TMI Blog1994 (4) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... 986, and quash the same and consequently to direct respondents Nos. 1 to 3 to redeliver possession of the property bearing Door No. 98, Oliver Road, Mylapore, Madras 4, to the petitioner and to pass such further or other orders as this court may deem fit and proper in the circumstances of the case. As far as the constitutional validity of the provisions contained in Chapter XXC, including that of section 269UD of the Act, is concerned, in the light of the decision of the Supreme Court in Gautam (C. B.) v. Union of India [1993] 199 ITR 530, learned counsel for the petitioner has not addressed any argument, rightly also because in the said decision, the Supreme Court has upheld the constitutionality of the provisions contained under Chapter XXC of the Act. Therefore, what remains to be considered in this writ petition is, as contended by petitioner, the applicability of Chapter XXC of the Act to the transaction in question and also the validity of the order dated December 9, 1986, passed by the second respondent. By the impugned order, the second respondent has directed pre-emptive purchase of the immovable property in question. We may also state the relevant facts which are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the petitioner is that, as the agreement of sale was entered into on February 24, 1986, and the petitioner was put in possession of the property agreed to be sold by the vendors, on receiving the entire sale consideration, such agreement did fall within the ambit of the expression "transfer" as defined in Chapter XXA of the Act and, as such, it is a case which comes under Chapter XXA of the Act, and, therefore, Chapter XXC of the Act which came into force on October 1, 1986, long after the agreement is not attracted to the transaction in question. Learned counsel has placed reliance on the definition of the word "transfer" as occurring in Chapter XXA of the Act. Section 269A(h) defines the expression "transfer" as follows: " 'transfer',- (i) in relation to any immovable property referred to in sub-clause (i) of clause (e), means transfer of such property by way of sale or exchange or lease for a term of not less than twelve years, and includes allowing the possession of such property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882)." The Explanation is not relevant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to the coming into force of Chapter XXC and which had remained an agreement of sale and not resulted in execution of a deed of transfer before the coming into force of Chapter XXC of the Act. Rule 48L reads thus: "Statement to be furnished under section 269UC(3).-(1) The statement required to be furnished to the appropriate authority under sub-section (3) of section 269UC shall be in Form No. 37-I and shall be signed and verified in the manner indicated therein by each of the parties to the transfer referred to in sub-section (1) of that section or by any of the parties to such transfer acting on behalf of himself and on behalf of the other parties. (2) The statement in Form No. 37-I shall be furnished, in duplicate, to the appropriate authority- (a) before the 30th day of October, 1987, in a case where the agreement for transfer is entered into before the coming into force of Chapter XXC in the areas comprised in the 'Bangalore Metropolitan Region', and 'Ahmedabad Urban Development Area' and the areas comprised in the city of Ahmedabad, as referred to in the Notification of the Government of India in the Department of Revenue, No. S.O. 835(E), dated 21st September, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XC and further that Chapter XXA is intended for purchase whereas Chapter XXC is intended for pre-emptive purchase or in other words for compulsory acquisition of property. Therefore, it is contended that in the absence of any provision making Chapter XXC of the Act retrospective, the normal rule is to hold that it is prospective and would be applicable only to such agreements of sale which come into existence after the coming into force of Chapter XXC. In Sanjeev Sethi (Captain) v. Union of India [1992] 195 ITR 338, the Division Bench of the Delhi High Court has held that an allotment of a flat amounted to a transaction of "transfer" as defined under Chapter XXA of the Act; therefore, Chapter XXC of the Act was not attracted. The relevant portions of the aforesaid judgment of a Division Bench are extracted below (at page 345): "The main contention of learned counsel for the petitioner is that the provisions of Chapter XXC of the Income-tax Act are not applicable in the present case. The submission of Mr. Syali is that, in the instant case, a valid agreement had been entered into between the petitioner which expression will include his predecessor-in-interest, viz., his brother, N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not applicable in the case of transfer of property by a person to his relative on account of natural love and affection. In the present case, it is only on October 4, 1990, that a letter was written by Navneet Sethi to the Ansals to the effect that the allotment be transferred to the name of his brother Sanjeev Sethi. The right of Navneet Sethi to get the flat was recognised. It is this right which was transferred by Navneet Sethi to his brother, Sanjeev Sethi. This was obviously a transfer on account of natural love and affection and such a transfer would be exempt from the provisions of Chapter XXC by virtue of the provisions of section 269UD. Moreover, in clause 24 of the agreement dated September 4, 1979, it was, inter alia, provided that the power of attorney would be executed in favour of Competent Builders so as to enable Competent Builders to execute 'sale agreements in favour of the purchasers of the flats or their assigns or nominees and. . .'(emphasis added). The said clause clearly provides that the purchasers could have their nominees or assigns and they would necessarily step into the shoes of the purchasers. This is precisely what has happened here. Sanjeev Sethi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Rs. 5 lakhs shall be effected, except after an agreement for transfer is entered into between the person who intends transferring the immovable property and the person who intends to purchase it. Therefore, we are of the view that the said decision cannot be accepted as laying down the law correctly. A contention is also put forth before us that sub-section (1) of section 269UC provides that the agreement shall be entered into three months before forwarding of the same to the appropriate authority and the same is not possible in cases where agreements for sale have come into existence before the coming into force of Chapter XXC of the Act. It is relevant to notice that sub-section (1) of section 269UC says that such an agreement should be entered into at least three months prior to the intended date of transfer. The expression "intended date of transfer" used in sub-section (1) must be read with the earlier portion of the provision "no transfer of any immovable property", which means that the transfer contemplated is the actual transfer by the deed in accordance with law. If that is so, the application and enforcement of the provisions contained in section 269UC to the agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents Nos. 7 and 8. The writ petition has been filed only in November, 1987. The mere fact that the writ petition was pending when the judgment in C. B. Gautam's case [1993] 199 ITR 530 (SC) came to be delivered will not be of any materiality in the instant case, because it cannot be held that the principle laid down in that decision is applicable to the instant case. In the absence of the observation made by the Supreme Court, extracted above, it would have been possible to apply the said decision, but the applicability of the rule laid down in C. B. Gautam's case [1993] 199 ITR 530 (SC) to a case of the nature on hand has been excluded by the Supreme Court, by the clarification extracted above. Therefore, even if it is considered that the writ petition was pending on the date the judgment in C. B. Gautam's case. [1993] 199 ITR 530 (SC) was delivered, nevertheless, the case falls within the clarificatory observations extracted above and as such the rule laid down therein cannot at all be applied to the case on hand. Accordingly, point No. (ii) is answered in the negative. There is no other contention raised except that the petitioner had not been given an opportunity by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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