ORDER
1. The petitioner holds a General Power of Attorney from one M. Krishna Rao and others who had entered into an agreement to purchase lands comprised in Survey Nos. 65, 66 and 67 of Amberpet village of Hyderabad. The said lands were originally owned by one Nagaiah, having purchased the same under registered sale deed dated 15th Adabi 1350 Fasli. One K. Rajaniailaiah sold 25,000 sq. yards out of the said land to one Dandu Pentaiah and Kalva Suryanarayana on 24-4-1355 Fasli. The land underwent several transactions and ultimately it is said to be held by Kalva Suryanarayana and his family, and Dandu Pentaiah’s sons. It is stated that there was some dispute with regard to the title to the said land which was set at rest by the judgment of the High Court in C.C.C.A. No. 85 of 1987 dated 28-7-1989, upholding the title of Kalva Suryanarayana and Dandu Pentaiah. Be that as it may, the petitioner divided the land into different plots for sale. The subject matter of this writ petition relates to 19 sale deeds which were executed by the petitioner in favour of various persons on 29-8-1989. They were presented for registration on 30-8-1989. Before presenting the sale deeds the petitioner gave notices of the proposed transfer under Section 26 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short “the Act) to the 1st respondent on 20-11-81. Stating that the permission for the said transfer was deemed to have been granted undersub-s. (2) of S. 26 of
the Act, he presented the sale deeds for registration in the office of the 2nd respondent. By impugned memo dated 18-9-1989 the 2nd respondent informed that such acknowledgments under Sec. 26 of the Act were cancelled and instructions have been received from the Urban Land Ceiling Authority not to register the documents, and that the petitioner must seek permission under Section 26 afresh for taking further action. The petitioner prays for a writ of Mandamus declaring the said Memo as illegal and directing the 2nd respondent to register the sale-deeds specified in the schedule to the petition.
2. The 1st respondent filed a counter-affidavit staling that one Nagaiah was the Pattedar of the land of an extent of Ac. 4-29 Gts. (22, 849 sq. yards) in Survey Nos. 65 and 66 of Amberpet village till 1981. In 1981 the Tahsildar, Musheerabad effected mutation in favour of 21-persons who are the sons and grandsons of late Dandu Pentaiah and Kalva Suryanarayana, But later the mutation was cancelled by the Revenue Divisional Officer. Having regard to the subsequent transfers that had taken place between different persons, the holdings of the owners in respect of S.Nos. 65 and 66 to the extent of shares of Kalva Suryanarayana and his sons as on 1976 are as follows:–
1.
S Sri Kalva
Suryanarayana
: 476 + 2858 + 2858 =
6192.00 Sq,
2,
” Kalva Damodar Rao
:476 + 571= 1047.00
” (1/5th share in 2858)
3.
” Kalva Ashok Kumar
:476 = 571= 1047.00 ”
4.
” Kalva,Vijaya
Kumar
:476 = 571= 1047.00 ”
5.
” Kalva VidyaSagar
:476 = 571= 1047.00 ”
6.
" Kalva Prakash Rao :476 = 571= 1047.00 " The holdings of the heirs of Dandu Pentaiah are as follows : 1. Smt. Dandu Rukminamma. w. o. Dandu Pentaiah. : 1 8th i. e., 2858 Sq. yds 2. Sri Dandu Balakrishna Murty, Dandu Annapurnamma, w o. Balakrishna Murthy, Dandu Sriniyas. : 18th i. e., 2858 " 3. Dandu Mohan Rao & family. : 1 8th i.e., 2858 " 4- Dandu Venkateshwara Rao and family : 18th i.e., 2858 "
It is stated that Kalva Suryanarayana was alive on the date of commencement of the Act. He died in 1978. The settlement deed filed by them reveals that the said Kalva Suryanarayana and his sons were members of a joint family till 17-11-1953, therefore whatever properties were acquired by him thereafter, will be his personal properties in which his sons will have no share. The declaration filed by Kalva Suryanarayana and his sons and those filed by Dandu Balakrishna Murty and others in respect of the said land (Survey Nos. 65 and 66) are pending. It is stated that notices under Section 26 of the Act given by Kalva Damodar Rao and 20 others in respect of land in Survey Nos. 65 and 66 situated at Amberpet village, were received by the office of the 2nd respondent in 1981. Subsequently the same were withdrawn on 5-3-1984 by
giving intimation to the persons giving notice, on the basis of the report of the Collector in Lr. No. Fl/19403/76, dated 28-1-1984. The District Registrar also was intimated not to register the land on the basis of the acknowledgment of the notice given in 1981. It is further stated that the acknowledgments were issued earlier on false affidavits filed by the petitioner and also on the basis of mutation sanctioned by the Tahsildar. It is also stated that the declaration filed by Kalva Surya-narayana and Kalva Damodar Rao are pending. The declarations are yet to be finalised under the Act. Therefore, placing reliance on the acknowledgments, the petitioner cannot have the safe deeds registered in favour of the purchasers. It is added that Section 26 of the Act has no application having regard to the facts and circumstances of the case. An extent of 22,869 sq. yards is sought to be divided into various plots, and all these steps are taken subsequent to the enforcement of the Act and that all the transfers are contrary to Sections 5(3) and 10 of the Act. A further plea is taken that the District Collector, Hyderabad ought to have been impleaded as a respondent to the writ petition.
3. The 2nd respondent in his counter-affidavit stated that the petitioner is claiming to be the General Power of Attorney Holder
of M. Krishna Rao and Basava Raju and in that capacity he presented 19 sale deeds on 29th and 30th of August, 1989. and that they were assigned Nos. P.204 to P.212 and the documents are kept pending for want of clearance from the 1st respondent. The subject matter of the sale deeds, it is stated, is the vacant land situate within the urban agglomeration limits. The petitioner has to produce necessary permission or acknowledgment under Section 26 of the Act. A memo (No. 507 89) dated 19-9-1989 was issued to the petitioner. The 1st respondent in his letter No. C3 935. 84, dated 28-2-1984 issued instructions not to register the land on the basis of acknowledgment said to have been issued earlier under Sec. 26 of the Act. It is stated that the 2nd respondent was informed that the earlier acknowledgments and proceedings under Sec. 26 issued in favour of the petitioner with regard to the land in question were cancelled on the ground that the acknowledgments were issued under mistake. As the 2nd respondent is bound by the instructions issued by the Government of Andhra Pradesh and the Chief Controlling Authority under the Indian Stamp Act and the Registration Act, he had to verify whether the sale deeds were in accordance with law and whether the transaction, subject matter of the deeds, is permitted by the provisions of the
Act. It is further stated that the extent of the land covered by all the 19 sale deeds is about 5295.55 Sq. metres. As the petitioner is bound to obtain necessary permission, he was required to approach the 1st respondent for this purpose. The sale deeds were received on presentation as the 2nd respondent could not have refused to receive the same, and they were assigned, pending registration, numbers and the same would be released subject to and in accordance with the instructions that may be issued by the 1 st respondent with regard to the clearance under the provisions of the Act. It is further stated in the counter-affidavit that the documents were not kept pending in view of any title dispute, but were kept pending and were not released for want of clearance from the 1st respondent.
4. The petitioner filed a reply affidavit denying the allegations in the coumer-affidavits and reiterated the facts stated in the affidavit.
5. Sri G. Anjappa, the learned counsel for the petitioner submits that once notice under Sec. 26 of the Act is given and the period fixed therein has expired, the permission is deemed to have been granted and the Registrar is bound to register the same. He further submits that the impugned memo purporting to cancel the acknowledgment has no meaning; acknowledgment of notices is a fact which has taken place and the same cannot be cancelled. In any event, submits the learned counsel, the proposed transfer of the land in each case is less than the ceiling limits, therefore on the analogy of Sec. 27, no permission is in fact required.
6. The learned Government Pleader, on the other hand, submits that section 26 is not applicable to this case; as the landholders filed declarations under Sec. 6 of the Act, having regard to the provisions of Sec. 5(3) and S. 10(4) of the Act, all the transfers in respect of the said lands are null and void and therefore the petitioner cannot seek a writ of Mandamus for registering the sale deeds.
7. To appreciate the rival contentions of the learned counsel on both sides, it would be useful to bear in mind the scheme of the Act in
so far as it is relevant for purposes of determination of the points raised herein. Section 4 of the Act prescribes the ceiling limit which a person is permitted to hold under the Act. According to the prescribed ceiling persons can be classified into four categories (1) persons holding vacant land within the ceiling limit, (2) persons holding vacant land beyond the ceiling limit, (3) persons holding dwelling unit and land appurtenant thereto within the ceiling limit, and (4) persons holding dwelling unit and vacant land above the ceiling limit. Section 6 of the Act requires that every person holding vacant land in excess of the ceiling limit at the commencement of the Act shall, within such period as may be prescribed file a statement before the competent authority having jurisdiction. Persons falling under Categories 2 and 4 (viz., persons holding, vacant land beyond the ceiling limit and persons holding dwelling unit and vacant land: above the ceiling limit) have to file statement, of their holdings of vacant land. The question here relates to transfer of vacant land. Section 26 regulates transfer of vacant land falling in the 1st category (persons holding vacant land within the ceiling limit). Section 26 provides that notwithstanding anything contained in, any other law for the time being in force, no; person holding vacant land within the ceiling; limit shall transfer such land by way of-sale, mortgage, gift, lease or otherwise except after giving notice in writing of the intended transfer to the competent authority. The competent authority is given first option to purchase such land on behalf of the State Government at a price calculated in accordance with the provisions of the Land Acquisition Act, 1894, or of any other corresponding law for the time being in force. A time limit of 60 days is prescribed to exercise such option, from the date of receipt of the notice. If within, the 60 days from the date of receipt of notice the option is not exercised, the deeming provision contained in sub-section (2) of S. 261 comes into operation. The consequence would be that it would be lawful for such person to transfer such land to whomsoever he may like. Section 27 as it stood on the date1 of application of the Act. requires that no person shall transfer by way of sale, mortgage, gift, lease for a period exceeding ten
years or otherwise, any urbanisable^land with any building (whether constructed before or after the commencement of the Act) or a portion thereof for a period of ten years’of such commencement or from the date on which the building is constructed whichever is .later, except with the previous permission in writing of the competent authority. This subsection (sub-sec. (1) of Sec. 27) is held to be invalid by the Supreme Court in Bhimsinghji v- Union of India, in so far as it imposed a restriction on transfer of any -urban or urbanisable land with a building or a portion only of such building, which is within the ceiling area. The result is, such dwelling unit with appurtenant land within the ceiling limit can be transferred without any restriction. In so far ‘as the transfer of the vacant land in the remaining two categories is concerned, viz., categories 2 and. 4 mentioned above, in respect of which declaration under Section 6 is filed, there is a prohibition on its ‘transfer. That is dealt with in sub-section (3) ;of Sec. 5 and sub-section (4) Sec. 10. It would : be apt to read these provisions here:
“5. Transfer of vacant land :–
(1)and (2) xx xx xx xx
(3) In any State to which this Act applies in the first instance and in any State which adopts this Act under clause (1) of Art. 252 of the Constitution, no person holding vacant land in excess of the ceiling limit immediately before the commencement of this Act shall transfer any such land or part thereof by Way of sale, mortgage, gift, lease or otherwise until he has furnished a statement under Section 6 and a notification regarding the excess of vacant land held by him has been published under sub-section (1) of Section 10; and such transfer made in contravention of this provision snail be deemed to be null and void.”
“Sec. 10. Acquisition of vacant land in excess of ceiling limit:-
(l)to (3) xx xx xx xx
(4) During’ the period commencing on the date of publication of the notification under sub-sec. (1) and ending with the date specified in the declaration made under sub-sec. (3) –
(i) no person shall transfer by way of sale. mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and
(ii) no person shall alter or cause to be altered the use of such excess vacant land.”
8. A combined reading of these two sections shows that after the filing of the. declaration under Section 6 and before a notification regarding the excess vacant land held by the declarant is published under subsection (1) of Sec. 10, no portion of the land which is the subject matter of the declaration filed1 under Sec. 6 can be transferred in excess of the ceiling limit.1 Further transfer of this land is -also ‘prohibited during the period commencing dnlhe’date of publication of the notification under sub-sec. (1) of Sec. 10 and ending with the date specified in the declaration made under sub-sec. (3). It is further declared in the said provisions that any transfer in contravention of the said pro\i-sions of the Act shall be deemed to be null and void.
9. From the above discussion what follows is: — ( 1) A person holding a dwelling unit and land appurtenant thereto within the ceiling limit, may transfer the same without seeking permission under Section 27 of the Act;
(2) Any person who is holding vacant land within the ceiling limit may transfer the same after giving notice under Section 26 of the Act, unless within sixty days of the date of receipt of the notice the competent authority exercising the option, purchases the same.
(3) The vacant land which is included in the. declaration and which is pending determination under Sec. 10 cannot be transferred] during the period commencing from the date; of the Act and ending with the date specified in the declaration issued under sub-section ( 3)’ of Sec. 1ft
(4) Any transfer during the said prohibited period is null and void.
10. In the case the petitioner was having land in excess of the ceiling limit. Number of ‘transfers ihave taken place during the period commencing from the date of the enforcement of the Act. Proceedings under Section 10 have not been finalised so far. Under the sale-deeds now presented before the 2nd respondent the petitioner intends to transfer different extents of land within the ceiling limit in favour of different persons. As stated above, the land which is the subject matter of statement filed under Section 6 cannot be transferred by way of sale, mortgage, gift, etc. and such a transfer is null and void.
11. It is no doubt true that after the acknowledgment of receipt of notice mider ISec. 26 is given by the competent, authority, ‘the question of withdrawing or cancelling the acknowledgment is somewhat misconceived. Acknowledgment means admission of receipt of notice which, is a fact which had happened. The same cannot be cancelled by the auth-ority receiving the notice under Sec. 26 of the ‘Act. Section 26 is attracted when the person proposing to transfer the land holds the vacant land within the ceiling limit. If a person holds land more than the ceiling limit. Section 26 is not attracted. Here the total extent of land which is sought to be transferred under all the sale-deeds presented before the 2nd respondent is itself more than the ceiling limit (5295.55 Sq. metres). Therefore, giving notices under Sec. 26 and the impugned cancellation of their acknowledgement are immaterial and irrelevant. The reason given by the respondent in the impug-ned order is wholly misconceived and untenable,
12. But declaring the impugned order misconceived and arbitrary by itself will not solve the problem of the petitioner. He seeks a direction from this Court to the 2nd respondent to register the sale-deeds presented by him. To give such a direction would amount to compelling a statutory authority to perpetuate an illegality viz., to register documents which record transactions declared to be null and void by the provisions of the Act. It is w:ell settled that writs are issued by the Courts to give effect to the statutory provisions, not to
defeat the provisions of any statute. In this view of the matter, the direction prayed for which results in perpetuating the illegality by registering a document declared to be null and void by the Act cannot be issued.
13. The learned counsel for the petitioner relying on the averments in the counter-affidavit submits that the documents have been rccisteied and, therefore, they may be directed to be returned. The averments made in the counter-affidavit of the 2nd respondent read thus:
“The documents were assigned the numbers p. 204 to p. 212 and the documents are kept pending for want of clearance from the first respondent. The subject matter of the sale-deeds is the vacant land situated within the Urban Agglomeration limits.”
It is also stated’in the counter affidavit:–
“Sufficed to submit that the documents were not kept pending in view of any title dispute as being suggested by the petitioner, the documents were kept pending and not released for want of clearance from the first respondent.”
From the averments extracted above, what appears is that the documents have been received, assigned a number and kept pending for want of clarification. The Sub Registrar (2nd respondent) does not say that the documents have been registered. Indeed he could not have said so in view of the impugned order directing the respondent to seek permission under Sec. 26. The petitioner is at liberty to take back the unregistered documents which were presented by him before the 2nd respondent.
14. Sri Anjappa further submits that though declaration was filed within the prescribed time in 1977, and more than 13 years have elapsed, no action has been taken by the respondents till now, consequently the petitioner is deprived of dealing with his own property, as such the petitioner may be declared entitled to transfer the land in question. As there is no deeming provision; either in sub-section (3) of Sec. 5 or in sub-sec (4) of Sec. 10 entitling the declarants to deal with the vacant land in the event of non-‘
determination of excess land on the declarations filed under Sec. 6 within a specified time, the petitioner cannot be held entitled to transfer dispose of the land. It cannot be disputed that keeping the cases pending for indefinite and long period does cause great hardship and prejudice to the declarants. The 1st respondent/ought to have finalised the case within a reasonable time in the absence of any justification for keeping the proceedings pending for about 13 years. However, the 1st respondent is directed to dispose of the case, pass appropriate orders on the declaration after hearing the declarants in accordance jwith law, within a period of three months from the date of receipt of the order. It is needless to observe that it would be open to the petitioner declarants to raise all such contentions as are open to him in law, before the 1st respondent in the declaration proceedings.
15. The writ petition is accordingly dismissed with the above observations. No costs. Advocate’s fee Rs. 250/-
16. Petition dismissed.