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TMI Blog2013 (8) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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' prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Bombay 400 071. 4728 Rs.2106 /ps In this case the agreement for transfer was for development rights in respect of balance F.S.I. of 4728 sq. ft. The construction was to be done without affecting the existing structure and the transferee was required to provide to the transferor a flat no.800 sq. ft. of his choice on the 2nd floor from the development of the balance FSI for which the transferor was to given to the transferee Rs.5,00,000/towards cost of construction. If in the process of development of the balance FSI any damage was caused to the existing structure the developer was responsible for the same. The development was required to be completed within 18 months from the date of agreement and if he failed to do so the owner was entitled to liquidate damages of Rs.2000/per day from the developer. The property was purchased u/s.269 UD(1) by the order dated 24/02/1995 wherein the FMV of the property was determined at Rs.1,74,93.600/and Rs.3700/per sq. ft. of FSI. The property under transaction in the agreement i.e. balance FSI was auctioned by the Department on 26/04/1995 for Rs.2,40,00,000/i. e. @ Rs.5076/per sq.ft. of FSI. ANNEXURE - B Sr No Case No. Date of Agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 apar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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