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Allahabad High Court · body

1985 DIGILAW 461 (ALL)

State of U. P. v. Sultan Shah

1985-04-22

G.B.SINGH

body1985
JUDGMENT : G.B. SINGH, J. 1. These four writ petitions are directed against the judgment of District Judge, Aligarh permitting Respondents, land holders to transfer vacant land without prejudice and subject to the rights of the parties under Sections 5(3) and 10(4) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act). Since common questions of law and fact are involved in these writ petitions, they are being disposed of by this common judgment. 2. The land involved in these writs is situated in Urban agglomeration of Aligarh. 3. Sultan Shah wanted to transfer his land 668.90 sq. meters to Smt. Suman Yadubanshi and others. He, therefore, gave notices u/s 26(1) of the Act to the Competent Authority intimating about the intended transfer. The Competent Authority held that Sultan Shah, Respondent No. 1, was holding land in excess of ceiling limit and the intended transfer would violate Sections 5(3) and 10(4) of the Act. Against that order Sultan Shah filed an appeal before the learned District Judge, Aligarh and it was allowed with the observation that Sultan Shah, Respondent No. 1, was free to transfer the land subject to Sections 5(3) and 10(4) of the Act without prejudice to the rights of the parties. Against the order the writ Petition No. 2259 of 1983 has been preferred. 4. Sarnam Singh wanted to sell his 1371.26 sq. meters vacant land to Smt. Prabhawati and others. He, therefore, gave notice u/s 26(1) of the Act to the Competent Authority, who observed that Sarnam Singh was holding land in excess of ceiling limit and he has no right to give notice u/s 26(1) of the Act because the intended transfer would be in violation of Sections 5(3) and 10(4) of the Act, Against that order an appeal was preferred by Sarnam Singh and the same was allowed with similar observations as mentioned above. The State has now filed the Writ Petition No, 2260 of 1983 against that decision of the appellate authority. 5. Karan Singh proposed to transfer his 725.51 sq. meters vacant land to Ramesh Chandra Singhal and others and 668.90 sq. meters land to Smt. Prabhawati and others. The State has now filed the Writ Petition No, 2260 of 1983 against that decision of the appellate authority. 5. Karan Singh proposed to transfer his 725.51 sq. meters vacant land to Ramesh Chandra Singhal and others and 668.90 sq. meters land to Smt. Prabhawati and others. We, therefore, gave notices under Sections 26(1) of the Act to the Competent Authority who observed that Karan Singh holds vacant land in excess of ceiling limit and he had no right to give notice u/s 26 of the Act. Against that order the appeals preferred by Karan Singh were allowed and he was permitted to transfer the land without prejudice to the rights of the parties under the ceiling law. Against these judgments the State has filed Writ petitions Nos. 2523 of 1983 and 2524 of 1983. 6. It was, firstly argued by the learned Counsel for the State that Section 26 of the Act does not contemplate any order by the Competent Authority and as such no appeal could be filed u/s 30 of the Act and the order passed by the appellate authority interfering with the order of Competent Authority is liable to be quashed. I do not agree with this argument. 7. According to Sub-section (1) of Section 26 of the Act, if a person holding vacant land within the ceiling limit wants to transfer such land by way of sale, mortgage etc. he must first give notice in writing of the Intended transfer to the Competent Authority. Without such a notice transfer cannot be made. Sub-Section 12) of Section 26 further provides, if the notice given is for transfer of the land by way of sale the Competent Authority shall have first option to purchase the land on behalf of the State and if option is not exercised within the period of 60 days, it shall be presumed that the Competent Authority has no intention to purchase such land on behalf of the State Government and then it shall be lawful for such person to transfer the land to whomsoever he may like. Sub-section (3) of Section 26 provides as to how the price of the land would be calculated A glance on these provisions makes it clear that the Competent Authority could pass an order in relation to option to purchase the land only u/s 26 of the Act and no other order is contemplated under this section. It is undisputed that no order relating to option was passed by the Competent Authority in the instant cases. However, it does not necessarily lead to the inference that the order passed in connection with notices given u/s 26 of the Act was not under the Act and as such it was not appealable. 8. Section 33 of the Act lays down that any person aggrieved by an order made by the Competent Authority under this Act may prefer an appeal. The impugned order was undoubtedly by the Competent Authority and the Respondents, land holders were aggrieved by it. The expression 'under this Act', simply indicates that the order must be in proceedings under this Act. These words cannot have any other import. The impugned order was no doubt in the proceedings u/s 26 of the Act. Thus the order in question was under the Act. It may be added that the fact that the Competent Authority could not pass such an order u/s 26 of the Act is immaterial in determining whether the order is under the Act because this expression does not relate to the accuracy of the order in the eye of law. If the machinery provided in the Act is used in connection with the order, it is under the Act because the result of the use of the machinery is not relevant. Thus it cannot be said that the order appealed against was not passed under the Act and as such it was not appealable. 9. There is no dispute that the ceiling proceedings against the land holders who intended to transfer their land by way of sale had not become final and therefore it could not be said that they were holding land in excess of ceiling limit. Their contention was that they were holding vacant land within the ceiling limit. Only a person holding vacant land within the ceiling limit could give notice u/s 26 of the Act. Their contention was that they were holding vacant land within the ceiling limit. Only a person holding vacant land within the ceiling limit could give notice u/s 26 of the Act. In view of these facts the Competent Authority could not hold that notices could not be given u/s 26 of the Act and the intended transfers would be in violation of Sections 5(3) and 10(4) of the Act. Thus the Competent Authority undoubtedly in the proceedings u/s 26 of the Act passed an order by which the Respondents felt aggrieved and since the order was under the Act it was appealable u/s 33 of the Act. The appeal u/s 38 of the Act was, therefore, maintainable and the contention of the learned Counsel for the Petitioner, therefore, falls to the ground. 10. The next point argued by the learned Counsel for the Petitioners is that the ceiling proceedings were pending and had not become final and as such land holders could not be given permission to sell on notice u/s 26 of the Act.