B. D. Agarwal, J. - (1.) THIS petition under Article 226 of the Constitution is directed against the order of the Competent Authority, Urban Land Ceiling dated September 18, 1982 and the order passed by the Appellate Authority dated 22nd July, 1983 under the Urban Land (Ceiling and Regulation) Act, 1976 (for short 'the Act').
(2.) THE petitioners made application to the Competent Authority, Urban Land Ceiling, Allahabad seeking permission to transfer plot No. 456 having the area of 8 biswas (corresponding to 912*35 sq. metres) within the urban agglomeration, Allahabad on the allegations that the land comprised in the said plot is held by the petitioner as Bhumidhar and this is agricultural in character. THE permission asked for was declined by the Competent Authority by order dated September 18, 1982 observing that in the Master Plan the land is earmarked for residential purposes and hence it shall be deemed as vacant. In appeal filed by the petitioner under section 33 of the Act the District Judge agreed with the Competent Authority and affirmed the order whereby the permission sought by the petitioners was declined. Learned counsel for the petitioners contends that permission in this behalf was not required under section 27 (1) since the land proposed to be transfered is within the ceiling limit prescribed for this urban agglomeration and secondly, the view taken by the authorities is manifestly erroneous because even if this land is not used mainly for the purpose of agriculture, as explained in section 2 (o,, or, is 'vacant land' as defined in section 2 (q) of the Act, it being within the ceiling limit, tbe transfer is not prohibited. In Maharao Sahib Shri Bhim Singh Ji v. Union of India, 1981 (1) SCC 166, the Supreme Court laid down that sub-section (1) of section 27 is invalid in so far as it imposes a restriction on transfer of any urban or urbanisable land with a building or a portion only of such building which is within the ceiling area. Such property, it was held, is transferable without the constraints mentioned in the said sub-section (1). Section 2 (o) explains that where the land has been specified in the master plan for a purpose other than agriculture, it shall not be deemed to be mainly used for the purpose of agriculture, and is, therefore, not excluded from the purview of urban land. Such land may be vacant land within the meaning of section 2 (q) but then the material fact is that in this case the land in question being less than the ceiling limits, it may be transferred without the requirement of permission under section 27 (1). The observation of the learned District Judge endorsing the view of the Competent Authority that since the land is shown for residential purpose in the master plan, it shall be treated as surplus land exhibtis utter ignorance of the salient provisions of the Act and the well known pronouncement of the Supreme Court in the case of Maharao Sahib Shri Bhim Singh Ji (supra).
(3.) IT was then argued for the petitioners that the appplication for seeking permission under section 27 (1) should have been treated as a notice according to section 26 (1). I am unable to agree to this contention. IT is true that section 26 is concerned with a transfer of vacant land by a person holding vacant land within the ceiling limits. There is no question of any permission under section 26-Surendra Kumar v. Km. Lilawati, AIR 1982 MP 49. Where notice has been duly given and the Competent Authority has not opted within the period specified to make purchase, the Sub-Registrar cannot decline to register the deed of sale. Section 26 does not operate subject to section 5 (3) because it deals with transfer of vacant land falling within the ceiling limit vide State of U. P. v. Smt. Philips Mehrotra, (? sic). The difficulty in the way of the petitioners, however, is that thus for they have not given notice as contemplated under section 26. The application put in by them was in Form VIII as prescribed by Rule 14 of the Urban Land (Ceiling and Regulation) Act, 1976 read with section 27 (2). IT appears under section 26 or the Rules 1976 there is no form prescribed for notice. The guidelines issued by Government however, contain a proforma in which such notice is to be given. Assuming that this has no statutory base and that it is not mandatory to employ the proforma the difference created is in substance and not the form alone. There seems as a result no application of mind on the part of the Competent Authority to the question of exercise of option as provided under section 26 (2). The application was specifically for permission under section 27 (1) which the Competent Authority refused without his attention being drawn to the provision of section 26 (2) whereunder he could exercise the option. The proper course would, therefore, be that the petitioners give notice as provided under section 26 (1) whereupon the Competent Authority shall proceed according to law. This helps the scheme and the intention behind the statutory provision namely section 26 (2) being carried out and the object behind the notice may not in that event be defeated. For the discussion in the foregoing the order of the Competent Authority dated 18th September, 1982 and the District Judge dated 22nd July 1983 (Annexures 1 and 3 to the writ petition) are quashed. The petitioners shall be at liberty to give notice under section 26 of the Urban Land (Ceiling and Regulation) Act, 1976 whereupon the Competent Authority (respondent no. 2) shall proceed to deal with this according to law. The writ petition is allowed in part accordingly. There will be no order as to costs.;