TMI Blog1978 (9) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... / 73-74. At the outset, in all fairness, I must state that initially only Miscellaneous Appeal No. 325 of 1976 was posted for hearing as shown in the daily cause list. Learned counsel for the parties, however, agreed that since a number of appeals have been filed by different parties against the same order, all of them should be heard together. Miscellaneous Appeals Nos. 5, 6, 7, 9 and 10 of 1977 had already been admitted and notices issued and received by the parties. Two other appeals, namely, Miscellaneous Appeals Nos. 4 and 8 of 1977, had not by then been admitted. Therefore, with the consent of the parties, we took up for hearing all the appeals excepting Miscellaneous Appeals Nos. 4 and 8 of 1977 which, as stated above, had not been admitted at the time of hearing of these appeals. Accordingly, we heard learned counsel for the parties in Miscellaneous Appeals Nos. 325 of 1976 and Nos. 5, 6, 7, 9 and 10 of 1977 only. Since all these appeals arise out of the same order, they have been heard together and are being disposed of by a common judgment. 17.85 kathas of land bearing holding No. 567/401 (new) corresponding to holding No. 316 (old) in circle No. 6, ward No. 2, street ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellants claim that the case was not one in which the provisions of s. 269C of the Act were attracted. The Competent Authority under s. 269B(1), who initiated the proceeding, and objections having been filed by the appellants under s. 269E, passed an order under s. 269F of the Act for the acquisition of the property in question. The appellants preferred appeals to the Appellate Tribunal under s. 269G and by the impugned order the Tribunal has dismissed the appeals of the appellants. It is against this order that these appeals have been preferred by the different transferees under the impugned sale deeds. Mr. Lal Narain Sinha, learned counsel for the appellants, raised a number of points in support of these appeals. I shall, however, deal with only such of the points as have any relevance on the matter involved in these appeals. It was first argued that there were certain conditions precedent to the commencement of acquisition proceeding. Analysing the provisions of s. 269C(1) of the Act, it was contended and rightly so, that the following cumulative conditions must be satisfied before the acquisition proceedings can be commenced under Chapter XX-A. (i) There must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udent purchaser would necessarily take into account the extent and the quality of the title as well as all attending circumstances and factors which tend to push up the value or to depress it. This piece of legislation under Chap. XX-A being a piece of expropriatory legislation must receive strict construction and the interpretation which this Chapter must receive must be in relation to the question of evasion of tax. The property that actually passes is not that which is purported to be so passed but that which the transferor is entitled to sell. In view of the circumstances in which the property in question was transferred, it was submitted that a litigation with regard to the title to the property being in process, no reasonable and prudent buyer could have purchased it at its real market value, for the purchaser would take such property with a great amount of risk. This is doubly reinforced by the fact that the very same appellants who purchased the property from Vijay Kumar, son of Shri Niwas Ram, Mahabal Kumari, widow of Shri Niwas Ram, and Sanjay Kumar, son of Vijay Kumar, had also, to avoid litigation, paid consideration to the other set of claimants, namely, Champa Devi an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etch if sold in the open market on the date of the execution of the deed of transfer. The first point to be decided, therefore, is what is the immovable property transferred of which the fair market value is to be fixed ? In other words, price has to be fixed for the property transferred effectively and not the property purported to be transferred. The property that actually passes under the instrument of transfer is only that which the transferor is entitled to sell and not what he purports to sell. In the instant case, as already noticed above, there were two sets of claimants for this property which was the subject matter of litigation in civil courts of competent jurisdiction and ultimately the right, title and interest to a share in the property was actually found in favour of Champa Devi and others who were not the transferors under the impugned deed executed by Vijay Kumar, Shrimati Urmila Devi, Sanjay Kumar and Vinay Kumar. The price of Rs. 1,85,000 paid to the transferors was, therefore, not in respect of the actual transfer effected of the entire property but involved an imminent likelihood of litigation between the appellants on the one hand and Champa Devi and others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. If considerations germane for such ascertainment have not been taken into account or if irrelevant considerations have entered the inquiry, the finding becomes vitiated in law. This is the error luminous in the orders of the Competent Authority as well as of the Tribunal. The impugned judgments are, therefore, vitiated. There was yet another point canvassed by Mr. Sinha in support of these appeals. It was submitted that the initiation of the proceeding is by publication of notice under s. 269D(1) and, therefore, the notice under s. 269D(2) is illegal and nonest. The relevant portion of s. 269D(1) reads thus : " 269D. (1) The Competent Authority shall initiate proceedings for the acquisition, under this Chapter, of any immovable property referred to in section 269C by notice to that effect published in the Official Gazette ...... Section 269D(2) is reproduced below : " 269D. (2) The Competent Authority shall-- (a) cause a notice under sub-section (1) in respect of any immovable property to be served on the transferor, the transferee, the person in occupation of the property, if the transferee is not in occupation thereof, and on every person whom the Competent Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1959, on the expiration of each such period as is specified in the licence, the State Electricity Board shall have the option of purchasing the undertaking and " such option shall be exercised by the State Electricity Board serving upon the licensee a notice in writing of not less than one year requiring the licensee to sell the undertaking to it at the expiry of the relevant period referred to in this sub-section". It was held that the aforesaid provision even authorised the Electricity Board to purchase the undertaking by means of a notice to the licensee, to sell the undertaking to it on the expiry of the period for which the licence had been given. The impugned notice did not require the licensee to sell the undertaking. It was on that account that the Supreme Court held that the notice was not in accordance with law. It is a primary rule, I must say, that if a notice is required to be given for the purpose of acquisition with certain specific stipulations and such stipulations had not been incorporated in the notice, the notice cannot be upheld as sustainable in law. There is no such defect in the instant cases. This case is, therefore, clearly distinguishable. Similar di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the appellants. In view, however, of my finding that the considerations germane to the ascertainment of fair market value have not been taken into account by the court below, I would allow these appeals and remand them to the Tribunal, ' B ' Bench, Patna, for rehearing the parties afresh, after giving them a reasonable opportunity and after taking in evidence such further materials relevant as the parties may produce, before the Tribunal and to decide these cases in accordance with law and keeping in view the observations made above. Learned counsel for the appellants, in this connection, also strenuously contended that the Tribunal had fallen into an error in not taking in additional evidence, the compromise petition dated April 10, 1975, and the decree passed by the civil court on the basis of that compromise petition on June 10, 1975, and some other pieces of evidence which the appellants had prayed to be taken in additional evidence before the Tribunal. Mr. Rajgarhia, for the department, contended that the Tribunal did not take such documents as additional evidence on the ground that they were not required to enable the Tribunal to pass the order. On the facts and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . XX-A of the Act. While holding an enquiry, the Competent Authority shall also bold an enquiry in respect of the share which has been transferred by A to D. This enquiry is necessary because the Competent Authority shall acquire the share in the property transferred by the transferor to the transferee. The Competent Authority shall take possession in respect of 1/3rd share passed on by the transferor to the transferee and only such share shall vest absolutely in the Central Government. The Competent Authority cannot acquire the whole house. Similarly, in the present case, Vijay Kumar, and his sons, Binay Kumar and Sanjay Kumar, executed ten registered sale deeds on 5th September, 1973, in respect of a house situated at Exhibition Road in favour of these petitioners. On 9th May, 1962, Vijay instituted Title Suit No. 54 of 1962 to establish his absolute title to the suit properties. According to him, Champa Devi was not the widow of Srinivas Sah, who claimed herself to be his widow. Vijay Kumar is the son of Srinivas Sah. The suit was ultimately compromised, and a compromise decree was passed on 10th June, 1975, on the basis of a compromise petition filed on 10th April, 1975. Copi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to check this, this chapter has been enacted to enable the Competent Authority to acquire the immovable property where the instrument of transfer does not mention the true consideration amount. In such a case, the proceeding will be initiated under Chap. XX-A of the Act and wrongdoers shall be punished by acquisition of the land mentioned in the deed of transfer. Hence, it is necessary for the Competent Authority to enquire in respect of the extent of share passed on by the transferor to the transferee. If this enquiry is not made, then it will be difficult for the Competent Authority to acquire the property. Suppose A has transferred 1/3rd share in a house, the Competent Authority shall acquire only 1/3rd share in the house and only such share shall vest in the Central Govt. If the Competent Authority does not make any enquiry as to the extent of the share held by the transferee, then an anomalous position will arise and the Competent Authority will have difficulty in acquiring the property. The Competent Authority will also find difficulty in taking possession of the property. Hence, in order to check these difficulties, it is mandatory on the part of the Competent Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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