Sardar Singh vs Additional District Magistrate ...
1994 Latest Caselaw 499 Del

JUDGMENT

Devinder Gupta, J.

(1) In both these writ petitions filed under Article 226 of the Constitution of India same and similar prayer is made on similar facts. Direction is sought for quashing the order dated 1.7.1991 by which the application for grant of permission to sell the land was ordered to be returned to the Sub Registrar which, according to the petitioners, tent amounts to refusal to register the deeds of sale and further direction sought is that the sale deeds executed by respondent No. 4 in favor of petitioner be directed to be accepted for registration and to register the same in accordance with law without insisting Upon the production of No Objection Certificate.

(2) It is alleged that 1/2 share in land measuring Rectangle No. 95. Killa No. 11/1(2-16). 11/2 (0-3). 12(4-16). 13 (4-16) 14 (4-16). 18/2(2-0). 18/3 (0- 8) and Rectangle No. 126. Killa No. 23/2 (4- 13). and Rectangle No. 131. Killa Nos. 3/1(3-11). 4(4-16). 7(4-16).. 8(4-16). 13/1(0-13) and 13/2(4-13) situated in village Dichaun Kalan Delhi is held by Kanshi Ram. respondent No. 4. On 26.12.1990/7.1.1991 respondent No. 4 agreed to sell his entire holding at a consideration of Rs. 2,50,000.00 per acre in so far as land in Rectangle No. 95 is concerned and at the rate of Rs. 2,25,000.00 per acre in so far as land in Rectangle No. 126 & 131 is concerned. A sum of Rs. 4 lakhs on account advance as part sale consideration was received by him. Sale deeds were to be executed in the name of the parties mentioned in the agreement to sell or their nominee or nominees. In terms of the agreement the petitioners were made nominees who through notice dated 6.6.1991 called upon respondent No. 4 to perform his part of the contract in executing the deeds of sale in their favor. 1/2 to be transferred in favor of Sardar Singh (petitioner in Cw 2195/91) and the remaining 1/2 in favor of Dalip Singh (petitioner in Cw 2196/91).

(3) On receipt of the notice, respondent No. 4 expressed his desire to perform his part of contract. Two separate sets of forms for procuring No Objection Certificate under the Delhi Land (Restrictions on Transfer) Act, 1972 (hereinafter called the Act) were prepared which were signed by the petitioners and respondent No.4 and were forwarded to Sub Registrar, Delhi along with a forwarding letter of Sardar Singh. When these forms were presented, copies of agreement to sell and forwarding letter were taken off and returned to the petitioner Sardar Singh at the counter saying that only forms would be entertained, since the price mentioned' in the agreement to sell would not be acceptable in as much as it was less than Rs. 4.65.000.00 per acre, which according to the instructions received from Administrator of Delhi was the minimum price for sale of agricultural land in Delhi, to be recognized and no 'No Objection Certificate' would be issued unless the price agreed to be was more than Rs. 4,65,000.00 per acre. It is also stated that Sub Registrar forwarded the application to respondent No. 1, who is the Competent Authority under the Act. During the processing of application, respondent No. 1 approved the report of Tehsildar to the effect that the market price of the land was 4.65.000.00 per acre and also approved the report that there was violation of provisions of Section 33 of the Delhi Land Reforms Act, 1954 since the vendor was a Co-sharer. Respondent No. 1 as Competent Authority finding that there was no ground at all for refusing the permission to sell the land still approved the note of Tehsildar that the market price of the land was Rs. 4,65,000.00 per acre and also blindly accepted the note of Tehsildar which had wrongly reported that there was violation of provisions of Section 33 of the Delhi Land Reforms Act, 1954. The application for issuance of No Objection Certificate was, thus, not granted and was ordered to be returned to the Sub Registrar. As a consequence to which it is not possible to get the sale deeds registered or in other words it amounts on the part of the Sub Registrar to refuse the registration of documents. In this background the aforementioned prayers have been made.

(4) Respondents have contested the petition by filing counter on the affidavit of R.K.Misra, Officer in charge (LA), Delhi Administration who has stated that the application was received from the office of the Sub Registrar for grant of No Objection Certificate. The sale transaction with respect of the land in question amongst the petitioners and respondent No. 4 is in Violation of Section 33 of the Delhi Land Reforms Act and also against the instructions of Deputy Commissioner, Delhi issued in the capacity of Inspector General of Registration/Chief Controlling Revenue Authority which postulates that no sale deed shall be executed in respect of an agricultural land where the price mentioned is below Rs. 4,65,000.00 per acre. It is also stated that these instructions have been issued under the common policy of the Government which is for the benefit of public at large.

(5) On hearing the learned counsel for the parties, we find that part of controversy is already settled by a decision of this Court in Kikki Farms (P) Ltd. & Another Vs. Additional District Magistrate & 0thers (1993 - 51 Dlti - DB). In Kikki Farms (P) Ltd. case the question for consideration was whether the Inspector General of Registration/Chief Controlling Revenue Authority could by issuing office instructions refuse to register sale deeds on the ground that sale consideration was less than the rate fixed by him, namely, Rs. 4,65,000.00 per acre. It was held in that case that there was no legislative mandate in fixing this minimum rates of land as regards sale consideration of agricultural lands. Reasons assigned in fixing such rates were held to be far from satisfactory and were, thus, struck down. Ancillary question was also considered in the said case as to whether the Authorities can decline to register documents where sale consideration was shown to be less than Rs. 4,65,000.00 per acre. It was held in that case that if the instruments recite a particular amount as sale consideration, the stamp duty has to be calculated on the basis of price mentioned there in and it would be open to the Authorities to take action under Section 64 of the Stamp Act in case on enquiries there after it is found that land has been undervalued. But registration cannot be refused on the ground that the sale consideration shown in the documents is less than the minimum price fixed by the Inspector General of Registration/Chief Controlling Revenue Authority. Thus, in view of ratio in Kikki Farms case (supra) with which we have no reason to differ, the respondents' action in declining to grant permission on that ground cannot be sustained.

(6) The second question as to whether there is any violation of Section 33 of the Delhi Land Reforms Act in respondent No. 4 transferring his entire holding in favor of the petitioners by virtue of agreements of sale (annexure A) also deserves to be answered in petitioners favor. Section 33 of the Delhi Land Reforms Act reads: "33.(1) No Bhumidhar shall have the right to transfer by sale or gift or otherwise any land to any person, other than a religious or charitable institution or any person in charge of any such Bhoodan movement, as the Chief Commissioner may be notification in the Official Gazette, specify, where as a result of the transfer, the transferor shall be left with less than eight standard acres in the Union territory of Delhi : Provided that the Chief Commissioner may exempt from the operation of this section, the transfer of any land made before the 1st day of December, 1958, if the land covered by such transfer does not exceed one acre in area and is used or intended to be used for purpose other than those mentioned in clause (13) of section 3. (2) Nothing contained in sub-section (1) shall preclude the transfer of land by a Bhumidhar who holds less than eight standard acres of land, if such transfer is of the entire land held by him: Provided that such Bhumidhar may transfer a part of such land to any religious or charitable institution or other person referred to in sub-section (1). Explanation-For the purposes of this section, a religious or charitable institution shall mean an institution established for a religious purpose or a charitable purpose, as the case may be."

(7) A bare reading of provision would show that there is a restriction imposed on a Bhumidhar to transfer by sale, gift or otherwise any land to any person other than the religious or charitable institution etc. where as a result of the transfer, the Bhumidhar is left with less than 8 standard acres of land in Union territory of Delhi. This restriction in sub-section (1) of Section 33 is subject to what is contained in sub-section (2) of the said provision and it says that this restriction shall not apply where a Bhumidhar who holds less than 8 standard acres of land transfers his entire holding. In the instant case the holding of respondent No. 4 is admittedly less than 8 standard acres. He holds one half share in land measuring 47 bighas 3 biswas. In other words, it is about 24 bighas of land which is held by him and it is the entire holding which is sought to be transferred by virtue of agreements of sale in favor of the two petitioners. The case, thus, squarely falls in the exception contained in sub-section (2) of Section 33. When respondent No. 4 who is a Bhumidhar and holds less than eight standard acres is transferring his entire holdings there is no question of applicability of Section 33 of the Act and on that basis respondents could not have withheld the issuance of 'No Objection Certificate', which is required to be issued under the provision of the Act.

(8) It is an admitted case of the parties that the land which is sought to be transferred is not under acquisition. This court in C.W. 1268/89 titled as O.P.C. fain & others Vs. A.D.M. (LA) and others (decided on 28.7.1989) held that insistence on the part of the authorities for filing No Objection Certificate in such cases where the land is not under acquisition is unwarranted.

(9) In view of the above, both the writ petitions deserve to be allowed and the note of Tehsildar as approved by respondent No. 1 (annexure D) deserves to be quashed.

(10) Consequently we allow the writ petitions with costs quantified at Rs.2,000.00 in each case against respondents 1 to 3 and direct respondent No. 2 to accept the sale deeds executed by respondent No. 4 in favor of the petitioners for registration without insisting upon the production of 'No Objection Certificate' under the provisions of the Act and to register it in accordance with law.