J. S. Verma, J. - (1.) The petitioner booked a small flat with an area of 950 sq. ft. in a multistoreyed building containing several flats on the excess vacant land belonging to respondent No. 3, exempted under Section 20 (1) (b) of the Urban Land (Ceiling and Regulation) Act, 1976 to be constructed by respondent No. 4 in survey No. 44, Marenahalli Uttarahalli Hobli, Bangalore South taluk. Under the agreement, the petitioner was to purchase the flat together with 1/48 share in the land on which the building was to be constructed. Under the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 the promoter, namely, respondent No. 4, is required to convey title and exclude documents for the share in land of the flat/apartment. The petitioner took necessary steps for purchase of the flat together with his share of the land on which the multi-storeyed building is constructed. However, the respondent No. 4 regretted its inability vide letter dated 20-6-1993 to either execute the conveyance for transfer of the petitioner's share of land or to handover possession of the said flat to him because of the order dated 16-6-1993 of the Karnataka High Court. The petitioner was informed that the Karnataka High Court, by the said order, had restrained the State Government from issuing any orders permitting transfer of the excess vacant land and therefore, the respondents were not in a position to comply with the petitioner's demand. This order of the Karnataka High Court is based on the decision of this Court in S. Vasudeva/D.P. Sharma v. State of Karnataka, (1993) 3 SCC 467 , which prohibits transfer of any part of the excess vacant land in respect of which exemption is granted under Section 20 (1) (b) of Urban Land (Ceiling and Regulation) Act, 1976. The decision in S. Vasudeva being the basis of the impugned action, this writ petition has been filed under Article 32 of the Constitution challenging this action; and for that reason, correctness of the decision in S. Vasudeva arises for consideration. No other facts are material for deciding the question raised in this writ petition.
(2.) In S. Vasudeva (supra), a Division Bench comprised of two learned Judges of this Court (P. B. Sawant and N. P. Singh, JJ.) have held "that the provisions of Section 20 (1) (b) of the Act do not permit the State Government to give exemption to the vacant land in excess of the ceiling limit for the purpose of transferring the same." This is the common conclusion reached by the two learned Judges in their separate opinions. The State Government is applying this decision to all cases of exemption under Section 20 of the Act. The question, therefore, is:Whether this conclusion of restriction on transfer must apply invariably in all cases of exemption granted under Section 20 of the Act
(3.) The relevant provisions in the Urban Land (Ceiling and Regulation) Act, 1976 may now be referred. Chapter II contains the definition in Section 2. Chapter III contains Sections 3 to 24 with the heading 'Ceiling on vacant land'. Chapter IV contains Sections 25 to 30 under the heading 'Regulation of Transfer and Use of Urban Property' and Chapter V contains the miscellaneous provisions in Sections 31 to 47. The relevant definitions are as under: "Chapter II. Definitions 2. Definitions:- In this Act, unless the context otherwise requires, - ********** (c) "ceiling limit" means the ceiling limit specified in Sec. 4; ********** (q) "vacant land" means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include, - (i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated; (ii) in an area where there are building regulations, 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 and the land appurtenant to such building; and (iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building: Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live-stock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then, so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purposes of this clause. ********** Chapter III Ceiling on Vacant Land 3. Persons not entitled to hold vacant land in excess of the ceiling limit. - Except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which this Act applies under sub-section (2) of Sec. 1. 4. Ceiling limit - (1) Subject to the other provisions of this section, in the case of every person, the ceiling limit shall be, - ********** (3) Not withstanding anything contained in sub-section (1), where in respect of any vacant land any scheme for group housing has been sanctioned by an authority competent in this behalf immediately before the commencement of this Act, then the person holding such vacant land at such commencement shall be entitled to continue to hold such land for the purpose of group housing; Provided that not more than one dwelling unit in the group housing shall be owned by one single person: Provided further, that the extent of vacant land which such person shall be entitled to hold shall, in no case, exceed - (a) the extent required under any building regulations governing such group housing; or (b) the extent calculated by multiplying the number of dwelling units in the group housing and the appropriate ceiling limit referred to in subsection (1), whichever is less. Explanation - For the purpose of this sub-section and sub-section (10). - (i)"group housing" means a building constructed or to be constructed with one or more floors, each floor consisting of one or more dwelling units and having common service facilities; (ii) "common service facility" includes facility like staircase, balcony and verandah. ********** 5, Transfer of vacant land:- ********** (3) In any State to which this Act applies in the first instance and in any State which adopts this Act under Cl. (1) of Art. 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 Sec. 6 and a notification regarding the excess vacant land held by him has been published under sub-section (1) of Sec. 10; and any such transfer made in contravention of this provision shall be deemed to be null and void. ********** 10. Acquisition of vacant land in excess of ceiling limit. - ********** (4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3), - (i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and (ii) no person shall alter or cause to be altered the use of such excess vacant land. ********** 20. Power to exempt - (1) Notwithstanding anything contained in any of the foregoing provisions of this Chapter - (a) where any person holds vacant land in excess of the ceiling limit and the State Government is satisfied, either on its own motion or otherwise, that, having regard to the location of such land, the purpose for which such land is being or is proposed to be used and such other relevant factors as the circumstances of the case may require, it is necessary or expedient in the public interest so to do, that Government may, by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter; (b) where any person holds vacant land in excess of the ceiling limit and the State Government, either on its own motion or otherwise, is satisfied that the application of the provisions of this Chapter would cause undue hardship to such person, that Government may by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter; Provided that no order under this clause shall be made unless the reasons for doing so are recorded in writing. (2) If at any time the State Government is satisfied that any of the conditions subject to which any exemption under Cl. (a) or Cl. (b) of sub-section (1) is granted is not complied with by any person, it shall be competent for the State Government to withdraw, by order, such exemption after giving a reasonable opportunity to such person for making a representation against the proposed withdrawal and thereupon the provisions of this Chapter shall apply accordingly. 21. Excess vacant land not to be treated as excess in certain cases - (i) Notwithstanding anything contained in any of the foregoing provisions of this chapter, where a person holds any vacant land in excess of the ceiling limit and such person declares within such time, in such form and in such manner as may be prescribed before the competent authority that such land is to be utilised for the construction of dwelling unit (each such dwelling unit having a plinth area not exceeding eighty square metres) for the accommodation of the weaker sections of the society, in accordance with any scheme approved by such authority as the State Government may, by notification in the official Gazette, specify in this behalf, then, the competent authority may, after making such inquiry as it deems fit, declare such land not to be excess land for the purposes of this chapter and permit such person to continue to hold such land for the aforesaid purposes, subject to such terms and conditions as may be prescribed, including a condition as to the time limit within which such buildings are to be constructed. (2) Where any person contravened any of the conditions subject to which the permission has been granted under sub-section (1), the competent authority shall, by order, and after giving such person an opportunity of being heard, declare such land to be excess land and thereupon all the provisions of this chapter shall apply accordingly." ;