K. P. Singh, J. - (1.) THIS writ petition by the State of U. P. is against the judgment of Shri B. C. Jauhari, District Judge, Allahabad, dated 3-1-1979 in Misc. Civil Appeal No. 199 of 1978-Satish Tandon v. State of U. P. and arises out of proceedings for permission to transfer a portion of building no. 35 Rani Mandi, Allahabad, in favour of Smt. Prem Rani Kapoor, under Section 27 (2) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act).
(2.) THE Competent Authority, Allababad, through its judgment dated 17-10-1980 rejected the application moved by the opposite party no. 1 in the present writ petition. Aggrieved by the judgment of the Prescribed Authority the opposite party no. 1 had gone in appeal and the appeal has been allowed and requisite permission was granted to opposite party no. 1 to sell a portion of house no. 35, Rani Mandi, Allahabad. Against the judgment of the appellate authority the State of U. P. has approached this Court under Article 226 of the Constitution. The learned counsel for the petitioner has contended before me relying upon the provisions of Section 5(3) and Section 10(4) of the Act that unless the excess vacant land of the opposite party no. 1 was determined, no permission to transfer the disputed portion of the building could be granted. Since the appellate authority has allowed the appeal preferred by the opposite party no. 1 and has granted permission to sell the disputed portion of the building, it has committed an error apparent on the face of the record and has also created complications in the way of the petitioner, hence the judgment should be quashed. The learned counsel for the opposite party no. 1 has contended before me that the provisions of Section 27 of the Act have been struck down by the Supreme Court and that there is no vacant land sought to be sold by the opposite party no. 1 as the construction stood over the entire area, hence the impugned judgment should not be quashed. It has also been stressed before me that a major portion of the house no. 35 Rani Mandi was sought to be sold and permission was granted and the writ petition filed by the State of U. P. has already been dismissed and against the judgment in writ the special appeal is pending before the Hon'ble Supreme Court, hence no injustice would occur to the petitioner if the disputed portion of the building is sold by the opposite party no. 1 in the present writ petition. For no fault of the opposite party no. 1 and the intending purchaser the sale would remain in suspense for sufficient long time which would cause much agony to the seller and purchaser both.
(3.) I have considered the contentions raised on behalf of the parties. I have a strong feeling that ordinarily no sale should be permitted unless the extent of vacant land held by the seller has been determined under the provisions of the Act. Section 5(3) of the above-mentioned Act reads thus :- "(3) In the 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 10(4) of the Act reads as below :- "(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." In view of the above provisions the propriety demands that the ceiling authorities should ordinarily refuse to grant permission to sell and in exceptional cases for justifying reasons the permission to sell should be granted so that a citizen may not feel that he has been deprived of his right to deal with his property even for his emergent and pressing necessity. In this case it is not necessary to give instances for permission to sell in exceptional cases and no hard and fast rule can be laid down for determining the nature of exceptional cases which would depend on the facts and circumstances involved in a particular case.;