Gujarat High Court
Shantivan Corporation vs Sub-Registrar And Ors. on 9 November, 1990
Equivalent citations: [1991]189ITR583(GUJ)
JUDGMENT R.K. Abichandani, J.
1. The petitioner seeks to challenge the order at annexure 'G' passed by the appropriate on August 26, 1989 under section 269UD(1) of the Income-tax Act, 1961, for the purchase of an immovable property in dispute by the Central Government and prays for consequential reliefs. The petitioner also seeks a direction on respondent No. 1, Sub-Registrar, for registering the sale deed lodged on May 30, 1989.
2. The challenge which was raised by the petitioner against the constitutional validity of Chapter XX-C of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), was given up by the petitioner as recorded in the order of the Supreme Court dated May 2, 1990 in IA No. 3 of 1990 in Civil Appeal No. 1714 of 1990. At the hearing of the petition, learned counsel, Mr. J. P. Shah, appearing for the petitioner reiterated that the petitioner does not press the question of constitutional validity of any of the provisions of Chapter XX-C of the Act and also gave up the contention that the requirement of the rule of audi alteram partem should be read into the provisions of section 269UD of the Act because such a contention had the implication of going into the constitutional validity of the said provision.
3. The property in question bearing Nondh No. 478 is situate in Ward No. 1 Nanpura area of Surat. The case of the petitioner is that this property was purchased by the petitioner from respondent No. 4 by a sale deed dated May 29, 1989, which was lodged for registration in the office of respondent No. 1 on May 30, 1989. According to the petitioner, he had paid an earnest amount of Rs. 2,21,000 on May 9, 1989, towards the total consideration of Rs. 25,00,000 and had also given post-dated cheques for various amounts of the dates June 15, 1989, June 30, 1989, July 15, 1989 and July 30, 1989, for the remaining amount of consideration. Chapter XX-C of the Act was made applicable to the areas declared by the State as "Surat Urban Development Area" in the city of Surat from June 1, 1989, by Notification No. SO 339(E), dated May 8, 1989, (See [1989] 177 ITR (St.) 238) issued under section 269U of the Act. According to the petitioner, vacant possession of the property was handed over to the petitioner by the sellers on May 31, 1989, under a "possession receipt". The seller had applied for a certificate under section 230A(1) of the Act on May 31, 1989, and it appears that the Income-tax Officer had issued a "no-objection" certificate on June 2, 1989. The parties have, by consent, given a xerox copy of the letter dated July 4, 1989, from the Income-tax Officer to the Sub-Registrar showing that the certificate issued on June 2, 1989, was to be treated as cancelled. In view of the coming into force of Chapter XX-C of the Act in Surat City, the Sub-Registrar, as stated by the petitioner, had taken the stand that unless "no-objection" certificate from the appropriate authority was furnished, he would not register the document. Thereupon, the petitioner filed a statement in Form No. 37-I. Section 269UC of the Act read with rule 48L of the Income-tax Rules, 1962 (hereinafter referred to as "the Rules"), envisages reducing an agreement for transfer to writing in the form of a statement signed by each of the parties to such transfer which had to be in the prescribed form and that form is Form No. 37-I prescribed under rule 48L of the Rules. In view of the mandate of section 269UC of the Act, the parties filed the said Form No. 37-I reflecting the agreement for transfer reduced to writing in the form of the statement. But, in the forwarding letter dated June 14, 1989, addressed by the petitioner to the appropriate authority, it was stated that the petitioner was of the opinion that they were not liable to file the said form and that they were doing so for the sake of safety only. In the form, copy of the sale deed dated May 30, 1989, is referred to as the written agreement for transfer of the property. It will be noticed that there was no reference of any "possession receipt" which, according to the petitioner, was prepared on May 31, 1989, in the said form filed on June 14, 1989. For the first time, in a declaration dated September 14, 1989, anenxure 'I', the vendors alleged that they had handed over the possession of the property to the petitioner in purported waiver/novation of the specific condition which was incorporated in the sale deed dated May 30, 1989, to the effect that the possession was to be handed over only after receipt of the full consideration. The appropriate authority, by their order dated August 26, 1989, ordered the purchased of the property by the Central Government for the net amount of Rs. 24,07,600 which had the affect of vesting the property in the Central Government free from all encumbrances from the date of the order, in view of the provisions of section 269UE of the Act. The appropriate authority, by letter dated September 6, 1989, which is at annexure 'H' to the petition, called upon the vendors, respondent No. 4, to hand over the possession of the property to the appropriate authority on September 18, 1989. It appears that, in response to that notice, respondent No. 4 had sworn a declaration on September 14, 1989, referring to the purported waiver/novation of the specific condition in the sale deed dated May 30, 1989, that such possession shall be handed over after receipt of full consideration. Though the possession receipt purports to have been executed on May 31, 1989 (xerox copy of annexure 'D'), there is no reference to that document under which the possession was purported to have been handed over even in the said declaration at annexure 'I' which was sworn to by respondent No. 4 on September 14, 1989, and it merely mentions that the possession was handed over on May 31, 1989, without referring to any writing of the nature of annexure 'D', to the petitioner, in the form of a possession receipt. It appears from the record that, under receipt dated September 18, 1989-annexure 'J'-the possession of the property was taken over by the Government and the said property was handed over by the petitioner and respondent No. 4. The amount of Rs. 24,07,600 was received by the petitioner in view of the declaration dated September 14, 1989, given by the transferors authorising the petitioner to receive the said amount and the receipt thereof was executed by the petitioner on September 21, 1989, a copy of which is at annexure 'K' to the petition.
4. It was contended on behalf of the petitioner by learned counsel, Mr. J. P. Shah, that, as the sale deed was already executed and lodged for registered on May 30, 1989, and Chapter XX-C of the Act came into force from June 1, 1989, the provisions of Chapter XX-C could not have been made applicable to the said transfer of property. He submitted that the definition of the word "transfer" in section 269UA(f) of the Act also covers cases falling under section 53A of the Transfer of Property Act where possession is handed over under a writing, and, therefore, even if there was no completed sale deed before June 1, 1989, in view of the fact that the possession was handed over to the petitioner before June 1, 1989, it was a case of deemed transfer before June 1, 1989, and hence the provisions of Chapter XX-C did not apply in the present case. It was also urged that, having regard to the nature of the scheme requiring an agreement for transfer to be entered into at least three months before the intended transfer as prescribed under section 269UC of the Act, it was not possible to make the whole scheme applicable in the present case since the sale deed was already executed prior to June 1, 1989, leaving no scope for any agreement between the parties being entered into as envisaged by section 269UC(1) of the Act.
5. By notification dated May 8, 1989, the provisions of Chapter XX-C of the Act were made applicable to the Surat Urban Development Area comprised in the city of Surat and, admittedly, the disputed property is situated within that area. It was urged on behalf of the petitioner that prior to the date on which the Chapter was made applicable, all that which were within the province of the transferor for the purpose of transferring the ownership of the property to the transferee were already done by executing the sale deed on May 29, 1989 (in the xerox copy produced at annexure 'B' the date 30th is changed to 29th in ink) which was lodged for registration on May 30, 1989. It was submitted that registration was merely a formality which the Registrar was bound to complete since the document was lodged prior to June 1, 1989. Under section 54 of the Transfer of Property Act, sale of immovable property is defined as a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Therefore, transfer of ownership is an essential ingredient of sale. It will, therefore, be appropriate to examine the material terms of the document executed on May 29, 1989, a xerox copy whereof is produced at annexure 'B' to the petition. After narrating the relevant particulars in respect of the property, the document records that the transferor was, by this deed, selling the property for a sum of Rs. 25,00,000 which was to be paid by the transferee as promised by him on the various dates mentioned in the deed. Besides the amount of Rs. 2,21,000 already paid by way of earnest money on May 9, 1989, an amount of Rs. 5,00,000 was to be paid on June 15, 1989, a further sum of Rs. 5,00,000 on June 30, 1989, another sum of Rs. 5,00,000 on July 15, 1989, and finally a sum of Rs. 7,79,000 was to be paid on July 30, 1989, as per the post-dated cheques issued for these dates. It is then recorded that, in the event of any of the cheques being dishonoured, the sale deed shall automatically stand cancelled and the transferee will have no right whatsoever under this deed. It is then recorded that, on receipt of the various amounts covered under the said post-dated cheques, the transferor shall hand over vacant possession of the said property to the transferee and that this should be treated as a material term of the document. It is then, in terms, recorded that this document shall become complete only on receipt of the entire amount of consideration by the transferee. In the event of any of the post-dated cheques being dishonoured, the earnest money will be liable to be forfeited. it is further recorded that, on receipt of the aforesaid amount of consideration by the transferor, the vacant possession of the property shall be handed over to the transferee and, thereafter, the transferee shall use the property as its absolute and independent owner and the transferor shall have no right in respect thereof.
6. It is thus clear from the above material terms of the document that the ownership in the said property was to be transferred only on the payment of the entire amount of consideration, i.e., when all the post-dated cheques including the last post-dated cheque were honoured. The terms of the document clearly show that the title in the property was not intended to be passed until the amount of consideration was fully received by the transferor. When the said document which was executed on May 29, 1989, provides that the transaction was to be completed only on the payment of the entire amount of consideration and that, thereafter, only the transferee was to be treated as owner of the property, it can never be said that there was transfer of ownership amounting to sale prior to June 1, 1989. It is clear to us from the terms of the deed that the sale had not become effective before June 1, 1989, and, therefore, even apart from the question of the document not being registered, the terms of the deed negative the theory of any transfer of the property having been effected prior to June 1, 1989. As per the terms of the deed, even the possession was not to be transferred before the last payment was received towards the consideration amount. We, therefore, hold that no transfer of property by way of sale had taken place prior to June 1, 1989, so as to make the provisions of Chapter XX-C of the Act inapplicable to the said property as contended by the petitioner.
7. We may now proceed to deal with the next contention canvassed on behalf of the petitioner that, since the word "transfer" as defined in section 269UA(f) of the Act includes allowing the possession of such property to be taken or retained in part performance of a contract as contemplated in section 53A of the Transfer of Property Act and since the possession of the property was handed over to the transferee on May 31, 1989, under the possession receipt dated May 31, 1989, a xerox copy whereof is at annexure 'D', it should be held that a transfer as defined in clause (f) of section 269UA had already taken place prior to June 1, 1989, making the provisions of Chapter XX-C of the Act inapplicable to the property. The xerox copy of possession receipt which is annexure 'D' to the petition shows that the receipt was executed on May 31, 1989, on a stamp paper of Rs. 30 purchased on May 25, 1989. It records that it was an important term of the deed executed on May 30, 1989, that the possession of the property was not be handed over to the transferee until the entire amount of consideration was received. It records that the transferor was satisfied about the reputation of the transferee in the market and, therefore, the said condition was cancelled and the possession of the property was handed over to the transferee under this possession receipt. It will be seen from this document that it does not vary the stipulation contained in the sale deed that the ownership of the property was to transfer on the transferor receiving the entire amount of consideration. It is surprising that when, under the document dated May 31, 1989, at annexure-D, possession was handed over on May 31, 1989, in variation of an important term in the sale deed dated May 29, 1989, no reference to this possession receipt was at all made when the parties filed their statement in Form No. 37-I before the appropriate authority. The statement in Form No. 37-I was filed under the forwarding letter dated June 14, 1989, written by the petitioner which is at annexure-F collectively. In that forwarding letter, two copies of the sale deed dated May 30, 1989, and a copy of the valuation report were furnished along with Form No. 37-I in duplicate duly signed. There is absolutely no reference in that forwarding letter to the effect that the possession was transferred to the transferee on May 31, 1989, and there is absolutely no reference of any possession receipt having been executed on May 31, 1989, in the said letter. If we scrutinise the Form No. 37-I, we find that the copy of the sale deed dated May 30, 1989, which was enclosed was referred to as the written agreement for transfer of the said property. At item No. 3, the transferors were shown as the persons in occupation of the property. Thus, even before the appropriate authority, while filling Form No. 37-I, which was signed by both the parties, it was never the case of the parties that possession was transferred on May 31, 1989, or that there was any variation or novation in the sale deed dated May 30, 1989, which stipulated that possession was to be handed over only after the receipt of the entire amount of consideration. Even in item No. 8 pertaining to the nature of interest and right proposed to be transferred, while mentioning that the ownership was proposed to be transferred, there is no reference to any possession having been transferred. Even against sub-item (iv) of item No. 8 pertaining to the possession taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882, it is mentioned that it was not applicable. In fact, by submitting a copy of the sale deed dated May 30, 1989, the parties had put up their definite case that the possession was not to be transferred until the amount of total consideration was received by the transferor. In our mind, there is no doubt that, if the possession was transferred on May 30, 1989, and the possession receipt was in fact executed on that day, then that fact would have surely found a reference in the statement filed on June 14, 1989, before the appropriate authority in Form No. 37-I by the parties. It appears that it was never the case of the parties before the appropriate authority, prior to the passing of the impugned order dated August 26, 1989, that the possession was handed over to the transferee. On the contrary, it was their case that the possession was to be transferred only on receipt of the entire amount of consideration as stipulated in the sale deed dated May 30, 1989. By a notice dated September 6, 1989, at annexure 'H', the appropriate authority called upon respondent No. 4-transferor to hand over the possession of the property to the appropriate authority on June 18, 1989, since the property had already vested in the Central Government in view of the provisions contained in section 269UE of the Act. It is only thereafter that, for the first time in the declaration of respondent No. 4 dated September 14, 1989, there was a reference to the fact that possession was handed over on May 31, 1989, to the petitioner "in purported waiver/novation of the specific condition in the sale deed dated May 30, 1989, that such possession shall be handed over after receipt of full consideration." It will be noticed that even in that declaration which is at annexure-I, there is no reference to any possession receipt having been executed on May 31, 1989. The possession of the property was taken over on September 18, 1989, under receipt at annexure 'J' by the appropriate authority and it shows that it was handed over by respondent No. 4 and the petitioner. It is in this background that the statement made in the affidavit-in-reply filed by a member of the appropriate authority in paragraph 4 to the effect that it was found during the course of inspection of the property by the member, appropriate authority, that the possession of the property was not handed over by the transferors should be viewed. It appears to us that a crude attempt has been made, out of sheer desperation, to create a version after the passing of the impugned order that possession was transferred prior to June 1, 1989. If such an important event had taken place in variation of an important term in the sale deed, we are satisfied that it would have been brought to the notice of the appropriate authority at the earliest and while furnishing particulars in the statement in Form No. 37-I on June 14, 1989, which was signed by both the parties. We, therefore, hold that the possession was not in fact transferred prior to June 1, 1989, and that it was not to be transferred until the entire amount of consideration was received by the transferor under the post-dated cheques. Therefore, the contention that the provisions of Chapter XX-C of the Act were inapplicable on the ground that possession was transferred under a written document prior to June 1, 1989, has no substance.
8. It will be noticed from the provisions of section 53A of the Transfer of Property Act that the protection given to the transferee who has taken possession of the property in part performance of the contract is against the transferor or any person claiming under him. Such transferor or any person claiming is debarred from enforcing against such transferee any right in respect of the property of which the transferee has taken possession. Section 53A of the Transfer of Property Act does not provide that, under the circumstances stated therein, a good title passes to the transferor. Rights available under the said provisions against the transferor cannot defeat the statutory provisions under which the property can be acquired or statutorily purchased.
9. Under section 269UC of the Act, it has been provided that, notwithstanding anything contained in the Transfer of Property Act, 1882, or in any other law for the time being in force, no transfer of any immovable property of such value exceeding five lakhs rupees as may be prescribed, shall be effected except after an agreement for transfer is entered into between the person who intends transferring the immovable property and the person to whom it is proposed to be transferred in accordance with the provisions of sub-section (2) at least three months before the intended date of transfer. It is then provided in sub-section (2) that such an agreement shall be reduced to writing in such manner and within such time as may be prescribed, by each of the parties to such transaction or by any of the parties to such transaction acting on behalf of himself and on behalf of the other parties. It is then provided in sub-section (3) that every such statement shall be in the prescribed form set forth such particulars as may be prescribed, be verified in the prescribed manner and be furnished to the appropriate authority. On receipt of such statement, the appropriate authority, for reasons to be recorded in writing, may make an order for the purchase by the Central Government of immovable property notwithstanding anything contained in any other law or any instrument or any agreement for the time being in force as provided by section 269UD of the Act. Where an order is passed under this provision by the appropriate authority, such property shall vest in the Central Government free from all encumbrances under section 269UE of the Act. We have come to the conclusion that, even apart from going into the question of the deed not being registered prior to June 1, 1989, the ownership of the property was not intended to be transferred until the entire consideration amount was paid under the post-dated cheques, the last being of July 30, 1989. Therefore, since the ownership of the property was not transferred under the said deed before June 1, 1989, there was no sale prior to June 1, 1989, and hence the provisions of Chapter XX-C of the Act applied to this property. Therefore, even if possession was transferred, it would not have affected the provisions of Chapter XX-C enabling the statutory purchase of the property by the Central Government free from all encumbrances in view of the provisions contained in Chapter XX-C of the Act. Under section 269UL of the Act, it is provided that notwithstanding anything contained in any other law for the time being in force, no registering officer appointed under the Registration Act, 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. In view of this, the Sub-Registrar was justified in not registering the document which was lodged on May 30, 1989, after June 1, 1989. The argument, however, was that since the scheme of Chapter XX-C could not be made applicable in its entirety since the sale deed was already executed prior to June 1, 1989, the Sub-Registrar could not have refused the registration on the footing that the scheme was made applicable from June 1, 1989. There is absolutely no reason to hold that the scheme could not be made applicable in the present case in its entirety. All that the provision of section 269UC envisages is. bringing about an agreement for transfer between the parties reduced to writing in the form of a statement three months prior to the intended date of transfer. The parties in fact lodged the prescribed Form No. 37-I on June 14, 1989, citing the copy of the sale deed dated May 30, 1989, as the agreement for transfer. The provisions of this Act would be applicable in all cases where no transfer was actually effected prior to the coming into force of Chapter XX-C of the Act in the concerned area. In the present case, no such transfer had already taken place prior to June 1, 1989, and, therefore, the statutory provision requiring an agreement reduced to writing in the form of a statement to be filed would prevail. Therefore, there is no substance in the contention canvassed on behalf of the petitioner that Chapter XX-C of the Act should not be made applicable to the property in question because the scheme of these provisions could not be made applicable in its entirety.
10. Mr. K. N. Raval, learned counsel appearing for the Department, contended that no transfer had taken place prior to June 1, 1989, as the document was not registered. We have come to the conclusion that no transfer had taken place independently of the question of the registration of the document. Still, however, since the point was seriously debated, we way proceed to consider the same.
11. Under section 54 of the Transfer of Property Act, transfer of immovable property of the value of Rs. 100 and upwards can be made only by a registered instrument. As provided in section 17 of the Registration Act, a document of the nature of the deed dated May 30, 1989, is compulsorily registrable. It has been, inter alia, provided by section 49 of the Registration Act that no document required by section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall affect any immovable property comprised therein. Thus, since the sale document executed on May 30, 1989, was not registered, it did not have the effect of transferring the property. This statutory consequence cannot be cured by the provision made in section 47 of the Registration Act that a registered document shall operate from the time from which it would have commended to operate if no registration thereof had been required or made and not from the time of its registration. The question as to the time from which a registered document operates cannot arise until a document is registered. When a document is not registered, the immovable property will not be transferred in view of the provisions of section 54 of the Transfer of Property Act and section 47 of the Registration Act.
12. The Supreme Court, in the case of Ram Saran Lall v. Domini Kuer, AIR 1961, SC 1747, held that section 47 of the Registration Act has nothing to do with the completion of the registration and, therefore, nothing to do with the completion of a sale when the instrument is one of sale. A sale which is admittedly not completed until the registration of the instrument of sale is completed cannot be said to have been completed earlier because by virtue of section 47, the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. The provisions of section 47 would apply to a document only after it has been registered. This decision of the Supreme Court was followed in the case of Hiralal Agrawal v. Rampadarath Singh, AIR 1969 SC 244, in which the Supreme Court negatived the contention that, under section 47 of the Registration Act, once registration is effected, a title under the sale deed relates back to the date of its execution, following the majority decision in Ram Saran's case, AIR 1961 SC 1747, which laid down that the sale was complete only when the registration of the sale deed was completed as contemplated by section 61 of the Registration Act and, therefore, the talab-t-mowastbat made before the date of completion of registration was premature and a suit based on such a demand of the right of pre-emption was premature and must, therefore, fail.
13. In the case of Amarchand J. Agarwal v. Union of India [1983] 142 ITR 402, the learned single judge of the Bombay High Court held that a sale which is not complete until the registration of the document, cannot be stated to have been completed earlier by virtue of section 47 of the Registration Act, 1908. It was held that a transfer is not complete on the date of the execution of the document of sale but only on its registration and there is no distinction between the transfer of a title and the completion of the sale, and the title passes only when the document is registered under the provisions of the Registration Act. This decision of the learned single judge was confirmed by the Division Bench by the judgment in Amarchand Jainarain Agarwal v. Union of India [1983] 142 ITR 402.
14. In the present case, in view of the statutory provisions contained under section 269UL of the Act, the Registrar could not have registered the document after June 1, 1989, except in accordance with the said provisions. As the document was not registered prior to June 1, 1989, no question of ownership of property being transferred under the deed could arise in view of section 54 of the Transfer of Property Act and section 47 of the Registration Act. Since the document was not and could not have been registered after June 1, 1989, no question of the transaction having become effective from the date of the deed by virtue of section 47 of the Registration Act could arise in the present case. In this view of the matter, the decision of this court in the case of Arundhati Balkrishna v. CIT [1982] 138 ITR 245 sought to be relied upon on behalf of the petitioner cannot help the petitioner.
15. It appears from the record that the transferor had, on May 31, 1989, filled up Form No. 34A, a xerox copy of which is annexure "E' to the petition, being the application for a certificate under section 230A(1) of the Act and at the end of that application, it appears that, on June 2, 1989, the Income-tax Officer had certified to the Sub-Registrar that no liability was outstanding against the transferor. During the course of the hearing of this petition, a xerox copy of letter dated July 4, 1989, from the Income-tax Officer to the Sub-Registrar was put on record by consent and it appears from that letter that the Income-tax Officer informed the Sub-Registrar that the certified was wrongly issued on June 2, 1989, and that it may be treated as cancelled. Under section 230A of the Act, it has been, inter alia, provided that notwithstanding anything contained in any other law for the time being in force, where any document required to be registered under the provisions of clause (a) to clause (e) of sub-section (1) of section 17 of the Indian Registration Act, 1908, purports to transfer, assign, limit, or extinguish the right, title or interest of any person to or in any property valued at more than two lakhs rupees, no registering officer appointed under that Act shall register any such document, unless the Assessing Officer issues the certificate as provided therein. Admittedly, no such certificate was issued prior to June 1, 1989, and, therefore, the registering officer could not have registered the document before June 1, 1989, being the date on which the provisions of Chapter XX-C of the Act were made applicable to the said area.
16. Under the above circumstances, we hold that no transfer of the property has taken place prior to June 1, 1989, so as to make the provisions of Chapter XX-C of the Act inapplicable to the present case. We hold that, even apart from the fact that the property was not transferred since the document was not registered, the intention as evidenced from the terms of the deed dated May 30, 1989, clearly shows that the ownership of the property was to be transferred only after the payment of the entire amount of consideration for which the post-dated cheques were given to the transferor, the last being of the date July 30, 1989. Therefore, the parties never intended the ownership to be transferred prior to July 30, 1989. We have already held that there was no transfer of possession under the sale deed dated May 30, 1989, and that the story that the possession was transferred under the possession receipt dated May 31, 1989, has been invented for the first time much after the impugned order was passed on August 26, 1989. We are of the view that the term "transfer" which is defined in clause (f) of section 269UA of the Act is to be read in the context of the provisions of Chapter XX-C, the idea being to give full effect to the scheme contained in the said Chapter. The equitable basis of part performance under section 53A of the Transfer of Property Act is that the transfer, with the transferee having acquired possession of the property in part performance of the contract and having performed or having been willing to perform part of the contract, cannot be disturbed by the transferor by claiming any right in respect of the property. The fact that, allowing the possession of such property to be taken or retained in part performance is also included in the expression "transfer" in clause (f) of section 269UA so as to prevent even such passing of possession with effect from the date when the Chapter XX-C comes into force would not mean that, where possession is handed over prior to the coming into force for Chapter XX-C by part performance, the provisions of Chapter XX-C should not be applied where the property is being transferred by way of sale. We hold that, having regard to the facts of the case, no transfer of property had taken place prior to June 1, 1989, being the date of which Chapter XX-C of the Act applied to the said area in which the property is situated and, therefore, the appropriate authority has passed the order dated August 26, 1989, in accordance with the provisions of law and the order cannot be assailed on the grounds canvassed on behalf of the petitioner. On the order being passed, the property has vested in the Central Government under section 269UE of the Act and the petitioner has already received the amount of consideration under the provisions of Chapter XX-C of the Act. The amount of interest ordered to be paid to respondent No. 2 by an interim order dated October 25, 1989, which was passed in this matter was made non-refundable irrespective of the result of the petition and that interim order was upheld by the Supreme Court by its order dated May 2, 1990, passed in I.A. No. 3 of 1990 in Civil Appeal No. 1714 of 1990. Therefore, there is no substance in the contention canvassed on behalf of the petitioner by learned counsel Mr. J. P. Shah that the amount of interest ordered to paid under the interim order should be refunded to the petitioner.
17. Under the above circumstances, this petition must fail. Rule is discharged with no order as to costs.