1995 Supreme(AP) 452

Andhra Pradesh High Court
Judges : B.S.A.SWAMY, M.N.RAO
Vijayacvada Urban Zilla Weaker Section and Economically Backward Classes Society, rep.by its President M.Shankar Rao - Appellant
Versus
Dhulipalla Kishore Kumar - Respondent
WANo.455/94 etc.
Decided On : 08-11-95
Advocates Appeared :
Mr. B.V. Subbaiah, P.M. Gopal Rao, Mr. N.V. Ramakrishna, Mr. C. Poomiah

Headnote:URBAN LAND (Ceiling and Regulations) ACT, 1976, Secs.4(7),8(3) and 20(1)(G) and Rule 5(2) of the Rules under the Act - Declaration filed by Karta of Joint Hindu Undivided Family consisting of his wife, minor children and major son in respect of properties held by him - Notice of draft-statement prepared by competent authority calling for objections under Sec.8(3) need not be issued to major son who is entitled for one unit under Sec.4(7).

       URBAN LAND (Ceiling and Regulations) ACT, 1976 Sec.4(4)(a) Decree in a civil suit filed by transferee of certain property under an agreement by transferor declarant for specific performance of sale by sale of property prior to enforcement of the Act Decree-holder is not entitled to notice of draft statement under Section 4(3) by competent authority.

       URBAN LAND (Ceiling and Regulations) ACT, 1976, Sec.20 (1)(b) Grant of exemption of surplus land under the Act by the Govt. to Society which does not involve any public interest - Not legal.

       CONSTITUTION OF INDIA, Art.226 and Urban Land (Ceiling and Regulations) Act, 1976, Sec.8(3) Laches - Notice of draft statement prepared and issued by competent authority under the Act to declarant Karta of a Joint Hindu undivided Family on 14.4.1978 - Writ petition filed by major son in 1993 questioning notice - Liable to be dismissed on ground of laches.

       HELD: Notice under Rule 5(2) of the Rules is contemplated to such of the alienees, whose interests are in conflict with the declarant, but not to a person who is sailing with the declarant and who has no adverse interest to that of the declarant. The requirement of notice under Rule 5(2) of the Rules must be tested with deference to the nature of the adverse interest the person has, who is required to be given notice. Stated differently, if a person has no adverse interest vis-a~vis that of the declarant, he is not entitled to notice. A major son of a Hindu Undivided Family, who is not required to file a declaration and who is entitled to one unit for himself under Section 4(7) of the Central Act, cannot be treated as a person with interest adverse to that of his father, the declarant. Part of the petitioner, a reading of the affidavit filed by the major son shows that he is fully aware of the proceedings that are going on under the provisions of the Central Act and if he is really interested in safe guarding his interests independent of his father, nothing prevented him to come on record and put forth his case. On the other hand, in the suit filed the Society, a semblance of protest was raised by him to show to the authorities that his interests are adverse to that of the interests of his father. But during the trial, he did not take any steps to prove his case or confront his father with his case when he was in the witness box, and when he was giving evidence contrary to the written statement filed by him. Further, the very conduct of the major son in not preferring an appeal against the judgment and decree of the Sub-Court and the decision of the learned single Judge in Writ Petition No.8331/91 wherein the order of rejection of the application of the declarant seeking exemption was confirmed, it self speaks about the conduct and bonafides of the petitioner. Under Section 6(1) of the Central Act, every person holding vacant land in excess of the ceiling limit at the commencement of the Central Act is under an obligation to file a statement before the competent authority as required under the Central Act and the Rules made thereunder. If such a person fails to file a declaration as contemplated under Section 6(1) of the Central Act, the competent authority may serve a notice upon such person requiring him to file a statement referred in sub-section (1) within such period as may be specified in that notice under Section 6(2) of the Central Act.

       So even if a notice was given by the competent authority directing the major son to file a statement on the basis of the information furnished by the declarant, the major son would not and could not have tiled a declaration as he did not know to what extent and which land that would come to his share as he is a member of Hindu Undivided Family at the commencement of the Act. Further, after allowing two units one to the declarant and the other to his major son no land other than the one now under dispute was available for surrender. That being the factual position insistence upon notice to the major son is nothing but a futile exercise and a device to drag on the proceedings without any finality.

       In this case, that the land in question was sought to be transferred after 17.2.1975 under an unregistered ante dated agreement of sale which cannot create any right or interest in favour of the alleged transferee-Society. Further, even the agreement under which the land was transferred clearly states that the transfer is subject to obtaining necessary permission under the A.P. Vacant Land (Prohibition & Alienation Act, 1972. Admittedly" no permission was obtained under the said Act and as such the agreement is unenforceable in law and it cannot confer any rights on the vendee. Therefore, the Society cannot take shelter under the decree of the Civil Court and the land covered by the agreement of sale is liable to be computed in the holding of the declarant for the purpose of arriving at the excess vacant land held by the declarant and the decree is non est to that extent. Though the transferee gets into possession of the land under an agreement of sale as no valid deed of title is executed in his favour, the ownership will remain with the transferor and the land in possession of the transferee has to be computed in the holding of the transferor declarant. In Fact, under Section 5(1) of the Central Act, if any vacant land in excess of the ceiling limit was transferred by executing a regular conveyance deed between 17-2-1975 and 17-2-1976 when the Central Act came into force, the land so transferred shall also be taken into account in calculating the excess vacant land held by the declarant and if no vacant land held by the transferor is available for surrender, the entire excess vacant land shall be selected out of the vacant land held by the transferee, that is to say, even if the transfer of immovable property is by executing a regular coveyance deed, the transfer is subject to the provisions of the Central Act with regard to the rights of the Government vis-a-vis the transferee under the provisions of the Central Act. When a transfer covered by Section 4(4)(a) of the Central Act is liable to be ignored for purposes of the Act, the Society cannot contend that it is entitled for a notice as required under the Rules as a Person interested .

       The Society cannot claim notice under Rule 5(2) of the Rules as person interested . The claim of the society seeking a direction to the Government to consider its application for exemption of the lands in question under Section 20(1)((a) of the Central Act cannot be acceded to as Durga society cannot fall under any of the Co-operative Societies which are eligible for allotment of the land on priority basis as per G.O. M.s.No.840 Revenue (UC.II) Department dated 16-6-1982 as the memers of the society do not belong to weaker sections or Clause -IV or low income or middle income groups and all of them without exception are engaged in gainful employment like service in Government or Bank, business and agriculture. Hence, No public interest in involved for grant of exemption to the land in question in favour of Durga Society. The orders of the Government in G.O.Ms.No.1156 Revenue (U.C.I) Department, dt.20.12.1991 assigning the lands in question to EBC Society cannot be sustained.

       On the question of laches, the major son filed the Writ Petition nearly after 11 years after the competent authority served a notice on the declarant under Section 8(3) of the Central Act. The very conduct of the major son is not preferring an appeal against the judgment and decree of the Sub-Court, Vijayawada and the decision of the learned single Judge in Writ Petition wherein the order of rejection of the application of the declarant seeking exemption was confirmed itself speaks about the conduct and bona fides of the petitioner in filing the present Writ Petition. The conduct of all the parties involved in the suit leads to irresistable conclusion that the society was brought into existence by the members of the declarant family with their own supporters only to obtain exemption from the provisions of the Central Act in respect of the excess land held by the family. The land in question was sought to be transferred after 17-2-1975 under an unregisted ante dated agreement of sale which cannot create any right or interest in favour of the alleged transferee-society.