Supreme Court of India
S. V ASUDEVETC. ETC.versusSTATE OF KARNATAKA AND ORS.
- Citation
- 1993 INSC 123
- Decided
- 30 March 1993
- Disposal
- Appeal(s) allowed
- Bench
- P B SAWANT
Holding
Section 20(1)(b) does not permit the State Government to exempt excess vacant land for the purpose of its transfer, making the exemption orders void and the sale deed invalid.
Summary
The petitioners challenged the Karnataka State Government's orders permitting a partnership firm to sell excess vacant land under the Urban Land (Ceiling & Regulation) Act, 1976, alleging that the State lacked authority to grant such exemption and that the sale deed was void. The Supreme Court examined the scheme of the Act, its objects of preventing speculation and ensuring equitable distribution, and held that Section 20(1)(b) only allows exemption from acquisition, not permission to transfer. Consequently, the orders dated 6 March 1987 and 18 April 1987 were declared void for lack of jurisdiction, rendering the sale deed of 30 September 1987 inoperative. The Court also found that allowing sales on the ground of financial hardship would violate Article 14 and the Act’s purpose. The appeals were allowed and the High Court’s judgment set aside.
Issues considered
- Whether Section 20(1)(b) of the Urban Land (Ceiling & Regulation) Act, 1976 empowers the State Government to grant exemption for the purpose of transferring or selling excess vacant land.
- Whether the State Government's orders of 6 March 1987 and 18 April 1987 granting such exemption are valid.
- Whether the sale deed dated 30 September 1987 executed by the firm in favour of the builders is void and inoperative.
- Whether the classification of land‑holders as debtors and non‑debtors under the exemption power violates Article 14 of the Constitution.
Legislation cited
- Karnataka Land Reforms Act
- Land Acquisition Act, 1894
- Registration Act, 1908
- Urban Land (Ceiling & Regulation) Act, 1976s. 10, s. 20(1)(a), s. 20(1)(b), s. 21, s. 26, s. 27, s. 28, s. 29, s. 2(i), s. 2(q), s. 3, s. 30, s. 4, s. 5, s. 6
Subjects
Urban land ceilingExemption powerUndue hardshipArticle 14Transfer of vacant landPublic interestSpeculation and profiteeringKarnataka
Judgment
S. VASUDEVA ETC. ETC. A
v.
STATE OF KARNATAKA AND ORS.
MARCH 30, 1993
(P.B. SAWANT AND N.P. SINGH, JJ.) B
- Urban Land (Ceiling & Regulation) Act, 1976:
Sections 20(1)(a) & (b) and 21-Vacant land in excess of ceiling
limil-£.xemption could be granted only for the purpose of user of such C
land-Not for purposes of transfe,......State Government has no power to pem1it
sale of such land even on ground of undue hardship.
Section 20(1 )(b ): Exemption-Permission to transfer excess vacant
land-Classification of land-owners as debtors and non-debtors-Reason-
ableness of-Discretion of State Government in granting exemption- Un- D
guided and wltrammel/e~Transfer of /and-Restriction on registration in
respect of land not exempted--Discrimination-lrrationaf-Hence S.20(1 )(b)
held violative of Article 14 of the Constitution of India, 1950.
Sections 26, 27, 28: Transfer of excess vacant land-Not permissible
unless encumbered with a building or portion thereof E
Constitution of India, 1950:
-
Article 14-Whether S.20(J)(b) of the Urban Land (Ceiling & Regula-
tion) Act, 1976 is violative of
F
Words & Phrases:
"Person'~ "Undue hardship''-Meaning in the context of Urban Land
(Ceiling & Regulation) Act, I97fr-Sections 2( 1) and 20( l)(b) respective(v.
The second respondent, a partnership firm was carrying on the G
business of manufacturing and selling polished granites. It was running
its factory in a small portion of the land owned by it and the rest of the
land was vacant when the Urban Land (Ceiling & Regulation) Act, 1976
was made applicable to that area. The firm made an application to. the
State Government for exemption of the vacant land from the provisions of H
715
·--<
716 SUPREMECOURTREPORTS [1993] 2 S.C.R.
A the said Act, and the exemption was granted subject to certain conditions.
The Competent Authority under the Act came to the conclusion that
there was some excess vacant land and directed the publication ofa notifica-
tion u/s 10(1) of the Act for acquisition of the same. Later, the firm made an
application to the State Government for permission to sell thevacaotlaod to
B the third respondent (builders) mainly on the ground that the firm had been
incurring huge losses in its business. On 63.1987 the State Government
permitted the firm to sell the land to the builders, only to the exte.nt of 16194 ,
C
sq. mtrs. Again the firm filed another application to transfer the remaining
3444 sq. mtrs. oflaod to the builders, and on 18.4.1987 the State Government
permitted the same subject to certain conditions.
- •
Consequently, by a sale deed dated 30.9.1987 the firm entered into a
deed of absolute sale with the builders for sale of the entire vacant land.
Writ Petitions by way of Public Interest Litigation were filed in the
D High Court challenging the exemptions granted by the State Government,
for declaring the sale deed void B:nd inoperative and for acquiring the land
for the weaker sections. A Single Judge allowed the Writ Petitions an.d gave
certain directions including sale of plots to he carved out from the land
and only such number of plots as would be necessary to discharge the debts
of the firm were to be sold and the remaining portion of the vacant land
E was to he acquired under the Act. He also held that there were no ma/a r
fides in the State Government granting exemptions by its orders dated
63.1987 and 18.4.19P7.
Against the decision of the Single Judge, appeals were preferred
-
before the Division Bench of the High Court and the Division Bench set
F
aside the findings as well as the direction given by the Single Judge.
Aggrieved by the Judgment of the Division Bench, the appellants preferred
the present appeals.
Allowing the appeals, this Court,
G
HELD:
BY THE COURT:
1.1. The provisions of Section 20(1)(b) of the Urban Land (Ceiling
and Regulation) Act, 1976 do not permit the State Government to give
H exemption to the vacant land in excess of the ceiling limit for the purposes
'>-
'
' >.. S. VASUDEVAv. STATEOFKARNATAKA 717
of transferring the same. [757 CJ A
1.2. The orders dated 6.3.1987 and 18.4.1987 granting exemption and
permission to the firm for sale of the land are void ab illitio having been
passed without jurisdiction. Accordingly, the sale-deed dated 30.9.1987
~
executed by the 2nd respondent-firm in favour of the 3rd respondent-
builders is invalid and inoperative, as the respondent-firm had no legal B
right to transfer the land in favour of the builders. [757 F, GI
-
j
1.3. In view of the above conclusions, it is not necessary to go into the
questions as to whether the State Government has the power to grant exemp-
lion; the circumstances in which it can be exercised; and whether financial
0
-.,... hardship such as the indebtedness of the land-holder is sufficient to warrant
such exemption <;r not; and the date on which such indebtedness is to be
assessed and in what manner; and whether in the present case, the said
aspects of the indebtedness were properly investigated or not. .For this very
reason, there is no need to go into the other question regarding the ma/a fide
on the part of the authorities while granting permission to the firm to sell the D
land to the builders in question. [757 D, E]
Per Sawant, J.
;A.
l. The provisions or Section 20(l)(b) of the Urban Land (Ceiling &
Regulation) Act, 1976 do not permit the State Government to exempt vacant
E
land in excess of the ceiling limit for the purposes of transfer. [753 BJ
2. The central object of the A.ct, as is evident both from the preamble as
well as the statement of objects and reasons, is to acquire vacant land in
~· -i<._ excess or the ceiling area and to prevent speculation and profiteering in the F
I same and also to distribute the land equitably lo subserve the common good.
It is, therefore, per se against the said object lo permit the sale of the excess
vacant land for whatever reasons, including the undue hardship of the
land-holder. To construe the provisions of Section 20 (l)(b) so as to read in _
them the conferment of such power on the Sta.le Government for whatever
reasons, is lo distort and defeat the whole purpose of the legislation. Fu)-- G
----r ther, neither the plain language of the clause nor its context and intendment
11
merit such construction. Section 20 itself is titled Power to exempt". The
power given lo the State Government under the Section is 9nly to exempt
certain excess vacant lands from the operation of the provisions of Sections
3 to 19 of Chapter III, none of which refers to the subject of transfer or H
-.(
•·
,j, #
718 SUPREME COURT REPORTS I 199312 S.C.R.
A restrictions on transfer. Those proYisions relate to the calculation. declara-
tion,acquisition and vesting ofthr excess vacant land. It is Chapter IV which
rdates to the transfers ofrnrant lands and the restrictions thereon. Further,
from the scheme of the Act, it is e•ident that the transfers of the vacant land
were to be regulated by the specific provisions made in it. They were notto be '«(
left to be govrrned by the unguided discretion of any authority including the
B State Government. The specific provisions for regulating the transfer have
been incorporatrd in Sections 26 to 28 of the Act. Those provisions permit
transfrr of only .vacant lands within the ceilin_g limit but without buildings,
and of vacant lands in rxcess of the ceiling limit but with buildings thereon
and subject to the conditions laid dmm there. It cannot be suggested that in
c defiance of the said provisions, Section 20(1)(b) vests power in the State
Government to sanction salrs of excess vacant lands with or without build- "-r"
ing thereon.Under Section 20(\)(b), the State Government can only exempt
such excess vacant land from being acquired by it. The Government cannot
permit its transfer when the Act, does not even by implication, authorise it to
do so but permits the transfer subject only to the conditions prescribed by
D
Section 27. The legislature cannot be presumed to have prescribed different
conditions for transfer of the same or similar lands. (746 C-H; 747 A]
3. The restriction on transfer even of vacant land within the ceiling
limit but without building is deemed to be valid. Thus the transfer of the ~
E vacant land without building even if it is within the ceiling limit and of the
vacant land in excess of the ceiling limit with a building or a portion of
the building an' subject to the restrictions placed by the Act. Section 20 is
subject to the provisions of sections which follow it including Sections 26
to 28. Hence no construction can be placed on clause (b) of sub-section (1)
F
thereof which will be in conflict with the provisions of sections 26 to 28.
(747 E, F]
~
-
Maharao Sahib Shri Rhim Singhji v. Union of India, [19811 1 sec
166, referred to.
4. Since as per the definition of "person" in Section 2(i), the said
G provision viz. S.20(li(a) is applicable not only to individuals, but also to a
family, a firm, a company or an association or body of individuals whether
incorporated or not, the hardship spoken of there, is obviously one related to
the user of the land. In fact, it is difficult to understand the precise purpose
for which clause (b) has been enacted and the meaning of the expression
H "undue hardship" there. One Is left only to speculate on the subject. The
.. .A. S.VASUDEVAv.STATEOFKARNATAKA 719
speculation itself may not be valid. The lands are held by companies, lrisU A
and associations for industrial and commercial use, for the use of medical
and educational institutes, sports, clubs, cultural activities, gardens, exhibi-
_lions etc. There is no special provision made in the Act to protect or take care
)r of such users. The only provision under which a relief can be given to
preserve and sa(eguard such user is Section 20(1) (a). But that provision can
be pressed into service only on the basis of the location orthe land and its B
present or prospective user and only if it passes the test of public interest.
--- However, all lands in excess of the ceiling limit may not strictly be necessary
for such user, even ir the user is in the public interest. Nevertheless, _the
withdrawal of a part ofthe land found to be in excess may cause an avoidable
~-
hardship to the land-holder which may be c:l.isproportionate.to the benefit c
that is to accrue to the public on account of oach withdrawal. The excess of
land may be meagre or the severance of such excess land itself may result in
unnecessary hardship. The hardship further has to be undue and not merely
an ordinary hardship which is bound to be caused on account orthe applica·
lion of the Act to every holder of the excess vacant land. The undue hardship
must be one which cannot be avoided except by granting a relief of exemption
D
as contemplated by the said provision. The relief from financial hardship or
from indebtedness to the land-holder of such land is alien both to the object
,A and the scheme of the Act. The classification of the owners of land for this
purpose between debtors and non-debtors is itself irrational and has no
I plausible nexus with the object of the Act. Such a classification is, therefore, E
discriminatory and violative of Article 14 of the Constitution.
[7.fll 8-H; 749 A)
711akorbhai Dajibhai Desai v. State of Gujarat, AIR 1980 Guj. 1891,
overruled.
""- F
5. The exemption which is granted under Section 20(l)(b) has to be
supported by reasons to be recorded in writing. This requirement also
contemplates an exemption which is related to and promoted by the use
or better use of the land. If it is the financial hardship which was under
the contemplation of the legislature, there was nothing easier than to make G
a reference to the same in clause (b) itself and to lay down guidelines for
the inquiry into such hardship. The provisions of sub-section (2) of Section
20, directly negative either exemption on account of financial hardship or
for the purpose of the transfer of the land, since that sub-section empowers
the State Government to withdraw the exemption already granted if the H
720 SUPREME COURT REPORTS [1993] 2 S.C.R. A. ..
A State Government is satisfied that any of the conditions subject to which
the exemption is granted either under clause (a) or clause (b) or sub-sec-
lion (1) is not complied with. It is inconceivable that the legislature had
in mind the cancellation or the transfer including sale, which cannot be
done when it has already taken place. 1749 E-G] ~
~
B
6. It cannot be said that the legislature which places restrictions on
the transfer or the land within the ceiling limit would at the same time give
a carte blanche for the sale or the land in excess of the ceiling limit. For it
would mean, that the State Government cannot have an option to purchase
-
such land and that the sale can be made by the holder or the excess land
c at any price that he chooses. Such a reading of Section 20(l)(b) would
militate against one or the objects or the Act, viz., to prevent speculation ~
and profiteering in the sale and purchase of land. Moreover, it would be
patently discriminatory. Whereas the holder of vacant land within the
ceiling limit would have to suffer the restrictions placed by Section 26, the
D holder or the vacant land in excess or the ceiling limit has not to do so. He
would in fact be in a better position. The provisions with regard to granting
such exemption subject to certain conditions contained in Section 20(1)(b),
do not in any way mitigate the discrimination. When the statute itself
places specific restrictions under Section 26 on the sale of land within the
ceiling limit, it is not possible to reach a conclusion that the conditions on -~
E which the State Government is empowered to permit the sale can be left
to the discretion or the State Government. In fact, such discretion given to
the State Government would itself be violative of Article 14 of the Con'sfitu-
lion, the same being unguided and untrammelled This also shows that the
legislature has not given power to the State Government under Section
F 20(l)(b) to permit exemption for sale of the land. Otherwise it would have ,4.
provided in the section itself for the conditions on which the permission
to sell can be given and such conditions could not be less onerous than '
those provided under Section 26 or the Act. Ir the power to permit sale or
the land was intended to be given only for relieving the land-holder of his
financial hardship, the section could very well have provided for sale of
G such land under Section 26 or the Act or made provision in Section
20(l)(b) itself for the first option of the State Government to purchase it. -r-<~
It cannot be said that by not making such provision either in Section
20(l)(b) or Section 26, the legislature intended to permit the sale of such
land at a price above the fair market price payable under the Land
H Acquisition Act, 1894 or the corresponding law and thereby encourage
S. VASUDEVA i·. STATEOFKARNATAKA 721
speculation and profiteering, the very evils which the Act intended to curb, A
(750 E-H; 751 A-CJ
7. The provisions of Section 27 also militate against the conferment
of the power on the State Government to _permit exemption of land for the
purpose of its transfer. The provisions of Section 27 refer to any urban or
urbanisable land with a building. The vacant land in excess of the ceiling B
limit may be with or without a building. In fact, the provisions of Section
27 directly negative the conferment of such power, for the said provisions
show that the legislature did not want the sale of any urban or urbanisable
land with a building whether it is within or without the ceiling limit except
in accordance with the provisions of Section 27. For Section 27 speaks of C
transfer of any urban or urbanisable land with a building or a portion only
of such building, only with the permission of the competent authority and
on the terms mentioned therein. This Court has invalidated the provisions
of the said section to the extent they apply to the vacant land with a
building when the land is withie the ceiling limit. But it does apply to land
in excess of the ceiling limit and with a building or a portion of it thereon. D
It is not possible to accept that there are two provisions, viz. Section
20(1)(b) and Section 27 operating at the same time in the same area. Also
there is nothing either in Section 20(1)(b) or Section 27 to exclude the
operation of Section 27. (751 G, H; 752 A]
E
Maharao Sahib Shri Bhim Singhji etc. etc. v. Union of India & Ors.,
(1981] 1 sec 166, referred to.
8. Section 28 does not make any reference to the transfer permitted
by the State G?vernment under Section 20(1)(b). The holder of the vacant
land in excess of the ceiling limit has not to face the restriction on the F
registration of the document of transfer of his land provided under Section
28 when such transfer is permitted by the State Government under Section
20(1)(b), whereas the holder of similar land who does not approach the
State Government has to suffer the same when he transfers the land held
by him. The discrimination between the transfers under the different G
provisions is irrational and· has no nexus with the object ought to be
achieved by the classification. (752 E-G]
--~
9. If the power to exempt the land for sale is read in Section 20(1)(b)
with sueh conditions as the State Government may choose to place and if
either the State Government chooses not to place any conditions or to H
722 SUPREME COURT REPORTS [1993] 2 S.C.R.
......_
A place such conditions as are inconsistent with the provisions of Sections
29 and 30, it would create two sets of lands - one where no restrictions are
applicable. to the construction thereon or only such restrictions as the
State Government may choose to impose, and the other where the restric-
lions on constructions as provided by Section 29 and 30 would be ap-
plic11ble. [752 G-H; 753 A) .
~
~
B
Per N.P. Singh, J. (Concurring):
1. The object of the Ad being imposition oi ceiling on vacant land io
urban agglomerations and for acquisition of such land in excess of ceiling
limit, with a view to prevent the concentration of urban land in the hands
c of a few persons, speculations and profiteering therein, that object will be
defeated i£ the power under Section 20(1) of the Act is exercised by the
State Government to exempt the excess vacant lands, from the application ~
of Chapter III of the Act, so that the holder thereof can transfer such
lands. [753 C, DJ
D
2. Under Indian conditions the expression "undue hardship' is nor-
mally related to economic hardship. That is why from time to time many
holders of lands in excess of the ceiling limit, while claiming exemption
under clause (b) put forth their bad economic condition and indebtedness to
claim exemption along with permission to sell such excess lands. In the
E modern set up many holders of such excess lands having undertaken com-
mercial or industrial ventures with the help of the loans from the Banks and
other financial institutions, put the plea of repayment of such loans as
""
undue hardship for claiming exemption under clause (b) of section 20(1)
aforesaid. When different provisions take into consideration the lands al-
F ready transferred by the holder, between the period 17th February, 1975 (as
specified in sub. sec. (4) of S.4; and the appointed day as well as between the
period commencing from the appointed day and ending with the commence- •
ment of the Act, it should not be easily inferred that the framers of the Act
desired that after the commencement of the Act while exercising the power of
exemption under section 20(l)(b) permission should be granted to holders
G
of such excess lands to transfer such lands to third parties in order to meet
their financial liabilities. [753 G, H; 754 A-Fl
--r'--
3. If Section 21 provides for granting exemption in respect of excess
land held by the holder only on a specific condition that the holder shall
H utilise the same for the construction of dwelling units for weaker section, to
S. VASUDEVAv. STATEOFKARNATAKA[SAWANT,J.l 723
serve a public cause, the framers of the Act could not have conceived the A
grant of exemption under Section 20(l)(b) to the holder oft!te excess land,
only to serve his interest, by selling such excess lands. (754 H; 755 A-Fl
4. If the State Government can exempt the vacant land held by the
land holder in excess of the ceiling limit, from the applicability of the
-)>-- provisions of Chapter III of the Act, in order that the said holder sells B
such land to liquidate his debts which amounts to an 'undue hardship',
then there will be an apparent conflict between the interest of the land
- holder lUld the public interest. In the interest of the land holder the
maximum price fetched by sale of such land will be the solution of his
hardship, whereas that will run counter ,to the object of the Act to prevent C
'speculations and profiteering". It cannot be said that even in such trans- •
fers the dominant purpose of the legislation, to prevent 'the concentration
of urban land in hands of few persons' is none-the-less sel'>'ed. The
concentration of urban land in hands of few persons has to be prevented
with a view to bring about "an equitable distribution of land in urban
agglomerations to subserve the common go;d". 1755 B·Dl: D
5. If the vacant lands which have vested in the State are also to be
disposed of as stipulated under S.23 strictly keeping in view the spirit and
object of the Act, exemption u/s.20(l)(b) cannot be granted to holders of
such lands to dispose of the lands in the manner they like, to th~ persons they E
prefer, at the price they dictate, for clearing their debts. Ifit is conceded that
indebtedness amounts to an undue hardship, then it may cover the debts
incurred even after the commencement of the Act. (756 D, El
6. This Court has already held that Section 27(1) in so far as it imposes
restriction on transfer ofany urban or urbanisable land with a building or of F
a portion of such building which is within ceiling area, was invalid. The said
sub-section (l) of Section 27 was struck down being unconstitutional. Sec·
tion 26 of the Act also imposes certain restrictions on transfer of vacant land
even within ceiling limit. It can therefore be stated that Section 26(1) suffers
from the same vice. But neither in that case nor in this case, this court was or G
is concerned with Section 26. As such, it is not necessary to express any
opinion in respect of Section 26 of the Act, while considering the issue
involved in the present appeals. (756 G, H; 757 A, BJ
Maharao Sahib Shri Rhim Singhji etc. etc. v. Union of India & Ors.,
!19811 l sec 166, referred to. H
724 SUPREME COURT REPORTS [1993] 2 S.C.R .
.. A
A CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1454-56
of 1993 etc. etc.
From the Judgment and Order dated 15.2.1991 of the Karnataka
High Court in Writ Appeal Nos. 2083, 2084 and 2085 of 1989.
B K. Madhava Reddy, P.P. Rao, N.D.B. Raju, Guntur Prabhakar, Dr. -"(
Sumand Bhardwaj, Yatish Mohan Verma and Ranjit Kumar for the Ap-
pellants.
Soli J. Sorabjee, N.B. Shetye, R.N. Narasimha murthy, S.Ganesh,
Vineet Kumar, M. Veerappa, Nobin Singh, P.R. Ramasesh, P. Mahale
c (NP), S.K. Kulkarni and Surya Kant for the Respondents.
The Judgment of the Court was delivered by
SAWANT, J. Leave granted.
D 2. These appeals arise out of the same facts and judgments of the
Karnataka High Court and are being disposed of by this common judg-
ment. For the sake of the narration of events Civil Appeal Nos. 1461-72/
1993 arising out of SLP (Civil) Nos. 7230-41 of 1991 may be referred to.
The 2nd respondent-Mis Naryanaswamy & Sons is a partnership
E
firm. While it was carrying on the business of manufacturing and selling of
polished granites, it acquired on 30.9.1953, 6 acres and 4 gunthas of land
in Survey Nos. 6/1 and 6/2 of Dasarahalli in the heart of Jayanagar Exten-
sion of the city of Bangalore. Out of the said land, 1 acre and 2 guntbas
had already been acquired by the Ist respondent-State Government under
F notification dated 1.4.1948. The acquisition proceedings bad culminated in
an award, granting compensation to the land owner on 3.3.1955. In a small
portion of the said land, the 2nd respondent-firm (hereinafter referred to
as the 'firm'), established a granite factory and the rest of the land was
vacant when the Urban Land (Ceiling and Regulation) Act, 1976 (the
G ~Act') was made applicable to the Bangalore Agglomeration consisting of
the area within the juri;diction of the Bangalore City Municipal Corpora-
tion and the Trust Board, and the peripheral area of 5 kms.
3. On 9.6.1983, the firm preferred an application to the State Govern-
ment for exemption of the vacant land from the provisions of Chapter III
H of the Act. By an order of 17.7.1985, the State Government, granted
S. VASUDEVAv. STATEOFKARNATAKA[SAWANT,J.] 725
exemption under Section 20 of the Act for industrial use of a granite A
factory. The exemption related to 16194 sq. mtrs. of land and was granted
on the following conditions:
'
(i] The entire land utilisation shall be completed within a
- period of two years from the date of the order.
B
-· [ii] The exempted land shall be exclusively used for the
purpose for which the exemption was granted and for
the purposes related thereto.
[iii] The land shall not be transferred by way of sale,
mortgage, gift, lease or otherwise without prior per-
c
mission of the Government and that such permission,
when given, shall be subject to such conditions as the
Government may deem fit to impose.
4. The 3rd respondent-partnership firm - M/s. Reevajethu, Builders D
and Developers (the 'builders'] was constituted on 6.1.1987 with Smt.
Shobha Makhija as the major partner with 50% share and other 18
partners, mainly "to develop the immovable property to be acquired by the
firm of an extent of 5 acres and 24 gunthas situated at Survey Nos. 6/1 and
6/2 of Dasarahalli of Bangalore City and to carry on the business as E
builders and developers of flats, shops, commercial complexes and other
types of buildings, dealers in real estate and all other allied business and
11
activities!! and to carry on any other business as may be mutually agreed
upon by all the partners". It is not in dispute that Smt. Shobha Makhija is
the sister of the son-in-law of the 4th respondent who was then the Chief
Minister of the State of Karnataka. F
5. On 9.1.1987, the competent authority under the Act came to the
conclusion that the excess vacant land out of the said Survey Nos. 6/1 and
6/2 after the grant of exemption by the Government Order dated 17.7.1985,
was 3444 sq. mtrs. The competent authority accordingly directed the G
publication of a notification under Section 10 fl] of the Act for the
acquisition of the said excess vacant land~
6. On the same day, i.e., 9.1.1987, the firm made an application to
the Stale Government for permission lo sell land to the extent of 5 acres
and 24 gunthas comprised in the said Survey Nos. 6/1 and 6/2 to the H
726 SUPREME COURT REPORTS (1993] 2 S.C.R.
. ,A. ~
A builders. The grounds made out in the application were that due to st.iff
competition, and nationalisation of black and pink granite by the southern
States including Karnataka, the firm. was running under losses; that its
Woodlands Hotel at Madras was also not making profits since the hotel •
building had become very old and there were no funds for modernising it;
B
that its theatres in Madras were also not yielding profits due to unhealthy
competition by the video piracy and the advent of the television; that the ~ -
partners of the firm individually and jointly were indebted to Andhra Bank,
Bank of India, State Bank of Mysore and Dena Bank; that the said debts -
-
were of more than Rs. l crore 65 lakhs; that suits had been filed in the
High ·Court of Madras against the partners; tha~ the business of the
partners had been suffering huge losses specially due to continuing heavy
.c interest burnden; that the families of the seven partners of the firm had no
other source of income and had been over-drawing from the firms for their
maintenance; and that one of the partners was seriously ill in a hospital at ~
Bangalore and he had to borrow money for taking medical treatment.
D 7. On 6.3.1987, the State Government under Section 20 [1] of the Act
permitted the firm to sell land to the extent of 16194 sq. mtrs. to the
buHders subject to .:ertain conditions.
8. On 24-3d987, the firm filed another application before the State
Government seeking permission to transfer the remaining 3444 sq. mtrs. of
E vacant land from Survey Nos. 6/1 and 6/2 to the builders on the ground of A.,
undue hardship since the firm had incurred debts. On 18.4.1987 the State
Government under Section 20 [l](a) of the Act granted exemption for the
said land from the purview of Chapter III of the Act and also permitted
the firm to sell the said 3444 sq. mtrs. of vacant land from Survey Nos. 6/1
and 6/2 subject to certain conditions.
F
9. By a sale deed of 30.9.1987, i.e., a day before the extension of
Chapter XXC of the Income-tax Act providing for preemptive purchase by
the Central Government of immovable property in certain cases on trans-
fer, the firm entered into a deed of absolute sale for the sale of the property
consisting of land to the extent of 5 acres and 24 gunthas situated in the
G
said Survey Nos. 6/1 and 6/2.
10. On this undisputed factu.al matrix, writ petitions were filed by way
of public interest litigation, under Article 226 and 227 of the Constitution
~
before the High Court for issue of a writ of mandamus [a] directing the
H respondent-Government to take action for forfeiture of the land for con-
r
S. VASUDEVA v. STATEOFKARNATAKA(SAWANT,J.) 727
!!Ill. A travention of Section 79 of the Karnataka Land Reforms Act; [b) for A
acquiring the land for the purpose of weaker sections under the provisiolls
of the Act; [c] for quashing the orders dated 63.1987. and 18.4.1987
granting exemption to the lanct fa question from the purview of the Act
under Section ·20 (l](a) & (b) of the Act and for declaring the sale deeds
dated 30.9.1987 executed by t.he firm in favour of the builders as void and
)r: inoperative; (d). for directing the State Government to take action under
B
Section 6 of the Karnataka Parks, Play-fields, and Open Space [Reservation
and Regulation] Ac~ 1985 and for other reliefs.
- 11. The learned Single Judge by his judgment and order dated
8.9.1989 allowed the writ petition, and among others, [I] qua5hed the
Group Housing Policy of the State Government as embodied in the
c
._,,. decision of the Committee held on 22.10.1986 and communieated under
letter dated 24.11.1986 insofar as it encouraged the Group Housing Scheme
through individuals and partnership of individuals by transferring vacant
land to such persons; [ii] restrained the State Government from enforcing D
the said Policy through individuals and partnership of individuals against
the vacant land; [iii] declared as null and void and quashed the orders
dated 6.3.1987 and 18.4.1987 granting exemption; [iv] declared the sale
deed dated 30.9.1987 executed by the firm in favour of the builders as null
and void so far as it related to the extent of land admeasuring 19368 Sq.
mtrs. covered by the exemption orders of 6.3.1987 and 18.4.1987. The E
validity of the sale deed so far as. it related to the remaining land mentioned
therein was, however, saved by the said declaration; [v] directed the State
Government, the Special Deputy Commissioner under the Act, the Ban-
galore Development Authority and the Municipal Corporation of Ban-
galore to identify the extent of 1 acre, 2 gunthas and 58 square yards which F
was acquired in 1948 out of the sa;d Survey No. 6/1 and to set them apart
..l. for the purpose of road and Boule-vard and use it only for said purpose;
[vi] remitted the applications dated 9.1.1987 and 24.3.1987 made by the firm
to the State Government with the direction to consider them in accordance
with law under Section 20 [l](b) of the Act and to exempt them in the light
of the extent of the debt owed by the firm to the creditors prior to the G
coming into force of the Act; [vii] directed that even if after examining the
, application in the aforesaid light the State Government granted permission
=-"y·
~ to the firm to sell the vacant land on the ground of hardship, the Govern-
ment should see that, in the vacant. land, sites are formed of various
dimensions not exceeding 60' x 90' keeping in view the sites already formed H
728 ·SUPREME COURT REPORTS (1993) ~ S.C.R.
A in the locality. The learned Judge further directed that each such site
should be sold by public auction by the competent authority with the
condition that no person is entitled to purchase in public auction more than
one site, and to credit the sale proceeds in the office of the competent
authority under the Act who would pay the amount to the creditors of the
firm. The learned Judge also further directed that only such number of
B sites should be sold which are necessary to discharge the debts and the
remaining portion of the vacant land should be_ acquired under the Act. It
may be noted here that the learned Judge held that the allegations of ma/a
fides in granting exemptions by the orders of 6.3.1987 and 18.4.1987 against
respondents 4 and 8, were not proved.
c
12. Against the said decision of the learned Single Judge, appeals
were preferred before the Division Bench of the High Court, among others,
by writ petitioners as well as the firm and the builders. All the appeals were
heard together and the learned Judges of the Division Bench gave separate
~but concurring judgments and set aside the findings as well as the direc-
D tions given by the learned Single Judge and dismissed the writ petitions.
13. The precise questions which arise for our consideration in these
appeals are:
E [i] Were the permissions granted by the State Government
to sell land admeasuring 16194 sq. mtrs. and 3444 sq.
mtrs. by its orders of 6.3.1987 and 18.4.1987 respec-
tively valid under the Act?
[ii] Were the said orders motivated by ma/a fides ? and
F
[iii) Is the sale deed executed by the firm in favour of the
builders on 30.9.1987 void and inoperative?
14. In order to appreciate the answer to the first and the third
question, it is necessary to understand the scheme of the Act which came
G into force on 17.2.1976. As the preamble of the Act states, it has been
placed on the statute book [i] to provide for the imposition of a ceiling on
vacant land in urban agglomerations; [ii) to provide for the acquisition of
such vacant lan.d in excess of the ceiling limit; and [iii) to regulate the
construction of buildings on such land and for matters connected therewith
H with a view to [aJ preventing the concentration of urban land in the hands
S. VASUDEVA v. STATEOFKARNATAKA{SAWANT,J.J 729
of a few persons and speculation and profiteering therein and [b) bringing A
about an equitable distribution of land in urban agglomerations t.o subserve
the common good. These objects .which are otherwise· clear from the.
preamble of the Act have been explained in the statement of objects and
reasons accompanying the Bill which, among other things, stales as follows:
'There has been a demand for imposing a ceiling on B
urban property also, especially after the imposition of a
ceiling on agricultural lands by the State Governments.
- With the growth of population and increasing urbanisa-
tion, a need for orderly development of urban areas has
also been felt. It is, therefore, considered necessary to take c
measures for exercising social control over the scarce
resource of urban land with a view to ensuring its equi-
table distribution amongst the various sections of society
and also avoiding speculative transactions relating to land
in urban agglomerations.
D
xx xx xx
The Bill is intended to achieve the following objec-
tives:-
j.
[i) to prevent concentration of urban property in the hands E
of a few persons and speculation and profiteering
therein;
[ii) to bring about socialisation of urban land in urban
agglomerations to subserve the common good by en-
F
. soring its equitable distrib!ition;
[iii) to discourage construction of luxury housing leading
(0 conspicuous consumption of scarce building
materials and to ensure the equitable utilisation of
such materials; and G
... -,..-- \iv] to secure orderly urbanisation.
The Bill mainly provides for the following:-
[i) imposition of a ceiling on both ownership and posses- H
' '
730 SUPREME COURT REPORTS [1993] 2 S.C.R. ·,A ..
A sion of vacant land in urban agglomerations, the ceiling
being on a graded basis according to the classification
of the urban agglomeration;
(ii] acquisition of the excess vacant land by the State
Government with powers to dispose of the vacant land
B to subserve the common good;
[iii] payment of an amount for the acquisicion of the excess
vacant land, in cash and in bonds; -
[iv] granting exemptions in .respect of certain specific
c categories of vacant land;
[v) regulatiltg the transfer of vacant land within the ceiling
limit;
[vi] regulating the transfer of urban or urbanisable land
D with any building [whether constructed bdore or after
the commencement of the proposed legislation], for a '
perfod of 10 years from the commencement of the
legislation or the construction of the building
whichever is later;
E
[vii] restricting the· plinth area for the construction of
future residential buildings; and
[viii] other procedural and miscellaneous matters."
It is needless to emphasise that while interpreting the various
F
provisions of the Act the said objects will have to be kept in view, constant-
ly. However, only those ·provisions of the Act which have a bearing on the
controversy before us may be referred to.
The "vacant land" has been defined in Section 2 (q) as follows:
G
"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 permis-
sible under the building regulations in force in the area
H in which such land is situated,
'- ' '.
~-~ S. VASUDEVA v. STATEOFKARNATAKA[SAWANT,J.) 731
[ii] in an area where there are building regulations, the A
land occupied by any building which has been con-
structed before or is being constructed on, tbe ap-
pointed day with the approval of the appropriate
'r authority and the land appurtenant to ouch building;
and
B
-
[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 build-
ing; c
-,.:.
Provided ...................... ".
The "land appurtenant", in relation to any building, has been defined
in Section 2(g) 'as follows:
D
"land appurtenant", in relation to any building, means -
[i] in an area wher'e there are building regulations, the
minimum extent of land required under such regula-
.~' tions to be kept as open space for the enjoyment of
such building, which in no case shall exceed· five E
hundred square metres; or
- [ii] in an area where there are no building regulations, an
extent of five hundred square metres contiguous to the
land occupied by such building,
A~
F
and includes, in the case of any building constructed
before the appointed day with a dwelling unit therein, an
additional extent not exceeding five hllndred square
metres of land, if any, contiguous to the ~inimum extent
referred to in sub-clause [i] or the extent referred to in
G
'.,..- sub-clause [ii], as the case may be".
Section 3 states that except as provided in the' Act, on and from the
commencement of the Act, no person shall be entitled to hold any vacant
land in excess of the ceiling limit. The "ceiling limit" is prescribed in Section
4. The provisions of Section 4, so far as they are relevant for our purpose, H
A. S. VASUDEVAv. STATE OFKARNATAKA[SAWANT,J.] 733
Section 5(3) prohibits transfer of the vacant land in excess of the A
ceiling limit or any part thereof by way of sale, mortgage, gift, lease or
otherwise until the land-holder has furnished a statement under Section 6
. of the Act and a notification regarding the excess vacant land held by him,
has been published under sub-section [1] of Section 10. Any such transfer
'r
is deemed to be null and void.
B
Section 6(1) requires every person holding vacant land in excess of
- the ceiling limit at the commencement of the Act, to file a stateinen! before
the competent authority under the Act. Read with Section 7, it is clear that
the statement to be filed under Section 6(1) has to include vacant land not
only situate in the same State but also in other States to which the Act C·
-"' applies. In the present case, admittedly, the firm held land also in Madras
in addition to the land in dispute in the city of Bangalore. It is not known
whether the firm had vacant land in its possession in Maaras in addition
to the land in dispute and whether it had shown such land in its return.
However, that is not the subject matter of dispute bef~re us.
D
Section 8 provides for a draft statement to be prepared by the
competent authority, as regards the vacant land held by the person con-
cemed and calculated on the basis of the statement filed by him under
Section 6 after holding an inquiry into the matter. The draft statement is
~
to be served on the person concerned with the notice requiring him to E
prefer his objections, if any.
-- Section 9 provides for the final statement with regard to the vacant
land in excess of the ceiling limit to be prepared by the competent authority
and to be served on the person concerned.
F
..>., After the service of the final statement under Section 9, on the
person concerned, the competent authority is required by Section 10(1) to
cause a notification to be published in Official Gazette giving the par-
ticulars of such vacant land and stating therein [i] that such land is to be
acquired by the concerned State Government and [ii] the claims of all the
persons interested in such vacant land be made by them giving particulars G
·--y- of the nature of their interest in the land. Under Section 10(2), the
competent authority is required to determine the nature and extent of such
claims and pass such orders as it deems fit. Section 10(3) provides that at
any time after the publication of the notification under Section 10(1), the
competent authority may by another notification published in the Official H
734 SUPREME COURT REPORTS (1993).2 S.C.R.
A Gazette of the State concerned, declare that the excess vacant land
referred to in the notification published under Section 10(1) shall with.
effect from such date as may be specified in the declaration, be deemed to
have been acquired by the State Government. Upon the publication of such
declaration, the vacant land is deemed to have been vested absolutely in
the State Government free from all encumbrances with effect from the date
B so specified. Section 10 ( 4) then prohibits transfer of the excess vacant land
and also the alteration of the use of such land between the date of
notification published unde.r Section 10(1) and that of the notification.
published under Section 10(3). Section 10(5) enables the competent
authority to pass an order requiring the person in possession of the excess
C vacant land to surrender the same to the State Government.
Section 11 requires the State Government to pay compensation to ~
the person or persons having interest in the vacant land acquired under
Section 10(3), at the rates mentioned therein.
D Section 19 exempts certain lands from the provisions of Chapter III
of the Act which comprises Sections 3 to 24.
Then.come the provisions of Section 20 to 24 of Chapter III. We are
directly concerned in the present appeals with the said sections along with
E the provisions of chapter IV of the Act. .A._.
Section 20 permits the State povernment to give exemption to any
vacant land in excess of the ceiling limit, from the provisions of Chapter J
III, for two distinct purposes. It is necessary to reproduce here the said I
section:
-.
F
20. Power to exempt. - (1) Notwithstanding anything con-
tained 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
G on its own motiori 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 reci..uire, it is
necessary or expedient in the public interest so to do, that
H Government may, by order, exempt, subject to such con-
s_ VASUDEVAv. STATEOFKARNATAKA[SAWANT,J.J_ 735
A
ditions,_if any as may be specified in !he order, such vacant A
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
'r motion or otherwise, is satisfied that the application of the
B
provisions of this Chapter would cause undue hardship to
such person, that Government may by order, exempt sub-
-
ject to such conditions, if any, as may be specified in the
order, such vacant land from the provisions of this Chap-
ter:
Provided that no order under this clause shall be made
c
---,. 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 clause (a) or clause (b) of sub-section (1) is granted D
is not complied with by any person, it shall be competent
for the State Government 10 withdraw, by order, such
exemption after giving a reasonable opportunity lo such
person for making a representation against the proposed
_.1 withdrawal and thereupon the provisions of this Chapter
E
shall apply accordingly.
It would be apparent from clause (a) of sub-section (1] of the section
that under it, the State Government is given power 10 exempt the excess
vacant land from the operatioo of Chapter III only if the Slate Government
is satisfied that having regard lo Ii] the location of the land and [ii] the F
....__ purpose for which it is being or is proposed to be used, it is necessary or
expedient in the public interest lo exempt it. The paramount consideration
is the public interest. The exemption granted .under this provision may be
subject lo certain conditions. But, it does no! ap~ar that it is obligatory
10 impose such conditions. Nor is it necessary to record reasons when
exemption is granted under this clause.
G
~-
The power to exempt such land under clause (b) of sub-section (1]
can be exercised by the State Government, if it is satisfied that the applica-
!ion of Chapter III would cause undue hardship to the landholder. The
exemption may be granted under this clause subject to such conditions, if H
736 SUPREME COURT REPORTS (1993) 2 S.C.R. _.A
A any, as may be specified in the order. But, unlike under clause (a), there
is no obligation to prescribe the conditions. The permission given under
this clause, however, has to be supported by reasons to be recorded in
writing.
Sub-section [2) of the section enables the government to withdraw -..(
B the exemption granted either under clause (a) or (b), if is satisfied that any
of the conditions subject to which the exemption is given, is not complied'
-
with. Clauses (a) and (b) of sub-section [1) read with sub-sedion [2) make
it clear that the· exemption may either be conditional or absolute. Where it
is conditional, it may be withdrawn, if any of the conditions are not
c complied with. The very fact, however, that the legislature has con-
. templated imposition qf conditions on exemptions granted under both the
clauses, shows that tlie purpose of the exemption under either of the :.r.
clauses cannot be the transfer of the land. The exemption under clause (a)
is obviously for the land being put to a particular use which use is also
necessary or expedient in the public interest, while exemption under clause
D (b) is for relieving the person concerned from any undue hardship which
may be caused to him personally, by the withdrawal of the excess land from
his possession probably such as when the person may require the land for
the expansion of the use to which he has already put it, such as his growing
business or activities or to accommodate his growing family. The clause
E unfortunately is completely silent on what it intends to convey by the ~
expres~ion "undue hardship
11
•
Section 21 also contemplates exemption of the excess vacant land ·
from the operation of the said Chapter but for a purpose other than for
F the use of the holder of the land. The purpose contemplated there is the ,..
I
construction of dwelling units of the plinth area of not more than 80 sq.
~
.....
mtrs. for accommodation of the weaker sections of the society and in
accordance with a scheme approved by such authority as the State Govern-
ment may specify in that behalf. The person desiring exemption under this
; Section has further to declare his intention for construction of such dwell-
G 'Ang units for weaker sections within such time; in such form and in such
manner as may be prescribed. Such declaration is to be made before the
competent authority. The competent authority, after receiving such decla- '<
ration may, after making such inquiry as it deems fit, declare such land not
to be excess land for the purposes of the said Chapter and permit such
H person to continue to hold such land for the aforesaid purpose subject to
S. VASUDEVA v. STATEOFKARNATAKA [SAWANT,J.) 737
A
such terms and conditions as may be prescribed. Where any such condition A
is contravened, the competent authority has been given power to declare
the land to be excess land and on such declaration, the , provisions of
Chapter III of the Act are to apply.
'r The distinction between Sections 20 and 21 may be noticed at this
B
stage. In the first instance, the power given under Section 20 is to the State
Government and not to the competent authority. The power given is to
exempt the land, and the exemption is to be granted to a person. The
- purpose of exemption is' either public interest or relief from personal undue
hardship. It does not appear to be obligatory on the ·State Government to
prescribe any conditions while granting the exemption. However, if any c
conditions are specified and if the State Government - later satisfied that
----y there is non-compliance of any of the conditions, the State Government is
given power to withdraw the exemption.
As far as Section 21 is concerned, the power conferred by it is. not
D
to exempt the land but to declare it not to be excess for the purposes of
Chapter III. The power is given to the competent authority itself. ·It is to
be exercised by it only under one circumstance. That circumstance is that
the holder of the vacant land should declare before it within a specified
time and in the prescribed form and manner, that he desires to utilise the
··"' land for the construction of the dwelling units of not more than the
particular size mentioned therein for accommodating the weaker sections
E
and in accordance with any scheme approved by the specified authority. it
j
- is the competent authority which is required to make inquiry as it deems
fit into such a declaration, and if it is satisfied, to declare that such land
shall not be excess within the meaning of the said Chapter. However, it F
appears that the competent authority is required to prescribe certain terms
~
and conditions while declaring the land not to be an excess land, including
a condition with regard to the time limit within which such buildings are
to be constructed, and on the breach of any of the conditions, the com-
petent authority is also given power to declare the land to be an excess
land. G
,- r Section 22 enables a person to hold the vacant land on which there
stood a building which he demolished or destroyed or which was
denuilished or destroyed on .account of natural causes. The holder of such
land is required to file a.statement in that behalf within the specified time H
738 SUPREME COURT REPORTS {1993) 2 S.C.R.
).._
A and if the competent authority is satisfied that such land is required by the
bolder for the purpose of redevelopment in accordance with the ma5ter
plan, the authority may, subject to such. conditions and restrictions, permit
the holder to retain such land for such purpose. However, if the competent
authority is not so.. satisfied and does not therefore, give permission for
B
redevelopment, the provisions of Sections 6 to 14 of the Act become 1'
applicable even to such land.
Section 23 provides for the disposal by the State Government of the
vacant land acquired under the Act or acquired under .any other law. The
State Government may allot such land to any person for any purpose
-
c relating to or in connection with any industry or for providing residential
accommodation, of such type as may be approved by the State Govern-
ment, to the employees of any industry. The "industry" is defined for the .'f"
purpose to mean any business, profession, trade, undertaking or manufac-
lure. While·making such allotment, the State Government may impose such
conditions as may be specified in the order of allotment. A breach of any
D of the conditions imposed 'Cnables the State Government to cancel the
allotment, and on such cancellation 'the land revests in the State Govern-
ment free from all encumbrances. Sub-section (4) thereof also enjoins the
State Government to dispose of the vacant lands to subserve the common
good on such terms and conditions as the State Government may deem fit
~
E to impose. Sub-section [5) thereof gives the State Government an overrid-
ing power and enables it to retain or reserve any vacant land acquired
F
under the Act for the benefit of the public, notwithstanding anything
contained in sub-sections [l) to (4).
Section 24 enables the State Government to assign a part or whole
of the acquired land to those persons who bad leased out or mortgaged
- r
with possession, of the said land or had given such land under a hire-pur-
chase agreement and as a consequence of which they are left with no vacant
land or. are left with vacant land which is less in extent than the ceiling
limit.
G
Chapter JV of the Act deals with the regulation of transfer and use -~ '·
of urban property. Section 26 prohibits the sale of vacant land within the
ceiling limit except after giving notice in writing to the competent authority,
of the intended transfer. Where the notice is given, the competent authority
H shall have the first option to purchase the land on behalf of the State
S. VASUDEVA v. STATEOFKARNATAKA[SAWANT,J.] 739
A.
Governemnt at a price calculated in accordance with the provisions of the A
Land Acquisition Act, 1894 or of any other corresponding law for the time
being in force. The option has, however, to be exercised within a period of
sixty days from the date of the receipt of the notice and if no such option
is exercised, it will be presumed that the competent authority has no
-· 'r intention to purchase the land, and it shall then be lawful for such person
to tra.,sfer the land to whomsoever, he may like.
B
-
Section 27 prohibits transfer of any urban or urbanisable land by way
of sale, mortgage, gift, lease for a period exceeding ten years, or otherwise,
if such land is with a building, whether constructed before or after the
commencement of the Act. It also prohibits a similar transfer of the land c
. with a portion only of such building. The restriction on the transfer of $uch
~ land is for a period of ten years of the commencement of the Ac;t or from
the date on which the building is constructed whichever is later, except with
the previous permission of the competent authority. The competent
authority is given power to grant or refuse permission to transfer, after
holding an inquiry. If the permission is not refused within sixty days of the
D
receipt of the application, the permission is deemed to have been granted.
If the permission applied for is for the transfer of such land by way of sale,
the competent authority is given the first option to purchase such land with
the building or a portion of the building, as the case may .be, and if the
A option is not exercised within sixty days, the applicant is free to sell the E
land to any person he may like. For the purpose of calculating the price,
where the purchase is made by the authGrity, the prnvisions of the Land
- Acquisiiion Act, 1894 or of the c~rresponding· law are made applicable.
This Section has since been struck down by this Court in Maharao Sahib
Shri Bhim Singhji etc. etc. v. Union of India & Ors., (1981] 1 SCC 166 to the
F
extent it operates on the vacant lands within the ceiling limit. In other
~
words, as the law stands today, the section applies only to transfer of the
urban and urbanisable lands in excess of the ceiling limit and which have
a building or a protion of building constructed thereon.
Section 29 prohibits construction of buildings with dwelling units with G
a plinth area exceeding particular dimensions, depending upon the
r category to which the urban agglomerations belong.
Section 30 gives power to the competent authority to stop or
demolish construction which is being made ·or made in contravention of H
740 SUPREMECOURTREPORTS (1993] 2 S;C.R.
A Section 29.
Section 35 gives power to the State Government to issue orders and
directions of a general character as it may consider necessary in respect of
any matter relating to the powers and duties of \he competent authority
and the competent authorit}' has to give effect t9 -such orders and direc-
B tions. '"'( ·-
Section 36 gives power to the Central Government to. give such
-
directions to any State as may appear to it to be necessary for carrying into
execution in the State concerned, any of the provisions of the Act or·of any
c rules made thereunder. The Central Government may also under this
Section require any State Government to furnish such returns, statistics,
accounts and other information as may be deemed necessary.
15. The examination of the aforesaid relevant provisions of the Act
.,
shows a clear intention of the legislature and reveals a definite scheme. It
D has to be admitted that the provisions of the Act as are drafted have not
succeded in translating into. words the clear intention of the legislature and
to that extent the Act is an inelegant and confused piece of drafting.
a
However, since the intention is clear, harmonious reading of all the
provisions consistent with that intention is necessary to interpret and
understand each of the said provisions. The intention of the legislature is
E to acquire all vacant land in excess of the ceiling limii prescribed 'by the _, ~
Act and the main purpose of the Act, as stated earlier, is three-fold, viz.,
[i] to prevent concentration of the urban land in the hands of a few persons
and to prevent speculation and profiteering therein;· [ii] to distribute the
urban land equitably and [iii] to regulate the construction of buildings on
F the urban lands. Consistent with these objectives, the Act provides for
-
. acquisition of all .urban vacant land in excess of the ceiling limit and
prohibits its transfer in an~ form absolutely. All that the Act permits in the ...._
case of such excess vacant land is either express exemption from the
operation of Sections 3 to 19 of Chapter III of the Act by the State
Government un~er Section 20 or non-declaration of such land as an excess
G
vacant land by the competent authority under Section 21 or the retention
of such land with the land-holder to be permitted by the competent
authority under Section 22 of the Act. "-(
The effect of exemption of the land from the provisions of Sections
H 3 to 19 or of the non-declaration of the land as excess land or of the
.r-
S. VASUDEVAv. STATEOFKARNATAKA[SAWANT,J.] 741
I
.A.... retention of the land with the land-holder under Sections 20, 21 and 22 A
respectively, is not to permit the land-holder to deal with it as he likes
including to transfer it. In fact, the exemption, the non-declaration and the
retention permitted, is on certain conditions which are required to be
prescribed by the State Government or the competent authority as the case
may be. If those conditions are not complied with or are contravened, the
>
'r B
State Government or the competent authority is given power to withdraw
. the exemption or to declare the land as excess. This power given to the
State Government and the competent authority itself negatives .either
power to permit the transfer or the right to transfer. What is more, Chapter
IV which alone makes provisions for transfer and use of urban property,
makes provision for transfer of vacant land within the ceiling limit subject c
to certain conditions. It also makes provisions .for the transfer of land in
excess of the ceiling limit with a building thereon or with a portion of such
T building. It makes, however, no provision for transfer of land in excess of
the ceiling limit without a building or a portion of a building thereon. That
is consistent with the object of the Act since the Act does not contemplate
D
transfer of the vacant land in excess of the ceiling limit It only provides
. for exemption of such land from being acquired and vested in the State
Government or for non-declaration of it as an excess land or for the
retention of the same with the holder and that too subject to certain
conditions which may be prescribed, as stated earlier.
,A. E
16. It is against the background of the aforesaid provisions of the Act
that we have to consider whether the two permissions given by the State
Government to the firm on 6.3.1987 and 18.4.1987 to sell land admeasuring
16194 sq. mtrs. and 3444 Sq. mtrs. respectively under Section 20 (1), are
legal.
F
....,__ 17. Taking, first, the order dated 6.3.1987, it does not mention under
which provision of Section 20 (1) the exemption is granted, viz., whether
under clause (a) or (b) thereof. It is, however, conceded before us on
behalf of the respondents that the exemption is not under clause (a) but is
under clause (b). We have, therefore, to examine the said exemption with G
reference to the provisions of clause (b). Section 20 (l)(b), as stated earlier,
r permits the State Government to exempt the vacant land from the
provisions of Chapter lIJ of the Act, if either on its own motion or
otherwise, it is satisfied that the application of the said Chapter "would
cause undue hardship to such person". The order of exemption may further H
742 ·SUPREME COURT REPORTS (1993] 2 S.C.R.
A be subject to.such conditions, if any, as may be specified in it. The reasons
for passing the order have further to be recorded in writing. The preamble
of the present order states that by the earlier order dated 17.7.1985, the
firm was granted exemption of the very same land for locating industry on
conditions contained in it. One of the conditions was that the declarant
shall not transfer the land in question without prior permission of the
B Government. The order then proceeds to refer to a letter dated 20.1.1987
of the Special Deputy Commissioner, Bangalore recommending the grant
of permission to sell the said land on certain conditions. The order states
-
that the Government has considered the undue hardship of the applicants
and agrees to grant permission to sell the said land. The order does not
.c discuss the undue hardship of the applicants. It is possible that the Govern-
ment for that purpose relied upon the report of the Special Deputy
Commissioner. It appears from the record that the report of the Special
Deputy Commissioner is of 29.1.1987 and not of 20.1.1987. It is possible
that there is a typographical error either in the record or in the order. Be
D that as it may. The said report of the Special Deputy Commissioner refers
to the application made by the firm for grant of permission for the sale of
the land "for their undue hardship'. The report then mentions the proper-
ties declared by the firm. All the properties, which are four in number and
one of which is the land in. dispute, are situate in Bangalore. There is no
mention of the properties which admittedly the appellants had in Madras.
E What is necessary to note here is that it is a!So stated in the report that the
land in dispute has a building of dwelling units and 6 non-dwelling units
over a plinth area of 1618.8(}sq. mtrs. constructed prior to the commence-
ment of the Act. It also states that there is a factory on. the land running
since 50 years which manufactures the polished stones exported to foreign
countries. The report then refers to whatthe firm had stated i9 its applica-
F
tion for permission to sell the land, The application had mentioned among
other things, as follows :
"(a] due to lot of competition and nationalisation of the
black and pink° granites by southern States including Kar-
G nataka, the firm had been suffering losses in the abovesaid
business;
[b] the partners of this firm are the partners ..of a firm
known as "'Woodlands" which has been carrying business
H in hoteliers and the said hotel is not making profits due
S. VASUDEVA i·. STATEOFKARNATAKA[SAWANT,J.] 743
A
to the fact that the buildings are very old and due to A
paucity of funds;
[c) that firm has cons1ruc1'd twin-theatres on the front
side of the hotel just to diversify the business.
>
1'
[d] that.they have incurred heavy loans from banks and B
private parties for the purpose of construction of theatres
and the p.artners who arc the partners of the applicant
- firm are responsible to liquidate. the loans;
[e[ the Madras firm has suffered heavy loss to a tune of.
Rs. 22,23,016\26 as on 31.3.1986." c
(The firm has under this head shown term loan of Rs.
57.57 lakhs from the Andhra Bank and Rs. 19.03 lakhs
from the Bank of Jndia and Rs. 17.29 lakhs from the State
Bank of Mysore. Thev have also mentioned Rs. 51.80 lakhs D
from private parties but their nam,es are not disclosed.
They have also mentioned other liabilities to the tune of
Rs. 3.87 lakhs but their details are not given.]
"[f) that the net capital and current accounts show a debit
balance of Rs. 47.94 lakhs". E
(They also further state that if the loan from 1.4..1986 .t-O
31.12.1986 is taken into account, the debit balance of the
partners would be about Rs. 68 lakhs.]
"[g] that the bank-authorities have filed suits in the High F
Court of Madras 10· attach their properties both in Ban-
galore and Madras;
[h] that· a private party by the name of Sri P.L. Narayanas-
wamy R<;ddiyar has also filed a suit in the Karnataka High
G
Court to recover the loan due to them from the Madras
r firm;"
The application had further stated that the Madras firm is not able
eve~ toiiay the interest as it is running at a huge loss. It had also been
.stated that it had become a mental ·torture to clear the liabilities and to H
744 SUPREME COURT REPORTS [1993] 2 S.C.R.
A
A face the court cases pending for attachment. If had then gone on to state
that there was no other way to dispose of the property in Bangalore, i.e.,
the disputed property to clear the above debts and that even the amount
derived from the sale of the land ii:t question would not be sufficient to
liquidate the liabilities.
.._
y
B The report further states that the firm had produced the statement
of profit and loss account and balance sheet as on 31.3.1986 and copies of
suits filed by the Bank of India in Madras and by the said Sri P.O.
c
Narayanaswamy Reddiyar in the High Court of Karnataka. After only
reciting the above facts but without mentioning even the price at which the
land in dispute was proposed to be sold, the Special Deputy Commissioner
-
has proceede.d to recommend the permission to sell the land to the builders
under Sectiori20 of the Acl. The application for permission itself had not • 'r
mentioned the price. The recommendation is in respect of not only 16194
sq. mtrs. but also in respect of 3444 sq. mtrs. It may be mentioned here
that the firm had not made any application for exemption or permission to
p sell the said 3444 sq. mtrs. till at least 24th March, 1987. Yet, the Special
Deputy Commissioner recommended in his report of 20/29.1.87 that the
earlier exempted land of 16194 sq. mtrs. may be permitted to be sold along
with the said 3444 sq. mtrs. He has of course recommended conditions to
be imposed while granting the permission to sell.
E ).__.
The State Government has also not independently enquired into the
genuineness of the debts, the value of all the assets of-the firm held by it
in Bangalore, Madras or elsewhere, and whether the debts were as on the
date of the commencement of the Act and whether any of the debts were -
F incurred subsequent to the said date, what was the price at which the land
was proposed to be sold, whether the assets other than the land in question
could not have been sold to meet the debts and if at all it was necessary
to sell the land in question, whether the sale only of a p~rt of the land
would not have relieved the firm of its obligations. Without such inquiry,
the Government by its order in question granted permission to sell 16194
G sq. mtrs. of land. Close on the heels, however, followed another order
dated 18.4.1987 by which the balance of 3444 sq. mtrs. was permitted to be
sold relying upon another report of the Special Deputy Commissioner. The ~
•
record before us -shows that the said report is of 27.3.1989. We may,
.however, presume a typographical error and construe it as a report of
H 27 3.1987. However, what is worth nothing is that the application for
746 SUPREME COURT REPORTS [1993] 2 S.C.R.
A
A not applied its mind to the relevant factors relating to the alleged indebted-
ness of the firm and hence the permission granted to the firm to sell the land
was liable to be struck down on that ground also.
18. The first question that' arises is whether the provisions of Section
~-
20[1] (b) permit the State Government to permit the sale of the excess 1
B vacant land to a third party. According to us, the answer has to be in the
negative for reasons more than one.
In the first instance, the central object of the Act, as is evident both
from the preamble as well as the statement of objects and reasons, is to
-
c acquire vacant-land in excess of the ceiling area and to prevent speculation
and profiteering in the same and also to distribute the land equitably to
subserve the common good. It is, therefore, per se against the said object "Y
to permit the.sale of the excess vacant land for whatever reasons, including
t.he undue. hardship of the· land-holder. To construe the provisions of
D Section 20 [1] (b) so as tO read in them the conferment of such power on
the State Government for whatever reasons, is lo distort and defeat the
whole purpose of the legislation. Further, neither the plain language of the
clause nor its context and intcndment merit such construction .. Section 20
itself is titled "Power to exempt". The power given to the State Govern-
ments under the Section is only to exempt certain excess vacant lands from
E the operation of the provisions of Sections 3 to 19 of Chapter III, none of .\_
which refers to the subject of transfer or restrictions on transfer. Those
provisions relate to the calculation, declaration, acquisition and vesting of
the excess vacant land. It is Chapter IV which relates lo the transfers of
vacant lands and .the restrictions thereon. Further, from the scheme of the
F Act, it is evident that the transfers of the vacant land were lo be regulated
by the specific provisions made in it. They were not to be left to be .._,
governed by the unguided discretion of any authority including the Stale
Government. The specific provisions for regulating the transfer have been
incorporated in Sections 26 to 28 of the Act. Those provisions permit
transfer of only vacant lands within the ceiling limit but without buildings,
G and of vacant lands in excess of the ceiling limit but with buildings thereon
and subject lo the conditions laid down there. It cannot be suggested that
in defiance of the said provisions, Section 20 [l](b) vests power in the State ~
Government to sanction sales of excess vacant lands with or without
building thereon. Under Section 20 [l](b), the Stale Government can only
H exempt such excess vacant land from being acquired by it. The Government
•'
S. VASUDEVA v. STATE OFKARNATAKAjSAWANT,J.] 747
"'- cannot permit its transfer when the Act does not even by implication A
authorises it to do so but permits the transfer subject only to the conditions
prescribed by Section 27. The legislature cannot be presumed to have
prescribed different conditions for transfel' of the same or similar lan.ds.
>
'T Secondly, Section 20 begins with the non-obstante clause "not-
B
withstanding anything contained in any of the foregoing provisions of this
Chapter", meaning .thereby Chapter III of the Act. The foregoing provisions
- of Chapter III viz., Sections 3 to 19, as stated earlier, do not contain any
provision permitting or restricting the transfer of the vacant land in excess
of the ceiling limit. The provisions relating to the transfer of the vacant
land are contained in Sections 26 to 28 of Chapter IV. Section 26 lays down
restrictions on the transfer of the vacant land even if it is within the ceiling
c
l' limit, while Section 27 places restriction on the transfer of any. urban or
urbanisable land with a building or portion of such building thereon for a
period of ten years from the commencement of the Act or from the date
on which the building is constructed, whichever is later, except with the
D
previous permission of the competent authority. Section 27 as couched is
wide in its implication and hence this Court by its decision in Bhintsinghji's
case [Supra] restricted its operation to lands with buildings which are above
the ceiling limit. However, the court has upheld the validity of the rest of
the Act including that of Section 26. The result is, the restriction on transfer
_) even of vacant land within the ceiling limit but without building is deemed E
to be valid. Thus the transfer of the vacant land without building even if it
is within the ceiling limit and of the vacant land in excess of the ceiling
limit with a building or a portion of the building are subject to the
restrictions placed by the Act. Section 20, as pointed out earlier, is subject
to the provisions of sections whicli follow it including Sections 26 to 28.
F
Hence no construction can be placed on clause (b) of sub-section [1]
.J.._ thereof which will be in conflict with the provisions of Sections 26 to 28.
Thirdly, the provisions of clauses (a) and (b) of sub-section (l] of Sec-
tion 20 make it clear that what the legislature has in mind is an exemption for G
the purposes of the use of the land and not for the purposes of selling it.
Sub-secticm 111 (a) speaks of exemption of such land having regard to its loca-
Y tion, the purposes for which the land is being or is proposed to be used and
such other relevant factors as the circumstances of the case may require. The
said provisions further require that even after taking into consideration the
said circumstances, the State Government. has to examine, before giving ex- H
} )
\
748 SUPREME COURT REPORTS [1993] 2 S.C.R. )...__
J_ '
A emption, whether it is necessary or expedient in the public interest to do so.
The Government is also empowered under the said provisions to grant such
exemption conditionally. Sub-section [1] (b) similarly, speaks of the undue
t
hardship caused on account of the application of the provisions of Chapter
III. Since as per the definition of"person" in Section 2 [i], the said provision is ,.,.- ~
applicable not only to individuals, but also to a family, a firm, a company or an
B
association or body of individuals whether incorporated or not, the hardship
-
spoken of there is obviously one related to the user of the land. In fact, it is
difficult to understand the precise purpose for which clause (b) has been
enacted and the meaning of the expression "undue hardship" there. We are
I \
left only to speculate on the subject. The speculation itself may not be valid.
c The lands are held by companies, trusts and associations for industrial and
commercial use, for the use of medical and educational institutes, sports,
'!'
clubs, cultural activities, gardens, exhibitions etc. There is no special provision
made in the Act to protect or take care of such users. The only provision under
which a relief can be given to preserve aild safeguard such user is Section 20
D [1] (a). But that provision can be pressed into service only on the basis of the ,._
location of the land and its present or prospective user and only if it passes the
test of public interest. However, all lands in excess of the ceiling limit may not
strictly be necessary for such user, even if the user is in the public interest.
Nevertheless, the withdrawal of a part of the land found to be in excess may
E cause an avoidable hardship to the land-holder which may be dispropor-
tionate to the benefit that is to accrue to the public on account of such.
withdrawal. The excess of land may be meagre or the severance of such excess ·
land itself may result in unnecessary hardship. The hardship further has to be
·"
undue and not merely an ordinary hardship which is bound to be caused on ~
account of the application of the Act to every holder of the excess vacant land.
F The undue hardship must be one which cannot be avoided except by granting
a relief of exemption as contemplated by the said provision. The relief from ,_
financial hardship or from indebtedness to the land-holder of such land is
alien both to the object and the scheme of the Act. Even the debates in the
Parliament do n9t refer to financial hardship or to the power of the State
G Government to exempt the land to permit its transfer on that account. To hold
that indebtedness and financial hardship would entitle the landholder to get
exemption for sale of the excess vacant land in his possession is to place the "(
holders of land with debts in an advantageous position a.s against those who
were unwise enough to manage their affairs with financial discipline. The
H classificatio~ of the owners of land for this purpose between debtors and
"" S. VASUDEVA v. STATE OF KARNATAKA[SAWANT,J.] 749
non-debtors is itself irrational and has no plausible nexus with the object of the A
Act. Such a classification is, therefore, discriminatory and violative of Article
14 of the Constitution. It is not, therefore, possible to agree with the view taken
by the Gujarat High Court in 17takorbhai Dajibhai Desai v. State of Gujarat,
1> AIR 1980 Guj.189 that the indebtedness of the land-holder on the date of the
1 1' commencement of the Act can be a ground for exemption under Section 20 [1]
(b). Much k'5 can such a ground vest the State Government with the power to
B
permit the sale of the land. As has been explained earlier, under the Act no
transfer of vacant land in excess of the ceiling limit is permitted whether with
or without condition, if it is not encumbered with a building or a portion of a
building. It can either be acquired by the State Government under Section 10
.,,
.
[3J of the Act or exempted from being acquired or permitted to be retained
under Sections 20, 21 and 22 respectively. It can in no case be transferred .
However, if it is so encumbered, the prmisions of Section 27 become ap-
c
plicable to the transfer of the land and no transferof such land can be effected
in contravention of the provisions of the said section. There is nothing either in
Section 20 or Section 27 which exempts the transfer of such land from the
D
operation of the provisions of Section 27, assuming that Section 20 (1) (b)
gives power to the State Government to permit the sale of such land.
Fourthly, the exemption which is granted under Section 20 [1] (b)
,A. has to be supported by reasons to be recorded in writing. This requirement
also contemplates an exemption which is related to and prompted by the E
use or better use of the land. If it is the financial hardship which was under
the contemplation of the legislature, there was ~othing easier than to make
a reference to the same in clause (b) itself and to lay down guidelines for
the inquiry into such hardship.
F
,'
..l..._
. Fifthly, the provisions of sub-section [2] of Section 20, directly nega-
live either exemption on account of financial hardship or for the purpose
of the transfer of the land, since that sub-section empowers the Stale
Government to withdraw the exemption already granted if the State
Government is satisfied that any of the conditions subject lo which the
exemption is granted either under clause (a) or clause (b) of sub-section G
y I1] is not complied with. It is inconceivable that the legislature had in mind
the cancellation of the transfer including sale, which cannot be done when
it has already taken place.
Sixthly, as pointed out earlier, when the legislature wanted to provide H
)-. __
750 SUPREME COURT REPORTS [1993] 2 S.C.R.
A for sale or transfer of the vacant land, it has done so specifically in Chapter IV
which exclusively deals with the "Regulation of transfer and use of urban
property". Sections 26, 27 and 28 of the said Chapter together provide for sales
of vacant land and for the registration of such sales. Section 26 restricts the
sale of land even if it is within the ceiling limit except after giving notice in ,...- ....
writing of the intended transfer to the competent authority. When such notice
B
is given, the competent authority has the first option to purchase the land on
behalf of the State Government and at a price· calculated in accordance with
the provisions of the Land Acquisition Ac~ 1894 or of any other correspond-
ing law for the time being in force. It is only when the competent authority
does not exercise its option to purchase the land within sixty days from the
c date of receipt of the notice, that it is lawful for the holder of the land to
transfer the same to whomsoever he may like. The provisions of Section 26 y
further show that the price lo be calculated for the purchase of the land when
the competent authority exercises its option is on the basis that the notifica-
tion under sub-section [1] of Section 4 of the Land Acquisition Act or under
D the relevant provision of any other corresponding law had been issued on the
date on which the notice was given of the intended transfer by the holder of the
land, to the competent authority. This provision makes it abundantly clear
that the exemption to be granted under Section 20 [1] (b} is not for the sale of
the excess vacant land. ll is difficult to hold that the legislature which places
>-__
E restrictions on the transfer of the land within the ceiling limit would at the
same time give a carte blanche for the sale of the land in excess of the ceiling
limit. For it would mean, firstly, that the State Government cannot have an
option to purchase such land and secondly, the sale can be made by the holder
of the excess land at any price that he chooses. In the first instance, such a
reading of Section 20 [I J (b) would militate against one of the objects of the
F
Act, viz., to prevent speculation and profiteering in the sale and purchase of ,.___
land. Secondly, it would be patently discriminatory. Whereas the holder of
\
vacant land within the ceiling limit would have to suffer the restrictions placed
by Section 26, the holder of the vacant land i_n excess of the ceiling limit has not
lo do so. He would in fact be in a better position. The provisions with regard to
G granting such exemption subject to certain conditions contained in Section 20
[ 1- j (b) do not in any way mitigate the discrimination. Firstly, when the statute -~-
itself places specific restrictions under Section 26 on the sale ofland within the
ceiling limit, it is not possible to hold that the conditions on which the State
Government is empowered to permit the sale can !:le left to the discretion of
H the State Government. In fact, such discretion given to the State Government
' S. VASUOEVA v. STATE OFKARNATAKA [SAWANT,J.] 751
~ ..
would itself be violative of Article 14 of the Constitution the same being un- A
guided and untrammeled. This also shows that the legislature has not given
power to the State Government under Section 20 (1] (b) to permit exemption
for sale of the. land. Otherwise it would have provided in the section itself for
y the conditions on which the permission to sell can be given and such condi-
tions could not lie less onerous than those provided under Section 26 of the
B
Act. Secondly, if the power to permit sale of the land was intended to be given
only for relieving the land-holder of his financial hardhip, the section could
- very well have provided for sale of such land under Section 26 of the Act or
made provision in Section 20 [1] (b} ,itself for the first option of the Siate
Government to purchase it. It is not suggested that by not. making such
provision either in Section 20 (1] (b) or Section 26, the legislature intended to
c
'-( permit the sale of such land at a price above the fair market price payable
under the Land Acquisition Act, 1894 or the corresponding law and thereby
encourage speculatio.1 and profiteering, the very evils which the Act intended
to curb.
D
Scventhly, Section 27 in Chapter IV is another provlSlon which
prohibits the transfer of any urban or urbanisable land with a building
whether constructed before or after the commencement of the Act or a
portion only of such building, for a period of ten years from the co,,men-
.)_ cement of the Act or from the date on which the building is constructed,
whichever is later' except with the previous permission or the competent E
authority. Sub-section (5] thereof again gives the first option to the com-
petent authority to purchase such land and at a price either as agreed upon
between the competent authority and the land-holder or where there is no
such agreement at a price to be calculated in accordance with the
provision< of the Land Acquisition Act, 1894 or any other corresponding F
~~ law for the time being in force. It is only if the option is not exercised within
sixty days or the competent authority has not refused permission to sell the
land that the holder of the land can legally transfer the same to whom-
soever he may like. These provisions of Section 27 also militate against the
conferment of the power on the State Government to permit exemption of
land for the purpose of its transfer for the same reasons as are based on G
. the provisions of Section 26 discussed above. The provisions of Section 27
r- refer to any urban or urbanisable land with a building. The vacant land in
excess of the ceiling limit may be with or without a building. In fact, the
provisions of Section 27 directly negative the conferment of such power,
for the said provisions show, firstly, that the legislature did not want the H
752 SUPREME COURT REPORTS (1993) 2 S.C.R.
~
A sale of any urban or urbanisable land with a building whether it is within
or without the ceiling limit except in accordance with the provisions of
Section 27. For Section 27 speaks of transfer of any urban or urbanisable
land with a building or a portion only of such building, only with the
permission of the competent authority and on the terms mentioned therein ..
This Court, as stated earlier, has invalidated the provisions of the said ~
B section to the extent they apply to the vacant land with a building when the
land is within the ceiling limit. But it does apply to land in excess of the
-
ceiling limit and with a building or a portion of it thereon. It is not possible
to hold that there are two provisions, viz. Section 20 [1] (b) and Section 27
operating at the same time in the same area. For the land permitted to be
transferred under Section 20 (1) (b) may also be a land with a building or
c a portion of a building thereon. In one case the restriction imposed by
Section 27 on the transfer would not apply and the State Government will ')--•
be deemed to have been given power to permit the sale even in contraven-
tion of the provisions of Section 27. In another case, the holder of similar
land will have to suffer the restrictions placed by Section 27. There is
D nothing either in Section 20 (1) (b) or Section 27 to exclude the operation .
of the section, as pointed out earlier.
Eighthly, the provisions of Section 2S require a special procedure to
.-
be followed by the registering officer under the Registration Act, 1908
while registering documents under Section 17 (1) (a) to (e) of that Act >..__
E when the transfer of the land is either under Section 26 or Section 27.
Section 2S does not make any reference to the transfer permitted by the
State Government under Section 20 [1] (b). In other words, the holder of
the vacant land in excess of the ceiling limit has not to face the restriction
on the registration of the document of transfer of his land provided under
F Section 2S when such transfer is permitted by the State Government under
Section 20 (1] (b), whereas the holder of similar lend who does not .l.
approach the State Government has to suffer the same when he transfers
the land held by him. The discrimination between the transfers under the
different provisions is irrational and has no nexus with the object ought to
be achieved by the classification.
G
Lastly, if the power to exempt the land for sale is read in Section 20 [1] --....(
(b) with such conditions as the State Government may choose to place and if '
either the State Government chooses not to place any conditions or to place
such conditions as are inconsistent \vith the provisions of Sections 29 and 30, it
H would create two sets oflands - one where no restrictions are applicable to the
S. VASUDEVAv. STATEOFKARNATAKA[S!NGH,"J.] 753
construction thereon or only such restrictions as the State Government may A
choose to impose, and the other where the restrictions on constructions as
provided by Sections 29 and 30 would be applicable.
'1 It is, therefore, more than clear that the provisions of Section 20 [1]
(b) do not permit the State Government to exempt vacant land in excess
of the ceiling limit for the purposes of transfer. B
N.P. SINGH, J. I agree with brother Sawant, J. that it is not possible
to hold that State Government can grant exemption under Section 20 [1)
(b) of the Act, {O the holder of the excess vacant land, so that he may
transfer the same in the manner he desires. The object of the Act being c
'"( imposition of ceiling on vacant land in urban agglomerations and for
acquisition of such land in excess of ceiling limit, with a view to prevent
the concentration of urban land in the hands of a few persons, speculations
and profiteering therein, will that object be not defeated if it is held that
power under Section 20(1) of the Act can be exercised by the State D
Government to exempt the excess vacant lands, from the application of
Chapter lII of the Act, so that the holder thereof can transfer such lands?
Sub-section (1) of section 20 is in two parts. The exemption under clause
(a) of the said sub-section is to be granted in the public interest whereas.
__,.(_under clause (b) the exemption is to be granted taking into consideration
the "undue hardship" of the holder of the land in excess of the ceiling limit. E
11 11
Both the expressions "public interest and "undue hardship are com-
prehensive in nature. But at the same time, it is not easy CVf'.O for courts
- to say as to whether under different circumstances the exemption was in
the "public interest" or was necessary in the interest of the holder of the
·land because of his "undue hardship". F
.. ~
U n<ler Indian conditions expression "undue hardship" is normally re-
lated to economic hardship. That is why from time to time many holders of
lands in excess of the ceiling limit, while claiming exemption under clause (b)
put forth their bad economic condition and indebtedness to claim exemption
along with permission to sell such excess lands. In the modern set up many G
Tholders of such excess lands having undertaken commercial or industrial ven-
tures with the help of the loans from the Banks and other financial institutions,
put the plea of repayment of such loans as undue hardship for claiming ex-
emption under clause (b) of section 20(1) aforesaid. How the holders of ex-
cess lands having incurred losses or having failed to discharge their debts can H
754 SUPREME COURT REPORTS [1993] 2 S.C.R. )..
A claim exemption on the ground of "undue hardship" in such a situation? Sec-
tion 4 while fixing the ceiling limit, under sub-section (3) takes note of the fact
that "where in respect of any vacant land any scheme for group housing has
been sanctioned by an authority competent in this behalf immediately before
f
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 ~
B purpose of group housing". But al the same time under sub-section (4) of
section 4 it has been specified that "if on or after the 17th day of February,
1975, but before the appointed day, any person has made any transfer by way
of sale, mortgage, gift, lease or otherwise (other than a bona fide sale under a
registered deed for valuable consideration) of any vacant land held by him
..
c and situated in such State to any other person, whether or not for considera-
tion, then, for the purposes of calculating the extent of vacant land held by
such person the land so transferred shall be taken into account, without 'Y
prejudice to the rights or interests of the transferee·in the land so transferred".
Similarly in section 5 it has been provided that "where any person who had
held vacant land in excess of the ceiling limit at any time during the period
D
commencing on the appointed day and endingwith the commencement of this
Act, has transferred such land or part thereof by way of sale, mortgage, gift,
lease or otherwise, the extent of the land so transferred shall also be taken into
account in calculating the extent of vacant land held by such person". When
different provisions take into consideration the lands already transferred by
>.___
E the holder, (i) between the period 17th February, 1975 and the appointed day;
(ii) as well as between the period commencing from the appointed day and
ending with the commencement of the Act, it should not be easily inferred that
the framers of the Act desired that after the commencement of the Act while
exerci~ing the power of exemption under section 20(1)(b) permission should
be granted to holders of such excess lands to transfer such lands to third
-
F
parties in order to meet their financial liabilities.
~
Section 21 is yet another provision in the Act under which excess
vacant land is not to be treated as excess. Under the said Section exemption
is to be granted in respect of such excess vacant land, if the holder
G undertakes to utilise the same for the constructions of dwelling units for
accommodation of the weaker sections of the societv in accorda11ce with
the scheme approved by the competent amhority or the State Government -~
subject to such terms and conditions as may be prescribed. If Section 21
provides for granting exemption in respect of excess land held by the
H holder only on a specific condition that the holder shall utilise the same
S. VASUDEVAv. STATEOFKARNATAKA[SINGH,J.] 755
for the construction of dwelling units for weaker section, to serve a public A
cause, how the framers of the Act could have conceived the grant of
exemption under Section 20(1) (b) to the holder of the excess land, only
to serve his interest, by selling such excess lands.
"( If it is held that the State Government can exempt the vacant land
held by the land holder in excess of the ceiling limit, from the applicability
B
of the provisions of Chapter Ill of the Act, in order that the said holder
sells such land to liquidate his debts which amounts to an "undue hardship",
- then there will be an apparent conflict between the interest of the land
holder and the public interest. In the interest of the land holder the
maximum price fetched by sale of such land will be the solution of his c
hardship, whereas that will run counter to the object of the Act to prevent
"speculations and profiteering". It is futile to urge that even in such t~ans-
-< . fers the dominant purpose of the legislation to prevent "the concentration
of urban land in hands of few persons" is none the less served. The
concentration of urban land in hands of few persons has to be prevented
D
with a ·view to bring about "an equitable distribution of land in urban
agglomerations to subserve the common goodn. Section 23 prescribes the
priorities for disposal or distribution of excess vacant lands after such lands
vest in the State under the provisions of the Act. In the case of Bhim Singhji
V. U11io11 of India, I1981 j 1 sec 166, it has been said:-
_,-(_ E
''The definition of the word 'industry' in clause (b) of the
Explanation to that section is undoubtedly unduly wide
- since it includes "any business, profession, trade, under-
taking or manufacture". If sub-section (1) of Section 23
were to stand alone, no doubt could have arisen that the F
Urban Land Ceiling Act is a facade of a social welfare
~' legislation and that its true, though concealed, purpose is
to benefit favoured private individuals or associations of
individuals. But the preponderating provision governing
the disposal of excess vacant land acquired under the Act
is the one contained in sub-section ( 4) of Section 23 G
whereby all vacant lands deemed to have been acquired
by the State Government under the Act '~shall be disposed
of ... to subserve the common good". The provisions of
sub-section (4) are "subject to the provisions of sub-sec-
tions (1), (2) and (3)" but the provisions of sub-section (1) H
756 SUPREME COURT REPORTS [1993] 2 S.C.R.
A are enabling and not compulsive and those of sub-sections
(2) and (3) are incidental to the provisions of sub-section
(1). The disposal of excess vacant lands must therefore be
made strictly in accordance with the mandate of sub-sec-
tion (4) of Section 23, subject to this, that in a given case
such land may be allotted to any person, for any purpose
B relating to, or in connection with, any 'industry' or for the
other purposes mentioned in sub-section (1), provided
that by such allotment, common good will be subserved.
The governing test of disposal of excess land being 'social
good', any disposal in any particular case or cases which
c does not subserve that purpose will be liable to be struck
down as being contrary to the scheme and intendment of
the Act."
If the vacant lands which have vested in the State are also to be
D disposed of strictly keeping in view the spirit and object of the Act, how
under section 20(1)(b) exemption can be granted to holders·of such lands
to dispose of such lands in the manner they like, the persons they prefer,
the price they dictate, for clearing their debts? If it is conceded that
indebtedness amounts to an undue hardship, then it may cover the debts
incurred even after the commencement of the Act. The ceiling limit has
E been fixed by section 3 with reference to the date of the commencement
of the Act, but exception can be granted till such excess lands vest in the
State Government under sub-section (3) of section 10, after publication of
the notification, in terms of the said sub-section. Although it was not
possible even for the framers of the Act to exhaustively indicate as to what
F shall be deemed to be "undue hardship" within the meaning of section
20(1)(b) but it would have been better, if it had been illustratively indi-
cated, leaving the rest for the courts to decide. )...
20. I have made no reference to Section 26 or Section 27 of the Act,
G while considering the question whether on the ground of "undue hardship" the
holder of the excess vacant land can be granted exemption and then permis-
sion to sell such excess land, because he is financially crippled or burdened
with liabilities. In the case of Bhim Singhji v. Union of India (supra) this Court ~·
held that Section 27(1) in so far as it imposes restriction on transfer of any
urban or urbanisable land with a building or of a portion of such building
H which is within ceiling area, was invalid. The said sub-section (1) of Section 27
S. VASUDEVA v. STATE OFKARNATAKA[SINGH,J.] 757
was struck down being unconstitutional. Section 26 of the Act also imposes A
certain restrictions on transfer of vacant land even within ceiling limit. It can
be urged that Section 26( 1) suffers from the same vice which was pointed out
in respect of sub-section (1) of Section 27 of Act, in the aforesaid case of Bhim
Singhji v. Union of India (supra) by this Court. But neither in the aforesaid
case nor in this case this court was or is concerned with Section 26 and as such,
B
according to me, it is not necessary to express any opinion in respect of Section
26 of the Act, while considering the issue involved in the present appeals.
- ORDER
21. For the reasons given by us above, we are of view that the C
provisions of Section 20 [1] (b) of the Act do not permit the State
Government to give exemption to the vacant in excess of the ceiling limit
for the purposes of transferring the same.
22. In view of our conclusion as above, it is not necessary to go into
the further question, viz., if the State Government has such power, in which D
circumstances it can be exercised and whether financial hardship such as
the indebtedness of the land-holder is sufficient to warrant such exemption
or not and with respect to which date such indebtedness is ·ta be assessed
and in what manner, and whether in the present case, the said aspects of
the indebtedness were investigated or properly investigated or not. For this E
very reason, we also do not pr.opose to go into the other question regarding
the ma/a jides on the part of the authorities while granting permission to
the firm to sell the land to the builders in question.
23. Since we have come to the conclusion that the State Government has
no power to grant permission to sell the land under Section 20 [1] (b), the F
orders dated 6.3.87 and 18.4.87 granting exemption and permission to the firm
for sale of the land are void ab initio having been passed without jurisdiction.
Accordingly, the sale-deed dated 30.9.1987 executed by the 2nd respondent-
firm in favour of the 3rd respondent-builders is held invalid and inoperative,
as :he respondent-firm had no legal right to transfer the land in favour of the G
builders. We accordingly allow the appeals and set aside the impugned order
of the High Court. The respondents - State of Karnataka, M/s. Narayanas-
wamy & Sons and Mis. Reevajethu, Builders & Developers will pay the costs
to the appellants in one set.
G.N. Appeals allowed.
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