BOMBAY HIGH COURT

Writ Petition No. 2435 of 2011

Mohit S. Shah, C.J. And M. S. Sanklecha, JJ.

Mr. Porus Kaka, Senior Advocate with Divesh Chawla and Ms. Vasanti B. Patel For the Petitioners :
Mr. Abhay Ahuja, Mr. J. D. Mistri, Sr. Advocate with Ms. Aasifa Khan For the Respondent :

M. S. Sanklecha, J.-Rule. By consent returnable forthwith. At the request of the Counsel for the parties matter taken up for final hearing.

2) By this petition under Article 226 of the Constitution of India the petitioners take exception to the order dated 8 July 2011 passed by the Appropriate Authority constituted under Chapter XXC of the Income Tax Act, 1961 (“the Act”). By the impugned order dated 8 July 2011 a property admeasuring 555 sq. yards together with super structure standing thereon being property bearing Plot No.70/P, Suburban Scheme III, Chembur Garden, Chembur (“said property”) along with the encumbrance of a tenant thereon was acquired and now vests in Central Government under Chapter XXC of the Act.

3) On 18 February 1995, the petitioners entered into an agreement for purchase of the said property along with a monthly tenant thereon with the owners thereof namely one Waman Vishnu Ajrekar represented in the present petition by his legal heir Smt. Gouri Anand Gokhale as respondent No.3 (referred to as the seller). The said property was purchased on as is where is basis for lumpsum consideration of Rs.1.15 crores. In terms of the agreement the petitioner paid a sum of Rs. 11.50 lacs by way of earnest money and the balance of Rs. 1,03,50,000/was to be paid to the seller on completion of the sale.

4) If the consideration for purchase of any property was in excess of the limit of Rs. 10 lacs as then prescribed for the purposes of Chapter XXC of the Act, the buyer and the seller had to file necessary statement with regard to the agreement to purchase the property before the Appropriate Authority. Accordingly, the petitioners filed Form37I along with the agreement dated 18 February 2005 with the Appropriate Authority under Chapter XXC of the Act.

5) Consequent to the above, on 5 May 1995 the Appropriate Authority issued a show cause notice to the petitioners calling upon the petitioners to show cause why the said property should not be purchased by the Central Government under the provisions of Section 269UD(1) of Chapter XXC of the said Act. The basis of the above notice was that prima facie it appears that the consideration declared in the agreement dated 18 February 2005 works out to FSI rate at Rs. 3836/per sq. ft. while contemporary sales of similar properties had taken place at a higher price indicating under valuation of the consideration. The notice relied upon three contemporaneous transactions of purchase of properties as under:-

6) The petitioner filed their reply to the show cause notice dated 5 May 1995 and pointed out that the consideration of Rs.1.15 crores for the said property was a fair market value. In particular, it was pointed out that the said property was in occupation of a monthly tenant. Therefore, the said property could not be developed without vacating the tenant from the said property for which reason the petitioners would have to compensate the tenant resulting in increasing the cost of the said property. Further, it was pointed out that the three instances of purchase relied upon in the show cause notice were not comparable, for the reason that the sale instances were in respect of properties which were ready property for sale and further all the three properties were situated on the main Sion Trombay Road as against that the said property which was situated off the Central Avenue Road having a very narrow access. Thus, the three instances are not comparable. Further, the said property was sold as the seller was an aged person who wanted to distribute his assets during his life time. Besides, the petitioners also relied upon 15 comparable instances where premises was purchased at rates comparable to the rates at which the petitioners were purchasing the said property under the agreement dated 18 February 1995. Thus, it was prayed that there is no under valuation and no order acquiring the said property under Section 269UD of Chapter XXC of the Act be passed.

7) On 22 May 1995, the Appropriate Authority passed an order under Section 269UD(1) of the Act holding that the fair market value of the said property is Rs.2.12 crores i.e. Rs. 7000/per sq. ft. of FSI while the apparent consideration declared in the agreement dated 18 February 1995 is Rs.1.15 crores i.e. Rs. 3386/per sq. ft. of FSI. Thus the Appropriate Authority concluded that the apparent consideration is less than the fair market value by 15% or more warranting acquisition of the said property. The order dated 22 May 1995 justified the three instances of purchase relied upon in the notice by holding them to be comparable. The impugned order also held that the instances of purchase relied upon by the petitioners were not comparable. In fact the petitioners had inter alia relied upon Case No.16669 in which a property identical/similar to the petitioners' property i.e. open plot with structure thereon which had been acquired on 24 February 1995 by the Appropriate Authority at the fair market rate for a consideration of Rs. 3700/per sq.ft. of FSI. The same was disregarded on the ground that in that case the construction could be done without affecting the existing structure as the tenant was to be provided with a flat of 800 sq.ft. The Appropriate Authority further confirmed the notice by holding that the value of accommodating the tenant was Rs.4.34 lacs as held by the Valuation Officer. In view of the above the Appropriate Authority acquired the said property along with the tenant and the consideration payable was Rs.1.15 crores by the Central Government.

8) The petitioners challenged the order dated 22 May 1995 passed by the Appropriate Authority by filing Writ Petition No.1016 of 1995 in this Court. The petition was admitted on 20 June 1995 and finally disposed of on 10 August 2009. This Court by order dated 10 August 2009, set aside the order of the Appropriate Authority dated 22 May 1995 and restored the matter to Appropriate Authority for fresh disposal. In fact, while remanding the case to the Appropriate Authority this Court made certain observations with regard to the findings of the Appropriate Authority in its order dated 22 May 1995.

9) This Court held that the Appropriate Authority has not given any reason to support its acceptance of valuation report by its Valuation Officer in the light of the petitioner submission, while concluding that the cost of settling the tenant was of Rs.4.34 lacs. Thus, the Appropriate Authority was directed to properly compute the cost of settling the tenant.

10) Further, this Court held that three sale instances relied upon by the Appropriate Authority were not comparable for the reason that two out of the three were of commercial premises and in any event all the three instances being relied upon by the respondents are abutting the main Sion Trombay Road. As against that the said property is situated in the interior and not abutting to any main road as was evident from Google Map. Besides no reasons are indicated how the value of a plot of land with a single structure standing thereon is derived from built up apartment.

11) Lastly this Court held that instances relied upon by the petitioners particularly Case No.16669 which was in respect of an similar type of property of which the apparent consideration was Rs. 2106/per sq. ft. FSI while the property was acquired by the Appropriate Authority in February 1995 itself after determining the market value at Rs. 3700/per sq. ft. FSI under Section 269UD(1) of the Act. This Court held that the Appropriate Authority had in its order dated 22 May 1995 not given any good reason as to why it did not consider the above sale instance relied upon by the petitioners as comparable.

12) It was in these circumstances, that this Court by its order dated 10 August 2009 set aside the order of acquisition dated 22 May 1995 and remanded the issue to the Appropriate Authority to pass a fresh order.

13) Consequent to the above, on issue of a fresh notice the petitioners attended the office of the Appropriate Authority for personal hearing. The petitioners' reiterated their earlier submission that the consideration in the agreement for purchase dated 18 February 1995 was in fact the fair market value and no acquisition is called for. In support detailed valuation report dated 5 January 2010 of one Dr. Roshan Nanavatia Government Approved Valuer was also submitted. At the hearing, the petitioner reiterated the submissions made earlier in respect of show cause notice dated 5 May 1995 and further supported the submission by an report dated 5 January 2010 of an expert Government Valuer. The expert valuer in his report has pointed out the reasons why the three instances being relied upon by the Appropriate Authority are not comparable. Further the cost of resettling the tenant would be far in excess of Rs.4.34 lacs as the tenant would take as much as 1110 sq. ft. and not 724sq. ft. so as to vacate the said property. Besides the Appellant also placed reliance upon the observations in the order dated 10 August 2011 of this Court.

14) In spite of the petitioners submission the Appropriate Authority by an order dated 3 February 2010 concluded that the apparent consideration at Rs.1.15 crores in the agreement dated 18 February 1995 is not the fair market value of the said property. The fair market value was worked out at Rs.2.12 crores which exceeds apparent consideration by over 15% and thus, the appropriate authority exercised its right for purchase under Section 269 UD(1) of the Act. According to the petitioner the aforesaid order of the Appropriate Authority dated 3 February 2010 did not consider the valuation report of Dr. Roshan Nanavati nor did it follow the directions given by this Court in the order dated 10 August 2009. Therefore, the petitioners challenged the order dated 3 February 2010 by filing Writ Petition No.1811 of 2010 in this Court. The seller of the said property also filed Writ Petition No.2101 of 2010 in this Court challenging the order of the Appropriate Authority dated 3 February 2010. Both the above petitions were heard together by this Court and on 6 June 2011 by a common order both the petitions were allowed and the order dated 3 February 2010 of the Appropriate Authority was set aside. The Appropriate Authority was further directed to pass a fresh order in accordance with the directions given by this Court in its order dated 10 August 2009 in Writ Petition No.1016 of 1995 and after giving the petitioners in both the writ petitions a personal hearing.

15) Thereafter, the petitioners were issued show cause notice dated 4 June 2011. The petitioner responded to the notice by its reply dated 26 June 2011 and repeated and reiterated the submissions made earlier in response to the two earlier notices. Attention was invited to Paragraphs 11 and 12 of the order dated 10 August 2009 and also order dated 6 June 2011 of this Court. The submissions made earlier were repeated and reiterated. In particular it was pointed out that cost of resettling the tenant would have to be included while computing the apparent consideration for the purpose of the said flat and also to be taken into account while determining the fair market value of the said property. The tenant would vacate the said property only if he is given accommodation in excess of what is in his possession by 33 to 50 % along with some cash consideration. Further, reliance was placed upon the report of Dr. Roshan Nanavati in support of their submissions that the consideration shown in the agreement dated 18 February 1995 i.e. at Rs. 3836/per sq.ft. of FSI was the fair market value and no occasion to exercise power under Section 269UD(1) of chapter XXC the Act can arise.

16) On 8 July 2011, the Appropriate Authority passed the impugned order. By the impugned order, the Appellate Authority concluded that the apparent consideration for purchase of the said property is less by over 15% of the fair market value. Therefore, the Appropriate Authority exercised its right of preemptive purchase of the said property under Section 269UD(1) of chapter XXC of the Act.

17) Mr. Porus Kaka, learned Senior Counsel appearing in support of the petition submits that :
(a) The impugned order dated 8 July 2011 has been passed in a mechanical manner ignoring the specific directions given by this Court in its order dated 6 June 2011 and 10 August 2009 . The order dated 10 August 2009 of this Court had specifically held, while setting aside the order passed by the Appropriate authority on 22 May 1995 that :

(i) that the value of encumbrance of the tenancy has not been properly calculated;
(ii) the Appropriate Authority has not given good reasons while holding the three sale instances namely 16260, 17841 and 17529 being relied upon by the Appropriate Authority as comparable to the said property; and
(iii) the Appropriate Authority has not given good reasons why the sale instances relied upon by the petitioners in particular instance bearing No.16669 is not comparable.

Thereafter the Appropriate Authority passed the order dated 3 February 2010. The above order dated 3 February 2010 of the Appellate Authority was also set aside by the order dated 6 June 2011 of this Court and remanded for a fresh adjudication with a direction to follow the earlier order of this Court dated 10 August 2009. In spite of the above, the Appropriate Authority has in the impugned order refused to carry out the directions of this Court and once again in mechanical manner given the same reasons to conclude that the said property was under valued.

b) On merits it was submitted that the report dated 5 January 2010 of Dr. Roshan Nanavati relied upon by the petitioners was completely ignored while passing the impugned order. The report dated 5 January 2010 very categorically states that the tenant for the purpose of vacating his premises would normally demand 33% to 50 % more area than the area in his possession besides some cash consideration. In the report, in fact, reliance was placed upon certain Court decisions to contend that 33 % more along with open space is being given to the tenant for vacating the premises. Therefore, the report opined that in these circumstances, the tenant would receive 1110 sq. ft and not 724 sq. ft. as held in the impugned order. The above report dated 5 January 2010 of the valuer also independently points why the three properties being relied upon by the Appropriate Authority to pass the order of acquisition are not similarly situated and cannot be compared. Thus the impugned order was passed without considering the Petitioner's case.

c) The impugned order after stating that the effective cost of settling the tenant would be Rs. 55.02 lacs, the cost of the said property of the petitioners ought to have been recomputed and in any case fair market value of the property could not in these circumstances be Rs.2.12 crores as determined in the impugned order;

d) The three properties relied upon by the Appropriate Authority were not comparable as they were not situated in the same area but all of them were abutting the main Sion Trombay Road which has excellent commercial viability. As against that, the said property is situated on Central Avenue Road having very narrow access and big dumping yard behind it. Consequently three instances are not comparable to the said property. In any case, this Court in its order dated 10 August, 2009 has already concluded after examining Google Earth map that the three properties on which the Appropriate Authority is relying upon is situated at a fair distance from the said property. In these circumstances, the impugned order could not have held that the said property as well as three comparable properties being relied upon by the Appropriate Authority are in the same locality and similarly situated; and

e) The impugned order holding that property bearing Case No.16669 relied upon by the petitioners is not comparable, is in disregard to the order dated 10 August 2009 of this Court. However, for reaching the above conclusion the reasons as given in the order dated 22 May 1995 were not found to be good reasons by this Court in its order dated 10 August 2009 which remanded the matter to Appropriate Authority for fresh adjudication.

18) As against the above, Mr. Ahuja learned Counsel for the respondents supports the impugned order on the following grounds:a) This Court should not exercise its writ jurisdiction in respect of the impugned order passed by the Appropriate Authority under Chapter XXC of the Act as if this Court is sitting in on the impugned order. This, according to him is more so as the view taken by the Appropriate Authority is a possible view. In support of the Court not exercising its writ jurisdiction reliance was placed upon the decision of the Apex Court in the matter of Appropriate Authority and another vs. Smt. Sudha Patil and another 235 ITR 118.

b) So far as the cost of resettling the tenant is concerned, it was submitted that the impugned order has concluded that the effective cost for the resettling the tenant would come to Rs. 55.02 lacs. This was so as the fair market value of 724 sq. ft. allotted to the tenant is being computed at Rs. 7000 per sq. ft. Therefore, it is not correct on the part of the petitioner to state that the impugned order has taken the costs of settling tenant at Rs. 4,34,400/; and

c) It was submitted that the value of any commercial property would be at least 100% more than the value of the residential property. In that view of the matter the instances of comparable property given by the petitioners were all in respect of residential properties while the said property falls within the commercial zone. The properties in commercial zone cannot be compared with residential properties. In any event, the Appropriate Authority has been reasonable in having decided that the fair market value of the said property at Rs. 7000/per sq.ft. i.e. between the range of Rs. 6996/to Rs. 9794/of three properties relied upon by the Appropriate Authority.

19) We have considered the rival submissions. There could be no dispute with the proposition canvassed by Mr. Ahuja, learned Counsel for the revenue that this Court should not exercise its writ jurisdiction in respect of orders passed by the Appropriate Authority under Chapter XXC of the Act as if this Court is sitting in appeal on the impugned order. This Court would exercise its writ jurisdiction when it finds a flaw in the decision making process of the authority. We find that the impugned order has been passed without considering the expert evidence of the expert valuer dated 5 January 2010 and repeating the same reasons which this Court in its order dated 10 August 2009 had not found to be good reasons.

20) In the present case the impugned order has been passed ignoring the order of this Court dated 10 August 2009 which while setting aside the order dated 22 May 2005 specifically directed as follows:“

11. We are satisfied that the order of the appropriate authority suffers from following vices:
(i) The value of the encumbrance of the tenancy has not been property calculated by the appropriate authority.
(ii) The appropriate authority has not given goods reasons why it considered the three sale instances, viz. Case Nos. 16260, 17841 and 17529, as comparable and how it arrived at the value of an open plot of land while building occupying a small part of it on the basis of sale instances of built up commercial/residential apartments.

(iii) the appropriate authority has also not given good reasons why sale instance bearing case No.126669 relied upon by the petitioners was not considered as comparable and why the price of the said property was not determined on the basis of the said sale instance.”

12) For these reasons, the impugned order is required to be and accordingly is set aside and the matter is remanded back to the respondent No.2 for deciding it afresh in the light of what is stated in para 11 above. Considering that the proceedings commenced in 1995,the appropriate authority to dispose off the proceedings not later than six months from today”.

In spite of the aforesaid directions which were again reiterated in the order dated 6 June 2011 while setting aside the order dated 3 February 2012, the Appropriate Authority has ignored the directions of this Court with impunity by giving the same reasons in support of acquisition of the said property.
21) We find that the order dated 22 May 1995 (which was set aside by order of this Court dated 10 August 2009) annexed at ExhibitH to the petition and in particular Annexure A thereto wherein sale instance relied upon by the petitioners have been reproduced. This Annexure A lists 15 properties giving details of the date of agreement as well as remarks of the Appropriate Authority why the same is not comparable to the said property. We find that the same reasons which have been set out therein are repeated in impugned order at Annexure B thereto in respect of all the 15 properties. In particular attention is invited to Sr. No.15 bearing Case No.16669 Annexure B to the impugned order. The reasons are identical. For the sake of comparison, we reproduce the order dated 22 May 1995 and Annexure B to the impugned order as under::::
ANNEXURE – A

ANNEXURE – B

Thus the aforesaid comparison of the two orders would itself indicate that it was a cut and paste job and there is no independent application of mind by the Appropriate Authority while passing the impugned order. This notwithstanding the fact that in the order dated 10 August 2009 in Writ Petition No.1016 of 1995 this Court has specifically while setting aside the order dated 22 May 2005 of the Appropriate Authority had specifically directed the Appropriate Authority to give good reasons why sale instance bearing case No.16669 relied upon by the petitioners was not considered as comparable. In fact, the Court in its order dated 10 August 2009 has held that reasons given in the order dated 22 May 1995 for ignoring the sale instance No.16669 (Sr. No.15 in Annexure A) is not good and remanded for fresh reasons. However, there are no fresh reasons.

22) Besides the above, so far as three sale instances relied upon by the Appropriate Authority are concerned, the impugned order holds that so far as two instances relied upon by it are concerned being case Nos.16260 and 17821 (being Serial Nos.2 & 3 in Annexure A to the impugned order) are comparable with the said property as they are situated in the same locality and are similarly placed being commercial in nature. So far case No. 17259 (being Serial No.1 in Annexure A to the impugned order) is concerned, the same is residential property in the same area in which the said property is situated. This Court in its order dated 10 August 2009 while setting aside the order dated 22 May 1995 of the Appropriate Authority had observed that all the three properties being relied upon by the Appropriate Authority are not similarly placed as those three properties abut the main Sion Trombay Road, unlike the said property which is situated in the interior not abutting any main road. Therefore, this Court in the order dated 10 August 2009 had held that no good reasons have been given to justify that the three properties are comparable with the said property. Besides, in the above order this Court had directed the Appropriate Authority to disclose the manner in which it arrived at the value of open plot of land from the value of built up commercial/residential apartments. The impugned order gives no reason nor does it disclose the manner in which the value of said property has been arrived at from purchase price of built up premises being relied upon by the Appropriate Authority.

25) Similarly, with regard to the valuation of cost for resettling the tenant this Court in its order dated 10 August 2009 had while setting aside the order dated 22 May 1995 of the Appropriate Authority had held that the valuation of encumbrance of tenancy at Rs. 4,34,4000/has not been properly calculated. Thus remanded the case to the Appropriate Authority for fresh adjudication. However, in the impugned order the Appropriate Authority states that the effective costs of settling the tenant was not Rs.4.34 lacs but Rs. 55.02 lacs. This on the ground that the fair market value of 724 per sq. ft. of FSI to be allocated to the tenant would be Rs. 7000/per sq. ft. However, the aforesaid costs of Rs. 55.02 lacs is not taken into account for arriving at consideration for the purchase of the said property nor is it taken to arrive at the fair market value of the said property. In these circumstances, the exercise of right of preemptive purchase under Section 269 UD(1) of Chapter XXC of the Act is not warranted. 26) We find that the Appropriate Authority has disregarded the directions of this Court's orders dated 10 August 2009 and 06 June 2011, while passing the impugned order. The Appropriate Authority has completely ignored the directions of this Court and continued to give the same reasons which this Court had found not good enough to sustain the acquisition of the said property. In the above circumstances, it appears to us that the Appropriate Authority has no other reason to justify its action for passing an order under Section 269UD(1) of the Act and therefore, continues to pass orders giving the same reasons. This itself makes the impugned order unsustainable. We have also independently found that the reasons for exercise of preemptive right of purchase under Chapter XXC of the Act cannot be sustained as it is passed without considering the submissions of the petitioners. This was also so held by our earlier order dated 10 August 2009.

25) We have also noted the fact that these acquisition proceedings relates to the year 1995. It is has been almost over 18 years since the proceedings commenced. The Appropriate Authority has in spite of the matter being sent back twice by this Court has not been able to justify the acquisition of the said property. In view of the above, remanding the proceeding to the Appropriate Authority would serve no purpose.