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Hamsaraj Bokaria v. Government Of Tamil Nadu
Factual and Procedural Background
The petitioner sought issuance of a writ of certiorari and mandamus to quash proceedings No. A3/4878/79 and related Government Notifications dated 2.7.1982 (published 14.7.1982) and 29.7.1982 (published 11.8.1982) under the Tamil Nadu Urban Land Ceiling Act, 1978, and to remove the lands in question from the purview of that Act. The first respondent was the Government of Tamil Nadu, the second respondent the Assistant Commissioner of Urban Land Tax, Egmore, Madras, and the third respondent one Shanmugam. The original petitioner died and his legal representatives were impleaded as petitioners 2 to 6; a fourth respondent (a public institution) was impleaded later by order dated 16.10.1992.
The disputed property originally belonged to Thirunavukkarasu (d. 29.3.1967) and, according to the petitioner, devolved to his wife Rajagopalammal, son Shanmugasundaram (the third respondent) and daughter Kamakshi. The petitioner alleged various entitlements and made claims based on agreements and subsequent court proceedings.
Key prior proceedings: the third respondent entered sale agreements in 1971 and 1975 and executed an agreement dated 10.1.1974 with the petitioner for 3 grounds and 20 sq. ft. The petitioner filed Civil Suit No. 202 of 1974 seeking recovery of sums advanced (not specific performance) and later, by amendment and compromise on 24.9.1979, an alternative claim for specific performance as to a different survey number (R.S. No. 145 for 2 grounds and 450 sq. ft.) was added. A decree in terms of the compromise was passed by the court on 26.9.1979 and a sale deed was executed by the Assistant Registrar on 29.4.1981 and registered on 11.5.1981.
Meanwhile, the Urban Land (Ceiling and Regulation) Act came into force on 3.8.1976. Authorities under the Act initiated proceedings against the third respondent for excess vacant land, issued staged notices (first notice issued 17.10.1979 and served 8.11.1979), conducted enquiry (personal hearing posted 10.12.1980), and ultimately published a statement under S.10(1) declaring 10,255 sq. metres of excess vacant land (published in Gazette on 14.7.1982). The Government took possession on 21.10.1982 and later allotted portions (including three grounds in S. No. 145/4) to public institutions by G.O. Ms. No. 1728 dated 16.10.1984; possession to the fourth respondent was handed over on 13.1.1986 after payment.
The writ petition challenging the Notifications was filed on 2.5.1985 and admitted on 4.5.1985 with interim stay of operation of the impugned proceedings. Respondents filed counter affidavits; the Government produced file materials and reports asserting compliance with statutory formalities. The petition ultimately proceeded to hearing and judgment.
Legal Issues Presented
- Whether the proceedings under the Tamil Nadu Urban Land Ceiling Act, 1978 (the Act) and the consequent notifications are invalid as against the petitioner because the petitioner acquired rights through a decree and a sale deed (i.e., whether the doctrine of lis pendens or lack of notice to the purchaser/petitioner invalidates the Act proceedings).
- Whether S. 6 of the Act, which prohibits transfer of vacant land in excess of the ceiling limit after commencement of the Act, bars the decree and sale (including court-executed sale deeds) in favour of the petitioner and renders such transfers null and void.
- Whether the authorities failed to give requisite notices to all heirs (the wife and daughter of Thirunavukkarasu) and whether any defect in notice vitiates the proceedings.
- Whether the authorities incorrectly treated the estate as a single unit (instead of separate shares for each heir) and miscalculated the ceiling entitlements, thereby leading to an erroneous determination of excess land.
- Whether prior sales effected by the third respondent (in 1971 and 1975) were overlooked by the authorities in calculating the ceiling and whether such omission affects the validity of the Act proceedings.
Arguments of the Parties
Petitioner's Arguments
- The proceedings under the Act are null and void because there was no notice at any stage to the petitioner who had become a purchaser pursuant to a decree passed by this Court; the doctrine of lis pendens affects the proceedings.
- The authorities did not give notice to the wife and daughter of the deceased Thirunavukkarasu, who were entitled to shares, and thus the proceedings are defective.
- The authorities treated the estate as one unit and failed to consider that the estate devolved on three persons; the ceiling area should have been calculated separately for each heir by separate proceedings.
- The authorities miscalculated the extent of land held by the owners; had the mother’s and sister’s shares been considered separately, the third respondent would have had no excess (and the seven grounds previously sold would have reduced his holdings below the ceiling limit).
- The authorities failed to apply their mind to the sales effected by the third respondent in 1971 and 1975 (to Chockkalingam and Murugiah Chettiar) and there was total non-application of mind to relevant provisions of the Act.
Respondents' (Government and Authorities) Position and Other Parties
- Respondents 1 and 2 filed counter affidavits and produced file material showing notices and procedural steps under the Act; the authorities assert that notices were issued at every stage and were served (including on the third respondent and on the mother and sister), the enquiry proceeded in accordance with the Act, and a statement under S.10(1) was published and possession taken.
- The Government relied on the statutory scheme (notably S.6, S.23 and S.43 of the Act) to contend that transfers in contravention of S.6 are null and void and that the Act overrides other laws and agreements, including decrees.
- The fourth respondent (an allottee) contended—and the Court noted—that the land allotted to the fourth respondent (R.S. 145/4) is different from the land for which the petitioner obtained a decree; the petitioner did not implead the allottees and did not challenge the allotment in the writ petition.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Enayat Ullah v. Khalilullah, A.I.R. 1938 Allahabad 432 | Decree for specific performance declares a right to have transfer executed; until sale deed executed title remains with judgment-debtor; if judgment-debtor is precluded by law from transferring, the Court cannot execute a sale deed in violation of that provision. | The Court relied on this authority to reject the petitioner's contention that a sale in execution of a decree is outside the prohibition of S.6 of the Act; the Court held that where the owner is precluded from transferring the property by statute, the Court cannot execute a sale deed in violation of that statute. |
| Mrs. Christine Pais v. K. Ugappa Shetty and another, A.I.R. 1966 Mysore 299 | Sale by a Court under a decree for specific performance is not merely involuntary; it is a transfer by the Court on behalf of the judgment-debtor and has the characteristics of an inter vivos transfer. | The Court cited this case to support the conclusion that a court-executed sale in pursuance of specific performance is a transfer subject to statutory restrictions (i.e., can be caught within the prohibition in S.6). |
| Bai Dosabai v. Mathurdas Govinddas and others, A.I.R. 1980 S.C. 1334 | Events and changes in law occurring during pendency of proceedings must be taken into account; decrees must be moulded to give effect to law changes (including statutes like Urban Land Ceiling Acts). | The Court relied on this principle to support the approach that statutory prohibitions which came into force before the decree can prevent the grant/effect of specific performance contrary to the statutory scheme. |
| Mariamma Varghese v. K.V. Balasubramanian and others (A.S. 862 of 1981) & Mariamma Varghese v. The Commissioner of Land Reforms (1990 Writ L.R. 279) | Where the Urban Land Ceiling Act creates a legal impediment, specific performance may be refused; the language of S.6 is rigorous. | The Court referred to these decisions to show that a Division Bench refused specific performance where the Act created a bar, and to reinforce that S.6's prohibition prevents decrees or orders that would result in transfers inconsistent with the Act. |
| T.K. Singaran v. The Urban Land Ceiling Tribunal, Chepauk, Madras-5 and others (1992 Writ LR 389) | Section 43 of the Urban Land Ceiling Act gives the Act overriding effect over other laws, customs, agreements, decrees or orders; pending proceedings would have to cease to the extent the Act applies. | The Court quoted and applied this reasoning to hold that the Urban Land Ceiling Act must be given full play and that proceedings or decrees inconsistent with the Act's operation cannot prevail. |
| Maharao Saheb Shri Bhim Singhji Ananthalakshmi Pathabi Ramasharma Yeturi and others v. Union of India, A.I.R. 1981 S.C. 234 | Interpreted provisions of S.27 of the Central enactment; held that certain provisions seeking to affect the right to dispose of built-up urban land within ceiling area were invalid. | The Court stated this ruling was distinguishable and had no bearing on the present case because the admitted facts showed the third respondent had lands in excess of the ceiling limit. |
| Samuel Thyagaraja Kuar v. K. Sitarama Achar and others, A.I.R. 1977 Karnataka 158 | Held that an execution sale was not a transfer within the scope of S.27 (Urban Land Ceiling Act). | The Court held this case inapplicable because the present matter did not concern a sale in execution of a decree for money. |
| Pratap Narain Agrawal v. Ram Narain, 1981 All L.J. 591 | On facts, distribution of partnership assets on dissolution was not a 'transfer' within the meaning of the Urban Land Ceiling Act. | The Court observed this ruling was not helpful to the petitioner and inapplicable to the facts of the present case. |
| State v. Philip Mehrotra, 1980 All. L.J. 1034 | Considered permission to sell under S.27 of the Urban Land (Ceiling and Regulation) Act; held permission could be granted where land sought to be sold was within ceiling limit. | The Court found this authority irrelevant to the present facts and therefore not applicable. |
Court's Reasoning and Analysis
The Court's analysis proceeds by reference to the chronology of events, the statutory scheme of the Urban Land (Ceiling and Regulation) Act, 1978 (hereinafter "the Act"), and relevant precedents.
Key statutory provisions considered:
- S. 3(c) — commencement date of the Act (3.8.1976) (noted by the Court).
- S. 6 — prohibition on transfer of vacant land in excess of the ceiling limit immediately before commencement of the Act until statement furnished under S.7 and notification under S.11; any such transfer in contravention is deemed null and void.
- S. 23 — procedure where a building had been demolished or destroyed, converting land into vacant land and requiring a statement to the competent authority (the third respondent did not file any such statement).
- S. 43 — the Act's overriding effect over other laws, customs, agreements or decrees (the Court applied the principle that the Act must be given full play and inconsistent proceedings must yield to the Act).
Applying these provisions to the facts, the Court reasoned as follows:
- The Act was in force on 3.8.1976 and, as such, any transfer of vacant land in excess of the ceiling limit after that date was prohibited by S.6 and would be void.
- The petitioner obtained a decree for specific performance and a sale deed largely pursuant to a compromise and amendment that introduced R.S. No. 145 into the suit for the first time on 24.9.1979 — well after the Act's commencement. The original agreement related to R.S. No. 143/1 but the decree related to R.S. No. 145 by virtue of the compromise and amendment. The Court held that this substitution and the timing made the transaction vulnerable to the statutory prohibition.
- Even assuming arguendo that the original agreement had related to land now subject to the Act, the Court relied on precedent (Enayat Ullah and others) to conclude that a court-executed sale in pursuance of a decree effects a transfer of the judgment-debtor's title and, if the judgment-debtor was precluded by statute from transferring the property, the Court cannot execute a sale deed in contravention of that statute. Therefore, the decree and sale could not validly operate to defeat the operation of S.6.
- The petitioner’s arguments based on lack of notice, lis pendens, miscalculation of shares and non-application of mind to earlier sales were addressed on factual and statutory grounds:
- Notice and service: The Government files and reports produced indicated that notices were issued at every stage and were served on the third respondent and on his mother and sister (postal acknowledgments and reports were relied upon). The third respondent received notices on behalf of the family on several occasions and did not take proceedings to challenge the determination in time.
- S.23 procedure: The petitioner pointed to a dilapidated building that might have been exempted, but no particulars were furnished and the third respondent did not file the statement required by S.23; therefore the Court could not accept the contention that any building area should be excluded from the ceiling calculation.
- Estate treatment and calculation of shares: The petitioner was claiming only under the third respondent and could not advance claims on behalf of the mother and sister; moreover, the authorities had excluded the seven grounds already sold by the third respondent when calculating his ceiling limit.
- Lis pendens: The Court found no merit in the lis pendens contention because, prior to the 1979 amendment, the suit related to R.S. 143/1 and not to R.S. 145; the Act was already in force when the amended schedule was introduced and a decree was passed in 1979.
- The Court further observed that the petitioner had not impleaded the allottees (such as the fourth respondent) nor challenged the 1984 allotment orders in the writ petition; this omission undermined the petitioner’s ability to seek relief as to land already allotted and in possession of the allottees.
- Given these statutory, factual and precedent-based conclusions, the Court concluded that the decree and sale could not be put in the petitioner’s favour so as to nullify the proceedings under the Act.
Holding and Implications
Holding:
The writ petition was dismissed. The Court's core ruling can be stated as: DISMISSED — the petition "has to fail and it is dismissed with costs." The Court awarded counsel's fee of Rs. 2,000/-, half to be paid to respondents 1 and 2 and the other half to the fourth respondent.
Direct consequences and implications:
- The decree and sale obtained by the petitioner (and the consequent sale deed registered in 1981) are ineffective to defeat the statutory proceedings and notifications under the Urban Land Ceiling Act to the extent the Act applies; transfers prohibited by S.6 are null and void.
- The Government's proceedings under the Act (including publication of the S.10(1) statement, taking possession and allotment to public institutions) stand; the petitioner cannot, by virtue of the disputed decree and sale, nullify those proceedings.
- The petitioner’s procedural omissions (failure to implead all allottees and the failure of the third respondent to challenge determinations in time) weighed against the petitioner’s ability to obtain relief.
- No new broad legal principle or precedent was announced by the Court beyond application of the Act and existing authorities; the decision applies the Act (Ss.6, 23 and 43) and relevant case law to the facts and dismisses the petition on those grounds.
End of summary based exclusively on the provided opinion.
The prayer in the Writ Petition is one for issue of a writ of certiorarified Mandamus calling for the records of the first respondent in proceedings No. A3/4878/79 culminating in the Notification No. VI(1)/743/82 dated 2.7.1982 and published in the Tamil Nadu Government Gazette (Part VI Section 1) on 14.7.1982 and the consequent notification No. VI(1)/844/2 dated 29.7.1982 published in the Tamil Nadu Government Gazette (Part VI Section 1) on 11.8.1982 and to quash the same and consequently release the lands in question belonging to the petitioner from the purview of the Tamil Nadu Urban Land Ceiling Act, 1978. The first respondent is the Government of Tamil Nadu, the second respondent is the Assistant Commissioner of Urban Land Tax, Egmore, Madras and the third respondent is one Shanmugam. The petitioner died later and his legal representatives have been impleaded as petitioners 2 to 6. The fourth respondent got impleaded as a party to the writ petition on a petition of his own in W.M.P No. 22505 of 1992 by order dated 16.10.1992
2. The property, which is the subject matter of the impugned proceedings forming part of the larger extent of property belonged to one Thirunavukkarasu, who died on 29.3.1967 He left his wife Rajagopalammal, his only son Shanmugasundaram, who is described as Shanmugam in the writ petition (third respondent) and a daughter Kamakshi. It is the case of the petitioner that the deceased had urban lands of an extent of 64 grounds. It is also the case of the petitioner that the property belonged to the joint family and on the death of Thirunavukkarasu the property came to be owned by his wife, son and daughter. It is the further case that the son the third respondent herein, was entitled to 42 grounds whereas the ladies were entitled to 11 grounds each. Of course, there is no record Before me to decide whether the property belonged to the joint family and whether the third respondent was entitled to 42 grounds. When that is the case of the petitioner, it is not necessary to probe on that matter further, as the petitioner has to fail even on that footing. The only other case is that the property devolved on all the three of them equally and each of them got 21 grounds each. Even on that footing, the case will have to fail. Hence it is not necessary to consider any further as to whether the property is joint family property or the individual property of the deceased Thirunavukkarasu.
3. It is stated that in 1971 and 1975, the third respondent sold about seven grounds of land under two sale deeds, which were specific plots forming part of a layout. Though it is claimed that the layout was approved by the authorities concerned, there is absolutely nothing on record to show that there was an approved layout. Hence, I have to proceed on the footing that there was no approved layout. Learned counsel for the petitioner could not sustain his contention that there was an all approved layout.
4. The third respondent entered into an agreement on 10.1.74 with the petitioner herein for selling an extent of 3 grounds and 20 Sq. ft., in R.S No. 143/1 for consideration of Rs. 48,133/-. The recital in the agreement is that a sum of Rs. 40,000/- had been paid by the petitioner towards certain debts owned by the third respondent to State Bank of India and the balance payable was Rs. 8,133/-. Clause 8 of the agreement is relevant. It reads that without prejudice to the right of the purchaser to recover the advances paid, it was open to the purchaser at his option to sue for specific performance of the agreement.
5. The petitioner filed C.S No. 202 of 1974 on the original side of this Court in October 1974 praying for a decree for a sum of Rs. 60,427/- with interest at 18% per annum on the principal sum of Rs. 43,000/- from the date of plaint till date of decree. In paragraph 8 of the plaint, he had stated clearly that he exercised his option to recover the amounts advanced by him to the defendant. He did not, therefore, choose to pray for specific performance. Thus the only relief prayed for in the suit was for a direction to pay the money advanced by him to the defendant with interest thereon.
6. The Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (hereinafter referred to as ‘the Act’) came into force on 3.8.1976 In fact, there was a Central Act enacted by the Parliament under Act XXXIII of 1976. The President of India passed an Act in 1976 in Act XXXIV of 1976 for the State of Tamil Nadu. That came into force on 3.8.1976 and that was later substituted by Tamil Nadu Act XIV of 1978. There is no dispute as to the commencement of the Act, as S. 3(c) of the Act specified the date 3.8.1976 as the date of commencement.
7. On 24.9.1979, an application was filed in this Court in the suit for amendment of the plaint by including a prayer for specific performance of the agreement for sale dated 10.1.1974 with reference to an extent of 2 grounds and 450 sq. ft. Paragraph 8 of the plaint was amended by adding the following:
“By reason of the breach committed by the defendant, the plaintiff is entitled to the specific performance of the suit agreement dated 10.1.1974 and the defendant should be directed to convey the vacant plot measuring an extent of 2 grounds and 450 square feet on the Taylors Road itself, more particularly described in the Schedule to the plaint.”
Consequently, an alternative prayer was included in the prayer Paragraph, viz., Paragraph No. 11, for a decree for specific performance with reference to the vacant plot measuring an extent of 2 grounds and 450 square feet situated in No. 1, Taylor's Road, Madras-10. The Schedule also describes a property measuring two grounds and 450 Sq. ft., in R.S No. 145. It should be noted that the agreement related only to R.S No. 143/1 measuring ah extent of 3 grounds and 20 Sq. ft. The amendment referred to R.S No. 145 and an extent of 2 grounds and 450 Sq. ft. The parties entered into a compromise and the petition for amendment was only in pursuance of the compromise. On the same day, a memorandum of compromise was filed by the parties in which there was an acknowledgement by the defendant of the receipt of Rs. 43,000/- and the entitlement of the plaintiff to have a decree for specific performance of sale in respect of a plot of land measuring 2 grounds and 450 Sq. ft. described in the Schedule thereto. The application for amendment and the application for passing a decree in terms of compromise were ordered on 26.9.1979 The Court did not take note of the fact that the subject matter of the agreement for sale was entirely different from the subject matter of the memorandum of compromise. The court also did not take note of the fact that the act had come to force on 3.8.1976 Pursuant to the decree dated 26.9.1979 which directed the defendant in the suit to execute a sale deed with a clause that in default the plaintiff shall be entitled to apply to the court necessary relief, the petitioner herein got a sale deed executed by the Assistant Registrar, original side of the court on 29.4.1981 That sale deed was presented for registration, but was kept pending by the register for some time. Ultimately, on a further letter by the Assistant Registrar of this court, the sale deed was actually registered by the District Registrar on 11.5.1981
8. Alleging that the petitioner had been in possession and enjoyment of the land conveyed to him under the said sale, the petitioner has stated in the affidavit filed in support of the writ pettion that the proceedings under the Act initiated by respeondents 1 and 2 were null and void, as they were affected by the doctrine of lis pendens and as there was no notice to him at any stage. It is on that basis, the petitioner prayed for the relief set out already in the beginning of this judgment.
9. A counter affidavit was filed by respondents 1 and 2 and after the impleading of the fourth respondent, there was another counter affidavit by the said respondent. An additional counter affidavit was filed by respondents 1 and 2, in November 1992. Thereafter, a reply affidavit was filed by the petitioner, in which several new contentions were raised by the petitioner. The petitioner claimed that he came to know of the acts set out in the reply affidavit only after perusing the files available with the Government Pleader.
10. Before the petitioner got the sale deed executed, the authorities under the Act initiated proceedings for declaring the excess land held by the third respondent as per the provisions of the Act. A notice was issued in the first instance on 17.10.1979 not only to the third respondent, but also to his sister and mother calling upon them to produce the relevant records for the lands owned by them. That notice was served on 8.11.1979 The third respondent received the notice on behalf of all the three persons. With regard to the further proceedings, again notices were issued at every stage and on every occasion the third respondent or his wife had been receiving the notices on behalf of all the three addresses. The matter was posted for personal hearing on 10.12.1980 the notice for such hearing were received on 8.12.1980 by the third respondent. He had written a letter dated 11.12.1980 requesting for an adjournment. He was directed to appear on 17.12.1980 He did not appear and the enquiry proceeded without him. The authorities concluded on 13.3.1981 that there was a surplus of land and the third respondent was entitled to remain only 2000 sq. metres of vacant land. A notice was served on the third respondent after the determination of the surplus. That notice was issued by registered post and it was sent to the third respondent as well as his mother and sister. The postal acknowledgments received by the authorities would show that the three notices were received by the wife of the third respondent. In spite of the receipt of such notices, no proceeding was initiated by the third respondent to challenge the determination of the excess extent by the authorities. He kept quiet. Similarly, his sister and mother did not also take any proceedings before the authorities challenging the action taken by them. The reports filed by the authorities disclose the service of the relevant notices not only on the third respondent but also on his mother and sister. One such report is dated 4.5.1981 given by the Assistant Commissioner to the Director of ULC and ULT, Chepauk, Madras-5 under 12/4978/91, in which there is a specific reference to the service of notices on the mother and sister of the third respondent besides himself. Thereafter, a statement under S. 10(1) of the Act declaring an excess extent of 10255 sq. metres of vacant land was published and even after such publication, there was no reaction on the part of the third respondent or his sister or mother. The said Notification was published in the Gazette on 14.7.1982 Thus, after observing all the required formalities under the Act, the Government took possession of the excess extent on 21.10.1982 Before doing so, a notice was issued on 13.10.1982 to the parties concerned to be present at the time of delivery of possession and even after receipt of such notices, the parties kept quiet. They did not also appear at the time of delivery of possession.
11. Thereafter, the Government took steps to allot the excess extent of land to public institutions. The fourth respondent is one such institution. By G.O.Ms No. 1728 dated 16.10.1984, the Government allotted three grounds in S. No. 145/4 to the fourth respondent, who was directed to pay a sum of Rs. 2,97,000/-. The said amount was paid by the fourth respondent on 13.1.1986 and possession was handed over to the fourth respondent on 13.1.1986 and possession was handed over to the fourth respondent on that date by the Government. By the same G.O, lands were allotted to other public institutions viz., Tamil Nadu Housing Board and Chinmaya Vidyalaya.
12. The present writ petition was filed on 2.5.1985 and was admitted on 4.5.1985 The petitioner has not chosen to implead any of the allottees as parties to the petition even though the allotment was made in 1984. Even the name of the third respondent has not been properly set out in the writ petition. At the time of admission, the petitioner got an order of interim stay of the operation of the impugned proceedings pending disposal of the writ petition. Whether the order of interim stay of the operation of the impugned proceedings would have the effect of preventing the Government from handing over possession to the fourth respondent pursuant to the order of allotment made in 1984, which was not the subject matter of challenge in the writ petition, is not a question which arises here. It is stated that there is a proceeding for punishment of the respondents for contempt of disobedience of the order of interim stay. Suffice it for the purpose of this petition to notice the fact that in spite of the allotment order of 1984, the petitioner did not challenge it in this writ and he prayed for stay of operation of the Notification under S. 10 only. The petitioner has not shown how this writ petition is maintainable without challenging the allotment orders made by the Government and impleading the allottees as parties hereto.
13. The contentions put forward by the petitioner before me are:
(1) The proceedings under the Act are null and void as there was no notice at any stage to the petitioner herein who had become a purchaser pursuant to a decree passed by this Court.
(2) The authorities did not give any notice to the wife and daughter of the deceased Thirunavukkarasu who were also entitled to shares in the properties left by Thirunavukkarasu.
(3) The authorities proceeded on the footing that the estate was single and entire and it belonged to Thirunavukkarasu and they overlooked that the estate devolved on three different persons and it could not be treated as one estate. The authorities ought to have considered the ceiling area of the three persons viz., the third respondent, his mother and his sister, independently by three different proceedings.
(4) The extent of the land held by the owners of the land, viz., the third respondent, his mother and sister were not properly calculated by the authorities before coming to the conclusion that there was an excess extent over and above the ceiling area. Incidentally, it is contended that if the lands owned by the mother and sister of the third respondent had been taken into account separately, then it would have been found that the third respondent had no excess extent as we had already sold 7 grounds of land in favour of third parties before the advent of the Act.
(5) The authorities have not applied their mind to the sales effected by the third respondent in favour of Chockkalingam and Murugia Chettiar in 1971 and 1975 before the Act and there is a total non-application of the mind to the various provisions of the Act.
14. This petition has to be dismissed on one simple ground and it will be unnecessary to consider the various objections raised by the petitioner as to the validity of the proceedings under the Act. I have already referred to the sequence of events before the passing of the decree in favour of the petitioner. Factually, there was no agreement to sell any part of R.S No. 145 to the petitioner in the first instance The agreement related only to P.S No. 143/1. For the first time R.S No. 145 was introduced in the suit only on 24.9.1979 If at all, the petitioner got an agreement in his favour only on 24.9.1979 The Act which came into force on 3.8.1976 was clear bar to the transaction. Even assuming that the original agreement in favour of the petitioner related to the land which was the subject matter of the proceedings under the Act, there could not have been a sale in favour of the petitioner by the 3rd respondent. Nor could there have been any decree by the Court for Specific performance in his favour. Unfortunately this aspect of the matter was not taken note of by the Court. Apart from the fact that the subject matter of the agreement was different from the subject matter of the memorandum of compromise, there was a statutory prohibition against the grant of decree in favour of the petitioner herein in the suit for specific performance on 26.9.1979 when the decree was passed by this court.
15. The relevant provisions of the Act are Ss. 6 and 43. S. 6 of the Act provides that no person holding vacant land in excess of the ceiling limit immediately before the commencement of the Act shall transfer any such land, or part thereof, by way of sale, mortgage, gift, lease or otherwise until he had furnished a statement under S. 7 and a Notification regarding the excess vacant land held by him had been published under sub-section (1) of S. 11. The last part of the Section states that any such transfer made in contravention of that provision shall be deemed to be null and void. S. 43 of the Act gives an overriding effect to the provisions of the Act as against any other law for the time being in force or any custom, usage or agreement or decree or order of a court, Tribunal or other authority.
16. The provisions of S. 5 are sought to be got over by the petitioner by contending that the third respondent did not have any vacant land in excess of the ceiling limit before the commencement of the Act. It is contended that if the various aspects of the matter which ought to have been taken into account by the authorities had been taken into account, then it would have been found that the third respondent's lands were within the ceiling limit. There is no merit in this contention. Even according to the contention of the petitioner, the third respondent had 2/3rd share in the properties left by Thirunavukkarasu and in other words, he had an extent of 42 grounds of land. No doubt, a reference is made by learned counsel for the petitioner to some of the documents found in the file of the Government which describe a dilapidated building in a portion of the land. According to him, that building and the land appurtenant to it should have been exempted and if it is done, the area held by the third respondent would have been below the ceiling area. Here again, there is no substance in the contention of learned counsel. No details have been placed before court to show the extent of land on which the dilapidated building stood and the extent of land appurtenant to such building. Unless such, particulars are furnished, the contention of the petitioner's counsel cannot be accepted. Moreover, S. 23 of the Act provides that if a person had demolished wholly or partly before the commencement of the Act or if any building is destroyed wholly or partly either before or after such commencement of the Act, wholly or partly due to natural cause and beyond the control of human agency and as a consequence thereof, in each such case, the land on which such building had been constructed becomes vacant land and the aggregate of the extent of such land and the extent of any other vacant land held by him exceeds the ceiling limit, then, he shall, within such time as may be prescribed, file a statement before the competent authority having jurisdiction, specifying the location, value and such other particulars as may be prescribed, of all the vacant lands held by him. Admittedly, the third respondent did not file any such statement. In the absence of his complying with S. 23 of the Act, it is not possible for the third respondent or the petitioner herein, who claims to have stepped into the shoes of the third respondent, to contend that the building area or the appurtenant area should be excluded from the ceiling limit.
17. Thus, it is seen that the admitted extent of land held by the third respondent was in excess of the ceiling limit and consequently, the prohibition under S. 6 of the Act applied to his land. The result that follows is that the Court could not have passed decree directing execution of a sale deed by the third respondent in favour of the petitioner.
18. It is contended by learned counsel for the petitioner that a sale in pursuance of a decree for specific performance is not a voluntary sale and it would not fell within the scope of S. 6 of the Act. According to learned counsel, it is a sale executed by that Court and it cannot be governed by S. 6 of the Act. There is no merit in this contention. In Enayat Ullah v. Khalilullah (A.I.R 1938 Allahabad 432), a Division Bench of the Court held that a decree for specific performance only declares the right of the decree-holder to have a transfer of the property covered by the decree executed in his favour and so long as the sale deed is not executed in his favour by the Judgment-debtor in the suit or by the court the title to the property remained vested in the judgment-debtor and till the execution of the sale deed, the decree-holder has no right to possession of the property. It was further held that the sale deed executed by a Court in pursuance of a decree for specific performance is a transfer by the Court on behalf of the Judgement-debtor and it is the title of the Judgment-debtor to the property that is transferred by the sale deed executed by the Court and if the Judgment debtor is precluded by an enactment from transferring the property, the Court cannot in violation of that provision, execute a sale deed of that property. In that case, there was a decree for specific performance and an application was filed for execution. But, by that time, U.P Encumbered Estates Act (25 of 1934) had come into force. S. 7(3) of the said Act precluded any transfer by the owner of the property. The contention urged before the Bench was that it prevented only the owner of the property and not the Court from transferring the property. That contention was rejected by the Court and it was observed that if the judgment-debtor was precluded from transferring the property, the Court cannot in violation of that provision, execute a sale deed of that property.
19. In Mrs. Christine Pais v. K. Ugappa Shetty and another (A.I.R 1966 Mysore 299) the contention that the sale by a Court under a decree for specific performance is an involantary sale and not inter vivos was rejected. The Court held that the sale deed based on a contract of sale, which came into existence pursuant to the decree was a transfer by the Court on behalf of the Judgment-debtor and the sale deed had all the characteristic of a transfer inter vivos. Reference was also made to the Judgment of the Allahabad High Court in Enayat Ullah's case (A.I.R 1938 Allahabad 432)
20. In Bai Dosabai v. Mat hurdas Govinddas and others (A.I.R 1980 S.C 1334), the Apex Court held that events and changes in law occurring during the pendency of an appeal against a decree in a suit for specific performance have to be taken into consideration and the decree has to be moulded accordingly. They gave effect in that case to the provisions of Bombay Tenancy and Agricultural Lands Act and Gujarat Vacant Lands in Urban Areas (Prohibition of Alienations) Act, 1972 besides the Urban Land (Ceiling and Regulation) Act, 1976.
21. A Division Bench of this Court refused to grant specific performance in Mariamma Varghese v. K.V Balasubramanian and others (A.S 862 of 1981-Judgment dated 11.1.1990)1. The appellant in that case was the plaintiff who prayed for a specific performance. The trial court dismissed the suit and she preferred the appeal. But, the agreement of sale was dated 29.6.1978 The Division Bench held that there was a legal impediment to the grant of specific performance in the provisions of the Act and consequently dismissed the appeal. On the same day, i.e, 11.1.1990, the Division Bench also dismissed a writ petition (W.P 1963 of 1984) preferred by the same person, reported in Mariamma Varghese v. The Commissioner of Land Reforms and two others (1990 Writ L.R 279). Claiming right under the agreement dated 29.6.1978, the petitioner in the writ petition wanted exclusion of the lands which were subject matter of the agreement in her favour from the proceedings under the Act and filed the writ petition against the authorities under the Act. Taking note of the rigour of the language of S. 6 of the Act, the Bench dismissed the, writ petition.
22. In T.K Singaran v. The Urban Land Ceiling Tribunal, Chepauk, Madras-5 and others (1992 Writ LR 389), another Division Bench of this Court had occasion to consider the provisions of S. 43 of the Act. The Bench after extracting the Section, observed as follows:
“As would be seen from a plain reading of the Section, the Urban Land Ceiling Act overrides the other lands for the time being in force or any custom, usage or agreement or decree or order of a court, tribunal or other authority. In view of S. 43 of the Urban Land Ceiling Act, the Urban Land Ceiling Act has to be given a full play and any proceedings which are pending on the date when the Urban Land Ceiling Act comes into force would have to cease in case the Urban Land Ceiling Act applied to those proceedings, to the extent of such application and declaration of the excess land. A provision similar to S. 43 of the Urban Land Ceiling Act is available in S. 4 of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961.”
23. Learned counsel for the Petitioner wants to distinguish the above judgments by placing reliance on the following rulings:— He refers to the judgment of the Supreme Court in Maharao Saheb Shri Bhim Singhji Ananthalakshmi Pathabi Ramasharma Yeturi and others v. Union of India (A.I.R 1981 S.C 234). The Apex Court had to consider the provisions of S. 27 of the Central eanctment. It was held that a person whose vacant land fell within the ceiling limit in an urban aggalomeration was outside the purview of S. 23 of the said Act. It was observed that the provision of S. 27(1) of the Act was invalid in so far as it sought to affect the specific right to dispose of any urban or urbanisable land with a building or of a portion of such building within the ceiling area. The ruling has no bearing on the present case as on the admitted facts, the third respondent had lands in excess of the ceiling limit.
24. Reference was made to the Judgment of the Karnataka High Court in Samuel Thyagaraja Kuar v. K. Sitarama Achar and others (A.I.R 1977 Karnataka 158). That case related to an execution sale and it was held that a sale in execution was not a transfer coming with the scope of S. 27(1) of the Urban Land (Ceiling and Regulation) Act, 1976. That case will have no application to the facts of the present case as this is not a sale in execution of a decree for money.
25. The Principle laid down by the Karnataka High Court was relied on by Allahabad High Court in Pratap Narain Agrawal v. Ram Narain (1981 All L.J 591). On the facts of the case, it was held that there was no transfer as there was only a relinquishment of the interest of the partners in a partnership firm on dissolution and on taking of accounts. It was held that there was only a distribution of the assets of the partnership and there was no ‘transfer’ within the meaning of the Section in Urban Land Ceiling Act. Hence, that ruling will not help the petitioner herein.
26. Reliance is also placed on the judgment of another Division Bench of Allahabed High Court in State v. Philip Mehrotra (1980 All. L.J 1034). That was a case in which an application was made for permission to sell under S. 27 of the Urban Land (Ceiling and Regulation) Act. The Court held that the land sought to be sold was within the ceiling limit and permission could be granted. That judgment has no application to the facts of this case.
27. In so far as the present decree under which the petitioner claims to have purchased the property is concerned, there is no doubt whatever that it is ineffective against the proceeding under the Act. Hence, the sale in favour of the petitioner by the Assistant Registrar of this court cannot be put against the authorities under the Act. Whatever may be the rights of the petitioner as against the third respondent, he cannot seek to nullify the proceedings under the Act by virtue of the said sale. In any event, the petitioner is claiming only under the third respondent. The latter has been served with notices duly under the provisions of the Act and he has not chosen to raise any protest at any stage and it is not open to the petitioner herein to contend long after the proceeding are completed, that they are not valid.
28. In the view I have taken, it is not necessary for me to consider the various contentions raised by the petitioner. However, it must be pointed out that the contentions are without any substance, as the facts indicate otherwise. (1) The petitioner had no right to a notice from the authorities as his purchase is null and void under S. 6 of the Act. (2). The contention that the sister and mother of the third respondent were not given notice is not sustainable. It is seen from the files produced by the Government that notices have been issued at every stage to all the three heirs of Thirunavukkarasu including the third respondent and they have been served duly. There is a presumption that official acts have been done properly and in the present case, there is no reason to hold that the files contain any suprious records. It is seen that the notices have been received by the third respondent's wife when theyare sent by registered post with acknowledgment due. 3. As far as the mother and sister of the third respondent are concerned, the petitioner is not a purchaser from any of them and he cannot hold a brief for them. There is no substance in the contention that their respective ceiling area should have been considered. The petitioner claims only under the third respondent and be cannot put forward any claim that might have been put forward by the third respondent's mother and sister. 4 and 5, There is no merit in either of the contentions. As a fact, the extent of 7 grounds sold already by the third respondent to Cnokkalingam and Murugiah has been excluded by the authorities while calculating the ceiling limit of the thir respondent.
29. There is also no substance in the contention that the proceedings under the Act are affected by the doctrine of lis pendens. I have already pointed out that the subject matter of the suit was entirely different from the property which is the subject matter of the proceedings under the Act. When the Act came into force, the subject matter of the suit was only R.S 143/1 and not R.S No. 145. For the first time, the Schedule to the plaint was amended in 1979 and a new property was substituted for which a decree was passed on foot of a compromise. At what time, the Act was already in force and there could not have been any decree in favour of the petitioner.
30. It is pointed out by learned counsel for the fourth respondent that the land allotted to the fourth respondent is different from the land for which the petitioner got a decree. It is submitted that the decree relates only to an extent of 2 grounds and 450 sq. ft. in R.S 145 part. At that time, there was no sub-division of the survey numbers into 145/1, 145/2, 145/3 and 145/4. There is considerable force in the contention that the petitioner cannot claim that R.S 145/4 which is allotted to the fourth respondent was the subject matter of the decree obtained by him and the consequent sale in his favour and I accept the same. If the petitioner wanted to reopen the entire proceedings and contend that whatever has been purchased by him should be considered afresh by the authorities, he should have impleaded all the allottees as parties to the writ petition. Hence, the petitioner is not entitled to the relief prayed for by him with reference to the particular land allotted to the fourth respondent as it cannot be asserted by the petitioner that he has purchased the same.
31. In the circumstances, she writ petition has to fail and it is dismissed with costs. Counsel's fee Rs. 2000/- put of which one half to be paid to respondent's 1 and 2 and the other half to be paid to the fourth respondent.
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