valuation reports noted in the documents produced before the competent authority. The petitioner is entitled to such documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner is the agreement holder. The respondent no. 6 is the tenant in respect thereof. The petitioner entered into an agreement to purchase the flat on April 21, 1993 with the respondent Nos. 4 and 5. The consideration was for a sum of ₹ 13,00,000/- out of which the petitioner paid a sum of ₹ 12,00,000/- to the respondent Nos. 4 and 5. The petitioner filed the requisite form under Section 269UC of the Act of 1961 on May 4, 1993. A team of valuers visited the flat on May 17, 1993. The appropriate authority raised a query and issued a requisition for clarification to the petitioner on July 15, 1993. The same was received by the petitioner on July 17, 1993. The petitioner answered such queries on July 20, 1993. A show-cause notice dated July 21, 1993 was issued by the appropriate authority which was received by the petitioner on July 26, 1993. The respondent Nos. 4 and 5 and the respondent No. 6 submitted written reply to such show-cause notice. The petitioner did not submit any written reply. He, however, appeared before the appropriate authority on July 27, 1993. Such show-cause notice was decided by the impugned order. The impugned order records the contentions of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner. So far as encumbrance of the entire premises with UCO Bank is concerned, the impugned order finds that, the agreement for purchase contained in the clause that the sale was free from all encumbrances. Therefore, assuming that the properties to the encumbered with the UCO Bank, then also, the petitioner would not be bothered as the liability of such encumbrance will fall upon the transferors being the respondent Nos. 4 and 5. In any event, the encumbrance to UCO Bank was in respect of the entire complex. The right of an individual flat owner will be affected minimally. The subsisting tenancy was also considered. It was found that, the tenancy was originally for three years and subsequently extended. It proceeds on the basis as if, the tenancy will expire on August 4, 1993. It notes that, the petitioner is the employee of the tenant and in possession of the flat. It also notes that, in the event the tenancy is given up by the respondent No. 6, its employee, the petitioner herein, will be benefited by a property which is worth much more than the agreed consideration. The impugned order also deals with the contention of comparison of incomparable properties. It notes that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Supreme Court. I.T.C. Ltd. (supra) has held that, the appropriate authority had erred in taking into account the built up area in working out the fair market rate. None of the authorities cited with regard to valuation postulates that, the appropriate authority must value a property on rental basis when it doubts the tenancy. In the present case, the tenancy itself has been doubted in the impugned order. There are good reasons for doubting the tenancy. The respondent no. 4 and 5 are the owners. As owners they had entered into an agreement to sell the flat to the petitioner. The petitioner was and still is in possession and occupation of the flat. At the time of the agreement for purchasing the flat, the petitioner was in employment of the respondent no. 6. The respondent no. 6 is the tenant. The petitioner had superannuated from service with effect from January 1, 2007. In the event the petitioner is allowed to purchase the flat, then, it will remain in possession. The flat will have a tenancy without the tenant being in possession. The petitioner is no longer the employee of the respondent no. 6 since January 1, 2007. The situation with regard to tenancy was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision for appeal against the impugned order. As discussed above, I find no infirmity in the view expressed by the appropriate authority questioning the tenancy. Learned Senior Advocate for the petitioner has contended that Section 269UE was amended by substituting the words free from all encumbrances with effect from November 17, 1992. He has submitted that, such amendment was pursuant to C.B. Gautam (supra) . Under the amended provisions of Section 269UD, the property vests in the Central Government in terms of the agreement for transfer. In the present case, therefore, the Central Government will, upon exercise of rights under Section 269UD, have the same rights as that of the petitioner. The petitioner is in possession and occupation of the flat. The Central Government will have possession and occupation of the flat from the petitioner. It will be subject to the same terms and conditions as that of the agreement for purchase entered into between the petitioners and the respondent nos. 4 and 5 that to say that, the purchase will be free from all encumbrances. The tenancy of the respondent no. 6 will continue to remain, with the tenant not being in actual physical posses ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
