TMI Blog1979 (12) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... rations which were mentioned in the respective sale deeds. These sale deeds were registered on December 31, 1973. The District Valuation Officer found on his valuation report that the properties were worth Rs. 4,75,000 or so and thereafter the competent authority functioning under s. 269D(1) of the I.T. Act issued notices to the transferors and the transferees. The notice under s. 269D(1), which is a condition precedent to the initiation of proceedings for acquisition under this Chap. XX-A, was published in the Official Gazette on September 28, 1974. The notices were served on the transferors and the transferees in November, 1974, that is, on 22nd November, 1974, and 26th November, 1974, and the proclamation was made at the site and also on the notice board of the competent authority and by the beat of thali on December 14, 1974. No objections were filed either by the transferors or the transferees and it appears from the report of the competent authority that repeated opportunities were given to the transferors and the transferees and to their chartered accountant for putting forward the views of the parties regarding the proposed acquisition. The reports of the Valuation Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. In Dilworth v. Commissioner of Stamps [1899] AC 99 (PC), the interpretation to be given to such inclusive definitions has been clearly laid down by the House of Lords. In the interpretation of statutes it is well known that when the Legislature wants to enlarge the natural meaning of the words or phrase, it uses the word " includes " and in such a context an inclusive definition means that over and above the natural meaning of the words, the specially provided meaning of the word will also have to be attributed for the purpose of interpretation of that particular statute or that particular chapter, as is the case before us. " Person interested " is a phrase not unknown to other statutes. In s. 3(b) of the Land Acquisition Act, the expression " person interested " includes all persons claiming an interest in compensation to be made on account of the acquisition of land under that Act and a person shall be deemed to be interested in land if he is interested in an easement affecting the land. We are not concerned with the last part of the definition for the purpose of the Land Acquisition Act but the first part of s. 3(b) of the Land Acquisition Act is in pari materia with the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts up a superstructure on that land at his own cost and is the owner of the superstructure. Another type of society is what is known as a tenant-co-partnership society where, particularly in big urban centres like Bombay and now even in Ahmedabad, the land belongs to the co-operative society and all the members of the co-operative society in co-partnership put up a structure over the land. In such an eventuality, different rights inter se in the light of the bye-laws will emerge as between members on the one hand and as between the members and the co-operative society on the other. We will now take up the decisions on the point in a chronological order. In Sakarchand Chhaganlal v. CED [1969] 73 ITR 555 the question before this High Court was of a co-operative housing society of the tenant-ownership type and there, after examining the bye-laws of the society, it was found that out of the land belonging to the society, plot may be allotted and given by the society on lease to a member who holds at least five shares and the member may build his own house upon it. The plot would continue to be held by the member so long as he is a member. If he ceased to be a member for any reason by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are valid under the law. It was in the context of the provisions of the Maharashtra Co-operative Societies Act and in the context of the bye-laws of that particular society that this conclusion was reached by the Supreme Court in that particular case. It must be pointed out that what seems to have weighed with the Supreme Court has been very clearly stated in paragraph 19 of the decision of the Supreme Court, at page 1476, by Goswami J., speaking for the Supreme Court : " Multi-storeyed ownership flats on co-operative basis in cities and big towns have come to stay because of dire necessity and are in the process of rapid expansion for manifold reasons. Some of these are : ever-growing needs of an urban community necessitating its accommodation in proximity to cities and towns, lack of availability of land in urban areas, rise in price of building material, restrictions under various rent legislations, disincentive generated by tax laws and other laws for embarking upon housing construction on individual basis, security of possession depending upon fulfilment of the conditions of membership of a society which are none too irksome. In the absence of clear and unambiguous legal p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Full Bench. At page 883 of the report, S. H. Sheth J., speaking for the Full Bench, has pointed out (AIR 1980 Guj 62 ) : " We have no doubt in our minds that section 42 of the Gujarat Co-operative Societies Act, 1961, inter alia, exempts from compulsory-registration instruments relating to shares in a society notwithstanding that the assets of such society consist wholly or in part of immovable property. Shares in a co-operative housing society have a necessary relation to the immovable properties which the society constructs and which are allotted by the society to its members. It is necessary, therefore, to find out what an instrument of transfer relating to 'shares in a society ' conveys to the transferee. It has been argued that there are two types of co-operative housing societies. One type is called ' tenant co-partnership society ' another is called ' tenant ownership society '. A ' tenant co-partnership society ' is a society where the land is owned by the society and upon which houses are constructed by the society for the benefit of its members. It is the co-operative venture of all the members of a co-operative housing society which brings into being the houses wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication of the notification in the Official Gazette. The dividing line between the two is very clear and that is the answer given by the Full Bench as well and that is the decision of the Division Bench in Sakarchand Chhaganlal v. CED [1969] 73 ITR 555 (Guj). It is only if these co-operative societies are held to be tenant-co-partnership societies that it can be held that the individual members have an interest in the immovable property which was proposed to be acquired or in any of the lands which was proposed to be acquired by the competent authority under Chap. XX-A of the I.T. Act. As to what is meant by the words " interest in immovable property ", the position has been very clearly and succinctly stated by the Supreme Court in Collector of Bombay v. Nusserwanji Rattanji Mistry, AIR 1955 SC 298, where the Supreme Court has pointed out that " interest " is of the type of lease, mortgage, easement, etc. Venkatarama Ayyar J., in para. 13, at page 305, has observed : " In its normal acceptation, ' interest ' means one or more of those rights which go to make up ' ownership '. It will include, for example, mortgage, lease, charge, easement and the like, but the right to impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice on the individual members and should have rejected those contentions. In our opinion, it was all the more necessary to reject those contentions because no material has been placed on record by the co-operative societies to indicate as to what are the rights of the individual members and whether these societies were tenant-co-partnership societies or tenant-ownership societies. It must be pointed out that there are different types of co-operative societies, for example, there may be a co-operative society for co-operative farming or there may be a cooperative society of fishermen; there could be a co-operative society of sugarcane growers for the purpose of collective purchase and collective marketing of their products, and unless the bye-laws of the particular co-operative society are before the court or before the judicial authority, it is difficult to ascertain whether the members are " interested " or are " persons interested " in the property. With respect to the Tribunal, the Tribunal was in error and has overlooked the meaning of the words " persons interested in the property " and appears to have gone by a loose impression, namely, that all members of co-operative socie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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