M. PRABHAKARA RAO Vs. THE SUB

JUDGEMENT

(1.) One B. Rajaiah and others were the original owners of vacant land bearing Survey Nos. 3, 4, 5 and 14 of Yousufguda village, admeasuring 21,847.08 Sq. mtrs. and situated in Urban Agglomeration of Hyderabad. No such vacant land falling under the Urban Land (Ceiling and Regulation) Act, 1976, could be sold without giving a first option to the Government to buy under Sec. 26 of that Act. Of course, Sec. 26 will apply only to these vacant lands within the ceiling limits fixed for permissible holdings. The said Rajaiah on the basis that his holding was within those limits gave notice under Sec. 26 to the Competent Authority in the year 1978 proposing to sell that land. Under Sec. 26 of the Act, where a notice is given for the transfer of the land by way of sale etc., and the competent authority does not exercise within a period 60 days from the date of that notice its option to purchase that land, it is presumed that the Competent Authority has no intention to purchase the land. The Sec. makes it lawful for the owner of the land to transfer to whomsoever he may like, in this case, the Competent Authority did not give any reply to the notice given by Sri Rajaiah and others in the year 1978. Rajaiah and others had exercise their rights under Sec. 26 and sold 12,140 Sq. mtrs. of vacant land to Satya Sai Baba Co-operative Society under a registered sale deed dated 11-1-1979. That society in its turn sold five years thereafter on 24th Jan., 1984, 167.20 Sq. meters to one Narasimha. The very next year on 21st June, 1985, that Narasimha sold the said land to the present petitioner under another registered deed. The sales by the society and Narasimha are not shown to be inconsistent with the provisions of Sec. 26 of the Urban Land (Ceiling and Regulation) Act, 1976. Now the petitioner proposes to sell that land to one Nirmala. The petitioner has given a notice to the competent authority under Sec. 26 (1) on 3-7-1986. Within sixty days period the competent authority did not respond to that notice. In terms of Sec. 26 and according to the prevailing rule of law the petitioner should be free to sell that land to Nirmala or any one else of his choice But on 15-10-1986 the Competent Authority refused permission to the petitioner to sell this 167.20 sq. meters to Nirmala. That order of the Competent Authority is not an act at law. Vinograd off would not call it so. It is merely a disregard physical act. Yet the petitioner feels helpless to disregard it. He has, therefore, been forced to question legality of that illegal order in the present writ petition.

(2.) The justification of the authorities for refusal of its permission for sale of the petitioner's property is that Rajaiah and others who are the original owners of the land, of which the present land was a part and which was sold to the Satya Sai Baba Co-operative Society in the year 1979, were discovered to have been in possession and ownership of excess vacant land. Rajaih's sale should therefore, be held contrary to Sec. 5 sub-section 3 and should be ignored as void. The consequence of such a finding would be to enable to acquire the land of Rajaiah in the hands of the petitioner. Sec. 5 sub-Sec. (3) reads thus:-

(3.) For the application of this sub-section (3) of Sec. 5, it must be established that Rajaiah and others who are the owners of this land were holding an extent of vacant land in excess of the ceiling limit. Rajaiah's application under Sec. 26 was in refutation of such assumption. But the argument is that this fact was not noticed when Rajaiah applied under Sec. 26 for permission to sell part of the land to the Satya Sai Baba Co-operative Society. Nor was it noticed later. It is as a result of this repeated bouts of myopia of the officials the axe of the Act falls on the innocent and unsuspecting petitioner. After the society has purchased that land, it has changed hands more than once. If the Act had been enforced against Rajaiah as the Act expected no one could have been heard to complain against such operation of Act which was placed in the 9th Schedule to the Constitution. But the question is whether in the facts and circumstances of this case when the land had changed so many hands either with the concurrence or connivance of the State officials should enforce that Act against an innocent third party And would not such enforcement be considered as not only unjust but also unwarranted by the Act To enforce the Act against the petitioner would be undoubtedly disastrous for several innocent transferees who acted on the basis of Government's failure to act in time. No doubt, the law says that there cannot be any estopple against a statute and the officer who acts ultra vires of his power is not competent to represent the State. But this abstract theory of law must be softened to some degree by considerations of equity mixed with it subject to which alone a statute to the last should be read. I, therefore, read the Act as sanctioning enforcement only against the original owners and not against innocent parties. If the Government has enforced this Act properly, the excess land would have been acquired by the Government from Rajaiah on whom alone the burden of the Act should fall. That is what the Act contemplated. When the statute provides for a method of enforcement, it is not open for the executive to resort to some other method of enforcement. Mandir Sita Ram's case, AIR 1974 SC 1868 is an authority for this. Under the provisions of the Act, the Government ought to have acquired excess vacant land from Rajaiah. Under Sec. 86(1) the Government ought to have prevented illegal transfers of urban vacant land. That is the scheme, scope and intention of the Act. Thus alons the non-convincing and innocent third parties will not fall a prey to the indifference of the executive and to the intrigues of the scheming parties. But, now, the Government by its failure is shifting the incidence of the Act from the shoulders of the original owner to his vendee's vendees. That way the whole scheme of the Act would be turned upside down. Such can never be the process that the Act could have sanctioned. Such an operation of the Act, believe, cannot be with in the contemplation of the statute. There is some support found for this view in the language of the Act itself. The alienation contrary to Sec. 5 to 13 is not declared by the Act "null and void" The Act mere declares such alienation should be "deemed to be null and void". From the use of the words 'deemed to be null and void" the Act warns its interpreter to be beware of the fictional nature of that clause. It then becomes the duty of the interpreting Court to seek the purpose of the fiction. From the use of the above fiction its purpose can be said to be not to intend the alienation in the hands of the innocent third parties to be void and that it should be treated void only in relation to the offending original owner. It is reasonable, on the basis of above language, to exclude the operation of the Act against the innocent transferee on the reasonable assumption that it is not part of the Legislative intent. It must be taken that it is for this reason that the statute does not say that the transfer is "null and void" When a Statute creates a fiction by a deeming clause, question must be asked for what purpose the fiction is created. The fiction is created only to save the innocent third parties, Rajaiah is the only person against whom the Act can be put into operation. In the circumstances of this case, it would be wholly unjust to make vendee's vendee like the petitioner a wholly innocent party to bear the entire brunt of the Act. Of several vendees of Rajaiah's land he alone is chosen for the purposes of the Act. There is no provision in the Act providing for equitable distribution of the burden of the Act among all the vendees. That way the Act in its impact would be selective and therefore discriminatory. That cannot be the legislatively intended mode of operation of the statute. I, therefore, hold the Urban Land (Ceiling & Regulation) Act, 1976 cannot be enforced in this case against the petitioner. No selective enforcement can be held to have been intended by the Act. For those reasons, direct the first respondent to receive and register the sale deed on execution and presentation of the same by the petitioner in respect of his plot No. 22 admeasuring 167, 20 sq. meters and situated in survey numbers 3, 4, 5 and 14, ward No. 18 block No. 3, Yousufguda, Hyderabad in favour of Smt. Nirmala, wife of Srinivas Rao, within two days from its date of presentation, provided it is otherwise in accordance with law.