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Peroja Dadabhoy Sett and Anrs. Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 1146 of 1980
Judge
Reported inAIR1983Bom49
ActsUrban Land (Ceiling and Regulation ) Act, 1976 - Sections 27(4), 28 and 298
AppellantPeroja Dadabhoy Sett and Anrs.
RespondentState of Maharashtra and ors.
Appellant AdvocateF.H.J. Talyarkhan, Adv.
Respondent AdvocateSikander, Adv.
Excerpt:
.....3. the main contention of the leaned counsel for petitioner is that since the authority under the land ceiling act and failed to communicate to the petitioner the refusal within the period of 60 days from the date of the receipt of the application by the authority: 8 requires a site plan drawn to the scale to be appended to the application showing location of vacant land together with its boundary clearly indicating further whether the land appurtenant to or surrounding the said vacant land or with vacant plot was open to not after 17th february 1975. in this case, however, admittedly only the said plan as mentioned in the said note 1 to form no,.8 did not accompany the petitioner application. 2 had, by his letter dated 1-2-1980 pointed out to the petitioner that certain information..........the main contention of the leaned counsel for petitioner is that since the authority under the land ceiling act and failed to communicate to the petitioner the refusal within the period of 60 days from the date of the receipt of the application by the authority: under section 27 of the said land ceiling act the authority was deemed to have granted the permission applied for and therefore there was no necessity for the petitioner to produce any no objection certificate (n. o. c) under said act before the sub-registrar for registering the transfer.4. before dealing with the contention of the learned counsel for the petitioner relevant provisions of the urban land ceiling act be referred to:--5. the provisions of section 27 of the said act which deals with the prohibition of the.....
Judgment:
ORDER

1. This is a petitioner for quashing and setting aside the order of 2nd Respondent i. e. Deputy Collector and Competent Authority (ULC) dated 30-6-1980 refusing the petitioner application to sanction transfer of immovable property and directing the 3rd Respondent the Sub-Registrar of Assurances. Bombay, to register the Deed to Transfer dated 31st December 1979 and to issue the certificate of registration under s. 60 of the Registration Act.

2. A few relevant facts for the disposal of the petitioner are as under: One Dadabhoy Sett left a will dated 18th January 1975 bequeathing an immovable property being Plot No. 24 Worli Estate jointly to the petitioner, The petitioner were also executors of the will. The said Dadabhoy Sett died on 5-4-75. On 12th December 1975, the Petitioner as Trustees and Executors of the estate of the said deceased Dadabhoy obtained probate to the said Will. As a result of the probate amounts the other properties of the deceased the land which were the subject-matter of the petitioner vested in the petitioner, Under the will. the two petitioner as legatees were entitled to the said lands as tenants in common in equal shares. On 13th December 1979 the petitioner as executors executed a deed of transfer transferring the lands to themselves as legatees as tenants-in-common. On the very day they made an application under Section 27(2) of t Urban Land (ceiling and Regulation) Act to the 2nd respondent for permission to transfer the said lands, On 10th January 1980, they lodged a deed of transfer with Respondent No. 3 being the Sub-Registrar of Assurances. Bombay, for admitting execution of the deed under Sr. No. 66/80. On the said application the Sub-Registrar made an endorsement saying that Income-tax certificate under Section 230A of the Income-tax Act and N. O. C. i. e No Objection Certificate under S. 27 of the Urban Land (Ceiling and Regulation) Act, was required to be produced. On 21st January 1980, the petitioner made an application to Respondent No. 2 for No. Objection Certificate under S. 27 of the said Act and as the receipt of the application (being Ex. 'E' to the petitioner) shows that on 24th January 1980, the office of the 2nd respondent bad received the said application. The 2nd Respondent by his letter dated 1st February 1980 asked the petitioner to furnish certain information asked fro therein. Item 8 therein which is relation was the state plan (Block plan) in triplicate drawn to the scale and showing therein the buildings and their application land distinctly along with the details of their areas in sq. metres. He also pointed out that if the petitioner failed to furnish the above information or document within 20 days from the date of the receipt of the letter. the application may be rejected. The petitioner did not reply to the said letter as according to them S. 27 was not applicable to them as their lands did not come within the Ceiling. On 4-3-1980,. the petitioner by their advocate's under letter forwarded to respondent No. 3 a certificate under S. 230-A of the Income-tax Act. The petitioners' Advocate by his letter dated 3rd July 1980 requested Respondent No. 3 to register the deed as requisitions were complied with. However, Respondent No. 2 by his order dated 30-6-1980 rejected the petitioner application under S. 27. By his letter dated 24th July 1980. the petitioner advocate called upon the Registrar to register the deed for the with and to issue a notice dated 25th September 1981 to that effect. Respondent No. 3 by his letter dated 30th September 1980 pointed out the Respondent No. 2 that according to the petitioner advocate's letter dated 25th September 1981, on permission was required under S. 27(4) of the Urban Land (Ceiling and Regulation) Act, 1976 and requested the said Deputy Call to enlighten him in the matter. The present petitioner challenged the said order of the 2nd respondent dated 5-7-80 refusing to grant sanction under S. 27 of the Ceiling Act. and the Sub-Registrar Respondent No. 3 dated 5-7-1980 rejecting the said application.

3. The main contention of the leaned counsel for petitioner is that since the authority under the Land Ceiling Act and failed to communicate to the petitioner the refusal within the period of 60 days from the date of the receipt of the application by the authority: under Section 27 of the said land Ceiling Act the authority was deemed to have granted the permission applied for and therefore there was no necessity for the petitioner to produce any No Objection Certificate (N. O. C) under said Act before the Sub-Registrar for registering the transfer.

4. Before dealing with the contention of the learned counsel for the petitioner relevant provisions of the Urban Land Ceiling Act be referred to:--

5. The provisions of Section 27 of the said Act which deals with the prohibition of the transfer of urban property so far as relevant is:--

Section 27(1): 'Notwithstanding anything contained in any other law for the time being in force, but subject to the provision of sub-section (3) of Section 5 and sub-section (4) of Section 10 no person shall transfer by way of sale. mortgage, gift, lease for a period exceeding ten years, or otherwise. any urban or unbansable land with a building (whether constructed before or after the commencement of this Act) or a portion only of the such building 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'.

Sub-section (4) provides:

'Where within a period of sixty days of the date of receipt of a application under this section the competent authority does not refuse to grant the permission applied for or does not communicate the refusal to the applicant. the competent authority shall be deemed to have grated the permission, applied for'.

Rules 14 of the Rules framed under the said Act, prescribed a from being from No. 8 containing various particular for application to the competent authority for permission under S 27(1).

6. Section 28 of the Act provides for regulation of registration of document in certain cases. S. 28(b) which is relevant provides:

'In the case of any transfer referred to in Section 27 on the registering officer appointed under that Act shall register any such document unless the transferor produces before such registering officer the permission in writing of the competent authority for the such transfer or satisfies the registering officer that the period of sixty days referred to him sub-section (4) of that section has elapsed'.

7. In this case there is no dispute that all the particular mentioned in form No. 8 were given by the applicant in the form the submitted to the competent authority. Nos. 1 to the said form No. 8 requires a site plan drawn to the scale to be appended to the application showing location of vacant land together with its boundary clearly indicating further whether the land appurtenant to or surrounding the said vacant land or with vacant plot was open to not after 17th February 1975. In this case, however, admittedly only the said plan as mentioned in the said Note 1 to form No,. 8 did not accompany the petitioner application.

8. However, coming to the admitted facts in this case one finds that rejection of the petitioner application for sanction for transfer under S. 27 of the said Act was after the period of 60 days from the receipt of the application. Admittedly the petitioner application for sanction dated 21-1-1980 was received by the authority on 24-1-1980 as shown by the receipt Ex. 'E' to the petitioner. Respondent No. 2 had, by his letter dated 1-2-1980 pointed out to the petitioner that certain information including the sit plan was not supplied and had only there tended that if the petitioner failed to furnish the same within 20 days the application may be rejected. by the said letter however the 2nd Respondent had not purported to reject the application. It was only by the his letter dated 30-6-1980 that the 2nd Respondent had positively rejected the petitioner said application dated 21-1-1980 for three reasons mentioned therein. Admittedly therefore the said rejection by the 2nd respondent on 30-6-1980 of the petitioner application dated 21-1-1980 received by him on 24-1-1980 was clearly after the lapse of sixty days after the receipt of the said application and therefore by reason of the aforequoted provisions of s. 27(4). the 2nd respondent was deemed to have granted the permission applied for. It appears that thereafter the petitioner has by their letter dated 24-7-1980 enclosing copies of the aforesaid letter satisfied the sub-Registrar of Assurances i. e. 3rd Respondent as required under Sec 28(b) about the period of 60 days as referred to (in) Sec 27(4) having elapsed the 2nd Respondent was deemed to have granted the permission. The 3rd Respondent objection to registration of the said document for non-production of permission under Section 27 of the said Act therefore did not survive and he was bound to have registered the same.

9. It is contended by the learned Counsel for the Respondent that since the application made by the petitioner lacked in various particulars, the same cannot be considered to be an application as required under the Act to attract the said provisions of Section 27 and 28 of the Act.

10. That contention has no substance. Firstly, the application sent by the petitioner contained all the petitioner mentioned in form VIII to the Rules made under the Act. The only thing not set with the form was a site plan as mentioned in the Note 1 to plan. That by itself cannot amount to the said application not being an application under the Act. Secondly, in correspondence it is not contended that the petitioners' said application was no application at all. On the contrary the 2nd Respondent has sought to reject the application only on the ground of not producing adequate documentary evidence to show title and to show that the building has been authorised constructed and the site pan to support the particular in the application. In my view, therefore, the said contention cannot be accepted.

11. In view of the fact that the petitioner could be determined only on the said contention, it is not necessary to deal with the other contention raised by the learned counsel for the petitioner viz., as the petitioner land came within the ceiling area provisions of S. 27 were not applicable.

12. The result, therefore, is that the rule is made absolute in terms of prayers (a) and (b) of the petition.

There will be however no order as to costs.

13. Petition allowed.


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