9911796707
TMI Blog2007 (10) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... gether with structures thereon situated at Walkeshwar Road, Mumbai. On 16th May 1981 the said Mulanis entered into an agreement for sale in respect of the said property in favour of one Om Prakash Navani on the terms and conditions contained in the said agreement. On July 13, 1991 Mulanis and the said Om Prakash Navani entered into an agreement for sale with the Seawell Interdrill Services Pvt. Ltd. (hereinafter referred to as "Seawell") for sale of the said property and the rights of said Om Prakash Navani. Mulanis submitted a statement in form 37-I under section 269UC of the Income Tax Act, 1961 (hereinafter referred to as "the said Act") to the 1st Defendant, which is an Appropriate Authority under the said Act, giving intimation of the intention to sell the said property in terms of the agreement dated 13th July 1991. 3. By an order dated 29th September 2004, this Court sanctioned a scheme of amalgamation of the Seawell Interdrill Services Pvt. Ltd. with one Trikaya Investment Ltd. (hereinafter referred to as "Trikaya"). 4. On 27th September 1991 an order was passed under sub-section (1) of section 269UD of the said Act by the 1st Defendant of compulsory purchase of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctober 2002. It appears from the further correspondence between Trikaya and the 1st Defendant that it was contended that on account of the failure of the 1st Defendant to pay the requisite amount, the property stood re-vested in Mulanis. A reference has been made to the communications dated 20th May 2005 and 10th June 2005. 8. It is the case of the Plaintiff that the Mulanis and the said Om Prakash Navani terminated the agreement dated 13th July 1981 in favour of Trikaya. The Plaintiff purchased the said property by a deed of conveyance dated 16th May 2006 from Mulanis and the said Om Prakash Navani for a total consideration of Rs. 18,25,00,000/-. It is alleged in the plaint that on 13th June 2006 the Plaintiff was shocked to find that the lock put on the outhouse situated on the said property was broken and another lock was put thereon. According to the Plaintiff, they were informed by the security personnel guarding the property that the keys of the new lock were with the Defendants. 9. The contention of the Plaintiff is that the Defendants were admittedly not in possession of the suit property. The suit is filed, interalia, for declaration that the said order dated 12th Septem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is stated that the amount payable under section 269UF has been already deposited on the basis of the second order of compulsory purchase passed on 29th June 1993. The learned Senior Counsel appearing for the Plaintiff submitted that the deposit of the amount by the 1st Defendant on the basis of the earlier order dated 29th June 1993 in P.D. Account was not at all a valid tender as per the provisions of sub-section (1) of section 269UG. He submitted that the 1st Defendant offered to pay the said amount subject to conditions such as handing over possession and delivery of the documents of title etc. He submitted that the tender of the amount contemplated by sub-section (1) of section 269UG has no connection with the possession of the property and the period described by sub-section (1) of section 269UG starts running from the date on which the property vested in the Central Government in terms of sub-section (1) of section 269UE. He pointed out that the vesting is on the date of passing of the order of compulsory purchase. He submitted that the requirement incorporated in sub-section (1) of section 269UG is a mandatory requirement and the consequence of non-compliance with the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property as forcible possession of the property was taken over by the authorities on 22nd July 1993 on the basis of the second order of compulsory purchase passed on 29th June 1993. He submitted that the Plaintiff is disentitled to any interim relief on the ground that the suit is not maintainable and also on the ground that the Plaintiff has no locus. He pointed out that the predecessors of the Plaintiff have not been impleaded as parties to the suit. Moreover he submitted that the Defendants are in possession of the suit property. 15. He submitted that in view of sub-section (2) of section 269UE of the said Act, it is the obligation of the transferor or any other person who may be in possession of the immoveable property in respect of which the order of compulsory purchase is passed to surrender or deliver possession of the property in question to the Appropriate Authority. He submitted that as possession was not handed over, on 22nd July 1993 forcible possession of the suit property was taken over. He submitted that though repeatedly the said Mulanis and Om Prakash Navani were called upon to submit title deeds of the said property, the same were not submitted. He submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government or any of its wings cannot prevent the real owner of the property from developing the suit property. He submitted that as the Defendants have no right, title or interest in respect of the suit property, the Plaintiff is entitled to the relief of injunction as prayed. 17. I have carefully considered the submissions made by the learned Counsel appearing for the parties. The order dated 12th September 2002 has been admittedly passed under sub-section (1) of section 269UD of the said Act. Sub-section (1) of section 269UE provides that when an order under sub-section (1) of section 269UD is made by the Appropriate Authority in respect of an immoveable property referred to in sub-clause (i) of clause (d) of section 269UA, the said property shall on the date of such order vests in the Central Government in terms of the agreement for transfer referred to in sub-section (1) of section 269UC. In the present case the agreement for transfer is dated 13th July 1991 executed by the Mulanis and Om Prakash Navani in favour of the predecessor of Trikaya. Thus the vesting according to sub-section (1) of section 269UE in the Central Government is on 12th September 2002. Sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase the immoveable property by the Central Government made under sub-section (1) of section 269UD shall stand abrogated and the immoveable property shall stand revested in the transferor after expiry of the aforesaid period. 18. The Plaintiff has placed reliance on a decision of the Apex Court in the case of Union of India and another v/s. Dr. A.K. Garg and others ([2002] 10 S.C.C. 392). In the case before the Apex Court the amount of apparent consideration was deposited with the Appropriate Authority, but there was no material on record to show that the same was tendered or offered to the parties concerned. The Apex Court held that as there was no material forthcoming to show that the offer was made within time stipulated by law, the purchase order stood abrogated. 19. Reliance has been placed on the decision of the Apex Court in the case of Prima Realty v/s. Union of India and others ([1996] 11 SCC 65). In the case before the Apex Court, the payment of apparent consideration was required to be made on or before 31st May 1995. On 31st May 1995 the Central Government issued 9 cheques drawn on the same day. The cheques were drawn in an incorrect name. The said cheque was deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he concerned parties and no objection certificate is issued, the Petitioner therein will not have any claim whatsoever against the Respondents in the said petition. On the basis of the said order, the 3rd order was passed on 12th September 2002. 22. It will be necessary to refer to the communication dated 24th September 2002 issued by the 1st Defendant to Mulanis and the said Om Prakash Nawani. In the said communication issued by the 1st Defendant it is stated that forcible possession of the property was taken on 22nd July 1993. A reference has been made in the said letter to various clauses in the agreement dated 13th July 1991 including clause 5 thereof. It is pointed out that as per the said clause No. 5 Mulanis and the said Om Prakash were under an obligation to evict the tenants in possession of part of the suit property. Mulanis and Om Prakash Navani were called upon to deliver possession of that part of the property within a period of 15 days from the date of service of the order dated 12th September 2002. They were also called upon to furnish certificate from assessing I.T.O. regarding position of arrears of taxes viz. Income tax, Wealth tax and Gift tax. They were also ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding over the documents and by handing over possession of the property free from encumbrances of the tenants. The contention of the Defendants is that the Vendors were under an obligation to perform their obligations under the agreement dated 13th July 1991. 23. The submission of the Plaintiffs is that the amount of apparent consideration has to be tendered within the time provided by law under sub-section (1) of section 269UG. The time starts running from the date of vesting i.e. the date of passing the order under sub-section (1) of section 269UD. The contention of the Defendants is that the apparent consideration was deposited way back in the year 1993 in the P.D. Account even to the knowledge of Mulanis and the said Omprakash Navani and the said deposit is a valid tender. The contention of the Plaintiff is that the tender or payment of apparent consideration cannot be postponed on the ground that the documents of title are not handed over by the Vendors or that encumbrances on the property are not cleared. Reliance has been placed by the Plaintiff on the decision of Calcutta High Court in the case of Union of India v/s. Madhusudan Das and others, dated 29th January 2002 in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appropriate Authority in case the persons entitled to the amount of consideration do not consent to receive. It must be borne in mind that neither the said Mulanis nor the said Omprakash Navani have challenged the order dated 12th September 2002 or have filed proceedings for contending that there is revesting as a consequence of failure of the Defendants to tender the apparent consideration on or before 31st October 2002. The present Plaintiff has came into picture much later on the basis of conveyance dated 16th May 2006. 25. There is one more aspect of the case which needs consideration. In the plaint a case is made out by the Plaintiff that possession of the suit property is with the Plaintiff. In clause (w) of paragraph 3 of the plaint, it is asserted that the Plaintiff has remained and continues to remain in possession of the suit property. It is stated that upon execution of the deed of conveyance the Plaintiff and his security agents entered into the property unhindered and without any obstruction. Clause (x) of the same paragraph reads thus: (x). The Plaintiff says that upon the passing of the first Order of compulsory purchase dated 27th September, 1991, the Defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is nothing on record to show that the said Om Prakash Navani at any time disputed that forcible possession of the suit property was taken over by the 1st Defendant oon 22nd July 1993. It must be noted here that the letter dated 24th September 2002 records that though forcible possession of the property was taken on 22nd July 1993, there were tenants in occupation of part of the property. In fact the names of two tenants have been incorporated in the agreement dated 13th July 1991. Now a reliance is placed on letter dated 10th June 2005 and in particular clause (4) thereof, which is sent by the 1st Defendant. Clause (4) reads thus: "4. Under the circumstances I am now directed to intimate you that this office is willing to pay the apparent consideration in respect of the subject property as soon as the clean possession of the property is handed over to the Appropriate Authority, free from all encumbrances along with all original title documents and other relevant papers and all the liabilities of the vendors as per their agreement with the transferee are discharged." The Plaintiff has also relied upon the letter dated 19th December 2005 sent by the 1st Defendant and in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears to be in possession of the suit property. 27. Another issue has been raised by the Defendants regarding the maintainability of the suit in view of section 269UN of the said Act, which reads thus: "269UN. Save as otherwise provided in this Chapter, any order made under sub-section (1) of section 269UD or any order made under sub-section (2) of section 269UF shall be final and conclusive and shall not be called in question in any proceeding under this Act or under any other law for the time being in force." The issue regarding locus of the Plaintiff to file the suit has been raised in the context of the fact that the predecessor of the Plaintiff neither challenged the order dated 12th September 2002 nor came out with the case of re-vesting. The case of re-vesting was made out by the purchasers of the original vendors under the agreement dated 13th July 1991. However, the said agreement has been admittedly cancelled. The issue regarding the maintainability of the suit and the locus of the Plaintiff will have to be decided at the time of final hearing of the suit. 28. Though there are triable issues involved in the suit, the question of granting interim protection will have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the fact that there are triable issues involved in the suit, a limited relief deserves to be granted to the Plaintiff till final disposal of the suit. The interim protection will be by way of directing both the parties to maintain status-quo as of today till final disposal of the suit. 31. It will have to be clarified that the security guards employed by the Defendants will continue to guard the property till final disposal of the suit. The Defendants will not dispossess any person, if any, in possession of the property and will not take any further steps for sale of the property. 32. Hence the Notice of Motion is disposed of by the following order: i) Till final disposal of the suit, the parties will maintain status-quo as of today in respect of the suit property. It is made clear that the security guards employed by the 1st Defendant and the board displayed by the Defendants will continue to be on the property. The Defendants will not dispossess any person, if any, found in possession of the suit property as of today and will not take any further steps for sale or auction of the suit property. ii) Hearing of the suit is expedited. iii) Certified copy is exped ..... X X X X Extracts X X X X X X X X Extracts X X X X
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