9911796707
TMI Blog1998 (11) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... upation of that portion for over 30 years. The rent being paid by the tenant at the time the order was made by the authority was at Rs. 4,000 p.m. The order of the authority was preceded by a show-cause notice, in which it was stated that the two transactions referred to in the notice, were relevant and comparable to the sale by a third party of two grounds and 2,207 sq. ft. to Alacrity Housing Limited. The rate per sq. ft. of land in that transaction was mentioned as Rs. 23.86 lakhs per ground if this building there was valued at its scrap value Rs. 21.62 lakhs per ground after providing for the depreciated cost of building. That rate when adjusted up to the date of agreement was mentioned as Rs. 37.91 lakhs per ground. That transaction was on July 9, 1994. The date of the second transaction mentioned was on May 4, 1992. That property was 19, Khadernawaz Khan Road. The land rate by taking scrap value of the building is mentioned as Rs. 21.34 lakhs. The modified rate as on the date of agreement is mentioned as Rs. 25.05 lakhs per ground. As to who modified the value in and the basis for the modification made is not set out in the show-cause notice. The document under which the tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n into account difference would be more than 50 per cent. The extent to which the tenancy contributed to reduction in the market value for the property was not discussed and reasons for and the extent to which the valuation should be discounted, was not stated. The objection on the ground that the property situated on Khadernawaz Khan Road is not comparable, was rejected on the ground that the FSI permissible in respect of the subject property is 2.00 whereas the FSI permissible in respect of 20, Khadernawaz Khan Road, is 1.5 according to the sanctioned plan. The authority thought that FSI was determinative for the purpose of comparison. The locational advantages and also the premium attached to the land on that road were not considered and discussed. As regards the objection on the ground that this property was situate away from the main road, that factor was not even specifically adverted to. The distance as between the main road and this road and the kind of approach to that road, the impact on the value by reason of its location as also the fact that the building is situated at a 30' road, were not discussed. In addition to these defects in the order, it was submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of which Form No. 37-I had been filed. Denial of such opportunity to the parties has vitiated the order and the order cannot be sustained for more reasons than one. The time frame in the Act for making an order is to be computed from the date of filing of Form No. 37-I even though notice was issued after considerable time had elapsed resulting in the authority having a very brief period within which to complete the enquiry and make an order. The order evidently was made in a hurry. It is for the authority to ensure that the show-cause notices are issued within a short period of time after Form No. 37-I is filed. Learned counsel for the petitioners submitted that the court should refrain from remitting the matter back to the authority as any such remand would result in prejudice to the parties having regard to the fact that the value of the property in a major urban centre like Madras has gone up considerably and to permit the authority to acquire the property after an interval of four years would only be to allow the Government to enrich itself at the cost of innocent parties. The denial of proper opportunity, it was submitted by counsel, was not the fault of the parties and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout affording any opportunity to the petitioner therein. The court was also of the view in that case that the order of the authority was not otherwise sustainable. The court also observed that as to whether or not, the matter should be remitted back to the authority is in the domain of the discretion of the court. Counsel also referred to the decision of the Kerala High Court in the case of CIT v. Dharmodayam Co. [1997] 225 ITR 686. That case did not arise under Chapter XXC but under sections 269F and 269G. The order for compulsory acquisition by the original authority had been set aside by the Tribunal on appeal by the assessee and that the order of the Tribunal was the subject-matter of the challenge before the High Court. The High Court did not accede to the Revenue's prayer to set aside the order of the Tribunal and remit the matter for fresh consideration. The court confirmed the order of the Tribunal and no question of remanding the matter thus arose, for consideration. The court therein further observed that when the authority had failed to collect evidence and decides the matter or the evidence collected is found to be unworthy of credence, it would not be safe and prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of period of four months in the statute does not in any manner come in the way of the authority making an order afresh if the order made by it within the period allowed by law, is subsequently set aside by the High court and the matter remanded back to the authority for fresh consideration in accordance with law. The period fixed in the statute is the period within which the authority must make an order. If it fails to do so, it cannot make such an order at a subsequent point of time. The quashing of an order made within the time allowed by law, does not compel one to record that order as not having been made at all and ignore the fact that the jurisdiction had been exercised to make an order of compulsory purchase even though that order may have been subsequently set aside by the High Court or by the Supreme Court. It is for the court which exercises jurisdiction to decide in its discretion as to whether the facts and circumstances of the case warrant the remitting of the matter to the authority. The period of limitation prescribed in the statute within which period the authority is required to make the order does not come in the way of or prevent the superior courts from direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh order after setting aside the one made within the time specified in the Act. The period of limitation specified in the section is not applicable to the fresh order so directed to be made. This court therefore need not refrain from remanding the matter solely on the ground that the period of limitation mentioned in section 269UD(1) is over. That limitation is confined only to the original order and not to the order directed to be made by this court after the original order is set aside. As to whether the remand should be made is a matter which is entirely within the discretion of the court. The normal rule however is to remand the matter to the authority whose procedural error has vitiated the order to correct those errors after a fresh hearing and after following the requisite procedures. It was observed by the Supreme Court in the case of Pooran Mall and Sons [1974] 96 ITR 390, that the court in exercising its powers under article 226 has to mould the remedy to suit the facts of a case, and that the power to quash an order under article 226 can be exercised not merely when the order sought to be quashed is one made without jurisdiction in which case there can be no room ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting the matter having regard to the fact that the authority under the provisions of the Act is required to make a final order within a relatively short period of time and on account of that limitation of time, procedural errors may have crept in. If in all cases, the court were to decline to remit the matter to the authority, even when the order had been quashed on account of procedural errors the very object of the provision would be defeated. I am therefore unable to accede to the prayer of the petitioners not to remit the matter back to the authority. Before concluding it is necessary to advert to one other argument that was advanced by counsel for the owner. It was submitted that the show-cause notice did Dot set out that the transaction was being entered into with a view to evade tax and that there was no such finding in the final order also. This, it was submitted, vitiated the entire proceedings. Counsel referred to the decision of the Supreme Court in the case of C. B. Gautam v. Union of India [1993] 199 ITR 530. That decision does not support the submission of counsel. The court held therein in clear terms that in cases where the authority found that the market value ..... X X X X Extracts X X X X X X X X Extracts X X X X
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