The judgment and order under challenge was passed by a Division Bench of the High Court at Delhi. It dismissed the writ petition that had been filed before it by the present appellants.
The appellants are the purchasers of immovable property bearing No. 142 at Madhuvan, Delhi. The immovable property was purchased under an agreement to sell dt. 26th April, 1995, for the sum of Rs. 50 lakhs. The immovable property was sought to be taken over in pursuance of the provisions of Chapter XX-C of the IT Act, 1961. After due notice, an order was passed by the Appropriate Authority on 31st July, 1995, which held that the immovable property had been undervalued to the requisite extent in the agreement to sell.
It appears that after this order was made, the appellants came to learn that property bearing No. 135 at Madhuvan, Delhi, had been sold for the sum of Rs. 28 lakhs on 20th October, 1994, and the Appropriate Authority had found the apparent consideration of that sale to be, in fact, Rs. 28 lakhs. It was contended by the appellants in an application for rectification filed before the Appropriate Authority that sale instance ought to have been disclosed to the appellants and taken into consideration and, if that had been done, the apparent consideration under the present agreement to sell would have been seen to fall within the permissible difference. When the rectification application was filed the appellants had already filed the writ petition. The order on the rectification application went against the appellants but the appellants did not amend the writ petition to challenge that order. Nevertheless, the point was taken and is stated in judgment under challenge. We do not, therefore, propose to disregard the point.In the order on the rectification application, the Appropriate Authority said :
"Regarding the comparison with sale instance of 135 Madhuvan, it is seen that FAR of the subject property was different than FAR of property at 135 Madhuvan, Delhi and was same as that of A-27, Swasthya Vihar, Delhi. The sale instance of 135 Madhuvan, Delhi was comparatively older than A-27, Swasthya Vihar, Delhi. Therefore, the same was not relied upon"
At the hearing of the writ petition, it was contended on behalf of the appellants that the Appropriate Authority had compared the immovable property in petition with a sale instance which was not appropriate; that the attention of the Appropriate Authority had been invited to the sale transaction of the property at 135 Madhuvan, Delhi, which was comparable, and that, had this comparison been made, no occasion to deny the 'No objection certificate' to the appellants would have arisen. In reply to this contention, learned counsel for the Appropriate Authority submitted
"that the FAR of the property in question was different from the FAR of property at 135, Madhuvan but was the same as that of A-27, Swasthiya Vihar. Secondly, the sale instance of 135, Madhuvan was comparatively older than A-27, Swasthiya Vihar and, therefore, the same was not relied upon." *
The judgment under challenge does not specifically deal with the contention.
As to the date of the two transactions, that of the transaction in petition was 26th April, 1995, and that of the property at 135 Madhuvan, Delhi, was 20th October, 1994; the difference in time is not so vast that the sale instance should have been altogether ignored if other factors were comparable. The only reason given by the Appropriate Authority in its order on the rectification application and by its learned counsel before the High Court was that the FARs of the two properties were different. What the respective FARs were or what the difference was not disclosed either in the order or before the High Court; nor, indeed, is it disclosed now.We think, in these circumstances, that the judgment and order under challenge must be set aside, as also the order of the Appropriate Authority dt. 31st July, 1995, and that the matter should be reconsidered by the Appropriate Authority in the light of the sale instance of the property at 135, Madhuvan, Delhi. Before doing so, the Appropriate Authority shall disclose to the appellants the terms of the agreement to sell in respect of that property and such other information in that behalf as it has. Then, the Appropriate Authority shall make a fresh order, after giving the appellants the opportunity of being heard. No point other than that relating to the property at 135 Madhuvan, Delhi, has been argued before us, and it is the only factor which shall be taken into account by the Appropriate Authority in deciding the matter afresh.
The appeal is allowed. The judgment and order under challenge is set aside. The matter is restored to the file of the Appropriate Authority who shall reconsider it in the light of this judgment. This shall be done expeditiously. Till such time that it is done, the status quo that was ordered by the High Court and continued by this Court shall operate.
There shall be no order as to costs.