TMI Blog1978 (8) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the fair market value of the property exceeds the apparent consideration thereof by more than fifteen per cent. and that it is for one of the objects mentioned in s. 269C(1), cls. (a) and (b). In the instant case, the competent authority came to the conclusion that the requirements of s. 269F were satisfied and he, therefore, passed, after obtaining the approval of the Commissioner, an order for acquisition of the immovable property under the provisions of Chap. XX-A. Against this decision of the competent authority, two appeals were filed to the Tribunal under the provision of s. 269G, one by the transferor and the other by the transferee. Both the appeals were disposed of by a common judgment by the Tribunal. Under s. 269L, sub-s. (3), it is provided that if in an appeal under s. 269G against the order for acquisition of any immovable property, the fair market value of such property is in dispute, the Tribunal shall, on a request being made in that behalf by the competent authority, give an opportunity of being heard to any valuation officer nominated for the purpose by the competent authority. In the instant case, the major point in dispute in the two appeals filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal to give an opportunity of being heard to the valuation officer, the question whether at the time of the hearing, the request was pressed or not is comparatively insignificant. What really matters is whether the Tribunal, in view of the mandatory language of s. 269L(3), had taken any steps to give an opportunity of being heard to the valuation officer, U. S. Shah. Since that opportunity was not given, this appeal must be allowed on this narrow ground and the matter must now go back to the Tribunal to be decided in accordance with law after giving an opportunity of being heard to U. S. Shah, the Valuation Officer. We wish to make it clear that the concept of giving an opportunity of being heard covers two distinct concepts. One is the concept of merely hearing arguments and taking assistance in the shape of hearing arguments from the valuation officer, and the other is to treat the valuation officer as a witness in the matter so far as the Tribunal is concerned and, after treating him as a witness, accept the opinion of the valuation officer, on the valuation, as an expert. However, an examination of the scheme of the relevant provisions of Chap. XX-A is required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g an order, under s. 269F, of acquisition in respect of any immovable property. Thus, the valuation officer, who is called upon to determine the fair market value of any particular immovable property, is acting as an expert authority and adviser to the competent authority for the purpose of enabling the competent authority to determine the fair market value, either prima facie at the stage of initiation of the proceedings or finally at the time when he has to decide the question whether the property should be acquired or not under the provisions of s. 269F. The valuation officer, thus being a statutory authority, has certain functions to perform. It is true that he acts in an advisory capacity and has to help the competent authority to determine the fair market value. We are not concerned in the present case with the question whether the Valuation Officer, whose report is called for under s. 269L(1)(a) either at the stage of initiation of proceedings or at the stage of passing the final order under s. 269L, can or cannot be examined as a witness before the competent authority. That question does not arise before us in the present case and we do not express any opinion on that aspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 29 and 30 of the Appellate Tribunal Rules will have to be kept in mind. But, so long as the valuation officer nominated by the competent authority is being heard only on the materials on record and is making his submissions only on the materials on record before the Tribunal or before the competent authority, there can be no question of treating him as a witness before the Tribunal. He is not a party to the appeal or in proceedings before the competent authority. He is permitted by the statute to appear as an expert assisting the Tribunal on the technical aspects of the question regarding the determination of the fair market value in the light of known principles of valuation of property. In the light of the concept of an opportunity of being heard, it will be open to the valuation officer functioning under s. 269L(3) to make his written submission or offer oral comments, and it will be desirable that such valuation officer offers his comments on the materials on record in writing and also makes his submissions orally, so that the other side can meet his representations by making suitable comments, either in writing or orally. In any event, we must make it clear that such writte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to accept this argument urged on behalf of the respondents because, in our opinion, the provisions of s. 269L(3) are mandatory and once the competent authority has made the request, it is incumbent upon the Tribunal to afford an opportunity of being heard to the valuation officer. In view of the mandatory language of s. 269L(3), there must be an express waiver and there cannot be any question of any implied waiver from the circumstances of the type relied upon by Mr. Shah. Hence, we have rejected this submission urged on behalf of the respondents. Two courses are open to us, either to send down the matter for the limited purpose of enabling the valuation officer nominated by the competent authority to be heard by the Tribunal and asking the Tribunal to record its finding on that limited point of fair market value and report the matter back to us. But, in view of the fact that this is the first time when the Tribunal itself was considering the matter and also looking to the fact that practically everyone was new to the practice and procedure under Chap. XX-A and further in view of the fact that it would be desirable, in the interest of justice, that the entire matter is sent back ..... X X X X Extracts X X X X X X X X Extracts X X X X
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