TMI Blog1995 (6) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... equential order of even date at annexure E-1 vesting the property in the Government under section 269UE(2) of the Act being illegal, ultra vires and unconstitutional. It is the case of the petitioner that it is a non-trading corporation incorporated under the Bombay Non-Trading. Corporation Act, 1959. It consists of members who belong to the lower middle class. One Dr. Shashikant Karshandas Patel, whose family had settled in the United States, decided to sell the property in question with a view himself to settle in America. The petitioner-association, therefore, entered into an agreement on January 20, 1995, to purchase Sub-Plot No. 2 of Final Plot No. 178 under the Town Planning Scheme No. 3, admeasuring 743 square yards with a superstructure thereon situated behind Mount Carmel High School, Navrangpura, Ahmedabad, for an apparent consideration of Rs. 45,25,000. A copy of banakhat is annexed to the petition. According to the petitioner-corporation, all expenses of stamp paper, registration charges, advocate fees and miscellaneous expenses were to be borne by the petitioner. Since the amount of apparent consideration exceeded Rs. 10 lakhs, the vendor and the vendee filled in For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was regular and it had a frontage of 17.68 metres, i.e., more than double, on the 20' wide road and, hence, it could very well be utilised and developed for commercial use. It was also contended that the size of the property under consideration was almost double the size of the sale instance property. The larger plot could, not be compared with a smaller plot which would fetch a high price. It was also disputed that appropriate authority had not independently valued the property under consideration and merely on a hypothesis of undervaluation, the show-cause notice was issued. The petitioner relied upon two sale instances in support of his argument. Reliance was also placed on the fact that the entire transfer expenses were to be borne by him. On all these grounds, it was submitted that it was not a fit case for pre-emptive purchase and proceedings were required to be dropped. The appropriate authority after considering the replies submitted by the parties passed an order on April 28, 1995, holding that in the facts and circumstances of the case, the authority was satisfied that the property under consideration was fit for pre-emptive purchase under section 269UD(1) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm No. 37-I comes to Rs. 7,141 only. The rate is, therefore, understated by more than 15 per cent. (6) The first sale instance quoted (File No. AHD-886) is the property is situated on the dead end of a 20' wide road, taking off from C. G. Road, whereas the property under consideration is situated on a 30' wide T. P. Road taking off from Ashram Road. Moreover, this sale instance property lies in a residential zone with available FSI 1.00. the property under consideration, on the other hand, is in a commercial zone and the available FSI is 1.33. Even if this instance is accepted as comparable, the apparent rate of the property under consideration per square metre after giving due weightage to the available FSI is considered to be understated by more than 15 per cent. The second sale instance quoted (File No. AHD-890) is the property situated on a 40' wide T. P. Road taking off from C. G. Road. This property had a garrage of 181.47 square metres of built-up area occupied by two tenants and the liability of vacating the tenants was with the purchaser. The apparent land rate and discounted land rate per square metre of this property comes to Rs. 9,017 and Rs. 8,826, respectively. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale instance property and the property under consideration, no reasonable and prudent man would compare property under consideration with the sale instance property. On all aspects which can be said to be relevant and germane for fixing the market price, the sale instance property was better situated and price of the property under consideration could not have been fixed on that basis. The impugned order, therefore, also requires to be interfered with. Mr. Shah submitted that reliance placed by the transferee on two sale instances were relevant and considering those two sale instances, the authority ought to have held that the apparent as well as discounted consideration of the property under consideration could not be said to be understated by more than 15 per cent. Mr. B. J. Shelat, learned counsel for the respondent, on the other hand, supported the order passed by the appropriate authority. He submitted that the notice in accordance with law was issued by the appropriate authority calling upon the transferor and the transferee as to why an action under section 269UD(1) should not be taken against them. The parties submitted their written statements and after considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty. Regarding shape also, the appropriate authority was not right in not allowing deduction particularly when it did not dispute the submission of the petitioner that the property under consideration was having an odd shape. Again, the appropriate authority has committed an error of law on the face of the record in observing that though the frontage of the property under consideration was narrow on the 30' wide T. P. Road, whereas the sale instance property was having a wide road. It would not affect the value of the property under consideration substantially compared to the sale instance property inasmuch as the sale instance property, due to its proximity to the High Court, suffered from the problem of traffic and vehicular pollution. Ordinarily, wide frontage should be considered as beneficial to the property than narrow frontage. It is true that heavy traffic or vehicular pollution may adversely affect the property but then there must be some material or evidence on record on the basis of which, the appropriate authority may form an opinion by recording a definite finding to that effect. In the absence of such finding or material on record, no inference can be drawn nor con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in Barium Chemicals Ltd. v. Company Law Board [1966] 36 Comp Cas 639 AIR 1967 SC 295, we observed : " The combined reading of section 269UD(1A) and (1B) of the Act leaves no room for doubt that it is a question of objective decision-making process by taking into consideration all relevant materials which have come before the hearing authority and considering the rival aspects of the matter. Moreover, the requirement of law is to specify the grounds on which the order of pre-emptive purchase is made. That obligation does not stop by merely rejecting the submissions made before it. The rejection of submissions made by the vendors or the transferee or the person interested in the property, does not lead to a consequence that grounds for making pre-emptive purchase exist. The sine qua non is that the reasons must exist on the material placed before it, for supporting the action taken for pre-emptive purchase under section 269UD of the Act. The order clearly falls short of this requirement." In our opinion, the point is concluded by the above decision also. Since no satisfaction has been arrived at by the respondent on the basis of objective facts and no reasons ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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