V.K.Singhal, J. - (1.) ALL the abovenoted three writ petitions are being disposed of by this common order as the controversy involved therein is in respect of the same property and the ground for challenge is also the same.
(2.) THE petitioner, Rajendra Giri Raj Prasad Tiwari, is the owner of the plot No. D-34, Saraswati Marg, Bani Park, Jaipur, having an area of 955 sq. metres. It is alleged that two agreements dated March 11, 1992, and February 27, 1993, were entered into in between the petitioner and Messrs, Sona Builders, who are a partnership firm and building contractors, for the purchase of the said piece of land for a consideration of Rs. 28,50,000 through its partner, Jhangi Ram, A statement in Form No. 37-1 as required under Rule 48L of the Income-tax Rules was submitted before the appropriate authority in accordance with the provisions of Section 269UD of the Income-tax Act, 1961, on March 9, 1993. It is submitted that the notice was issued by the District Valuation Officer (appropriate authority) both to the transferee and the transferor, but no such notice was received by the transferee. In the said notice, the transferor and the transferee were called upon to submit the documents on or before March 29, 1993, and to allow inspection of the property on March 30, 1993. THE transferor submitted the documents as well as the report of the authorised valuer under the Income-tax Act dated April 9, 1993. THEreafter, notice under Section 269UD(1) of the Income-tax Act dated May 21, 1993, was sent to the transferor as well as the transferee which was received by both of them on May 26, 1993. In the said notice, it was mentioned that the apparent consideration was lower than the market value and for that purpose the sale of property D-37, Sawai Madho Singh Road, Bani Park, at the rate of Rs. 3,896 per sq. metre by auction on October 3, 1991, was taken into consideration. For the time-gap, increase by 25 per cent. was sought to be made and, therefore, the value of the present property at the rate of Rs. 4,870 per sq. metre was calculated at a figure of Rs. 46,47,000. THE petitioner was given opportunity before the appropriate authority to appear on May 31, 1993. On May 29, 1993, a request was made on behalf of Messrs. Sona Builders by the authorised representative to provide a copy of the sale deed of the property bearing No. D-37 and also the site plan so that the reply may be submitted. THE request for suitable time was also made. THE transferor, Rajendra Giriraj Prasad Tiwari, and their authorised representative, Mr. M.R. Mohnot, as well the transferee, Jagdish Narain, partner, attended and the written submissions were made by the transferor. THE contention that there was no price rise after the sale of the plot No, D-37 on October 3, 1991, the date of agreement of the present property, was rejected. THE said property was physically inspected by the members of the appropriate authority and it was found that the auction property (D-37) was having a common boundary with the present property. However, the auction property was having a 50' wide road and, therefore, ten per cent. deduction was allowed for that reason. THE relief on account of wide front of 123 of the auctioned property and 82 of subject property was not granted for the reason that the auctioned property was 1,141.25 sq. yards whereas the subject property was 955 sq. yards only. THE deduction of ten per cent. on account of smaller size was rejected and it was observed that the price of land of smaller size could be higher and not lesser. A further relief of ten per cent. was claimed on the ground that the auctioned property was having commercial value which was rejected on the ground that both the properties were residential. Accordingly, on the basis of adjustment on account of road, location and time gap the valuation of the present property was taken at Rs. 3,779 per sq. metre by giving net adjustment of minus 3 per cent. (-3 per cent.) on the auctioned price of Rs. 3,896 per sq. metre. Thus, the value worked out was at Rs. 36,08,945 and salvage value of Rs. 12.000 was added. Since the total value was estimated at Rs. 36,20,945 which exceeds the apparent consideration of Rs. 28,50,000 by 27 per cent., it was held that the apparent consideration is substantially low as compared to the value arrived at and, therefore, the order to purchase by the Central Government of the said immovable property was passed on May 31, 1993. An application under Section 269UJ of the Act was made on June 13, 1993, on the ground that proper opportunity was not given inasmuch as the notice itself was received on May 26, 1993, fixing the date for May 31, 1993, and also that the principles of natural justice require that a copy of the sale deed and map of plot No. D-37 as requested in the letter dated May 29, 1993, be provided and, therefore, there was denial of the principles of natural justice. The agreement dated March 11, 1992, was also stated to have been executed and not produced earlier as the transferee had no reasonable opportunity of being heard. It was also stated that the order dated May 31, 1993, has cast a slur on the transferor as well as the transferee and that the valuation of the present property cannot be compared with plot No. D-37. The reduction of the price by 25 per cent. on the basis of the theory and practice of valuation by Roshan Nanawati was claimed on the ground that the present plot was behind plot No. D-37 having main approach road. The report of the District Valuation Officer (appropriate authority) is said to be not placed on record and the valuation report of K.N. Bhargava was ignored. The fact that plot No. D-37 is having commercial capability and put to commercial use and the difference of frontage which was earlier stated at the time of hearing was also raised in the rectification application. The prices were slacked and other points were also raised in the rectification application. The advocate, Shri S.K. Jain, was heard by the appropriate authority and it was observed that since the agreement dated March 11, 1992, was neither filed along with Form No. 37-I nor the agreement dated February 1, 1993, (sic) has any reference to such an agreement, the same cannot be considered. The reserve price of the JDA as submitted by the petitioner was also not taken into consideration as it was held not to have the correct picture of the market value of the property. The property D-37 was auctioned by the Income-tax Department and the salvage value of the structure of that property was taken at Rs. 88,162 while working out the market value of the said property. It was also mentioned that the valuation report of Shri K.N. Bhargava was not made available at the time of hearing before the appropriate authority and if it was given to the Valuation Officer, then it was not considered to be a ground for rectification of the order passed by the appropriate authority. The other ground raised considering the sale instance of D-37 as not comparable was rejected and the order dated November 19, 1993, was passed accordingly. In S. B. Civil Writ Petition No. 1093 of 1994, the petitioner, Messrs. Sona Builders, has challenged the order dated November 19, 1993, whereas in S. B. Civil Writ Petition No. 4667 of 1993, the transferee, Messrs. Sona Builders, and in S. B. Civil Writ Petition No. 3492 of 1993, the transferor, Rajendra Giri Raj Prasad, have challenged the order dated May 31, 1993. The arguments of learned counsel for both the parties have been heard at length. First of all it may be observed that the agreement dated March 11, 1992, was neither produced at the time of hearing nor is referred to in the agreement dated February 1, 1993, nor was it submitted along with Form No. 37-I and, therefore, the same was not considered by the appropriate authority in its order dated May 31, 1993. I am also of the view that if such an agreement was in existence nothing prevented the petitioner from producing the same and the agreement dated February 1, 1993, has no such reference to any earlier agreement. It is also not an error apparent in the order of the appropriate authority and the order passed by the appropriate authority under Section 269UD(1) cannot be said to be illegal for that reason. If it is permitted that the transferor or the transferee may after passing the order under Section 269UD(1) are entitled to place any material on record, then it may lead to even production of a document which was not initially in existence and a fraud may be perpetuated. The contention of learned counsel now to consider the said agreement dated March 11, 1992, therefore, has no force. Another objection which has been raised before me is that reasonable opportunity was not given. The question what amounts to reasonable opportunity is a question of fact and in a given circumstance even 4 or 5 days' time may be considered as having been given reasonable opportunity. No doubt when the Act has contemplated the time-bound programme, the respondents must have taken the proceedings expeditiously but if 5 days' time was given, it cannot be said to be unreasonable. Even no ground has been shown in the petition and when the notice was received by the transferor as well as the transferee on May 26, 1993, they could have requested for the document on May 27, 1993. Taking action on the last date or making the said request on the date of hearing cannot be said to be justified on the part of the petitioner and it appears that it was to delay the matter. The only reason given in the application was to provide the copy of the sale deed and site plan in respect of the property sold by auction on October 3, 1991, of plot No. D-37. On the one hand, the petitioners are claiming that they are not having the copy of the site plan or sale deed and on the other they are giving reasons of difference in -the size of the auctioned plot and other details. Even in the copy of the valuation report of the approved valuer, dated April 9, 1993, reference to plot No. D-37 is there and the valuation of plot No. D-37 was done. Besides this, the case of Fedco P. Ltd. v. S.N. Bilgrami, AIR 1960 SC 415, on which reliance has been placed, does not help the petitioner. Even in that case, it was observed that opportunity of hearing must be given and it should be a reasonable one. On the question whether it was reasonable or not, the apex court observed (headnote) : "There can be no invariable standard for reasonableness in such matters, except that the court's conscience must be satisfied that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him that the grounds on which the action is proposed are either non-existent, or, even if they exist, they do not justify the proposed action. The decision of this question will necessarily depend upon the peculiar facts and circumstances of each case, including the nature of the action proposed, the material on which the allegations are based, the attitude of the party against whom the action is proposed in showing cause against such proposed action, the nature of the plea raised by him in reply, the requests for further opportunity that may be made, his admissions by conduct or otherwise of some or all the allegations and all other matters which help the mind in coming to a fair conclusion on the question." On the basis of the above principle it is apparent that 5 days' time given to the petitioners cannot be said to be unreasonable. Similarly, the decision in the case of Rameswar Goenka v. ITO [1970] 77 ITR 421 (Assam) has no relevance because in that case the document on which reliance was placed by the Income-tax Officer for holding that there was no genuine firm in existence was not disclosed to the firm and no explanation, therefore, could have been offered. Since no reasonable opportunity was at all given, it was held in that case that it offended the principles of natural justice. It can, therefore, not be said that reasonable opportunity was not given to the petitioners in this case.
(3.) AS aforesaid, in the copy of the valuation report of the approved valuer dated April 9, 1993, the reference to plot No. D-37 is there and the valuation of plot No. D-37 was done. From the total sale value, the cost of the structure of Rs. 7,06,000 was reduced and the land rate was calculated after such reduction at the rate of Rs. 2,840 per sq. yard. According to the respondents the cost of structure of plot No. D-37 was taken at Rs. 3,896 per sq. metre. For the purpose of acquisition under Chapter XX-C of the Act, the appropriate authority is not bound to take the figure given by the approved valuer. This is besides the fact that the said report was not before the appropriate authority. The object of bringing Chapter XX-C in the statute book was to stop transfer of property at a price lower than the market price. The earlier efforts by way of Chapter XX-A have not brought the desired results and, therefore, the legislation was brought in the present form. The validity of the provisions has already been upheld by the apex court in the case of C.B. Gautam v. Union of India [1993] 199 ITR 530 and it was considered by the apex court that the provisions do not confer arbitrary or unfettered discretion on the appropriate authority and is not violative of Article 14 of the Constitution of India. The provisions of the last part of Sub-section (1) of Section 269UE were struck down and accordingly Sub-sections (2) and (3) of Section 269UE were held inapplicable to bona fide lessees and encumbrance-holders in possession and the property in question was to vest in the Central Government subject to such encumbrances and leasehold interests as are subsisting thereon except for such of them as are agreed to be discharged. Since Chapter XX-C does not have any provision for providing opportunity of being heard before passing an order under Section 269UD, it was held that the intending seller, purchaser and other affected parties must be given reasonable opportunity to show cause against the proposed order for purchase. It has further been held that the provisions of Chapter XX-C can be resorted to where in an agreement to sell immovable property in an urban area to which the said provisions apply, there is a significant undervaluation of the property concerned, namely, of 15 per cent. or more. A question has also been raised that an acquisition of property amounts to a stigma or slur on the purchaser as well as the seller, if the said property is acquired under Chapter XX-C. I am not in agreement with this submission of learned counsel for the petitioners. It is no doubt true that the provisions of Chapter XX-C are resorted to where there is undervaluation of the property. A presumption is raised in such circumstances and the said presumption is rebuttable. The object of giving opportunity to the seller/buyer is to rebut that presumption. It may be that there may not be sufficient material so that the appropriate authority may be satisfied to come to the conclusion that there is no undervaluation or the purchaser/seller or affected person may not place any document and the property is acquired by the Government. The determination of the market value by the appropriate authority is a sine qua non. If they are satisfied that the property is having a high market value, then the seller is not affected at all and he will get the price in accordance with the time bound programme in the Chapter. There is no delay so far as the seller is concerned. So far as the purchaser is concerned, he has to point out the reasons and if he fails to satisfy, then it is the satisfaction of the appropriate authority on the basis of which the property is acquired and the failure to produce satisfactory evidence by such purchaser is not a slur or stigma but it is his inability. The action which is being taken by the respondents is not mala fide but it is in public interest so that the consideration for the sale is correctly shown in the agreement of sale. The acquisition of the property has the effect on other prospective buyers and sellers dissuading them not to enter into such agreements showing lesser consideration which may result in the acquisition of the property and thus if the property is acquired by the Government under the provisions which have been made in the Chapter it cannot be said to be a slur or stigma. This contention has no force and, therefore, it is rejected. The question of not providing the site plan or map to the petitioners and thereby they have been deprived of reasonable opportunity in making their submissions has also no force as all the details were already available to the petitioners as mentioned in the valuation report dated January 1, 1993, of K.N. Bhargava and thus it was a mere pretence for seeking adjournment or compelling the respondents not to pass the order within the stipulated time. The request in the letter dated May 2,9, 1993, was not a proper request. It was known to the petitioners that the property D-37 was sold in auction. The complete details have been given in the report of Shri K.N. Bhargava. ;