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TMI Blog1994 (12) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... and property in the village of Pudur in Naidupet Mandal, Nellore District, Andhra Pradesh. The sale consideration for the conveyance of the two-thirds undivided share in the properties mentioned was said to be Rs. 2,00,00,000 of which it is stated, as could be seen from Form No. 37-I filed under rule 48L, that the value of the total apparent consideration for the transfer of the two-thirds share in the property located at Door Nos. 62 and 63, Luz Church Road, Madras-600 004 is Rs. 1,99,00,000. Even the agreement of sale entered into between the parties appears to disclose the pendency of the suit in C. S. No. 953 of 1989 on the original side of the High Court filed for partition and separate possession by metes and bounds. As obligatory on the part of the parties, the vendors have filed the required application in the prescribed form to the Appropriate Authority under section 269UC. Under section 269UD, the Appropriate Authority is entitled to make an order for the purchase by the Central Government of the property at an amount equal to the apparent consideration, but no such order shall be made in respect of any immovable property after the expiry of a period of two months (as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a counter-affidavit stating that one of the coparceners of the Hindu undivided family, who is not a party to the sale agreement and the proceedings, and who has a right in the undivided share in the property proposed to be sold, objected even to the first respondent's officers inspecting the property in question, and when after the filing of the revised statement on August 30, 1993, the inspection was made and a thorough verification of the document was done, it was found that there was a civil suit filed by the transferors in C. S. No. 953 of 1989 on the file of this court, for partition and division of the properties, between the transferor and another coparcener of the Hindu undivided family, and in view of the pendency of the partition suit, the agreement for sale of the two-thirds undivided share in the joint family property was premature. It is also stated that as the partition is not effected the coparcener cannot ask for declaration of a specific share in the coparcener's property and a decree in the pending suit from the court is necessary to work out the allotment of defined shares. The further contention is as long as the family is not divided, transfer of any Hin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration : Provided that no such order shall be made in respect of any immovable property after the expiration of a period of two months from the end of the month in which the statement referred to in section 269UC in respect of such property is received by the appropriate authority. " Section 269UL of the Income-tax Act, 1961, reads as follows : " 269UL. Restrictions on registration, etc., of documents in respect of transfer of immovable property.--(1) Notwithstanding anything contained in any other law for the time being in force, no registering officer appointed under the Registration Act, 1908 (16 of 1908), shall register any document which purports to transfer immovable property exceeding the value prescribed under section 269UC unless a certificate from the appropriate authority that it has no objection to the transfer of such property for an amount equal to the apparent consideration therefor as stated in the agreement for transfer of the immovable property in respect of which it has received a statement under sub-section (3) of section 269UC, is furnished, along with such document. (2) Notwithstanding anything contained in any other law for the time being in force, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion whether to purchase the property or not but the investigation so permissible will have to be undertaken by the appropriate authority only with a view to determine, whether the right of pre-emptive purchase should be exercised or not. It was also held therein that if the appropriate authority has reservations or doubts with regard to the legality of the proposed sale, it is open to the authority not to exercise its right to purchase and section 269UD, however, does not contemplate the rejection of any statement by the appropriate authority. While considering the effect of the proviso to sub-section (1) of section 269UD and sub-section (3) of section 269UL, it was held that if the appropriate authority passes no order for purchase before the expiration of the time stipulated, then no order for purchase can at all be passed, and as a consequence, by the operation of sub-section (3) of section 269UL, the certificate of no objection alone could be issued and no other order could be passed. In cases where an order for purchase is not passed within the stipulated period of time it was emphasised by the Division Bench of the Delhi High Court, that it becomes imperative and obli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o objection certificate and it has no jurisdiction to go into the object or purpose of the transaction or its legality and validity. The further issue raised before the learned judges of the Division Bench was as to whether, the appropriate authority had to be given a further opportunity to consider the matter once again, if the order already passed is quashed. Adverting to the phraseology and the type of the order passed therein, the Division Bench held that when the appellant before the court has already concluded that it is unable to make the purchase, it cannot be given a fresh opportunity to consider and pass a fresh order regarding the purchase. Their Lordships of the Division Bench laid stress on the prohibitive language employed in the proviso to section 269UD(1) that no order for purchase by the Central Government shall be made after the expiration of the period of two months from the end of the month in which the abovesaid statement was received by the appropriate authority. It may be noticed, at the expense of repetition, that the order passed in the said case was that the appropriate authority was unable to either make an order for purchase under section 269UD(1) or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view expressed in the impugned order that the agreement for sale of two-thirds undivided share in the joint family immovable property is premature, has no basis in law and cannot have the approval of this court. Having regard to the well-settled principles, in this regard to which a reference has already been made supra, it has to be held that the first respondent in the present case has miserably failed to exercise its powers in the manner known to, and in accordance with, law within the time stipulated therefor. There is no power in the first respondent to pass such an order and the order purported to have been passed on November 30, 1993, which is the subject-matter of challenge in this writ petition, cannot be considered to be an order at all within the meaning and contemplation of section 269UD(1) of the Income-tax Act, 1961, and if at all the first respondent, in my view, has made a perfunctory exercise of power by passing an inchoate order of no significance or effect, which could not by any means be claimed to be an order at all within the meaning as also within the contemplation of section 269UD(1) of the Act. Consequently, the impugned order is liable to be and is hereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to injure a litigant's interests. The petitioners having obtained an order of stay, cannot now be allowed to take advantage of that stay order to urge that notwithstanding the order of stay, the Government should either have issued a fresh notification under section 4(1) or that they would be debarred from issuing a declaration under section 6 if they did not do so within two years of the promulgation of the Ordinance. " In K. Chinnathambi Gounder v. Government of Tamil Nadu, AIR 1980 Mad 251, a Full Bench of this court had an occasion to consider the issue pertaining to the exercise of the power by the designated authority beyond the stipulated period, in the given circumstances, when it had become necessary for being exercised for the second successive time. The Full Bench decision arose under the first proviso to section 6(1) of the Land Acquisition Act, 1894. The proviso obliged the Government to issue a declaration under section 6 of the Act within three years from the date of notification under section 4 of the Act. In that case, a declaration under the Act was made within a period of three years, as stipulated in the proviso. But the acquisition proceedings were challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntemplation of law, unlike in the case relied on for the first respondent. In both the income-tax case as well as the case which fell for consideration before the Full Bench, it can be seen that effective orders, as envisaged, were initially passed, but it had so happened in those cases that the competent forum or the court had set aside such orders for some irregularity or infirmity, and, therefore, the court, considering the fact situation, held that the bar of limitation prescribed therein could not stand in the way of the second and subsequent exercise of the power. In the case on hand, in view of my finding that there has been no exercise of power within the meaning and contemplation of law within the stipulated time and inasmuch as there was no effective order passed by the availing of either of the alternatives which alone was available and permissible for the first respondent under the Act, it should he held that the first respondent has missed its right to exercise once and for all its option and virtually abandoned its right to pass an effective order within the meaning or contemplation of law, within the stipulated time. By doing so the first respondent has forfeited its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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