9911796707
TMI Blog1995 (4) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... an two months except that of sending some officers for inspection of the property. On February 10, 1995, a show-cause notice was issued under section 269UD(1A) of the Act, inter alia, alleging that the apparent and discounted rate of purchase price of the property under consideration was understated by more than 15 per cent. For the said allegation, reliance was placed on the sale instance property said to have been sold on December 27, 1993. It was alleged that the apparent consideration of the property under consideration was Rs. 3,055 per sq. mt. whereas the apparent consideration of the sale instance property was Rs. 4,961 per sq. mt. Similarly, the discounted consideration of the property under consideration was Rs. 2,793 per sq. mt. while the discounted consideration of the sale instance property was Rs. 4,828 per sq. mt. The appropriate authority, in these circumstances, prima facie, formed an opinion, that there was understatement of consideration of the property under consideration to the extent of more than 15 per cent. The petitioners were, therefore, called upon to show cause as to why an order in accordance with the provisions of section 269UD(1) of the Act should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties were adjacent to the property under consideration and, hence, were more comparable to the sale instance properties relied upon by the appropriate authority. Therefore, even if the price rise during the time gap between 1992 and 1993 would be considered, then also, the apparent and discounted considerations of the property under consideration could not be said to be understated by more than 15 per cent. as alleged by the appropriate authority. On all these grounds, it was submitted that it was not a case to exercise the power under section 269UD(1) of the Act and proceedings were required to be dropped by granting the necessary certificate. The appropriate authority, after considering the show-cause notice and replies submitted by the petitioners passed an order on February 23, 1995, in exercise of the powers under section 269UD(1) of the Act, whereby the property under consideration was sought to be purchased. In paragraph 4, considering the submissions of the petitioners, the appropriate authority observed: " The above submissions of the transferor have been carefully considered by us and the same are discussed in the following paragraphs : The first submission made, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fair and reasonable. The present land is not situated in Gram Panchayat. It is very much in the heart of Baroda City and it is in the most posh area, i.e., in the vicinity of the race course and, therefore, the observation of the Gujarat High Court would have no application, even if a notional attempt is made to work out the compensation payable. Even, after taking a liberal view, we allow, say deduction of 15 per cent. for the fact that this is a large plot and clearance from the urban land ceiling is yet to be obtained. Even then the adjusted rate would work out to Rs. 3,513 per sq. mt. (Rs. 3,055 + 15 per cent. of Rs. 3,055). The next point raised is that the sale instance property land is in a Final Town Planning Scheme, while the property under consideration is not in a Final Town Planning Scheme. Though no evidence has been made available to show that the property under consideration is not within the Town Planning Scheme yet, without conceding, if it is presumed that the property under consideration is outside the Town Planning Scheme still it is not clear as to how 30 per cent. deduction is claimed for this fact. During the inspection of the property under consideration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... costs also would have to be incurred by the petitioners. The appropriate authority had not applied its mind to the said fact which had vitiated the order. It was argued that the necessary permission under the Urban Land Ceiling Act was also required to be obtained in accordance with the provisions of that Act, it is for the authority under the Urban Land Ceiling Act to pass an order granting or rejecting permission either under section 20 or section 21 of the Urban Land ceiling Act. But even if such permission is granted, the provisions of the Urban Land Ceiling Act would have to be borne in mind. It also cannot be forgotten that in cases of excess land of more than 1,500 sq. mts. a nominal compensation would be paid to the owners. So far as the sale instance property is concerned, according to Mr. Soparkar, it was a very small piece of land admeasuring 520 sq. mts. No comparison could have, therefore, been made while forming an opinion about adequate consideration of the property under consideration which was a very big plot of land admeasuring more than 6,000 sq. mts. (more than ten times). In similar circumstances, this court held in Mulubhai Malbhai's case [1992] 1 GLH 514 that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt is satisfied that there is some substance in the contention raised by the petitioner, this court will not substitute its opinion for the opinion formed by the appropriate authority and cannot upturn the order. The petition, therefore, requires to be dismissed. Having given anxious consideration to the facts and circumstances of the case, we are of the opinion that the petition requires to be allowed. Regarding the first contention that no reasonable opportunity was given to the petitioners, we are not impressed by the arguments of Mr. Soparkar. As is clear, notice was issued by the appropriate authority on February 10, 1995. It is the case of the petitioners that they received the notice on February 16, 1995. According to the petitioners, three days were holidays thereafter but the last date for submission of the written statement/written submissions was February 21, 1995. Looking to the urgency of the matter, in the light of the relevant provisions of the Act, it cannot be said that the time available to the petitioners can be said to be inadequate or insufficient. In fact, a reply was filed by the petitioners on 21st as well as on February 22, 1995, and both of them were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (Ceiling and Regulation) Act on compliance with the terms and conditions laid down while granting exemption under section 20/21 of the Ceiling Act. Thus, it is merely a formality and would not reflect on the value of the land merely because the land is in excess of 1,500 mts. which is the limit prescribed under the Urban Land (Ceiling and Regulation) Act for Baroda City. " (emphasis supplied). We fail to appreciate the reasoning of the appropriate authority. First of all, nothing was pointed out to us, by learned counsel for the respondents either from the Urban Land Ceiling Act or from the Rules made thereunder or from any other Government resolutions/circulars/letters, that grant of exemption under section 20/21 of the Urban Land Ceiling Act is a " mere formality ". If it is not, we do not understand how it would not reflect on the value of the land, particularly in a case of excess land of more than 1,500 sq. mts. which is prescribed as the ceiling for Baroda City. We are also of the view that the appropriate authority has erred in placing reliance on the sale instance property and in ignoring a material fact that it was a small piece of land admeasuring 520 sq. mts. Tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the petitioners wanted to place reliance by describing the sale instance property as small plot, the appropriate authority refused to do so but when the petitioners placed reliance on similar instances, the appropriate authority tried to justify its action on the ground that they were small plots. In our opinion, the appropriate authority cannot blow hot and cold simultaneously. From the above facts and circumstances, it is clear that the appropriate authority has committed an error of law apparent on the face of the record in not considering the relevant and germane facts and in taking into account irrelevant and extraneous considerations and in passing the impugned order. The result is that the impugned order requires to be quashed and set aside. For the foregoing reasons, the petition requires to be allowed and is accordingly allowed. The impugned order dated February 23, 1993, annexure-A, is hereby quashed and set aside. The respondent is directed to complete the necessary formalities within a period of six weeks from the date of receipt of the order of the court including issuance of clearance certificate. Rule made absolute. No order as to costs. - - TaxTMI - TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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