JUDGMENT - R.J. KOCHAR, J.:---The petitioners are challenging the legality and validity of the order requiring the petitioners to pay stamp duty at the rate prevailing on 9-9-1992 instead of rate prevailing on 30th May, 1997 on which day the Appropriate Authority had granted no objection certificate (NOC) to the petitioners to purchase the suit flat. As far as the relevant facts are concerned, there is no dispute between the parties. On 9-9-1992 the petitioners entered into an agreement for purchase of suit flat for a price of Rs. 1 crore 80 lakhs. The petitioners and the vendors both filed 37(i) form with the appropriate authority. By an order dated 29th November, 1992, the appropriate authority rejected the application and passed an order of compulsory purchase of the suit flat. The petitioners had challenged this order by filing a Writ Petition No. 2716 of 1992 in this Court. This Court set aside the impugned order of the appropriate authority and NOC was directed to be issued. Pursuant to the said order of this Court, the appropriate authority issued NOC on 30th May, 1997. By an order dated 6th October, 1998 the respondent No. 2 called upon the petitioners to pay stamp duty of Rs. 13,98,750/- along with penalty of Rs. 34.40 lakhs. Thereafter, under the amnesty scheme announced by the State Government, it was declared that the persons who had not paid the stamp duty on agreements of sale would pay the same upto 30th March, 1999 with an amount of Rs. 300/- as penalty. The respondent No. 2 worked out the stamp duty of Rs. 17,40,000/- instead of Rs. 13,98,750/-. The petitioners represented to the respondent No. 2 that the re calculated amount was erroneous as the sale of the suit flat had become final and enforceable only after issuance of NOC by the appropriate authority and, therefore, the amount of stamp duty payable would be at the rate prevalent on 30th May, 1997. It appears that the respondents did not act on the said representation and, therefore, the petitioners have approached this Court under Article 226 of the Constitution of India for issuance of appropriate order or direction to quash and set aside the order dated 22nd December, 1998 and direct the respondents to accept the stamp duty as was computed at the first instance to the tune of Rs. 13,98,750/- and penalty of Rs. 13,98,750/- and penalty of Rs. 300/- under the amnesty scheme. 2. The short point is the relevant point of time for the petitioners to pay the stamp duty under the provisions of Bombay Stamps Act. According to the appropriate authority, the relevant date is the date of the agreement i.e. 9th September, 1992 while according to the petitioners, it is the date of the issuance of NOC by the appropriate authority on 30th May, 1997. 3. Shri Kanuga for the petitioners has submitted that the vendors and the purchasers of the suit flat had entered into an intended agreement on 9th September, 1992 whereunder a proposal was made for sale of the suit flat by the vendors to the petitioners. In the said agreement, it was clarified that the intending vendors and intending purchasers would file a statement in Form 37(i) with the appropriate authority under Chapter XX-C of Income Tax Act, 1961 and that the transaction would take effect if and only if, approval of appropriate authority is obtained and will be carried out after NOC is granted under section 269-UL of the Income Tax Act. Shri Kanuga has pointed out that it was pertinent to note that in the said intended agreement possession of the suit flat was not transferred either before or subsequently. Shri Kanuga further pointed out that under Clause 8 of the said agreement, the intending buyers and the intending sellers had expressed specifically that the parties would execute the said deed/conveyance after the NOC is obtained and on payment of consideration of Rs. 1.61 crores and only thereafter the possession would be handed over. 4. Shri Kanuga further pointed out that under the provisions of the Income Tax Act there are restrictions placed on the transfer of immovable property. Section 269-UD confers pre-emptive right to purchase all such properties to the Central Government. Section 269-UK imposes restriction on revocation or alteration of agreement. Section 269-UL further bars creation of any right or interest in such immovable property and under section 269-UL it is provided that the intending purchaser would have no claim against his transferrer of the property when such immovable property is purchased by the Central Government. Section 269-UK imposes restriction on revocation or alteration of agreement. Section 269-UL further bars creation of any right or interest in such immovable property and under section 269-UL it is provided that the intending purchaser would have no claim against his transferrer of the property when such immovable property is purchased by the Central Government. Shri Kanuga laid emphasis on the fact that under the aforesaid provisions of the Income-Tax Act, the Central Government is given the first right to purchase the immovable property if the value of such property exceeds Rs. 5 lakhs. According to Shri Kanuga the aforesaid provisions of the Act have overriding effect and the intending purchaser has no right of any kind in the property which is the subject matter of the sale and there is express prohibition under section 276(1) of the Act which provides penal consequences for breach of any of the provisions of the Act. Shri Kanuga has, therefore, assailed the decision of the appropriate authority to levy stamp duty at the rate prevalent on the date of the intending agreement for sale/purchase of the suit flat i.e. 9-9-1992. According to him, under the provisions of the Income Tax Act, the petitioners have accrued enforceable right only after they received NOC from the appropriate authority on 30th May, 1997. Prior to the aforesaid date there was no enforceable right created in the purchasers nor was the possession of the suit flat given to the petitioners and received by the petitioners. Before the transaction could be completed, the Central Government intercepted and prohibited the completion of the transaction. It was only at the intervention of this Court that the order of the appropriate authority to purchase the suit flat passed by the appropriate authority was quashed and set aside and the NOC was directed to be issued, the petitioners acquired enforceable right and they became liable under the Article 25(1) and (d) of the Bombay Stamp Act to pay the stamp duty. As on 9-9-1992 both the parties had recorded their intentions to sell and purchase the suit flat specifically providing for the NOC without which the transaction was not to take place. In the agreement itself, there is an express provision that the parties would file 37(i) form before the appropriate authority and obtain NOC. As on 9-9-1992 both the parties had recorded their intentions to sell and purchase the suit flat specifically providing for the NOC without which the transaction was not to take place. In the agreement itself, there is an express provision that the parties would file 37(i) form before the appropriate authority and obtain NOC. After the NOC was granted the parties were to execute the conveyance on payment of the price of the flat and thereafter, the possession of the suit flat was to be delivered. 5. According to Shri Shah for the respondents, the effective and relevant date for payment of stamp duty was the date of the agreement i.e. 9-9-1992. It was submitted by the learned Counsel that the so called intended agreement has no place in the provisions of the Bombay Stamp Act. The aforesaid agreement is an instrument as defined under section 3 and was chargeable with stamp duty. Shri Shah submitted that the test in such cases would be whether the said agreement could be put for specific performance. If the said agreement could be required to be specifically performed in the Court of law, in that case, the date of the agreement was the relevant date for charging the stamp duty and grant or non grant of NOC would not affect the liability to pay stamp duty. 6. In my opinion, there is great force and substance in the submissions of Shri Kanuga. While considering the liability of the intended purchaser of the suit flat, we cannot totally ignore the terms of the agreement between the parties. From the terms and tenor of the agreement, it is crystal clear that both the parties had proposed and intended to sell and purchase the suit flat subject to the conditions under the Income Tax Act are complied with and are materialised. Unless and until both the parties had agreed and the NOC was given by the appropriate authority, the transaction was not to be completed at all. It was specifically agreed between them that the seller will not handover the possession and the purchaser would not give the price unless and until the appropriate authority would grant the NOC. The transaction would remain only on paper till the appropriate authority had granted its NOC. No vested right which can be enforced under the provisions of law was created in the petitioners till the NOC is granted. The transaction would remain only on paper till the appropriate authority had granted its NOC. No vested right which can be enforced under the provisions of law was created in the petitioners till the NOC is granted. According to me, Shri Kanuga is right that the agreement for sale does not create any vested right in the party agreeing to purchase property. Even though the parties had entered into the said intended agreement, it was not a complete transaction in itself. The transaction would be completed after the conditions prescribed in the agreement would be realised or materialised. In the present case, the appropriate authority had issued its NOC only on 30th May, 1997. What took place prior thereto has already been narrated by me earlier. Issuance of the NOC was a mandatory condition for completion of sale and it was an inseparable part of the transaction of the sale and purchase of the suit flat. In the entire transaction it is an admitted position that the possession of the suit flat had not parted with by the vendors to the purchasers till 30th May, 1997. The possession of the immovable property in such transaction is a very crucial stage as is reflected in the explanation I to Article 25 of Schedule I to the Bombay Stamp Act reads as follows : "Explanation I. For the purposes of this article, where in the case of agreement to sell an immovable property, the possession of any immovable property is transferred to the purchaser before the execution, or at the time of execution or after the execution of such agreement without executing the conveyance in respect thereof, then such agreement to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly; Provided that, the provisions of section 32-A of shall apply mutatis mutandis to such agreement which is deemed to be a conveyance as aforesaid, as they apply to a conveyance under that section; Provided further that, where subsequently a conveyance is executed in pursuance of such agreement of sale, the stamp duty, if any, already paid and recovered on the agreement of sale which is deemed to be a conveyance, shall be adjusted towards the total duty leviable on the conveyance." The entire transaction was completed after the NOC was granted by the appropriate authority on 30th May, 1997. The liabilities of the petitioners to pay the stamp duty arose on that date and not on the date of the agreement of intended sale was executed by the parties on 9th September, 1992. There were other conditions stipulated in the said agreement including a condition of grant of NOC by the appropriate authority under the provisions of law. Materialising of the said condition was beyond the control of the parties. The completion of the transaction was wholly dependent on the grant of NOC by the appropriate authority. The petitioners acquired complete right only on the date on which the NOC was granted by the appropriate authority. It is on this date the petitioners became liable to pay the stamp duty. Till this date under the law even possession of the suit flat could not have been taken or given. In the explanation (supra) the possession of the immovable property is a very crucial and material factor. The party which gets possession of the immovable property becomes liable to pay stamp duty on the date of taking or giving possession of such property, though the other conditions mentioned in the explanation might not have been complied with. If that is so, in the present case, lawful possession could not have been transferred without grant of NOC. The petitioners acquired their vested right in the property after grant of such NOC and thereafter grant of possession of the suit flat. As soon as the NOC is granted, the petitioners became liable to make payment of the stamp duty at the rate prevalent on the date of NOC i.e. 30th May, 1995. In my opinion, therefore, the demand of the respondents from the petitioners that they should pay the stamp duty at the rate prevalent on 9th September, 1992 is illegal, improper and unjustified. The petitioners shall pay the stamp duty at the rate prevalent on 30th May, 1997 in accordance with law. 7. In the result the rule is made absolute in terms of prayer Clause (a) with no orders as to costs. Petition is disposed of accordingly. The petitioners shall be entitled for refund of the amount deposited by them under the order passed by this Court on 18th February, 1999 with interest accrued thereon, if any. The respondents shall act on a copy of this order duly authenticated by the Associate of the Court. Rule made absolute. -----