Skip to content


Kharva Gigabhat Mavji Vs. Soni Jagjivan Kanji - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1979)1GLR256
AppellantKharva Gigabhat Mavji
RespondentSoni Jagjivan Kanji
Cases ReferredSamuel Thyagaraja Kumar v. K. Sitarama Achar and Ors. A.I.R.
Excerpt:
- - d) jamnagar was clearly in error of law in rejecting this contention and directing the execution to proceed with against the said properties. 8. the ceiling act has been put on the statute book with effect from 17th february, 1976 with a view to provide for the imposition of a ceiling on the vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, and for regulation of the construction of buildings on such land and the incidental matters connected thereto with a view to preventing the concentration of urban land in the hands of a few persons and to put an end to speculation and profiteering in urban lands as well to achieve an equitable distribution of lands. (2) where a notice given under sub-section (1) is for the transfer of the land.....b.k. mehta, j.1. since an identical question of law has been raised on behalf of the judgment-debtors in these matters arising out of the execution proceedings, i intend to dispose them off by this common judgment. a few facts need be noticed in order to appreciate the question raised in its proper perspective.2. the respondent of first appeal no. 147/77 is a decree-holder, who has sought the execution of the consent decree made in special civil suit 13 of 1973 on the file of the court of civil judge (s.d.) jamnagar for a sum of rs. 17, 823-49 ps to be realised from the sale of the mortgaged property mortgaged under the deed of mortgage of july 17, 1969.3. the judgment-debtor (appellant) resisted the execution application, contending, inter alia, that the mortgaged property could not be.....
Judgment:

B.K. Mehta, J.

1. Since an identical question of law has been raised on behalf of the judgment-debtors in these matters arising out of the execution proceedings, I intend to dispose them off by this common judgment. A few facts need be noticed in order to appreciate the question raised in its proper perspective.

2. The respondent of First Appeal No. 147/77 is a decree-holder, who has sought the execution of the consent decree made in Special Civil Suit 13 of 1973 on the file of the Court of Civil Judge (S.D.) Jamnagar for a sum of Rs. 17, 823-49 Ps to be realised from the sale of the mortgaged property mortgaged under the deed of mortgage of July 17, 1969.

3. The judgment-debtor (Appellant) resisted the execution application, contending, inter alia, that the mortgaged property could not be put to court auction and transferred by the sale in view of the provision contained in Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976, which will hereinafter be referred to as 'the Ceiling Act' for the sake of convenience.

4. Similarly, the decree-holder, who is respondent of Civil Revision Application No. 353/77 sought the execution of the consent decree passed by Civil Judge (S.D.) Jamnagar for a sum of Rs. 47,627-25 Ps in Special Civil Suit No. 46/73 where also a similar contention was raised by the judgment-debtor. The respondent of Civil Revision Application No. 484/77 is a decree-holder, who has obtained a consent decree in the Court of Civil Judge (S.D.) Jamnagar in Special Civil Suit No. 1 of 1973 for a sum of Rs. 25,100/- in which also a similar objection was raised by the judgment-debtor.

5. The said objection has been over-ruled by the learned Civil Judge concerned in the respective execution applications and directed the execution to proceed against the property in question. These three orders have been, therefore, challenged in these three matters at the instance of the judgment-debtors.

6. At the time of hearing of the aforesaid matters, Mr. S.M. Shah, learned Advocate, appearing on behalf of the three judgment-debtors, who are the appellant/petitioners before me, raised the following two Contentions:

(1) In so far as Section 27 of the Ceiling Act prohibits transfer of urban property with out its permission of the competent authority, Civil Court has no power to trans fer by sale the respective mortgaged properties in question and therefore the learned Civil Judge (S.D) Jamnagar was clearly in error of law in rejecting this contention and directing the execution to proceed with against the said properties.

(2) In any case, the respective mortgaged property is not liable to attachment and sale in execution of the decree under Section 60 of the Civil Procedure Code since the property was not capable of being transferred inasmuch as Section (sic) has laid down prohibition against the transfer of any urban or urbanisable land with a building without the permission of the competent authority.

7. A neat question of law, therefore, arises, whether sale by a Court in execution of a money decree or a mortgage decree is not legally permissible in view of the prohibition contained in Section 27 against a transfer by way of sale e.c. of any urban or urbanisable land with a building, or the portion of such a building. It would, therefore, be necessary to refer to a few relevant provisions of the Ceiling Act in order to appreciate the contentions advanced on behalf of the judgment-debtors.

8. The Ceiling Act has been put on the statute book with effect from 17th February, 1976 with a view to provide for the imposition of a ceiling on the vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, and for regulation of the construction of buildings on such land and the incidental matters connected thereto with a view to preventing the concentration of urban land in the hands of a few persons and to put an end to speculation and profiteering in urban lands as well to achieve an equitable distribution of lands. Section 2 defines various terms used in the Act. The relevant terms, for the purposes of these three matters, are, 'person', 'urban land' and, 'vacant land'. Section 2(i) defines 'person' as under:

2(i) 'person' includes and individual, a family, a firm, a company, or an association or body of individuals, whether incorporated or not.

Section 2(o) defines 'urban land' to mean any land situated within the limits of an urban agglomeration and referred to as such in the master plan, or such land within the local limits of a municipality, or a Panchayat where there is no master plan, or the master plan does not refer to any land as urban land. Section 2(p) defines 'urbanisable land' to mean the land situated within an urban agglomeration but not being urban land. Section 2(q) defines 'vacant laud' so as to mean land, not being land mainly used for the purpose of agriculture; in an urban agglomeration, but does not include land on which construction of a building is riot permissible under the building regulations in force in the area in which such land is situated; the land occupied by any building which has been constructed before, or is being constructed on the appointed day with the approval of the appropriate authority together with the land appurtenant to such building, and also the built up land in an area where there is no building regulations. Section 4 prescribes ceiling limit with reference to different categories of cities and towns. Section 5 provides for transfer of vacant land. It provides, in effect and substance, that if any transfer of the vacant land has been effected by any person in course of the period commencing from the appointed day, that is, 28-1-1976 and ending with the commencement of the Act by sale, mortgage, gift, lease or otherwise, the extent of the land so transferred would be taken into account in calculating the extent of vacant land held by such person, and shall be also liable to be taken over by the Government from the transferee, if the total vacant land which is liable to be acquired by the Government from the transferor falls short of the vacant land held by the later. Sub-section (3) of Section 5 is material for our purposes which provides as under:

(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.

Section 6 enjoins the person selling vacant land in excess of the ceiling limit to file a statement furnishing the prescribed particulars. The next important batch of sections are Sections 26 and 27, which respectively provide for notice to be given before the transfer of vacant land and prohibition on transfer of urban property. The relevant parts of Section 26, so far as material for our purposes, are Sub-sections (1) and (2) which read as under:

26(1) 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.

(2) Where a notice given under Sub-section (1) is for the transfer of the land by way of sale, the competent authority shall have the 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 and if such option is not exercised within a period of sixty days from the date of receipt of the notice, it shall be presumed that the competent authority has no intention to purchase such land on behalf of the State Government and it shall be lawful for such person to transfer the land to whomsoever he may like:Provided that where the competent authority exercises within the period aforesaid the option to purchase such land the execution of the sale deed shall be completed and the payment of the purchase price thereof shall be made within a period of three months from the date on which such option is exercised.

9. Section 27 of the said Act provides for prohibition of transfer of urban property. This section has been quoted below in extension since the question raised in these matters depends on the construction of the said section:

27. (1) Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions 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 urbanisable land with a building (whether constructed before or after the commencement of this Act) or a portion only of 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.

(2) Any person desiring to make a transfer referred to in Sub-section (1), may make an application in writing to the competent authority in such form and in such manner as may be prescribed.

(3) On receipt of an application under Sub-section (2), the competent authority may, after making such inquiry as it deems fit, by order in writing, grant or refuse to grant the permission applied for:

Provided that the competent authority shall not refuse to grant the permission applied for unless it has recorded in writing the reasons for doing so and a copy v of the same has been communicated to the applicant.(4) Where within a period of sixty days of the date of receipt of an 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 granted the permission applied for.

(5) (a) Where the permission applied for is for the transfer of the land with the building or, as the case may be, a portion only of such building referred to in Sub-section (1) by way of sale, and the competent authority is of the opinion that such permission may be granted, then, the competent authority shall have the first option to purchase such land with building or a portion only of such building on behalf of the State Government at such price as may be agreed upon between the competent authority and the applicant or, in a case where there is no such agreement, at such 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.

(b) If the option referred to in Clause (a) is not exercised within a period of sixty days from the date of receipt of the application under this section, it shall be presumed that the competent authority has no intention to purchase such land with building or a portion only of such building on behalf of the State Government and it shall be lawful for such person to transfer the land to whomsoever he may like:

Provided that where the competent authority exercises within the period aforesaid the option to purchase such land with building or a portion only of such building, the execution of the sale deed shall be completed and the payment of the purchase price thereof shall be made within a period of three months from the date on which such option is exercised.(6) For the purpose of calculating the price of the land and building or, as the case may be, a portion only of such building under Clause (a) of Sub-section (5), it shall be deemed that a notification under Sub-section (1) of Section 4 of the Land Acquisition Act, 1894 or under the relevant provision of any other corresponding law for the time being in force, had been issued for the acquisition of that land and building or, as the case may be, a portion only of such building on the date on which the application was made under Sub-section (2).

The next important section which should be referred to is Section 38 which provides for offences and punishments. The relevant part of the said section is Sub-section (1) which reads as under:

38(1) If any person who is under an obligation to file a statement under this Act fails, without reasonable cause or excuse, to file the statement within the time specified for the purpose, he shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five thousand rupees or with both.

Section 42 provides for overriding effect of the Act over other laws and reads as under:

42. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith in 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.

Section 46 empowers the Central Government for making rules to carry out the provisions of the Act. Section 47 empowers the Government to remove difficulties and provides as under:

47. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, do anything not inconsistent with such provisions which appears to it to be necessary or expedient for the purpose of removing the difficulty.

(2) No order under Sub-section (1) shall be made after the expiration of a period of two years from the commencement of this Act.

These are in short the relevant provisions which may have bearing on the question which has been raised before me.

10. I will deal with the second contention first since it is almost concluded by the decision of the Supreme Court. In Ratnesh Himmatlal Shah v. Harsukh Jadhavji Joshi : AIR1975SC1470 a question arose whether a flat in a tenant co-partnership housing society under the Maharashtra Co-operative Societies Act, 1960 was liable to attachment and sale in execution of a decree against a member allottee of the said flat. On behalf of the appellant-decree-holder, who was aggrieved by the decision of the Bombay High Court Harsukh J. Joshi v. R.H. Shah : (1974)76BOMLR375 a contention was raised, whether the right of the judgment-debtor, who claimed the right to occupation of flat in Paresh Cooperative Housing Society Limited at Santacruz, Bombay, was liable to attachment and sale in execution of a decree. The High Court of Bombay had taken the view that it was not liable to attachment and sale as there was no saleable interest in the said property as required under Section 60 of the Civil Procedure Code. Goswami J, speaking for the Court, considered the entire scheme of the Act and held that there was no absolute prohibition in the Act or in the Rules or in the Bye-laws against transfer of interest of a member in the property belonging to the Society, and the only transfer which was void under the Act was one made in contravention of Sub-section (2) of Section 17 of the said Act. While holding as above, the Court rejected the contention urged on behalf of the respondent member-allottee that the flat was non-transferable, relying on the provision contained in Bye-law 71D of the said Society and observed as under:

It is true that bye-law 71D says that a member to whom a tenement is allotter shall not assign or underlet, vacate or part with the possession of the tenement (sic) any part thereof without the previous consent in writing of the Managing Committee but there is nothing to show that contravention of this bye-law makes the assignment void under the Act unlike in the case of a transfer being void under Section 4(3).... Further it is significant that under Section 146(a) of the Act contravention of Sub-section (2) of Section 47 is punishable under Section 147 of the Act Contravention of any bye-law is, however, no offence. We, therefore, unhesitating come to the conclusion that this species of property, namely the right to occupy; flat of this type, assumes significant importance and acquires under the Jaw a stamp of transferability in furtherance of the interest of commerce.... This attachment and the sale of the property in this case in execution of the decree are valid under the law.

11. In the Ceiling Act, though Section 27 prohibits transfer of any urban or urbanisable land with a building except with the previous pantheistic in writing of the competent authority, the transfer is not declared to t void by any section as it has been done under Section 5(3) in respect of transfer of vacant land without following the procedure prescribed under Section 6 of the Act. Section 38, which provides for offences and punishments, also treats the failure to file a statement of particulars as required under Section 6, without reasonable cause or excuses, within the time specified for the purpose as an offence and has made it punishable with imprisonment o two years or with fine of Rs. 5000 or both. Failure to carry out the obligation under Section 27 has not been made an offence. It is no doubt true that under Section 28 the registering authorities are prohibited from registering any transfer referred to in Section 27 which is compulsorily registerable under Section 17 of the Registration Act, unless the transferor produces the requisite permission or satisfies the registering officer that the period of 60 day referred to in Sub-section (4) of that section has already been elapsed. In that state of the Scheme contained in Section 27, and other relevant provisions referred to above, [am not inclined to agree with the learned Advocate for the judgment-debtor that the property in question is not liable to attachment and sale under Section 60 of the Civil Procedure Code, since the transfer of urban and urbanisable land with building has been prohibited by law. I am not able to read in Section 27 of the Ceiling Act that there is an absolute prohibition as canvassed by the learned Advocate for the obvious reason that if the competent authority does not refuse to grant the permission applied for, or does not communicate the refusal to the applicant within a period of 60 days from the date of the receipt of the application, the permission is deemed to have been granted by such authority as provided in Sub-section (4) of Section 27. In that view of the matter, therefore, I reject the second contention urged on behalf of the judgment-debtor.

12. The first contention raises slightly a wider aspect of the question. It is urged that on the true construction and effect of Section 27, it is obvious that all sorts of transfer, irrespective of their nature, are within the purview of Section 27, and there is no warrant either in the Act or in the section itself to exclude forced or compulsory sales and for that matter Court sales also from the purview of Section 27, inasmuch as it prohibits any person from transferring by way of sale, mortgage, gift, lease for a period exceeding ten years, or otherwise, any urban or urbanisable land with a building or a portion of such a building for a period of ten years except with the previous permission in writing of the competent authority. In submission of the learned Advocate for the judgment-debtor, word, 'transfer' is of a wide import and there is nothing inherent in the structure of the section or elsewhere to warrant the conclusion that only those specified forms of transfer in Sub-section (1) are within the mischief of the provision and that court sales, in as far as they are not voluntary, would not be governed by the provision of Sub-section (1). In support of this contention, reliance was sought to be placed on the decision of the Supreme Court in The Mangalore Electric Supply Co. Ltd. v. The C.I.T. West Bengal Calcutta : [1978]113ITR655(SC) The aforesaid first contention appears to be attractive, but on the close scrutiny I am afraid it is not well-founded. The reasons are obvious. It is no doubt true that the Legislature has prescribed the obligation of obtaining the previous permission in writing of the competent authority for transfer of urban or urbanisable land with a building or a portion thereof by way of sale, mortgage, gift, lease or otherwise. In other words, all kinds of transfer appear to have been regulated. The word, 'transfer' by itself alone is a word of a very wide import and comprehensive in its nature. It may generally be regarded as taking within its sweep voluntary as well as involuntary kinds of transfer. None-the-less, in the context of a given Act, the Court has always to find it out whether the Legislature has expressed its intention by using the word 'transfer in its widest amplitude or in a restricted narrow sense. In Mangalore Electric Supply Company's case (supra), the Supreme Court was concerned with a question, whether the compensation paid to the assessee's undertaking under the Madras Electricity Supply Undertakings (Acquisition) Act, 1954 was liable to capital gains tax under Section 12-B of the Income-tax Act, 1922? Section 12-B provided that tax shall be payable by an assessee under the head 'capital gains' in respect of any profits or gains arising from the sale, exchange, relinquishment or transfer of a capital asset effected after the 31st day of March, 1956, and such profits and gains shall be deemed to be he income of the previous year in which the sale, exchange, relinquishment or transfer took place. At the relevant time of the assessment year 1957- 8, the proviso to Section 12-B of the 1922 Act had not excluded specifically my transfer of capital assets by reason of compulsory acquisition under my law for the time being in force from the liability of capital gains charged under the main enactment of Section 12-B. A contention was; therefore, urged before the Supreme Court that there was no transfer of property within the meaning of Section 12-B since there can be no transfer without the concurrence of the transferor and the transferee and a compulsory divestiture of title against the volition of the owner cannot amount to transfer, howsoever lawful the act may be as a statutory acquisition of property. Rejecting this contention, Chandrachud C.J., speaking for the Court, posed a narrow question, whether a compulsory acquisition of property can amount to a transfer within the meaning of Section 12-B (1) and observed as under:.upon that question it is important to bear in mind that the word transfer is comprehensive and is regarded generally as comprehending within its scope transfers both of the voluntary and involuntary kinds. Without more, therefore, there is no reason for limiting the operation of the word 'transfer' to voluntary acts of transfer so as to exclude compulsory acquisitions of property.

(Emphasis supplied by me)

It should be noted that the Supreme Court spelled out the legislative intent by reference to the legislative history of Section 12-B(1) and found that before the capital gains levy was revived with effect from 1st April, 1957. Section 12-B(1), as it stood, indicated that the word 'transfer' used in the main charging enactment was intended to include transfer of capital assets by reason of compulsory acquisition also, because the Legislature has specifically excluded that transfer from the exception prescribed in the proviso to Section 12-B. I do not think that this decision can lend much assistance to the cause of the judgment-debtors who are the appellants before me. I have to consider, whether, in the context of Section 27, word 'transfer' has got the restricted meaning as canvassed by the decree-holder or should have the widest amplitude as urged by the judgment-debtors.

13. I am of the opinion that having regard to the three circumstances, which clearly emerge from Section 27, word 'transfer' cannot have the widest comprehension as claimed by the judgment-debtors. In the first instance, the specified kinds of transfer are of voluntary transfer and do not indicate or include compulsory transfer or forced transfer. It is no doubt true that the Legislature has said in Section 27 that, 'no person shall transfer by way of sale, mortgage, gift, lease for a period exceeding ten years, or otherwise', but, in my opinion, this would not enlarge the meaning of word 'transfer' as the said word occurs in collocation of 4 other words, which are 'sale', 'mortgage', 'gift', or 'leas;', which are essentially volitional or voluntary acts and, therefore, the word 'transfer' must take its colour from the aforesaid four words in association with which it is used. There is a greater reason for reaching this conclusion, because, what is prohibited under Section 27 is transfer by a person. It cannot be said without violation to the language that transfer by Court is a transfer by a person. An attempt was made on behalf of he judgment-debtors to persuade me that the definition of word, 'person' as given in the Ceiling Act, which is part materia with the meaning given in the General Clauses Act, it should be held that the Court is a person because it is exercising the power invested in the Court in the Civil Procedure Code as a part of the State and the State has been considered to be a person in number of cases. Reliance was sought to be placed in that connection on the decision of the Supreme Court in The Slate of Punjab v. The Okara Grain Buyers , Syndicate Ltd. and Ors. : [1964]5SCR387 where it was held that the word 'person' in Section 13 of the Displaced Persons (Debts, Adjustment) Act was intended to include the Government of the Union or of the State. I am afraid this is too broad a proposition which has been attempted by the learned Advocate for the judgment-debtors. Whether word 'person' includes Government or Court agency would again depend on the scheme contained in the relevant provisions of the Act with which the Court is concerned. In State of Punjab v. The Okara Grain Buyers Syndicate Ltd's rase (supra) the Court examined the relevant provisions of the Displaced Persons (Debts Adjustment) Act and found the debts due to displaced persons from the Government were within the scope of the Act, and that the word, 'person' in Section 13 was intended to include the Government of the Union or of the State. It cannot be said as a matter of course that whenever the Legislature uses word 'person' and defines it by an inclusive definition, it would necessarily include the artificial persons also such as Government, Court etc.

14. In Dulichand Laxminarayan v. Commissioner of Income-tax Nagpur : [1956]29ITR535(SC) the Court did not approve the attempt made on behalf of the assessee before it, who was seeking registration under Section 26A of the Income-tax Act, 1922 for a partnership between firms and individuals to import the definition of the word 'person' occurring in Section 3(42) of the General Clauses Act, 1897 into Section 4 of the Partnership Act since it was totally repugnant to the subject of the partnership law. The Court found, on examination of Section 4 of the Indian Partnership Act, that it contemplated only natural or artificial, i.e. legal persons and a firm is not a 'person' and as such is not entitled to enter into a partnership with another firm or Hindu undivided family or individual, and therefore, there could arise no question of registration of a partnership purporting to be one between firms, a Hindu undivided family business and an individual as a firm under Section 26A of the Income-tax Act, 1922. It, therefore, follows that Court has to find it out having regard to the relevant provisions of the Act and the definition of term 'person' that it is so wide in its amplitude as to include an agency like Court within its sweep. I do not agree with the learned Advocate for the judgment-debtors that term 'person' as used in Section 27(1) of the Ceiling Act would include 'Court' also since it happens to be a part of the State. As a matter of fact, Section 19 of the Ceiling Act provides that nothing contained in Chapter III would apply to any vacant land held by the Central Government or any State Government. This gives an indication that vacant lands held by the Central Government or the State Government are not put within the purview of the provisions contained in different sections of Chapter VII of the Ceiling Act. It is no doubt true that Section 27 is not a part of Chapter III but is part of Chapter IV of the Act. None-the-less, it cannot be urged that the Government seeking to transfer its properties would be required to obtain permission of the competent authority under Section 27. It should also be borne in mind that when Court exercises the power of attachment and sale of property of a judgment-debtor in execution of a decree, it exercises power as a Civil Court under the Civil Procedure Code, and not because it is a part of the State. The entire argument that a person would include Court is, in my opinion, misconceived.

15. The third reason which prompts me to reject the contention urged on behalf of the judgment-debtors that even forced sales or compulsory sales are within the purview of Section 27 is that Sub-section (2) of Section 27 requires that person desiring to make a transfer has to make an application in writing to the competent authority in such forms and in such manner as prescribed. The application is to be made in form 8 as prescribed under Rule 14 of the Urban Land (Ceiling & Regulation) Rules, 1976. Form 8 requires many particulars to be furnished by transferor as well as transferee, and they, inter alia, include the particulars of the vacant land held by the transferee in any urban or urbanisable land with or without building. It would not be naturally possible for the Court to furnish such particulars, because there is no specified or certain transferee in case of Court sale till the Court sale is made absolute. The Court say, therefore, could not be obviously within the purview of this section, otherwise it would require many conditions to be complied with by the Court, which in ordinary course, not be possible. The bar contained in Section 28, prohibiting the registering authorities from registering the document without production of the permission of the competent authority would also not be applicable since the Court sales would not require registration. In that view of the matter, therefore, I am of the opinion that the interpretation canvassed on behalf of the judgment-debtors that the prohibited transfer under Section 27 would comprehend all voluntary and involuntary transfers is not of much substance, and the contention should, therefore, be rejected.

16. My attention was invited to a decision of a Division Bench of this Court in Kanubhai Sankakhand Pale v. Nayankunj Co-operative Housing Society Ltd. Ahmedabad and Ors. : AIR1978Guj140 I do not think that this decision can be of much assistance to the judgment-debtors before me since the Division Bench was concerned with the transfer of a vacant land in that case, and the ratio of the decision is that no decree for specific performance should be granted since the transfer of vacant land without complying with the formalities contained in the Ceiling Act is void under of the said Act. On the other hand, on behalf of the decree- holder, attention was drawn on the decision of Karnalak High Court in Samuel Thyagaraja Kumar v. K. Sitarama Achar and Ors. A.I.R. 1977 Karnatak 158, where the Court has taken the same view as I am inclined to take in these matters that an execution sale is not a transfer coming within the scope of Section 27(1) of the Ceiling Act. The Karnatak High Court held that the definition of the word 'person' in Section 2(i) does not include a court, and that there is a difference between a transfer by operation of law and transfer by act of parties, and the purchaser at a court sale acquires title by operation of law and at such sales title is transferred without a registered deed and therefore Section 27 has no application to execution sales and its scope is limited to transfer inter parties. In this connection, it should also be noted that the opinion of the Central Government on the matter of requirement of the prior permission of the competent authority in cases of Court sales concures with the view which I have taken. I am not referring to this opinion of the Central Government so as to construe the scope and width of the provision contained in Section 27, but only in order to point out that even the Central Government does not think it obligatory for obtaining prior permission of the competent authority in matters of transfer of Court sales. In the Compendium of the Urban Land (Ceiling and Regulation) Act, 1976 (No. 33 of 1976) and Guidelines issued by the Government of India, Ministry of Works & Housing to the Various State Governments thereunder, in Section 27 at page 103 the opinion of the Central Government as contained in the Circular letter No. 1/100/76-UCU, dated June 7, 1976 of the Ministry of Works and Housing is set out with reference to the question whether the provisions contained in Section 27 of the Ceiling Act are attracted in the case of the enforcement of the decree or the order of the Court, and it has been clarified that the provisions contained in Sections 26 and 27 of the Ceiling Act would apply in case of voluntary transfers only, and as transfers arising out of court decrees or court orders are not in the nature of voluntary transfers, the provisions contained in Sections 26 and 27 will not apply to them. The first contention urged on behalf of the judgment-debtors, therefore, should fail and is rejected.

17. There are no other contentions urged on behalf of the judgment-debtors than what has been stated above. The result is that this First Appeal No. 147 of 1977 and Civil Revision Applications Nos. 353/77 and 484/77, therefore, fail and are dismissed. There should be no order as to costs having regard to the fact that these matters involve important question of the interpretation of the provisions of the Ceiling Act. Rule in each of these revision applications is discharged.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //