Karnataka High Court
Smt. Yuvarani ... vs Special Deputy Commissioner And ... on 15 July, 1998
Equivalent citations: ILR1998KAR3293, 1998(6)KARLJ609
ORDER
1. These writ petitions raise among others, one and common important question of law of interpretation and impact of Section 20 of Urban Land Ceiling Act and particularly the question in the context of the facts of the case that if the owner of the land holding land in excess of ceiling area or ceiling limits when applies under Section 20 of the Urban Land Ceiling Act, 1976, hereinafter referred to as the Act, whether it is incumbent upon the Government or State to dispose of those applications at the earliest and in every case before the stage of publication and service of draft statement under Section 8(3) of the Act and disposal of objection under Section 8(4) and if it has not done so, what is the effect. If the answer to these questions goes in favour of the petitioners, then there may not be any necessity to go on other questions on merits of the case involved in these writ petitions, because in that case, firstly the Government may have to be directed to dispose of applications under Section 20 and thereafter the authorities may have to proceed under Sections 8 and 9 and 10 onwards of the Act of 1976. But if the answer is in negative and in favour of the State, then the question may arise for consideration of the matters on merits, no doubt in that case subsequent events may have to be taken note of including the taking over of the property of the petitioner namely the Bangalore Palace under the said Act vires of which have been upheld by this Court. In this view of the matter, I have heard the learned Counsels for the parties at length.
2. I have heard Smt. Nalini Chidambaram, Senior Advocate, Sri G.V. Shantharaju, Sri R.N. Naidu and Sri A.S. Ramachandra Rao, learned Counsels for the petitioners and Sri R. Narasimha Murthy, Senior Advocate assisted by Sri M.H. Ibrahim, learned Government Pleader and Sri N.N. Harish, learned Counsel.
3. These writ petitions arise from the common judgment and order dated 11-5-1992 delivered by the Chairman of the Karnataka Appellate Tribunal in Appeal Nos. 93, 94, 95, 96, 97, 101, 106 and 107 all of 1989 dismissing all the appeals and affirming the common order passed by the Additional Special Deputy Commissioner and Competent Authority, Urban Land Ceiling, Bangalore dated 27-7-1989 in case No. ULC(A)(2)440 of 1985-86 which was impugned and challenged in the appeals as well as in Writ Petition No. 5076 of 1991.
4. The petitioners of the above writ petitions in their individual capacity tiled the statement as prescribed and required for the excess vacant land under Section 6(1) of the Act. There has been no doubt about the declarations being filed by all these petitioners. The petitioners were treated as declarant Nos. 1 to 8 by the Special Deputy Commissioner. The Special Deputy Commissioner under Section 7(2) was declared to be the Competent Authority for these cases. As mentioned in the appellate judgment, the property of Mysore i.e., properties comprising of various items were incorporated in the statement under Section 6(1) of the Act by Sri Srikantadatta Narasimharaja Wadeyar, petitioner in Writ Petition No. 19793 of 1992. The appellants in other appeals i.e., other petitioners have also filed the statement of declaration under Section 6 of the Act. After filing of statement under Section 6(1) of the Act, the Special Deputy Commissioner i.e., the Competent Authority prepared a draft statement of excess vacant land provisionally and served the notices under Section 8(1)(2) of the Act. That all the petitioners (except the petitioners in Writ Petition Nos. 5076 of 1991, 23725 of 1992, 23460 of 1992, 25266 of 1992 and 25265 of 1992) were given notices. I have mentioned some as exception as the petitioners' case in these writ petitions above referred as exception no notice under Section 8 was issued to the petitioners as per their allegation in their writ petitions which allegations have not been controverted by any counter-affidavit. Among the various pleas taken by the petitioners before the Competent Authority, it was also asserted that they have moved applications for exemption being granted from the operation of the provisions of Chapter III of the Act and those applications have been moved by the petitioners under Section 20 of the Act and those applications have not been disposed of by the State Government so far. The Competent Authority did not apply its mind to this aspect of the matter at all and declared the excess land as at page 46 of the judgment and order, (at page No. 82 of the paper book) The operative portion of the order reads as under:
"Heard the case in detail and considered the objections they have raised and verified various documents they have produced. The competent authority in exercise of powers conferred under Section 8(4) of the Act determines that the various declarants are having excess vacant laud as mentioned below".
Thus, Competent Authority in exercise of powers under Section 8(4) of the Act has made declarations of excess land as at page No. 47 or 83 of the paper book in Writ Petition No. 25266 of 1992 in the names of the persons i.e., declarants. 'Further it is ordered to take action under Section 10(1) of the Urban Land Ceiling and Regulation Act to publish the notification in the Karnataka Gazette to acquire the excess land held by the petitioners'.
5. Feeling aggrieved from the order passed by the competent authority, the petitioners filed the appeals as referred to above and Writ Petition No. 5076 of 1991 was also filed. The Appellate Authority dismissed all the appeals and affirmed the order dated 27-7-1988 passed by the competent authority. The Appellate Authority vide paragraph 12 observes.
'"In the light of the facts of the case and the rival contentions urged on both sides, the following points have arisen for consideration and decision".
Point No. 4 is relevant for our purpose.
"4. Is there any absolute and legally binding prohibition against the passing of orders under Section 8(4) of the Act determining finally the excess 'vacant land' in respect of an urban land during the pendency of an application for exemption for such an urban land under Section 20 of the Act?"
The Appellate Authority as per paragraph 19 considered that point and it opined and held:
"I, therefore, conclude that there is no absolute and legally binding provisions against the passing of an order under Section 8(4) of the Act as has been done by the Special Deputy Commissioner through the impugned order, even though the applications for exemption made by some of the appellants for exemption of some of the urban lands involved in the present case are reported to be still pending a decision at the level of the State Government. I conclude further that on this ground the impugned order cannot be found fault with".
6. On behalf of the petitioners, it has been contended by the learned Counsels for the petitioners that this finding of the Appellate Authority is per se erroneous in law and by taking a erroneous decision on the question, the authorities below acted in excess of jurisdiction in declaring the ceiling area and excess area. Learned Counsel for the petitioners contended that on a reading of the scheme of the Act and in the context of the provisions of the Act and the rules framed thereunder, it appears that before issuance of notice under Section 8(1) with Provisional Draft Statement under Section 8(1) and in every case before the order under Section 8(3) and (4) had to be passed, the applications under Section 20 of the Act ought to have been disposed of because the land that is exempted by the Government may not be considered to be excess land and they would be entitled to continue to hold the land even if the land held by them including the land exempted is found to be in excess area. On the interpretation of this section, the learned Counsel for the petitioners placed utmost reliance on the three-Judges Bench's decision of their Lordships of the Supreme Court in the case of T.R. Thandur v Union of India and Others , as well as on the Division Bench's decision of Andhra Pradesh High Court in the case of Katya Co-operative Building Society Limited v Government of Andhra Pradesh . A reference has also been made to the decision of the Gujarat High Court in the case of Tansukhbhai Bachubhai Patel Sukhbai v State of Gujarat .
7. It has been contended by Sri R. Nagendra Naidu, learned Counsel for the petitioners in Writ Petition Nos. 23460 of 1992, 23725 of 1992 and 28499 of 1992 that a reading of two decisions of the Supreme Court i.e., in the case of T.R. Thandur, supra and in the case of Smt. Darothi Clare Parreira and Others v State of Maharashtra and Others, reveals a conflict, in the interpretation of Section 20 in particular when in the latter case, their Lordships have observed that power to grant exemption under Section 20 will come into play and the Government will be competent to grant exemption only when it becomes the owner of the property i.e., land after publication of notification under Section 10. It means according to latter decision, the power under Section 20 is controlled, by Section 10(4) and as such, the decision in the later case goes and runs in conflict with that of the decision in the case of T.R. Thandur, supra, which is a three Judges' decision on interpretation of Section 20. Learned Counsel contended that the question of Section 20 was not involved in that case for determination as in that case the application for grant of exemption had been already disposed of earlier to notification under Section 10 of the Act. That decision is distinguishable and may not be taken as one declaring the law on the subject of Section 20.
8. With reference to Writ Petition Nos. 24343 to 24346 of 1994, 897 of 1994 and 898 of 1994, it has been contended by Sri K. Ramachandra Rao that their application had been rejected under Section 20 without giving them the opportunity of hearing as well as on the ground that in view of publication of notification under Section 10 and vesting of land after disposal of their claim, it is not open to the Government to consider their applications for exemption. Learned Counsel contended that the order rejecting that application under Section 20 without hearing the petitioners and applying the mind to material conditions, on the basis of consideration of which under Section 20, the order allowing or rejecting the application is to be passed. The authority or Government acted illegally in rejecting the application resulting in jurisdictional error.
9. These contentions raised on behalf of the petitioners' Counsel have been hotly contested by the learned Special Government Counsel, Sri R.N. Narasimha Murthy, the learned Senior Advocate assisted by Sri M.H. Ibrahim and Sri N.N. Harish. It has been contended that it is not so necessary for the State Government to dispose of the application for exemption claimed under Section 20 of the Act before the publication of the statement under Section 8(4), 9 or Section 10. It has been contended that the power to grant exemption which has been conferred can be exercised at any time; may be even after publication of notification under Section 10 in view of expression "notwithstanding anything contained in the foregoing provisions of this Chapter III" used in the Act. Sri Narasimha Murthy placed before this Court a decision of their Lordships of the Supreme Court in the case of Smt. Darothi Clare Parreria, supra, and contended that it has been laid down that the power of examination and exemption would arise only when the Government becomes the owner and after publication of notification under Section 10(4) of the Act and vesting of land in the Government and if then the erstwhile owners seeks to obviate the hardships under Section 20 or to subserve the housing scheme for weaker sections applies under Section 21 as envisaged thereunder, Government can pass orders of exemption. The learned Counsel for the respondents contended that power to grant exemption accrues only after vesting of the property in the Government. As till the Government has not become the owner by virtue of vesting of the property in it, it has no power to grant exemption. Learned Counsel contended that this is a law declared by Hon'ble Supreme Court in Smt. Darothi's case, supra, under Article 141 of the Constitution of India and is binding on this Court.
10. To this later contention, the learned Counsel for the petitioners submitted that the decision in Smt. Darothi's case, supra, cannot be taken to be the law declared for the purpose of Article 141 of the Constitution in view of the fact that relevant material provisions of the Act and the Rules which prescribe what is to be contained in the statement under Sections 6 and 8 and which prescribes contents of preparation of declaration of excess land and which require that it has also be indicated whether the exemption has been granted by the Government under Section 20 and in respect of what land. Learned Counsel contended that apart from non-considering the material provisions of the Act i.e.. Sections 3 to 19 and non considering of the definition clause Section 2(1) of the Act which defines 'to hold' as well as non-consideration of the decision which was given in T.R. Thandur's case, supra, earlier to Smt. Darothi's case, supra, the decision in Smt. Darothi's case, supra is per incuriam judgment and a judgment per incuriam is not a binding precedent nor can be said to amount to declare the law and has lost its precedent value. Learned Counsel contended that really Article 141 has given the recognition and has adopted only the principle of doctrine of binding precedent and when a decision is per incuriam it is denude of precedent value and it cannot be said to be law declared for the purpose of Article 141 of the Constitution. The decision and law laid as to interpretation of Section 20 of the Act laid in the case of T.R. Thandur, supra, being larger bench decision is binding.
11. Before I proceed to consider the contentions of the parties, it would be appropriate to go through the facts and allegations of the petitioners (vide paragraphs 7 and 8) in W.P. No. 25266 of 1992 (vide paragraph Nos. 31 and 34), in W.P. No. 28499 of 1992 (vide paragraph Nos. 32, 54, 55), in W.P. No. 28500 of 1992 (vide paragraph Nos. 24, 32, 54, 55), in W.P. No. 25265 of 1992 (vide paragraph Nos. 5, 28), in W.P. Nos. 23725 of 1992 (vide paragraph Nos. 6, 7, 14, 28, 29, 30), in W.P. No. 23460 of 1992 (vide paragraph Nos. 6, 7, 14, 28, 29, 30 and clause 4), in W.P. No. 28501 of 1992 (vide paragraph Nos. 24, 32, 54, 55) and in W.P. No. 19793 of 1992 (vide paragraph Nos. 29, 59, 60). They have very clearly averred that the petitioners filed the application for grant of exemption under Section 20 of the Act on 16-9-1976 as well as made subsequently under Section 20 of the Act seeking exemption from the provisions of Chapter III of the Urban Land Ceiling Act, 1976. But those applications have not been disposed of by the Governmental authority and the Government has not applied its mind to these applications or cared to dispose of, though by the time of filing of writ petitions, the period almost 18 to 20 years has passed on, and thereafter even now there is no statement from the Government that the applications have been disposed of according to law. So those applications are pending disposal at the discretion of the Government when it so desires to dispose off the said application under Section 20 of the Act. On the basis of these facts, it has been contended that the proceedings under Section 8 including sub-section (4) of Section 8 have been illegal and null and void and in every case the direction is issued to issue notification under Section 10 is illegal as it is not in due conformity and compliance with requirements of Section 8(1) and 8(4). Before I further proceed with the arguments of the learned Counsel for the parties, it will be appropriate to refer and quote Section 20 of the Act. Section 20 of the Urban Land Ceiling and Regulation Act, 1976 reads as under:
"Section 20. Power to exempt.--(1) Notwithstanding anything contained in any of the foregoing provisions of this chapter.-
(a) where any person holds vacant land in excess of the ceiling limit and the State Government is satisfied, either on its own motion or otherwise, that, having regard to the location of such land, the purpose for which such land is being used or is proposed to be used and such other relevant factors as the circumstances of the case may require, it is necessary or expedient in the public interest so to do, that Government may, by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this chapter;
(b) where any person holds vacant land in excess of the ceiling limit and the State Government, either on its own motion or otherwise, is satisfied that the application of the provisions of this chapter would cause undue hardship to such person, that Govern-
ment may, by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this chapter:
Provided that no order under this clause shall be made unless the reasons for doing so are recorded in writing.
(2) If at any time the State Government is satisfied that any of the conditions subject to which any exemption under clause (a) or clause (b) of sub-section (1) is granted is not complied with by any person, it shall be competent for the State Government to withdraw, by order, such exemption after giving a reasonable opportunity to such person for making a representation against the proposed withdrawal and thereupon the provisions of this chapter shall apply accordingly".
A reading of this section clearly indicates that "notwithstanding anything contained in any of the foregoing provisions of this chapter", i.e., Chapter III as per clause (a), where any person holds the vacant land in excess of the ceiling limits, the power is given to the Government to grant exemption on its being satisfied, either suo motu or on the application or otherwise, after taking into consideration the location of the property, the purpose for which the land is being used or proposed to be used and such other relevant factors as the circumstances require consideration, that it is necessary and expedient in public interest to grant exemption. It may be subject to the conditions which it may prescribe or otherwise as it may, deem fit, by a specific order in writing under Section 20(1)(a). That clause (b) of Section 20(1) of the Act further provides that in cases where a person holds the vacant land in excess of the ceiling limits and the Government either on its own motion or an application made to it, is satisfied that the application of the provisions of Chapter III would be causing undue hardship to such person, then the Government may by order, exempt such land as excess vacant land from the effect of provisions of III Chapter. Such an order may be passed either subject to certain conditions which the Government may impose or otherwise i.e., without imposing any conditions. The section clearly reveals that at the time of coming into force of the Act as well as thereafter the person must be holding the land in excess of the ceiling limits. Ceiling limit, no doubt, is indicated in Section 3 subject to other provisions of the Act. Proviso to the section provides that no order shall be made unless reason for doing so is recorded in writing i.e., when granting exemption or refusing exemption, the authority is required to record the reasons in writing, that it has to pass a speaking order and not a stereotype order. Sub-section (2) of Section 20, no doubt, confers a power on the Government to withdraw that exemption subject to conditions as specified therein. That if the Government is at any time satisfied that any of the conditions subject to which exemption has been granted under either clause (a) or (b), is not complied with by the person in whose favour the exemption is granted, then the Government is entitled to withdraw that exemption, hut before passing such an order of withdrawing of exemption, Government is again required to give reasonable op-
portunity to such person for making representation. When the exemption order is passed the impact and effect of exemption if it is granted without conditions or subject to some conditions, is that the person holding that in excess of the ceiling limits may be entitled to hold the land even beyond the ceiling limits and provisions of Sections 3 to 24 of Chapter III will not apply to the land in respect of which the claimant has been granted the exemption. If the exemption has been granted in respect of certain land, then that land cannot be allotted by the Government to any other person. That in Section 20(1)(a) and (b) further expression used is "where any person holds vacant land". The expression "to hold" has been defined under Section 2(1) of the Act. It reads as under:
'to hold' with its grammatical variations, in relation to any vacant land, means-
(i) to own such land; or
(ii) to possess such land as owner or as tenant or as mortgagee or under an irrevocable power of attorney or under a hire-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities.
Explanation.--Where the same vacant land is held by one person in one capacity and by another person in another capacity, then, for the purposes of this Act, such land shall be deemed to be held by both such persons", A reading of this definition further reveals that the expression "to hold" or "holds" refer to possession with right, title and interest. It does not recognise the possession of a trespasser, except in the case where prior to coming into force of Ceiling Act the person had perfected title by adverse possession, If a person is possessing the land without right and interest, then such a person who is in possession of the property without any right title or interest, may not be entitled to get exemption as he may not be fulfilling the very first conditions of Section 20. Section 20 provides that once exemption is granted, then in spite of any provisions contained under Sections 3 to 19, the exemption will be available to him and exemption granted will prevail over the other provisions of the III Chapter. But the two conditions which are necessary are that, the person must be holding the land with some right title and interest on the date of coming into force of the Act as well when moving the application under Section 20, then Government may be entitled to consider the question of granting exemption and if other conditions referred to in Section 20 are satisfied or established, either under clause (a) or (b), the Government is entitled to pass an order granting exemption. The power which has been given to grant exemption is not merely subjective, but objective and therefore a person may be required to establish those facts that he is or has been possessing the land with right and interest on the date of application and satisfy other necessary conditions, then only exemption may be granted. In case claim of exemption under Section 20(1), clause (b), he further has to establish the undue hardship from the application of Chapter III and in cases under clause (a) of Section 20(1) looking to the facts and circumstances and the relevant factors referred to therein it is to be shown that it is necessary in the public interest to grant exemption. The order refusing to grant exemption may have the civil consequence which may deprive a person of protection or shelter of Section 20 of the Act, so it may require the giving of reasoned order and further it may require giving of opportunity of hearing. If we look to Section 3 of the Act, it provides that the person is not entitled to hold the land in excess of ceiling limits, but subject to certain provisions of exemption. It reads, "Section 3. Persons not entitled to hold vacant land in excess of the ceiling limit.--Except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which this Act applies under sub-section (2) of Section 1 ".
Ceiling limits have been defined under Section 4 of the Act. This section provides a general principle that no person shall be entitled to hold any vacant land in excess of the ceiling limits within the territories where the Act operates. But this provision has again being subject to certain exceptions and those exceptions have been carved out by use of expression "or otherwise provided in this Act". There are many provisions which do provide certain exemptions relating to family, etc., Section 20 of the Act is also a provision of the Act in Chapter III. It means that exemption has been granted under Section 20 or with respect to certain area of the land beyond ceiling limits, then general principle will apply subject to what is provided under the order passed under Section 20. Use of expression "notwithstanding anything contained in the foregoing provisions of this chapter" further reveals that the orders and the operation of the provisions of Sections 3 to 19 does not curtail the power under Section 20 and really it will operate over and above these provisions i.e., irrespective of what is contained from Sections 3 to 19. This Section 20 has been the subject matter of construction. At this stage, it will be appropriate to refer to the decision of their Lordships of the Supreme Court in which their Lordships analyse the language of Section 20 and impact of order under Section 20. In the case of T.R. Thandur, supra, a three-Judges Bench of the Supreme Court considered the matter and delivering the judgment on behalf of the three-Judges Bench, Hon'ble Justice J.S. Verma, as he then was, has been pleased to observe:-- (in para 8 onwards) "We would first construe Section 20 of the Act to ascertain its meaning. It is obvious that there being no question of the constitutional validity of the provision, an attempt has to be made to ascertain the true meaning of every part of Section 20. Section 20 contains the power to exempt. It has two sub-sections. Sub- section (1) begins with the non obstante clause "notwithstanding anything contained in any of the foregoing provisions of this Chapter", after which occur clauses (a) and (b) therein which provide for exemption, "subject to such condition, if any, as may be specified in the order", of "such vacant land from the provisions of this Chapter". The non obstante clause clearly indicates that Section 20 overrides the foregoing provisions of Chapter III, that is, Sections 3 to 19 of the Act. This is reaffirmed in clauses (a) and (b) wherein the concluding part in each is "Government may, by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter". The effect of the non obstante clause at the beginning of sub-section (1) and the concluding words in clauses (a) and (b) undoubtedly is that on exemption being granted subject to the conditions specified in the order granting the exemption, such vacant land is exempted from the provisions of Chapter III which contains Sections 3 to 24, in spite of the provisions of the Sections 3 to 19. There is no ambiguity in this behalf in sub-section (1). The plain language of the provision leaves no room for any ambiguity. Thus, if the logical outcome of the exemption granted subject to the specified conditions, is to lift the restriction on transfer of the exempted land, then it has to be accepted. However, the imposition of conditions attached to the exemption and the power of withdrawal of the exemption under sub-section (2) is intended to control the transfer in such cases. It has to be seen whether this plain construction of Section 20 must be abandoned on any settled rule of construction.
9. The condition precedent for granting exemption under clause (a) or (b) must, however, exist but on the exemption being granted thereunder, the logical consequence of the exemption as indicated must follow. It must follow that if the restriction on transfer of vacant land in excess of the ceiling limits is only because of any provisions contained in Chapter III in Sections 3 to 24, then the effect of the exemption under Section 20 is to lift even that embargo".
Their Lordships further observe in paragraph 10 as under:
"Section 3 contains the restriction against holding any land in excess of the ceiling limit prescribed in Section 4, "except as otherwise provided in this Act". Section 20 is a provision in the Act which provides otherwise. It also begins with a non obstante clause and, therefore, the restriction in Section 3 is subject to Section 20. Section 5 relates to transfer of vacant land in excess of the ceiling limit. Sub-section (3) of the Section 5 contains the prohibition against transfer of the excess vacant land indicating that any such transfer made in contravention of the provision shall be deemed to be null and void. For the reason stated, because of the provision made in Section 20, an order of exemption made under Section 20 exempts the vacant land in excess of the ceiling limit from this restriction of transfer because the order of exemption exempts the excess vacant land from the provisions of Chapter III. ....".
In paragraph 11 their Lordships further deal with Section 20 and observe that, "11. Clause (a) of sub-section (1) of Section 20 empowers the State Government to grant the exemption if it is satisfied having regard to the relevant factors specified in the clause that it is necessary or expedient to grant the exemption in the "public interest" subject to the conditions specified in the order. Clause (a) specifies certain relevant factors for the purpose of grant of exemption, namely, "location of such land", "the purpose for which such land is being or is proposed to be used" and such other relevant factors as the circumstances of the case may require. Apart from the location of the excess vacant land and the purpose of its use, regard must be had to the other relevant factors, which is a question of fact in each case. However, these factors must indicate that the grant of exemption under clause (a) is necessary or expedient in the "public interest". The expression "public interest" has a legal connotation. The broad guidelines for grant of exemption under clause (a) are enacted in the provision. A safeguard is provided by requiring conditions to be specified in the order to which the exemption is granted under clause (a). Even though there is no proviso in clause (a) of the kind enacted thereafter in clause (b), yet the absence of such a proviso is inconsequential since the requirement of the expressly enacted proviso in clause (b) is implicit in the manner of exercise of the power under clause (a). The requirement in clause (a) of making an order having regard to the specified relevant circumstances and specifying the conditions attached to the exemption, ensures that the decision is reached for cogent reasons which are placed on record in writing culminating in the making of the written order. There is no scope for the view that exemption can be granted under clause (a) by an order specifying the conditions having regard to the specified relevant factors without recording reasons for doing so in writing. Every State action must satisfy the rule of non arbitrariness and, therefore, recording of reasons in writing for granting the exemption under clause (a) indicating that it is necessary or expedient in the public interest so to do, is an essential requirement of valid exercise of power under clause (a). This is how clause (a) must be construed and understood".
In paragraph 15, their Lordships considered clause (b) and observed, "In clause (b), the power of the State Government to grant the exemption depends on its satisfaction "that the application of the provisions of this Chapter would cause undue hardship to such person". It is obvious that the undue hardship must be a direct consequence of the application of the provisions in Chapter III which provides for the restriction on the entitlement to hold any vacant land in excess of the ceiling limit prescribed and further prohibits the transfer of the excess vacant land which vests in the State Government in the manner provided in Section 10 and the owner is entitled only to the amount specified in Section 11 of the Act".
Their Lordships further discussed what is "undue hardship". In this case, their Lordships overruled the case of S. Vasudeva v State of Karnataka. Thus from a reading of this decision it comes out that the provisions of Section 3 are subject to Section 20. It comes out from a reading of the paragraph 8, that in view of non obstante clause, Section 20 overrides the foregoing provisions of this chapter i.e., Chapter III which includes Sections 3 to 19 onwards including Section 10. It means that the orders passed under Section 8 are subject to exemption granted under Section 20. Excess land is also subject to the provisions of Section 20 and exemption granted under Section 20. The impact of notification under Section 10 is also subject to the provisions of Section 20 and subject to the order of exemption being granted by the Government under Section 20. On a reading of this decision, it can be said that the Government or Governmental authorities cannot refuse the consideration of application for exemption or application made under Section 20 claiming exemption on the ground that notification under Section 10 has been published nor can it be said that no exemption can be granted by the Government till the property has vested in the Government. It cannot be said that power to grant exemption is subject to the vesting of the land in the Government and no exemption can be granted by the Government until notification under Section 10 has been published. Really, in view of non obstante clause and the principle laid down in the case of T.R. Thandur, supra, particularly when their Lordships say that non obstante clause clearly indicates that Section 20 overrides the provisions of Chapter III i.e., Sections 3 to 19, it means that it has an overriding effect on these provisions.
12. The question before the court in the present case is whether the order under Section 8 could be passed finally without taking note of order passed under Section 20 or without taking note of the provisions of Section 20. The effect of Section 20 and passing of the order under Section 20 granting exemption is to override the provisions of Sections 3 to 19 including Sections 8, 9 and 10. Thus, from a reading of this, it comes out that before passing the order, the authorities have to take note whether any order has been passed under Section 20 of the Act or not after applications have been made. If the order has been passed under Section 20, whether exemption has been granted (or not) if yes, then in respect of what land and to what extent? It means the extent of land to which exemption has been granted, such land, even if it is excess, bar under Section 3 will not come in the way of the person holding the land in excess and such a land cannot also be vested in the Government till order granting exemption is in operation. When I so interpret the provision, I find support from this scheme of the Act and not only from the scheme of the Act, but specifically from the provisions of Section 2(1). Once a person is holding the land with right and he is seeking his right for exemption and this section gives the power to the Govern-
ment to grant. The order under Section 20 has the impact of granting exemption from the operation of the provisions of Chapter III, then the land in respect of which exemption is granted is not to vest in the State and the necessary consequence of non-vesting is that the State Government will have no authority to make allotment thereof. It leads me to opine that power under Section 20 is normally to be exercised before the stage of Section 8. But it does not mean that the power of the Government is curtailed in the matter of granting exemption even after the stage of Section 8 or 10, The power of the Government is notwithstanding anything contained in the provisions of Sections 3 to 19. When this power is notwithstanding those provisions, this power cannot be taken to be curtailed in any manner even by issuance of notification. The notification under Section 10 will always be subject to the exercise of power under Section 20 of the Act. It means it may ordinarily be exercised at the earlier stage when application is made by or before filing of statement under Section 6 of the Act. That ordinarily power has to be exercised before a provisional draft of excess land is prepared under Section 8 of the Act. I so hold because it may be said that when the Government is going to exercise the power, the property has already been acquired and vested in the Government and the person claiming the benefit is not holding the land with title over the land which has vested in the Government. Firstly, if the person has been holding a land with right, title on the date of coming into force of the Act and files an application then any subsequent act of authorities are not to be allowed and permitted, to interfere with the course of exercise of power under Section 20 of the Act in the matter of grant of exemption simply because the authorities have acted in a manner depriving him (applicant) of his title to land by publishing declaration under Section 10 of the Act without Government passing an order under Section 20. That to avoid delay in the matter of disposal of cases under Section 8 and for the purpose of acquiring in the public interest land at the earliest. The proper course, for the Government in such cases is not to keep the applications under Section 20 pending, otherwise it may have an effect of rendering the proceedings under Section 8 illegal and null and the Courts may be called to declare the notifications or orders under Section 8(1), 8(4) or under Section 9 to be illegal on account of non-compliance with the requirements of Section 8 and the rules framed thereunder.
13. It is one of the well-settled principles of interpretation of statute that where there are two possible interpretations, assistance may be taken from contemporary law. The doctrine of contemporanea expositio is applicable. One interpretation suggested on behalf of respondents is that power under Section 20 can be exercised only on the land having vested in the State while other is that power under Section 20 of the Act is not subject to Section 10 of the Act nor to vesting of land under Section 10 of the Act and is exercisable as and when occasion arises and vesting of land in State is subject to the provision of Section 20. Even, for a moment, if two interpretations are possible to arrive at, we can take the assistance of contemporary law and rules made under the Act indicating the legislative intent. I make a reference here to the principle as propounded in Craies Statute Law, seventh Edition, page 157, as under:
"Where the language of the Act is ambiguous and difficult to construe, the court may for assistance in its construction refer to rules made under the provisions of the Act, especially where such rules are by the statute authorising them directed to be read as part of the Act".
In Craies on Statute Law it is further observed:--
"In Britt v Buckinghamshire County Council, it was held that general regulations, coming into force on the same day as the enabling Act (Town and Country Planning Act, 1947), were embodied in the Act and so modified the Act: Harman L.J. explained that in the circumstances, the regulations, having a quasi-parliamentary validity were a good indication of the wishes of the legislature, as if they were enacted in the Act itself".
In a recent decision in the case of P. Kasilingam v P.S.G. College of Technology and Others, in paragraph 20, their Lordships observe:
"The rules have been made in exercise of the power conferred by Section 53 of the Act. Under Section 54(2) of the Act every rule made under the Act is required to be placed on the table of both Houses of the Legislature as soon as possible after it is made. It is accepted principle of statutory construction that "rules made under a statute are a legitimate aid to construction of the statute as Contemporanea Expositio (see: Craies on Statute Law, 7th Edition, pp. 157-158; Tata Engineering and Locomotive Company Limited v Gram Panchayat, Pimpri Waghere ").
14. Keeping in view the principle of law as laid in P. Kasilingam's case, supra, I proceed to examine the relevant rules framed under the Act. Under Section 46 of the Urban Land (Ceiling and Regulation) Act, 1976, the Central Government has been conferred power to frame the rules, by publication of notification in the Official Gazette. Sub-section (3) of Section 46 provides that every rule made under sub-sections (1) and (2) of Section 46, shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, and if both the houses agree, they may also make any modification and after the rules have been so framed and laid before the Houses and approved by both the Houses of Parliament or approved with modification, thereafter they shall be published in the Official Gazette and those rules shall be operative. Rules framed under an Act, and especially when they have to be placed before the Houses for approval and are so approved as laid above, then if the rules per se are not in conflict with the provisions of the Act itself, they are to be taken as operative and finally indicative of the legislative intent, they can be used for assistance in the construction of the provisions of the statute as contemporanea expositio.
15. That as per Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (shortly called the 'Ceiling Act'), it is provided that every person holding vacant land in excess of the ceiling limit at the commencement of the Act shall, within such period as may be prescribed file a statement before the Competent Authority having jurisdiction specifying the location, extent, value and such other particulars "as may be prescribed" of all vacant lands and also specifying the vacant land within the ceiling limits, he desires to retain. The expression other particulars that may be prescribed means, as prescribed by the rules framed thereunder. The expression 'prescribed' has been defined in Section 2(j), as "prescribed" means prescribed by rules made under this Act. Section 8 of the Act reads as under;
"Section 8.--Preparation of draft statement as regards vacant land held in excess of ceiling limit,--
(1) On the basis of the statement filed under Section 6, and after such enquiry as the competent authority may deem fit to make, the competent authority shall prepare a draft statement in respect of the person who has filed the statement under Section 6.
(2) Every statement prepared under sub-section (1) shall contain the following particulars, namely:
(i) the name and address of the person;
(ii) the particulars of all vacant lands and of any other land on which there is a building, whether or not with a dwelling-unit therein, held by such person;
(iii) the particulars of the vacant lands which such person desires to retain within the ceiling limit;
(iv) the particulars of the right, title or interest of the person in the vacant lands; and
(v) suck other particulars as may be prescribed.
(3) The draft statement shall be served in such manner as may be prescribed on the person concerned together with a notice stating that any objection to the draft statement shall be preferred within thirty days of the service thereof.
(4) The competent authority shall duly consider any objection received, within the period specified in the notice referred to in sub-section (3) or within such further period as may be specified by the competent authority for any good and sufficient reason, from the person on whom a copy of the draft statement has been served under that sub-section and competent authority shall, after giving the objector a reasonable opportunity of being heard, pass such orders as it deems fit".
16. That a reading of Section 8, per se, reveals that on the basis of the statement filed under Section 6 and after such enquiry as the competent authority may deem fit to make, the competent authority is to prepare a draft statement as regards the vacant land held in excess of ceiling limit, with reference to the persons who have filed the statement. Section 8(2) provides that every statement prepared under sub-section (1) shall contain all particulars as are mentioned in (i) to (v) clauses of sub-section (2) of Section 8. That clause (v) requires that it should contain such other particulars as may be prescribed, under the rules framed under the Act. Sub-section (3) requires that the draft statement so prepared along with the notice shall be served on the person concerned and he shall be called upon to file his objections to the draft statement. The Urban Land (Ceiling and Regulation) Rules, 1976 have been under Section 46 of the Ceiling Act. Section 46 of the Act provides that the rules shall be made by publication of notification in regard thereto in the Official Gazette for the purpose of carrying out the provisions of the Act, in exercise of the powers conferred by sub-section (1) and sub-section (2) of Section 46 of the Act. Clauses (b) and (d) of sub-section (2) of Section 46 provides that rules may provide and prescribe the period within which the statement may be filed under Section 6, and the particulars to be mentioned in the statement referred to in sub-section (1) of Section 6, sub-section (2) of Section 8, sub-section (1) of Section 15 and sub-section (1) of Section 16. Sub-section (3) of Section 46 provides that the rules made under this Section before being notified, shall be laid, before each House of Parliament for consideration and approval and rules with modification in the rule, if any, agreed by both Houses of Parliament or without any modification, as approved and agreed by both Houses of Parliament will be notified and after their approval, they shall come into effect. So, it requires the rules to be laid before both Houses of Parliament for being considered and both the Houses of Parliament, if agreed, that the rules made or if modified, by the Houses with modifications i.e., the rules as approved, either in their original form or modified form, shall take effect after being notified. Therefore, the Rules in this case are very material to show the intention of the Legislature i.e., Parliament and for consideration of the question involved. They have also got material importance as Sections 6 and 8 of Act specifically provide that the statement shall contain those particulars also which have been prescribed under the rules, in addition to those particulars which have been specifically provided in the sections itself. Rule 3 of the Rules framed under the Act, reads as under:
"Rule 3. Statement by persons holding excess lands.-
Every statement under Section 6 shall be filed within two hundred and twelve days from the commencement of the Act and such statement shall contain the particulars specified in Form I:
Provided that where any vacant land exempted by clause (iv) of sub-section (1) of Section 19 or sub-section (1) of Section 20 ceases to be so exempted, the statement referred to in sub-section (1) of Section 6 in relation to such vacant land shall be filed within ninety days from the date on which such vacant land ceases to be so exempted.
Explanation.--In this rule, 'commencement of the Act' shall have the meaning assigned to the expression 'commencement of this Act' in the Explanation to sub-section (2) of Section 6".
Every statement under Section 6 shall be filed within 212 days from the commencement of the Act and such statement shall contain the particulars specified in Form No. I." As per Form No. I, Entry 12, it is provided as under:
"(a) Is any land in respect of which exemption is sought under Section 20 of the Act included in Annexure-A and, if so,
(b) Have particulars of such land been furnished in Annexure-G?
Entry 13 of Schedule I reads thus:
"Have you filed a declaration under sub-section (1) of Section 21 ? If so, give particulars of the declaration and attach a copy of the same".
17. Rule 5 of the Rules deals with the particulars to be contained in draft statement as regards vacant lands and manner of service of the same. Rule 5(1) states that every draft statement prepared under subsection (1) of Section 8 shall contain the particulars specified in Form No. III. In Form No. III to the Rules, under the head 'Part A', of that Form, there is Entry 7, which prescribes the 'extent of vacant land exempted under Section 20'. It means, on a reading of these rules along with the sections that a person filing a statement under Section 6 is required to indicate whether he has applied under Section 20 of the Act seeking exemption of any land or Survey Number from the operation and application of the provisions of Chapter III, under Section 20. If so, what are those survey numbers? Entry 7 of Form No. III clearly indicates that in the draft statement under Section 8(1) among other particulars it has to be specifically mentioned and indicated whether in respect of the land or survey number of the person concerned, the application for exemption made by him under Section 20 of the Act has been allowed and if allowed to what extent the exemption has been granted under Section 20 or in respect of which survey numbers. While Entry 8 requires mentioning of extent of land, the person is permitted to hold the land under sub-section (1) of Section 21. On a reading of these rules along with the provisions of the Act clearly it stands revealed that the legislative intent has been that the application for exemption made under Section 20 has to be disposed of before the proposed draft statement under Section 8(1) is prepared and that a copy of the draft statement prepared in accordance with Section 8(1) and (2) and Rule 5 of the Rules is to be furnished to the declarant filing declaration statement under Section 6 of the Act in order to enable him to file the objections, keeping in view of the entries in the draft statement-under Section 8. The requirement of law under Section 20 is to the effect, that as the statement under Section 8 has to contain these particulars including the one required to be filled vide item Entry 7 of Form No. III appears to be mandatory, that applications made under Section 20 of the Act have to be disposed of by the Government before Section 8(1) stage is reached i.e., before preparation of draft statement under Section 8 and its service on declarant, as if without complying with the requirements of law under Section 8 of the Act read with Rule 5 of the Rules, the draft statement so prepared under Section 8 may not be in accordance with law. That unless those applications of the holders of land in excess of ceiling limit made under Section 20 have been disposed of prior to the preparation of statement under Section 8, the particular of requirement to be indicated and stated under Entry 7 of Form No. III cannot be complied with and if the statement is published without due fulfilment of those requirements, such draft statement cannot be said to have been prepared or made in accordance with Section 8 and then notice under Section 8 with such a draft of statement may have to be held to be illegal and invalid. The reading of these provisions, reveals the legislative intent that power under Section 20 is not subject to the provisions of Sections 20, Further, it comes out to be the legislative intent that application under Section 20 filed before the filing of statement by concerned person under Section 6 of the Act or at the time of filing an application under Section 6, have to be disposed of by the State Government before preparation of the draft statement under Section 8(1) and (2) of the Act by the Competent Authority and if not disposed of till then no valid notice along with valid draft can be issued to declarant under Section 8(2) as well. No doubt power of the Government under Section 20 to grant exemption is not curtailed by any provisions of Sections 3 to 19. The provision of Section 20 is an overriding the provision which overrides provisions of Sections 3 to 24 of the Act and which Sections 3 to 24 by necessary implication are subject to the provisions of Section 20 of the Act.
18. On behalf of the respondent, reliance has been placed on a recent decision of the Supreme Court in Smt. Darothi's case, supra and it has been argued that the decision in that case declares the law on the subject of Section 20 and Section 10 and the same is binding. It is no doubt true that the law declared by the Supreme Court is also binding under Article 141 of the Constitution but the question is if Smt. Darothi's case, supra, declares the law on the subject and effect and interpretation of Section 20 the Act qua Sections 3 to 19 and others as contained in Chapter III of the Act.
19. A reading of this decision, per se, reveals that as per the observations made therein, it runs in conflict with the earlier three Judges decision of the Supreme Court in the case of T.R. Thandur, supra. In Thandur's case, supra, the Bench consisting of three Judges has observed that the non obstante clause clearly indicates that Section 20 overrides the provisions of Chapter III, i.e., Sections 3 to 19. It means, the power under Section 20 of the Act is not dependent, nor subject to any of the provisions of Sections 3 to 19. Exercise of power is not dependent on either section, including Section 10. While the two-Judges decision in Smt. Darothi Clare Perreira's case, supra, reveals that the exercise of power under Section 20 is subject to and is dependent upon the publication of notification under Section 10. In para 6, their Lordships observe that "the very language of Sections 20 and 21, the exercise of the power thereunder would arise only when the land stands vested in the Government. The power of examination and exemption would arise only when the Government becomes the owner and the erstwhile owner seeks to obviate the hardships under Section 20 or to subserve the housing scheme". These observations clearly reveal that according to Smt. Darothi's case, supra, unless and until the notification issued under Section 10(3) of the Act has been published and the land has been vested in the Government or State, the Government has no power to grant exemption. It means, the power under Section 20 is subject to the provisions of Section 10(3) and it is not exercisable unless notification under Section 10(3) of the Act has been issued and published. This view runs contrary to the observations of the three-Judges Bench in the case of T.R. Thandur, supra, where their Lordships observe at para 8:
"The non obstante clause clearly indicates that Section 20 overrides the foregoing provisions of Chapter III that is, Sections 3 to 19 of the Act".
It is further observed that.-
"the effect of the non obstante clause at the beginning of sub-section (1) and the concluding words in clauses (1) and (b) undoubtedly is that on exemption being granted subject to the conditions specified in the order granting the exemption, such vacant land is exempted from the provisions of Chapter III which contains Sections 3 to 24 in spite of the provisions in Sections 3 to 19".
Whether there is a notification under Section 10 or not, it is immaterial. The power under Section 20 vests and is exercisable by the Government under Section 20 as and when required if relevant conditions of Section 20 are satisfied. The decision in the case of T.R. Thandur, supra, is a larger Bench decision of the Supreme Court and therefore it has to be taken as binding. Further, as regards Smt. Darothi's case, supra, whether it is to be taken as a declaring law under Article 141 it has to be considered what is the impact of expression 'law declared' used in Article 141 of the Constitution, what amounts 'to declare the law'. Reference in this connection may be made to the decision of their Lordships of the Supreme Court in the case of Punjab Land Development and Reclamation Corporation Limited, Chandigarh v Presiding Officer, Labour Court, Chandigarh and Others, wherein their Lordships have declared and laid it down that Article 141 of the Constitution really gives a statutory recognition to and has embodied in itself as a rule of law, the doctrine of precedent on which our judicial system is based. The relevant observations of their Lordships of the Supreme Court in Punjab Land Development and Reclamation Corporation Limited's case, supra, read as under:
"We now deal with the Question of per incur/am by reason of allegedly not following the Constitution Bench decisions. The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of the previous decision of this Court. It cannot be doubted that Article 141 embodies, as a rule of law, the doctrine of precedents on which our judicial system is based....".
In paragraph 43, their Lordships further observed;--
"As regards the judgments of the Supreme Court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subjects covered by them, it is true that the Supreme Court may not be said to "declare the law" on those subjects if the relevant provisions were not really present to its mind".
20. In A.R. Antulay v R.S. Nayak and Another , vide, paragraphs 44, 49, 64 and 138, what is per incuriam judgment has been explained and it has further been laid down that a decision which is per incuriam or sub-silentio is denude of its precedent authority. It will be proper to quote the following observations from their Lordships judgment:--
"44. ...."Per incuriam" are those decisions given in ignorance or forgetful ness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morello v Wakeling, Also see State of Orissa v Titaghur Paper Mills Company Limited. We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong".
In paragraph 49, their Lordships observed:--
"49. .....It is a settled rule that if a decision has been given per incuriam the Court can ignore it. ....".
In paragraph 64, their Lordships observed:--
"64. .....Though what is mentioned hereinbefore in the Bengal Immunity Company Limited v State of Bihar, the Court was not concerned with the earlier decision between the same parties. At page 623 it was reiterated that the Court was not bound to follow a decision of its own if it was satisfied that the decision was given per incuriam or the attention of the court was not drawn. It is also well-settled that the elementary rule of justice is that no party should suffer by mistake of the Court. ....".
In paragraph 138, Hon'ble Venkatachaliah, J., observed:--
"138. .....It is asserted that the impugned direction issued by the five-Judges bench was per incuriam as it ignored the statute and the earlier Chadda's case .
But the point is that the circumstance that a decision is reached per incuriam, merely serves to denude the decision of its precedent value. Such a decision would not be binding as a judicial precedent. .....".
21. When Article 141 recognises and adopts same it is tantamount to adopt the doctrine of precedent with it full impact, as has been observed in Punjab Land Development and Reclamation Corporation Limited's case, supra, that Article 141 embodies as a rule of law, the doctrine of precedent on which our judicial system is based, then it means that it has also adopted that a law is not deemed to have been declared by the judgments of the Supreme Court on the subjects concerned if the relevant provisions, constitutional or statutory, were not present in mind of Supreme Court, and the attention of the Court was not drawn to the relevant provisions. In other words, judgments per incuriam are not to be taken 'to declare the law' under Article 141 of the Constitution.
22. In Delhi Transport Corporation v D.T.C. Mazdoor Congress and Others, in paragraph 131 observed:--
"131. ..... This Court under Article 141 of the Constitution is enjoined to declare law. The expression 'declared' is wider than the words 'found or made'. To declare is to announce opinion. Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by this Court is the law of the land. ......".
23. These observations per se reveal that when law is declared it has to be followed by a process, concentration on the sections, the analysis, interpretation, ascertainment and evolution and therefrom does follow the result i.e., the law ascertained or evolved is declared. That as observed by the Supreme Court in M/s. Raval and Company v K.G. Ramachandran and Others , the provisions of the Act are required to be analysed when a judgment per se reveals, that process is absent in the judgment, the section and its language is not considered, the relevant provisions and sections which may or do throw light on legislative intent have not been referred and considered then by such a judgment the Supreme Court cannot be deemed 'to declare the law'.
24. The judgment or decision given in the case of Smt. Darothi, supra, per se reveals that to the relevant provisions of the Act and rules as mentioned above, the attention of the Supreme Court was not drawn. In Smt. Darothi's case, supra, to the provision of Section 2(1), Section 6 especially sub-sections (2)(v) and (3), and to Section 8 throwing light thereon, and then Rules 3 and 5 of the Rules framed under the Act and Form No. 1 (Entries 12 and 13) and Form No. III (Entry 7) indicating the requirements coming under "other particulars prescribed to be included" in preparation of draft statement -- under Section 8(1)(2) of the Act -- which is required to be served on the person concerned under Section 8(3) of the Act along with notice, which entries clearly reveal the legislative intent that if application has already been made under Section 20 of Act its fact or result as per Government's order is also to be mentioned or indicated in draft statement (proposed) prepared under Section 8(1) and (2) of the Act, which shows and indicate that application filed before State Government under Section 20 of the Act has to be disposed of before the notice-under Section 8(3) along with draft statement prepared is served.
25. In view of the above, the decision in Smt. Darothi's case, supra, may be said to be not the one declaring the law, as the analysis and the process of ascertainment, evolution and interpretation as referred to above does not, with all due respect to their Lordships, appear to have proceeded before said declaration. That Section 20 of the Act also does not appear to have been analysed and interpreted.
26. The decision in T.R. Thandur's case, supra, which was decided by three-Judges Bench on 8th April, 1996, namely earlier to the decision in the case of Smt. Darothi, supra, which appears to have been decided on 25-7-1996 also appears not to have been brought to the notice in the latter case. The decision in Smt. Darothi's case, supra, with all due respect, as such cannot be said to be one declaring the law. This decision in Smt. Darothi's case, supra, further reveals as per the facts that in the facts and circumstances of the case, the question was not required to be decided, as Section 20 application made therein on 29-3-1979 had already been disposed of by order dated 22-1-1979 that is before publication of notification under Section 10(3) of the Act which was made on 29-3-1979 and application under Section 21 of the Act had also been disposed during the pendency of the matter before the Supreme Court.
27. In this view of the matter, with all due respect to their Lordships, in my opinion, the decision in Smt. Darothi's case, supra, cannot be said to be not one declaring the law on the subject of Section 20 of the Ceiling Act, 1976 and the other provisions. The decision which can be said to declare the law under Section 20 and its impact qua the provisions of Sections 3 to 19, is the decision in T.R. Thandur's case, supra, and being a larger Bench decision, it has to be followed and is being followed and in the circumstances. There is no bar to the exercise of power by the State under Section 20 of the Act at a later stage where the circumstances of the case may so require, but where the applicant has made an application, at or before Section 6 stage and before the stage of Section 8(1), the reading of the provisions of the Act, coupled with Rules 3 and 5(3) and Form No. I, Entry 12 and Form No. III, Entry 7, it appears as per legislative intent the State Government under Section 20 is required to dispose of the application under Section 20 or before stage of Section 8(1) or 10 of the Act i.e., the stage preparation of draft statement and issuance of notice under Section 8(3) of the Act and disposal of objections to the draft statement. In every case the provisions of Sections 3 to 19 and Section 24 definitely are overridden by Section 20. These provisions i.e., Sections 3 to 19 are subject to the provisions of Section 20 and the orders passed under Section 20 of the Act.
28. When I so opine, I find support from the Division Bench decision of the Gujrat High Court in the case of Manilal Hiralal Doshi (deceased) by L.R. and Others v State of Gujarat. The Division Bench in paragraph 2 of its judgment observes as under:
"Chapter III of the Act containing Sections 3 to 24 deals with ceiling on vacant lands. The scheme of the Act is too well known to call for any repeated elaboration. It is truism to state that other stringent provisions of the Chapter III of the Act are subject to Section 20 of the Act which begins with a non obstante clause. This means that the declaration about the land being surplus can be made only after the decision on an application under Section 20 of the Act for exemption is taken. The overall consideration of the provisions of Chapter III presupposes that the full effect will be given to all the provisions so that a coherent system of working out the problem is evolved. If a declaration under Section 8(1) and 8(3) precedes one way or the other decision on an application for exemption it will be tantamount to putting the cart before the horse and "if the application covered under that declaration would ultimately come to be granted it will be a meaningless exercise and that is why we say after filing of a statement under Section 6 of the Act, if a citizen applies for exemption under Section 20 of the Act, it is the duty of the Government to deal with that application first and then proceed to resort to Section 8(1) and 8(3) of the Act. In the Special Civil Application Nos. 2941 of 1983 and 2161 of 1983, the grievance of the petitioners is that the Government slept over their applications under Section 20 of the Act for exemption and the competent authority actually went to issue the declarations in question under those provisions. As per the scheme understood and stated to be underlying the provisions of Chapter III of the Act such an exercise of power is contrary to the spirit of the Act and we, therefore, allow both these petitions by quashing the said declarations in these two petitions and we direct that the Government shall take up their applications on hand for exemption first, decide them in accordance with law that we are laying down in the other matters, (i.e., hear and then decide) and then the competent authority can take up (decide?) the question one way or the other under the provisions of Sections 8(1) and 8(3) of the Act".
In the case of Katya Co-operative Building Society Limited, supra, the Division Bench of the Andhra Pradesh High Court has also taken the similar view. Their Lordships laid down in paragraph 40 as under:
"40. .....The only plea in the writ petition is that the proceedings under the Act have become final and therefore no relief can be granted to the petitioner. Indeed, it is not disputed that the application of the petitioners for exemption under Section 20(1) of the Act is still pending. The application for exemption should be decided before the preparation of the draft statement under Section 8 of the Act. It is clear from Rule 5 of the Urban Land (Ceiling and Regulation) Rules, 1976 that the draft statement prepared under sub-section (1) of Section 8 should contain the particulars specified in Form III and the draft statement should be served together with the notice under sub-section (3) of Section 8 of the holder of the vacant land and on all other persons so far as may be known to have or likely to have any claim to or interest in the ownership or possession of the said vacant land. Column 7 in Part-A of the draft statement relates to the extent of vacant land exempted under Section 20 of the Act. Therefore, the rule contemplates the disposal of the application for exemption even before the preparation of the draft statement under sub-section (1) of Section 8. The statement in Form I filed under Section 6 also requires the declarant to state whether any exemption from the ceiling limit is being claimed in respect of any vacant land under Sections 19 or 20 of the Act and furnish details thereof. Therefore, the very declaration made under Section 10(3) of the Act is contrary to the procedure prescribed under Section 8 of the Act and Rule 5 of the Rules. Therefore, the declaration under Section 10(3) and the notice under Section 10(5) are accordingly quashed and the respondents are directed to dispose of the application of the petitioners for exemption in accordance with the provisions contained in Section 20(1) of the Act and guidelines issued in that behalf".
29. In this view of the matter, the orders impugned in the above writ petitions appears to suffer from the error of jurisdiction and error of law apparent and are not in accordance with the requirements of law. Any way, the provisional draft statements have not been prepared according to requirements of law and the notice served do not comply with requirements of law under Section 8(1), (2) and (3) of the Act as applications under Section 20 had to be disposed of before the draft statements were prepared and served under Section 8. The draft statements not having been prepared and served in accordance with Section 8(1) and 8(3), nor in accordance with the requirements of law and the rules and entire proceedings under Section 8 and the orders impugned are bad in law and need be quashed. The orders impugned further suffer from jurisdictional error as the orders impugned have been passed against petitioners in Writ Petition Nos. 5076 of 1991, 23725 of 1992, 23460 of 1992, 25266 of 1992 and 25265 of 1992 without serving notice and draft statement under Section 8(3) of the Act in spite of their being those persons who submitted or filed statement under Section 6 of the Act upon whom service of notice under Section 8(3) of the Act is mandatory.
30. Thus considered as above, all these writ petitions deserve to be and are hereby allowed with costs and order dated 27-7-1989 passed by Special Deputy Commissioner/Competent Authority (ULC), Bangalore in case No. ULC (A)(2) 440/85-86 and the order of Karnataka Appellate Tribunal, 11-5-1992 in the appeals referred to above affirming the order of Competent Authority dated 27-9-1989 as referred to above are hereby quashed. The Competent Authority is directed not to give effect to above mentioned orders dated 27-7-1989 and 11-5-1992.
31. The Competent Authority is directed to decide the matter according to law after due compliance with as per Section 8(1)(2)(3) of the Act read with the rules giving notice of draft statement with all required particulars as prescribed vide Form III, after the decision and disposal of petitioners' application under Section 20 of the Act by the State Government for the exemptions sought by the petitioners.
32. The State Government is expected and directed to dispose of the petitioners' applications under Section 20 of the Act according to law by speaking order after hearing the applicants i.e., petitioners at the earliest.
33. Let the writ directions of above nature in the form of writ of mandamus be issued to the respondents. All the writ petitions are allowed with legal costs.
34. The copy of this order shall be placed in the record of each writ petition or at least endorsement will be made in each writ petition to have been allowed by this order.