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1993 DIGILAW 119 (GUJ)

HANSRAJ TAPUBHAI v. G. P. MEHTA

1993-03-04

R.A.MEHTA

body1993
R. A. MEHTA, J. ( 1 ) THE petitioner sold land and building in urban agglomeration of Rajkot and presented a sale deed for registration on January 15 1980 and was pending for registration. On June 8 1981 the petitioner was informed by the registering authority that in pursuance of the judgment of the Supreme Court the Central Government and the State Government had issued certain directions requiring a person having no excess land while transferring the property to fill in certain form of declaration and the petitioner was called upon to give such declaration and the petitioner was called upon to give such declaration. The petitioner gave a reply dated July 4 1981 that section 27 (1) has been struck down by the Supreme Court and therefore no permission under section 27 (1) was required to be taken and no further evidence was required to be given and the document was required to be registered. As the document is not registered the petitioner has filed this petition for a prayer that the circulars at annexures D and E dated February 5 1981 of the State Government and January 12 1981 of the Central Government be declared null and void and the registering authority be directed to register the sale deed. ( 2 ) THE diretion of the Central Government shows that it has taken into consideration the Supreme Court judgment in the case of Bhimsinh vs. Union of India AIR 1981 SC 234 wherein the Supreme Court had held the entire Act to be valid except section 27 (1) in so far as it imposes a restriction on transfer of any urban land with a building or a portion of land with such building which is within the ceiling area. Therefore the provision requiring permission before transfer was struck down and it is therefore submitted that the permission under section 27 (1) is not necessary and therefore the application form prescribed for such permission under section 27 (2) has also become void inapplicable and redundant. Section 28 (b) also would not apply which enables the registering authority not to register the document unless the permission for such transfer under section 27 is produced. It is therefore submitted that the requirement of filling in the form now is unnecessary and contrary to the provisions of the Act. Section 28 (b) also would not apply which enables the registering authority not to register the document unless the permission for such transfer under section 27 is produced. It is therefore submitted that the requirement of filling in the form now is unnecessary and contrary to the provisions of the Act. ( 3 ) THE Central Government Circular does not require a person to fill in the form which was required to be filled in under section 27 for seeking permission. The form which is now required to be filled in is in the nature of a declaration giving full particulars that no land is held in excess of the ceilng limit. In case of any doubt the correctness of the declaration could be verified by reference to the competent authority before whom statements of excess land are filed under section 5 of the Act. It is further directed that the competent authority on receiving such reference from the Registrar shall send the information within a week or ten day. The Central Government Circular expressly provides that the procedure prescribed under section 27 (1) need not be followed. ( 4 ) IN pursuance of the directions of the Central Government the State Government has issued a Circular dated Feb. 12 1981 wherein also it is recited that persons holding lands below the prescribed ceiling limit are not required to obtain permission under section 27 (1 ). It is clear that the pre-requisite is that a person is holding the land below the prescribed ceiling limit and in order to verify the correctness thereof the form of declaration is sought. Para 2 of the State Government circular provides that a person seeking registration of transfer deed will have to make a declaration that he does not have any land in excess of the ceiling limit. This is an innocuous and simple declaration to be given in a standard proforma so that no details are missed. The Circular further provides that the registering authority should satisfy itself regarding the correctness before registration and in case of doubt he can refer it to the competent authority who should verify and intimate the registering authority within a period of one week. The Circular further provides that the registering authority should satisfy itself regarding the correctness before registration and in case of doubt he can refer it to the competent authority who should verify and intimate the registering authority within a period of one week. ( 5 ) THE learned Counsel for the petitioner submits that there is no authority to refuse to register the document and no authority in the Central and State Government to issue the aforesaid directions after section 27 (1) having been struck down. The reference to section 27 (1) is not at all necessary. The respondents are not relying on section 27 (1) for insisting on such declaration. The argument of the petitioner is that in absence of any statutory authority the Registrar has no authority to refuse registration on the basis of Government Circular. ( 6 ) APART from the provision of the Act and the Rules section 36 gives ample power to the Central Government to issue directions for carrying into execution the provisions of the Act and the Rules. Section 36 reads as follows:"36 (1) : The Central Government may give such directions to any State Government as may appear to the Central Government to be necessary for carrying into execution in the State any of the provision of this Act or of any rule made thereunder. (2) : The Central Government may require any State Government to furnish such returns statistics accounts and other information as may be deemed necessary". The provisions of the Act and Rules make it clear that the urban land in excess of the ceiling is required to be surrendered by the land holder and he is entitled to hold the land within the ceiling limit only and the land within the ceiling limit can be dealt with and transferred by him without requiring any permission under section 27 (1) of the Act but a question would still remain whether such transfer of the land is within the ceiling limit of the transferor and whether it would affect the permissble holding of the purchaser. With a view to see that the provisions of the Act and the Rules are not breached this direction is issued by the Central Government. The central Government is competent to issue such directions under section 36 of the Act and the State Government is bound to comply with the same. With a view to see that the provisions of the Act and the Rules are not breached this direction is issued by the Central Government. The central Government is competent to issue such directions under section 36 of the Act and the State Government is bound to comply with the same. In compliance with the directions of the Central Government the State Government had issued directions to the registering authority to insist on the proforma declaration. This is perfectly legitimate and within the powers of the authorities. ( 7 ) A similar question had arisen in the case of C. M. Joshi vs. Government of India and others in Special Civil Application No. 2939 of 1985 decided on 21. 8. 1986 and a similar contention of the petitioner was negatived and it was held that under section 36 of the Act the Central Government is entitled to give such directions for insisting on the form for verification as to whether transferor is transferring excess vacant land or whether transferee after transfer of the land acquired excess vacant land and such directions can. not be said to have been imposing any constraints on transfer. The form only seeks information with regard to the holding of the land by the transferor and transferee. I am in respectful agreement with the same. In view of the aforesaid discussion this petition fails and is dismissed. Rule discharged. No order as to costs. Petition Dismissed. .