Arun Tandon and Dilip Gupta, JJ.
1. This writ petition has been filed by one Ritesh Tewari in his personal capacity as well as in his capacity as proprietor of M/s. Ganpati Builders for the following reliefs:
(i) to issue a suitable writ, order or direction in the nature of mandamus directing the respondents not to interfere in the actual physical peaceful possession and construction of the petitioners' multi storied building known as 'Ganpati Green Apartment' situated at khasra plot No. 258, Village Kakraltha, tehsil Sadar, district Agra;
(ii) to issue a suitable writ, order or direction in the nature of certiorari and to quash the directions contained in the letters dated 30.6.2008 and 18.7.2008 (Annexures-19 and 20 to the writ petition;
(iii) to issue suitable writ, order or direction constituting an enquiry committee to enquire into the role of and to fix responsibility on the erring respondents for the illegal and undue harassment of the petitioners in respect of the construction in question as also for the publication of the press reports dated 26.8.2008 (Annexure-21 to the writ petition) damaging irredeemably the business, reputation as well as goodwill of the petitioners and to direct such authority found responsible for the said illegal acts to compensate the petitioners for the aforesaid damage caused to their business, reputation and goodwill.
2. The basic averments made in support of the aforesaid reliefs in the writ petition are that the petitioners have purchased 3440.50 sq. yards, i.e., 2876.64 sq. meters of land of khasra plot No. 258 from M/s. Savy Homes (P.) Ltd., through a registered sale deed dated 15.6.2006. The petitioners have thus become sole and exclusive owner of the said area of khasra plot No. 258. They applied for sanction of a plan to construct a multi storied building on the land. The Agra Development Authority vide letter dated 10.1.2007 raised a demand of Rs. 23,19,956 towards statutory charges for sanctioning the building plan as well as for compounding the construction already raised. The amount is stated to have been deposited by the petitioners on 10.1.2007. The Agra Development Authority vide letter dated 7.12.2007 made a further demand of Rs. 25,10,466 towards compounding of the unauthorised construction raised by the writ petitioners within seven days alongwith certain conditions mentioned therein. The petitioners is stated to have deposited the said amount on 10.12.2007. At this stage the petitioners were informed of the orders dated 30.6.2008 and 18.7.2008 (Annexures-19 and 20 to the writ petition), whereby the Sub-Divisional Magistrate had informed the Additional District Magistrate (Admn.)/Competent Authority, Urban Land Ceiling, Agra that the petitioners have raised constructions on a portion of the land which is vested in the State Government after ceiling proceedings were initiated under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act of 1976) against the recorded tenure holder. Therefore, the map, if any, sanctioned by the Agra Development Authority be directed to be cancelled and appropriate action be taken for restoring the possession to the State Government. On the said report, the A.D.M. (Admn.)/Competent Authority, Urban Land Ceiling, Agra has called upon the S.D.M. to take appropriate action in respect of the construction raised by the petitioners.
3. Counsel for the petitioner with reference to the record of the present writ petition, submits that proceedings under the Land Ceiling Act were initiated against the recorded tenure holders under the Act of 1976. On the basis of the statement filed by the recorded tenure holder an order dated 30.3.1981 in Case No. 5274/4787/ 76-77. State v. Rama was passed by the competent authority declaring amongst other 9006 sq. yard of land of khasra plot No. 258 as surplus. The order was not challenged any further by the recorded tenure holders.
4. The entire khasra plot No. 258 was transferred by way of sale by the recorded tenure holder in favour of Mayur Sahkari Awas Samiti vide registered sale deed dated 20.4.1982. The purchaser Mayur Sahkari Awas Samiti carved out various plots of different sizes and allotted the same to its members through various sale deeds. Large number of such members of Mayur Sahkari Awas Samiti in turn executed a sale deed of their plots in favour of M/s. Savy Homes (P.) Ltd. and M/s. Savy Homes (P.) Ltd. in turn have sold the above mentioned land in favour of the writ petitioners vide registered sale deed dated 15.6.2006. Petitioners alleged that the proceedings initiated against the recorded tenure holder under the Act of 1976 were illegal and without jurisdiciton. The order dated 30.3.1981 was an ex parte order. In the alternative they have contended that actual physical possession of the surplus land in terms of the order dated 30.3.1981 has not been taken and, therefore, with the issuance of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as the Repeal Act) the proceedings under the Act of 1976 stand abated and the recorded tenure holder and consequently the subsequent purchasers become lawful owners entitle to retain the possession of the land transferred in their favour. It is, therefore, submitted that the aforesaid two orders be quashed and the other reliefs qua restraining the respondents from interfering in the actual possession and the construction raised thereon be granted.
5. The writ petition is opposed by Smt. Archana Srivastava learned standing counsel and it is contended that from the facts as they stand on record, admittedly an order referable to Section 8(4) of the Act of 1976 was issued against the recorded tenure holder declaring the land in question as surplus on 30.3.1981, the order has been permitted to become final inasmuch as no appeal was filed against the said order as provided under the Act of 1976 nor the order was challenged before any court of law. Proceedings under Section 10(1) and 10(3) were taken in respect of the land in question. Alongwith the counter-affidavit details of notices dated 13.9.1993, 18.9.1984 and 31.3.1993 under Section 10(3) and 10(5) of the Act have been referred to. Copy of the notice under Section 10(5) of 1976 Act has been brought on record which in turn refer to the notification issued under Section 10(3) bearing No. 943/5274/4287 dated 31.7.1993 (Annexure-CA2 to the present writ petition) as well as dated 16.10.1993. She therefore, submits that in the facts of the present case it is admitted that the transfer by way of sale has been effected subsequent to the order dated 30.3.1981 and such sale is null and void in view of the provisions contained in Section 5 and Section 10 of the Act of 1976. Petitioners therefore, have no legal right to claim relief on the basis of such void sale deed over the land by means of the present writ petition nor the proceedings initiated under the Act of 1976 against the recorded tenure holder can be permitted to be questioned by them. She vehemently contends that in cases the writ court entertains the writ petition and the reliefs prayed for are granted, it will amount to recognition of transfer by sale which stand declared null and void by operation of law as per the provision of the Act of 1976 on the date of transfer. She, therefore, submits that this writ court may not interfere at the behest of the petitioner who claims title on the basis of null and void sale deed over the land in question.
6. We have heard learned Counsel for the parties and have gone through the records of the present writ petition.
7. Following facts emerge from the record : Proceedings were initiated against the recorded tenure holder of Khasra Plot No. 258 under the Act of 1976 which resulted in an order under Section 8(4) of the Act of 1976 dated 30.3.1981. The recorded tenure holder was declared to be in possession of surplus land which amongst other included 5 bighas and 14 biswas of plot No. 258. The order further records that the notification under Section 10(1) is being forwarded in terms of the said Act of 1976 for publication in the official' Gazette. It is at this stage of the proceedings that the recorded tenure holder is stated to have sold the entire Khasra Plot No. 258 including the land declared surplus in favour of Mayur Sahkari Awas Samiti on 20.4.1982. The writ petition as well as the counter-affidavit do not disclose the date of publication of the notification under Section 10(1). On record of the counter-affidavit are notices in writing dated 31.3.1993, 24.9.1993 and 18.2.1994 issued under Section 10(5) of the Act of 1976, photostat copy of the same are enclosed as Annexure-2 to the counter-affidavit filed on behalf of the State respondents through Kumar Chandra Jawaliya, Tehsil Sadar, District Agra. The aforesaid notices make specific mentions of the particulars of the notification published under Section 10(3) as noticed above. The date of the said notifications is mentioned as 31.7.1993, 6.7.1993 and 13.3.1993 respectively.
8. From the aforesaid it is apparently clear that the transfer of the land which was subject-matter of proceedings under Section 8(4) of the Act of 1976 has been effected by the recorded tenure holder subsequent to an order being passed under the Act of 1976. Since specific particulars qua the number and the date on which notification under Section 10(1) had not been stated yet with reference to the date of that notification under Section 10(3) and notice under Section 10(5) noticed above, it can be safely presumed that notification under Section 10(1) must have preceded the aforesaid notification under Section 10(3) and notice under Section 10(5) inasmuch as all lawful acts are deemed to have been done in accordance with law by the authority coricerned unless established otherwise. We can, therefore, safely record that notification under Section 10(1) had been issued before taking steps in terms of Section 10(3) and 10(5) of the Act. It is worth mentioning that it is not the case of the writ petitioners that prior to issuance of notification under Section 10(3) and notice under Section 10(5), the required notification under Section 10(1) had not been issued.
9. In view of the aforesaid conclusion, two situations may arise (a) either notification under Section 10(1) was issued prior to the execution of sale deed by the recorded tenure holder in favour of Mayur Sahkari Awas Samiti, i.e., 20.4.1982 (b) or the notification under Section 10(1) was issued subsequent to the date of sale, Le., 20.4.1982. We are of the considered opinion that in both the circumstances the sale deed effected by the recorded tenure holder in favour of Mayur Sahkari Awas Samiti stands declared null and void in view of the provisions of Section 5(3) in the first case and in view of the Section 10(4) of the Act in the second case as would be clear from the following. Section 5 of the Act of 1976 reads as follows:
5. Transfer of vacant land.-- (1) In any State to which this Act applies in the first instance, where any person who had held vacant land in excess of the ceiling limit at any time during the period commencing on the appointed day and ending with the commencement of this Act, has transferred such land or part thereof by way of sale, mortgage, gift, lease or otherwise, the extent of the land so transferred shall also be taken into account in calculating the extent of vacant land held by such person and the excess vacant land in relation to such person shall, for the purposes of this Chapter, be selected out of the vacant land held by him after such transfer and in case the entire excess vacant land cannot be so selected, the balance, or where no vacant land is held by him after the transfer, the entire excess vacant land, shall be selected out of the vacant land held by the transferee:
Provided that where such person has transferred his vacant land to more than one person, the balance, or as the case may be, the entire excess vacant land aforesaid, shall be selected out of the vacant land held by each of the transferees in the same proportion as the area of the vacant land transferred to him bears to be total area of the land transferred to all the transferees.
(2) Where any excess vacant. land is selected out of the vacant land transferred under Sub-section (1), the transfer of the excess vacant land so selected shall be deemed to be null and void.
(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 Article 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 vacant land held by him has been published under Sub-section (1) of Section 10 and any such transfer made in contravention of this provision shall be deemed to be null and void.
10. Section 5(3) provides that any transfer of land or part thereof effected by a recorded tenure holder having land in excess of the ceiling limit subsequent to the commencement of Act of 1976 by way of sale, mortgage or lease until he has furnished a statement under Section 6 and a notification under Section 10(1) has been published would be deemed to be null and void. Therefore, if in the facts of the present case notification under Section 10(1) had not been issued qua the excess land held by the recorded tenure holder on the date of transfer, i.e., 20.4.1982 then such transfer of land would be deemed to be null and void as per Section 5(3).
11. We may now consider the alternative case, Le., if the notification under Section 10(1) had been issued prior to the date of sale, i.e., 20.4.1982. Reference be had to Section 10(4) which reads as follows:
10. Acquisition of vacant land in excess of ceiling limit.:.
(4) During the period commencing on the date of publication of the notification under Sub-section (1) and ending with the date specified in the declaration made under Sub-section (3):
(i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in 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.
12. A bare reading of the same would establish that the transfer made by the recorded tenure holder during the period, starting from the date of publication of notification under Section 10(1) and ending with the issuance of declaration under Section 10(3) is rendered null and void. In the facts of the case declaration under Section 10(3) has taken place in 1993. Therefore, the date of sale would fall between issuance of Section 10(1) notification and Section 10(3) notification rendering the sale null and void in view of Section 10(4).
13. Therefore, in both the circumstances we have no hesitation to record that the transfer which have been effected by the recorded tenure holder in favour of Mayur Sahkari Awas Samiti on 20.4.1982 is deemed to be null and void by operation of law either under Section 5(3) or under Section 10(4) of the Act of 1976.
14. Since Mayur Sahkari Awas Samiti cannot claim any title on the basis of sale deed deemed to be null and void by operation of law, all subsequent purchaser of land of Khasra Plot No. 258 from Mayur Sahkari Awas Samiti cannot derive any title, Le., the members of Mayur Sahkari Awas Samiti, Savy Homes (P.) Ltd. as well as the petitioners on the strength of such sale.
15. We, therefore, hold that the learned standing counsel is legally justified in contending that the writ court may not recognise the title of the petitioners in respect of the land, the transfer by sale whereof is deemed under law to be null and void.
16. At this stage we may also deal with the contention raised on behalf of the writ petitioners that since the Act of 1976 has been repealed by means of Urban Land (Ceiling and Regulation) Repeal Act, 1999. the petitioners are entitled to the relief prayed as actual possession of the surplus land in question had not been taken under Section 10(6) by the State Government. Suffice is to refer to Section 6 of the General Clauses Act, 1897 which deals with the consequences which follow from the repeal of a Central Act. For ready reference Section 6 is being quoted herein below:
Effect of repeal--Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy In respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
17. From a reading of Section 6 of the General Clauses Act, 1897, it would be apparently clear that the Repeal Act will not revive anything not in force or existing at the time at which the repeal takes effect nor will it effect the previous operation of the enactment or anything suffered thereunder. It logically follows that if the transfer of the surplus land by the recorded tenure holder is deemed null and void by operation of law as was existing on the date of transfer then the Repeal Act will not infuse life in the said non est deed and nor will it affect the operation of the enactment in so far as it declares the said sale deed to be null and void. Consequently we arrive at a conclusion that the petitioner has no legal title over the land nor he can be permitted to question the order dated 30.3.1981, passed under the Act of 1976 against the recorded tenure holder after more than 25 years of the said order more so when he cannot represent the recorded tenure holder on the basis of a void sale deed.
18. We, therefore, uphold the contention raised on behalf of the State Government and hold that no relief can be granted to the writ petitioners in view of the transfer effected in their favour being deemed to be null and void by operation of law.
Writ petition lacks merit and is accordingly dismissed.
After the judgment was delivered in the open Court today, an oral request was made on behalf of the writ petitioner for a certificate being granted in terms of Article 134A of the Constitution of India that the case involves substantial question of law of general importance and needs to be decided by the Hon'ble Supreme Court.
In our opinion, no substantial question of law of public interest arises in the present case and, therefore, the certificate prayed for is refused.