Bankey Bahadur Srivastava vs District Judge and Others

A. Banerji, J.—This is a writ petition against an order of the District Judge, Varanasi the Appellate Authority under the Urban Land (Ceiling and Regulation) Act, 1976, hereinafter referred to as the Act, dated 26th August, 1980. The District Judge dismissed the appeal, refusing permission to the Petitioner to sell away a property No. D-50/59, mohalla Kazipur, Varanasi City on the ground that there was a dispute in regard to the title of the property with Respondent No. 3 and until this was decided by a competent civil court the permission could not be granted. Learned Counsel for the Petitioner contended that the view taken by the learned District Judge was erroneous as the District Judge had no jurisdiction to go into the question of the title of the property while considering the application u/s 27(2) of the Act for permission to sell away property. He further contended that what was sought to be sold was a small property situate in Varanasi which was within the ceiling limit and as such permission was not necessary in view of the declaration of law by their Lordships of the Supreme Court, the provisions of Section 27(2) of the Act are invalid and ultra vires.

Learned Counsel for the Respondents contended that the Petitioner had other properties in Bombay and Varanasi which have not been disclosed and the property which was sought to be sold was only one of them. No permission could be granted for sale of such a property unless it came within the ceiling limit. It was further contended by him that the permission u/s 27(2) was necessary on the facts and circumstances of the case.

On behalf of the State a counter affidavit has been filed by the Naib Tehsildar, Urban Land Ceiling, Varanasi. Along with that affidavit a copy of the objection filed on behalf of Respondent No. 3 Smt. Gulab Devi was also filed. Para 9 of that objection disclosed that there were two houses in Bombay and three houses in Varanasi out of which only one D-50/59 mohalla Kazipur, Varanasi had been disclosed by the Petitioner. Learned Standing Counsel also contended that the Competent Authority had refused permission on another ground namely, that the Petitioner had not disclosed all his properties and unless it was determined as to whether his entire holding came within the ceiling limit, no permission could be granted.

The first point for consideration would be as to what has been decided by their Lordships of the Supreme Court in respect of the invalidity of Section 27(1) of the Act. In the case of Maharao Sahib Shri Bhim Singhji Ors. Vs. Union of India (UOI) and Others, their Lordships were considering the validity of the entire Act. The view of the majority of the Bench represented by Chandrachud, C. L, Bhagwati and Krishna Iyer, JJ. was

The entire Urban Land (Ceiling and Regulation) Act of 1976 is valid save and except Section 27(1) in so far as it imposes a restriction on transfer of any urban or urbanisable land with a building or a portion of such building which is within the ceiling area." The Hon''ble the Chief Justice and Hon''ble Bhagwati, J. had further added : "Such property will therefore be transferable without the constraints mentioned in Sub-section (1) of Section 27.

Sen, J. in his separate judgment in paragraph 104 of the Reports clarified the point:

If vacant land owned by a person falls within the ceiling limits for an urban agglomeration, he is outside the purview of Section 3 of the Act. That being so, such a person is not governed by any of the provisions of the Act. When this was pointed out to the learned Attorney General, he was unable to justify the imposition of the restriction imposed by Sub-section (1) of Section 27 in case of land ceiling within the ceiling limits as a reasonale restriction. It must , accordingly, be held that the provision of Sub-section (1) of Section 27 of the impugned Act is invalid insofar as it seeks to affect a citizen''s right to dispose of his urban property in an urban agglomeration within the ceiling limits.

It is clear from the above provisions of Section 27(1) of the Act which imposed a restriction on the transfer of urban land or urbanisable land in urban agglomeration within the ceiling limit was an unreasonable restriction and invalid. Their Lordships did not mean to say that if a person had more land than the ceiling limit and he only transferred an area of land which was within the ceiling limits, then no permission was required. If the total land held by the Petitioner was beyond the ceiling limit, he had to seek the permission u/s 27(23) of the Act notwithstanding the fact that the total area, sought to be transferred by him was less than the ceiling limit. However, if the total holding of the person of such land was within the ceiling limits i. e. less than the ceiling limit, then in that event it was not necessary for him to seek permission for transfer of land or any part thereof u/s 27 of the Act. The criterion therefore, was the total area of land owned by the person. If he possessed land more than the ceiling limit applicable to him in the urban agglomeration or urban agglomerations then in that event he had to seek permission. The law declared by their Lordships of the Supreme Court in the case of Bhim Singji v. Union of India, (supra) u/s 27(2) of the Act is limited to such cases where the total land owned by the person is within the ceiling limit.

There is no mention nor any discussion of this point in appellate order-Although the Competent Authority had referred to the existence of several other properties in the name of the Petitioner which had not been disclosed in the application for transfer and which formed a ground for the refusal of the permission, yet the order of the Appellate Authority does not show that the point was ever considered. The Appellate Authority dealt with the question of the right of the Petitioner to move an application for transfer in respect of the property the title of which was in dispute. The authorities under the Act have only to see whether the land is owned by the person who seeks the permission. They have first to satisfy themselves that the person seeking transfer of land held land beyond the ceiling limit. In my opinion, it was not at all necessary for the Appellate Authority to advert to the question of the title to property in dispute but should have proceeded to consider the question whether the Petitioner had truly and correctly let out all the particulars in his application for transfer and had disclosed all the properties held by him either in his own name or as a Karta both in Varanasi and in Bombay. It was further necessary to compete the total land held by the Petitioner in the urban agglomerations of Varanasi and Bombay and thereafter consider whether the total land so held by him came within the ceiling limit or beyond it. If it was within the ceiling limit, then the provisions of Section 27(1) of the Act were inapplicable as held by their Lordships of the Supreme Court. But if the total land held by him was beyond the ceiling limit then the provisions of Section 27(2) of the Act were applicable and the Authorities under the Act would have to consider whether such permission could be granted or not. In my view the order of the Appellate Authority suffers from manifest error of law and cannot be sustained and, therefore, has to he set aside. I order accordingly. The case is sent back'' to the Appellate Authority to be decided afresh keeping in view the observations made above. There will be no order as to costs.