STATE OF UTTAR PRADESH Vs. JAINTI PRASAD

JUDGEMENT

(1.) This petition arises out of the Urban Land (Ceiling and Regulation) Act, 1976. A very short controversy in involved is this petition. The Petitioner is the State. The respondent No. 1, Jainti Prasad holds land in Dehradun. The proceedings against him under the Urban Land (Ceiling and Regulation) Act have been going on and draft statement under Section 8 (3) had been admittedly issued to him. It is not disputed that till so far no notification has been issued in his case under Section 10 (1) of the Act. The said respondent No. 1 applied for permission to sell 526. 37 sq. metres of the land held by him. This permission was purported to be applied for under Section 27 of the Act. This permission was refused by the competent authority by its order dated 6-2-1979, a true copy of which is Annexure I to the petition. Feeling aggrieved, respondent No. 1 filed an appeal under Section 33 of the Act before the appellate authority. The appeal was allowed by the appellate authority by its order dated 2-7-1979, a true copy of which is Annexure II to the petition. A certified copy of the said order is also on the record. Feeling aggrieved, the State of Uttar Pradesh has come up in the instant petition and in their support I have heard the learned Standing Counsel and in opposition. Sri Ravi Kant, learned counsel for respondent No. 2 has made his statement. In my view, the impugned appellate order cannot be allowed to stand as it is in violation of Section 5 (3) of the Act. It should be seen that Section 27 has been clearly made subject to the provisions of sub section (3) of Section 5 and sub-section (4) to Section 10, Therefore, no permission could be granted under Section 27 in a case which is covered by Section 5 (3) of the Act. I have already stated above that it is clearly admitted that no notification under Section 10 (1) has been published as yet and that the draft statement has been issued to the said respondent No. 1 under Section 8 (3) of the Act. Therefore, it is a clear case where Section 5 (3) applies and no permission could be granted by the appellate authority. However, it must be made clear that in view of the Supreme Court pronouncement in Bhim Singh Ji v. Union of India A. I. R 1981 S. C. 234, if it is ultimately held that the land sold by the respondent No. 1 is within the ceiling area of the said respondent then the sale will not be affected because, in such an eventuality, really no permission would have been needed as laid down by the Supreme Court in the said ease. The sale will be valid not on account of the impugned permission granted by the appellate Court, but because no permission in law was needed for such a sale by a person effecting such a sale. However, if it is held to be a part of excess vacant land held by him immediately before the commencement of the Ceiling Act, then such a sale shall not be validated because of the impugned permission granted by the appellate authority. Such permission will be invalid in law. In the instant case only some vacant land was to be sold and no sale of any building or part thereof was involved. In my view, Section 27 is attracted only when the sale of land and a building or part thereof is involved. Section 27 will not be attracted where only vacant land un-accompanied by. any building or part thereof is sought to be transferred. In the result, this petition is allowed. The impugned appellate order passed by the appellate authority Annexure II is hereby quashed. There will be no order as to costs. .