Telangana High Court
The Chief Commissioner Of Land ... vs Manu Bhai Shankar Bhai Patel on 24 January, 2024
* THE HONOURABLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR
+ WRIT APPEAL Nos.508, 657 & 734 of 2011 and 979 of 2013
WRIT PETITION No.12572 of 2003 & C.C. No.1084 of 2021
% Dated 24-01-2024
Between:
# The Chief Commissioner of Land Administration,
Commissioner of Appeals under the Urban Land Ceiling
Act 1976 Nampally Station Road, Hyderabad and others
...Appellants
and
$ Manu Bhai Shankar Bhai Patel and others
....Respondents
! Counsel for the Appellants : Mr. Harender Pershad
Spl.Govt.Pleader
^ Counsel for the respondents : Mr.Ravindra Shrivastava
< GIST : ---
>HEAD NOTE : ---
? Cases referred: :
1. (1969) 1 SCC 509
2. (1876) 1 Ch D 426
3. (1976) 2 SCC 128
4. AIR 1988 GUJARAT 52
5. 1997 (3) GLR 2375
6. (2003) 7 SCC 336
7. (2003) 5 SCC 622
8. Civil Misc.Writ Petition No.473 of 2000 dated 27.04.2005
9. (2006) 2 MLJ 664
10. (2007) 5 MLJ 103
11. Special Civil Application No.9716 of 1999 dated 13.01.2009
12. AIR 2009 KAR, 799
HCJ (AAJ) & NVSKJ
2 W.A. No.508 of 2011 and batch
13. 2009 (3) ALT 272
14. 2023 SCC OnLine SC 1331
15. (1983) 4 SCC 453
16. (2015) 5 SCC 321
17. (2011) 5 SCC 394
18. 2010 (6) ALT 620
19. 2012 (4) SCC 718
20. 2011 (1) ALD 761
21. 2014 (3) ALT 167
22. 2014 (3) ALT 239 (DB)
23. (2008) 4 SCC 792
HCJ (AAJ) & NVSKJ
3 W.A. No.508 of 2011 and batch
THE HONOURABLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR
WRIT APPEAL Nos.508, 657 & 734 of 2011 and 979 of 2013
WRIT PETITION No.12572 of 2003 & C.C. No.1084 of 2021
COMMON JUDGMENT:
(Per the Hon'ble Sri Justice N.V. Shravan Kumar) Mr. E.Madan Mohan Rao, learned Senior Counsel appears on behalf of K.Rama Krishna, learned counsel for the petitioners in W.P. No.12572 of 2003.
Mr. A. Sudharshan Reddy, learned Senior Counsel appears for Mr. G.Madhusudhan Reddy, learned counsel for the appellant in W.A. No.657 of 2011, respondent No.21 in W.A. No.979 of 2013 and petitioners in C.C. No.1084 of 2021.
Mr. K.Ram Reddy, learned counsel for the appellant in W.A. No.734 of 2011.
Mr. V.Ramakrishna Reddy, learned counsel for the appellant in W.A. No.979 of 2013.
Mr. Harender Pershad, learned Special Government Pleader attached to the office of the learned Advocate General, representing the State, appellants, in W.A. No.508 of 2011.
Mr. Ravindra Shrivastava, learned Senior Counsel, representing Mr. T.Sudhakar Reddy and Mr. N.Mukund Reddy, learned counsel for the respondent Nos.1 and 2 in W.A. Nos.508, 657 and 734 of 2011.
HCJ (AAJ) & NVSKJ 4 W.A. No.508 of 2011 and batch Mr. H.Venugopal, learned Senior Counsel appears for Mr. N. Mukund Reddy and T.Sudhakar Reddy, learned counsel for respondent Nos.1 and 2 in W.A. No.979 of 2013.
2. W.A. No.508 of 2011 has been filed against the order dated 29.04.2011 passed in W.P. No.7762 of 2007. The appellants No.1, 2 and 3 (The Chief Commissioner of Land Administration, the Special Officer and Competent Authority under the Urban Land Ceilings Act, 1976 and the State of Telangana) herein are the respondents No.1, 2 and 3 in the said writ petition and the respondents No.1 and 2 (Manu Bhai Shankar Bhai Patel and Nattu Bhai Shankar Bhai Patel) herein are the writ petitioners in the said writ petition.
3. The facts of this case would be taken as lead matter and for the sake of convenience, the parties hereinafter will be referred to as they were arrayed in the W.P. No.7762 of 2007.
4. W.A. No.657 of 2011 has been filed against the order dated 29.04.2011 passed in W.P. No.7762 of 2007. The appellant (Sri Thirumala Venkateswara Co-operative Housing Society Limited) herein was impleaded as respondent No.20 in the said writ petition and the respondents No.1 and 2 (Manu Bhai Shankar Bhai Patel and Nattu Bhai Shankar Bhai Patel) herein are the writ petitioners in the said writ petition.
5. Brief facts of this case are that the respondent No.1 and four (4) others have entered into an agreement of sale with appellant/society HCJ (AAJ) & NVSKJ 5 W.A. No.508 of 2011 and batch on 21.03.1982 in respect of land admeasuring Ac.13-10gts., in Sy.No.222/4, Gudimalkapur village, Golkonda Mandal, Hyderabad and the Society paid the sale consideration. Thereafter, the Society has made application to Government for change of land use from recreation to residential use and Government after due procedure changed the land use vide G.O.Ms.No.263 dated 22.03.1983 and the Society also paid required charges for the same and it had become final. Thereafter, HUDA has granted tentative layout and by virtue of the same, society developed land. When the owners did not come forward for execution of sale deed, the Society has compelled to file a suit for specific performance in O.S.No.1209/1993 which was decreed in favour of the society. Thereafter, the owners have filed appeal in CCCA No.40 of 2006 and the same was allowed and questioning the same, society filed Special Leave Petition before Hon'ble Supreme Court.
6. C.C. No.1084 of 2021 has been filed seeking to punish the respondent under Sections 10-12 of Contempt of Court Act for wilful disobedience the orders of this Court passed in WAMP. No.1524 of 2011 in W.A. No.657 of 2011 on 19.11.2011.
7. This Contempt case has been filed by the petitioner society viz., Sri Thirumala Venkateswara Co-operative Housing Society Limited i.e., appellant in the appeal and it is stated that aggrieved by the orders passed by this Court in W.P.No.7762 of 2007 dated 29.04.2011, the petitioner society has preferred an appeal in HCJ (AAJ) & NVSKJ 6 W.A. No.508 of 2011 and batch W.A.No.657 of 2011 and the Division Bench of this Court on 19.11.2011 in WAMP. No.1524 of 2011 has passed the following interim order:
"Status quo granted on 20.09.2011 shall continue. List the application after four weeks."
8. It is submitted that subsequent to the granting of status quo order, respondents and their agents encroached the petitioners land and converted the same as parking lots for private buses, trucks, lorries etc., and also using as stacking yard for building materials who are doing business with the respondents and they are making permanent structures. It is the specific case of the petitioner that respondents knowing fully well the status quo granted by this Court, entered into registered agreement with third parties and constructed temporary sheds which itself is contrary to the orders passed by this Court and submitted that respondents are willfully disobeying the order of this Court in WAMP. No.1524 of 2011 in W.A.No.657 of 2011 dated 19.11.2011 and accordingly prayed for punishing respondents under Sections 10-12 of Contempt of Courts Act.
9. Respondent No.3 who is the then Chief Commissioner of Land Administration has filed a counter and would submit that after the repeal of the Urban Land (Ceiling and Regulation) Act, 1976 in the year 2008 i.e., on 27.03.2008, entire residual work is transferred to the respective District Collectors and they are competent to issue Urban Land Ceiling proceedings. The allegations that the HCJ (AAJ) & NVSKJ 7 W.A. No.508 of 2011 and batch construction activity is being undertaken in violation of the order of this Court dated 19.11.2011 was denied.
10. In paragraph No.7 of the said counter affidavit it is submitted that the ground status report of the Tahsildar, Asifnagar Mandal and the said authorities of Asifnagar Mandal and its field staff are maintaining a strict vigil and as such, there are no new encroachments noticed and therefore, present Contempt Case alleging construction activities is without verifying the factual ground status and accordingly respondent prays to dismiss the present Contempt Case.
11. The District Collector i.e., respondent No.4 has also filed a counter affidavit while reiterating the factual aspects made in the counter affidavit of respondent No.3.
12. A reply affidavit has been filed by the petitioner reiterating the same set of facts as presented in the Contempt Case.
13. W.A. No.734 of 2011 has been filed against the order dated 29.04.2011 passed in W.P. No.7762 of 2007. The appellant (Srinivasa Nagar Welfare Association) herein is the respondent No.4 in the said writ petition and the respondents No.1 and 2 (Manu Bhai Shankar Bhai Patel and Nattu Bhai Shankar Bhai Patel) herein are the writ petitioners in the said writ petition.
HCJ (AAJ) & NVSKJ 8 W.A. No.508 of 2011 and batch
14. The appellant Association herein is the 4th respondent in the writ petition under appeal. The learned counsel for the appellant herein would submit that when the appellant Association came to know that the petitioners in W.P. No.18851 of 2003 were agitating their claim before the appellate authority and subsequently in the said writ petition, the appellant herein got impleaded in the said writ petition with bona fide intention to apprise the factual position obtaining with regard to the possession of the subject land of the appeal and also to the related issue of regularization of their possession pursuant to the policy of the Government vide G.O.Ms.No.455 dated 29.07.2002 before the Court. Thus, in the subsequent proceedings before the appellate authority and in the writ petition under appeal, the appellant herein at every point of time categorically explained its legal stand. It is further submitted that as against the factual position submitted above as far as it relates to the appellant herein, the writ petition under appeal was decided without recording the valid averments/submissions made on basis of the records.
15. Along with the appeal, the appellant has filed WAMP. No.1744 of 2011 seeking to suspend the orders passed in W.P. No.7762 of 2011 dated 29.04.2001, pending decision in the writ appeal.
16. On behalf of the writ petitioners/respondents No.1 and 2 herein, while denying the averments of appeal, have filed counters, inter alia, stating that they are in continuous possession of the HCJ (AAJ) & NVSKJ 9 W.A. No.508 of 2011 and batch subject lands in Sy.Nos.222/3, 222/4, 222/5 and 236/2 situated at Guddimalkapur village, Asifnagar Mandal, Hyderabad District as absolute owners. It is further submitted that the appellant herein and the respondents No.6 to 21 are totally strangers to the property and without any right, title or interest over the subject property they got themselves impleaded in the ULC proceedings on the basis of bogus and fabricated documents contending that the land vested in the Government, as such they are entitled for the benefit under G.O.Ms.Nos.455 and 456 dated 29.07.2002. It is further submitted that the appellant and the respondents No.6 to 21, who have got themselves impleaded before the appellate authority stating that the land is vested with the Government, therefore, they cannot approbate and reprobate. They also denied the panchanama and physical possession taking over under alleged panchanama, which is created by the ULC authority and stated that the same is non est in the eye of law.
17. W.A. No.979 of 2013 has been filed against the order dated 29.04.2011 passed in W.P. No.7762 of 2007. The appellant (M/s. Netaji Nagar Co-operative House Building Society) herein is the respondent No.19 in the said writ petition and the respondents No.1 and 2 (Manu Bhai Shankar Bhai Patel and Nattu Bhai Shankar Bhai Patel) herein are the writ petitioners in the said writ petition.
18. In the grounds of appeal it has been stated that during the course of arguments, the writ petitioners/respondents No.1 and 2 HCJ (AAJ) & NVSKJ 10 W.A. No.508 of 2011 and batch herein through their counsel openly stated that they have no claim whatsoever nor did they ever sought for any relief against the appellant herein insofar as the lands claimed by the appellant society and as such there was no occasion for the appellant society to advance its arguments as the statement made by the writ petitioners was taken note of by the learned Single Judge, which has been omitted in the final order. It is further submitted that writ petitioners as well as the appellant society herein have filed a joint memo to the effect that the writ petitioners have no claim or never claimed any relief whatsoever against the appellant society, by filing a review petition vide Review WPMP. No.31234 of 2011 and the learned Single Judge ought to have recorded the same and disposed of the matter accordingly and when the writ petitioners had withdrawn their claim or unwilling to contest the case as against this appellant society, the cause against the appellant society automatically ceased to exist and therefore, the writ proceedings cannot be continued as against this appellant society.
19. A copy of the joint Memo has been filed on behalf of the appellant herein and the writ petitioners/respondents No.1 and 2 herein wherein it is submitted that the land claimed by the review petitioner i.e. appellant herein are different and distinct from the subject matter of the lands owned and possessed by the writ petitioners/respondents No.1 and 2 herein. The review petitioners got impleaded on the sole ground that the Urban Land Ceiling HCJ (AAJ) & NVSKJ 11 W.A. No.508 of 2011 and batch Authorities are not regularizing the plots owned by the members of the appellant society and the Urban land Ceiling Act is repealed by the State Government in the month of February, 2008 and that the land owned by the review petitioner is in respect of lands in Sy.No.222/5 to an extent of Acs.16.05 guntas and 236/2 to an extent of Ac.01.35 guntas totally admeasuring Acs.18.00 guntas situated at Gudimalkapur village, Asifnagar Mandal, Hyderabad District. Neither the society nor its members or any persons claiming through them are nothing to do with the lands owned and possessed by the writ petitioners in W.P.No.7762 of 2007 and further the writ petitioners never claimed any relief as against the review petitioner in the writ petition. In view of the fact that the submissions made by both the learned counsel i.e. review petitioner/appellant herein and the writ petitioners/respondents No.1 and 2 herein were not recorded by the learned Single Judge, the same may be recorded by this Court.
20. It is pertinent to extract the para No.2 of the joint memo, which reads as under:
"It is submitted that the review petitioner/R-19 society and its members and the persons claiming through them hereby admit the right, title interest and possession of the writ petitioners with regard to subject matter of the writ petition in Sy.No.222/3 to 5 and 236 admeasuring 20,943.23 sq.meters and 21,868.13 sq.meters respectively and further declare that they have no interest of whatsoever nature against the said lands owned and possessed by writ petitioners. Similarly, the writ petitioners declare that the lands in HCJ (AAJ) & NVSKJ 12 W.A. No.508 of 2011 and batch Sy.No.222/5 admeasuring Ac.16.05 gts and Sy.No.236/2 admeasuring Ac.1.35 gts claimed by the review petitioner/R-19 are nothing to do with the subject matter of the lands in W.P. No.7762 of 2007, further the writ petitioners have no claim, whatsoever against the said lands claimed by the review petitioner/R-19 society and its members nor the writ petitioners have any interest in them. There are no mutual claims/obligations against each other as the lands owned by the writ petitioners and the review petitioner/R-19 are totally different and distinct."
21. W.P. No.12572 of 2003 has been filed by the petitioners (Dr.M.Hemalatha and M.Neetha Prasad) seeking a writ of mandamus to declare the G.O. Ms. No.640 dated 28.05.2003 as amended in G.O.Ms.No.653 dated 31.05.2003 as illegal, arbitrary and consequently to direct the respondents No.1 and 2 to consider the application of the petitioners dated 11.03.2003 in terms of the G.O. Ms. No.455 dated 29.07.2002.
22. It is the case of the petitioners that the property in Sy.No.222/4 situated at Gudimalkapur village, Hyderabad was originally owned by one Sri J.Shankarbai Patel and his family members admeasuring total Acs.13.10 gts. After commencement of the Urban Land Ceiling Act, declarations of J.Shankarbai Patel and 7 others have been processed and they were declared as surplus holders. In the meanwhile, the 3rd respondent (Sri Tirumala Venkateswara Cooperative Housing Society Limited) agreed to purchase the property and appears to have entered into an agreement of sale dated 21.03.1982 at the rate of HCJ (AAJ) & NVSKJ 13 W.A. No.508 of 2011 and batch Rs.65,000/- per acre. It also appears that the 3rd respondent society has represented to the Government on 29.03.1982 seeking exemption under G.O.Ms. No.136 dated 28.01.1981. Since the Government has not passed any orders as there was a delay, the owners represented by power of attorney holders had entered into a memorandum of understanding under which the transfer of land was restricted to five acres as per the agreement of sale to the members of the society and on the balance of seven acres, society has relinquished all its rights under agreement of sale dated 21.03.1982 and 22.03.1982. The society could not obtain ULC permission and owners could not register even the five acres in favour of the Society. In the meanwhile, society filed a suit in O.S.No.1209 of 1993 on the file of the Il Senior Civil Judge, City Civil Court, Hyderabad for specific performance of the said agreement of sale dated 21.03.1982.
23. It is further submitted that as per the memorandum of understanding dated 22.11.1990, the owners represented by their power of attorney holders Sri P. Gandaiah and others have developed the balance seven acres of land into plots taking the possession of the property on 20.06.1991 by dividing the land into various plots in the name of Srinivas Nagar Locality and constructed buildings on the said plots and the Corporation has allotted house numbers to the said houses and they have sold the said houses under various sale deeds to third parties. It is further submitted that the petitioners have purchased one such house bearing H.No.13-6-432/3 admeasuring HCJ (AAJ) & NVSKJ 14 W.A. No.508 of 2011 and batch 578 sq.yards under Sale Deed dated 15.06.1995 from Sri K.Bhaskar Rao, Sri P.Gandaiah, and Sri M.Bhujanga Reddy and the they have been in possession of the property since then by paying the taxes over the property.
24. In the meanwhile, having come to know about the ULC proceedings pending on the property, the petitioners have approached the ULC authorities and recently the Government issued G.O.Ms. No.455 dated 29.07.2002 to consider the allotment of lands vested in the Government in favour of the persons who are in possession subject to the terms and conditions stipulated in the said Government order. It is further submitted that the petitioners have filed an application on 11.03.2003 seeking for benefits under the said G.O., by paying necessary amount of Rs.1,46,500/- each of the petitioners respectively through demand drafts and the said application is pending before the Respondent.
25. Similarly the second petitioner had also purchased the House bearing Municipal No.13-6-432/29 admeasuring 578 sq.yds., of Gudimalkapur village, Hyderabad under Sale Deed dated 15.06.1995 from Sri K.Bhaskar Rao, Sri P.Gandaiah, and Sri M.Bhujanga Reddy.
26. It is further submitted that the 3rd respondent society appears to have made a representation on 03.02.2003 seeking allotment under G.O Ms. No.455 dated 29.07.2002. On the said representation, Government has called for a report from the Special Officer and HCJ (AAJ) & NVSKJ 15 W.A. No.508 of 2011 and batch Competent Authority, ULC, Hyderabad, who submitted a report confirming all the averments referred by the petitioners including memorandum of understanding dated 22.11.1990 and observed that the 3rd respondent society is not entitled for any benefits either under G.O.Ms.No.136 or under G.O.Ms.No.455 since they have violated the terms of G.O.Ms.No.136 and they are not in possession of the property and whereas had confirmed the possession of the petitioners herein including other third parties and that the third respondent society is not entitled for any benefits under G.O.Ms.No.455. Inspite of bringing notice all these facts including pending of the suit in O.S.No.1209 of 1993, Government without considering these aspects, has issued G.O.Ms.No.640 dated 28.05.2003 as amended in G.O.Ms.No.653 dated 31.05.2003 in further modification to G.O.Ms.No.455 dated 29.07.2002 by observing that the Government intended to extend the benefits of G.O.Ms.No.455 by allotting 49 plots to the alleged members of the society and directed the Special Officer to submit the proposal and called further report from the second respondent terming all other occupants/third parties as encroachers including the petitioners herein vide memo No.82227/UC.II2/97-13 dated 28.05.2003 without considering the application dated 11.03.2003 of the petitioners.
27. It is further submitted that the Government has not considered the report of the second respondent which specifically mentions the pendency of the civil suit and the applications of third parties who are in possession of the property, inspite of the same Government without HCJ (AAJ) & NVSKJ 16 W.A. No.508 of 2011 and batch issuing any notice to the affected persons issued impugned G.O.Ms. No.640 dated 28.5.2003 and such proceedings are illegal, without jurisdiction and beyond the scope and power under Section 20(1) and (2) of Urban Land Ceiling Act. It is further submitted that the such en-bloc allotment or relaxation is not permissible under the provisions of the ULC Act. It is further submitted that without issuing any notice or opportunity, Government cannot pass the impugned orders which are illegal, discriminatory and liable to be struck down and in furtherance to that if the impugned G.O. is implemented and the plots are allotted to the alleged members of the 3rd respondent society, the petitioners would be put to irreparable loss and hardship and will be deprived of rights over the property. It is further submitted that the land in question is in recreation zone till recently and the said lands could not be covered by the provisions of the ULC Act at all. The Respondents No.1 and 2 have no jurisdiction to declare the land itself as excess. The petitioners would submit that the respondents ought to have followed the criteria fixed in G.O.Ms.No.455 dated 29.07.2002 who had satisfied the requirements of G.O.Ms.No.455 dated 29.07.2002 and ought to have considered application dated 11.03.2003. Therefore this Court in the interest of justice be pleased to set aside the impugned G.O. COUNTER AVERMENTS IN W.P.No.12572 of 2003
28. The Special Officer, Office of Urban Land Ceiling, Hyderabad has filed counter and would submit that one Sri Jeshbai Shankar HCJ (AAJ) & NVSKJ 17 W.A. No.508 of 2011 and batch Bhai Patel and 7 others filed declarations in Urban Land (Ceiling and Regulation) Act, 1976 in respect of the properties held by them falling within the Hyderabad Urban Agglomeration. After due enquiry, it was held that they were holding 1,14,780.84 sq.mtrs in Sy.Nos.222/3, 222/4, 222/5 and 236/2 of Gudimalkapur Village, Asif Nagar Mandal, Hyderabad District. It is submitted that the said declarants being represented by GPA had entered into an agreement with M/s.Thirumala Venkateswara Cooperative Housing Society in respect of land admeasuring Ac.13-10 gts., in Sy.No.222/4 and out of Ac.13-10 gts., an extent of Ac.1-00 gts., was covered by the Ring Road and an extent of Ac.1-00 gts., was held to be retainable area in the hands of the declarants.
29. Thereafter, M/s.Thirumala Venkateswara Cooperative Housing Society Ltd., approached the Government seeking exemption in respect of the proposed sale of the extent of Ac.13-10 gts in favour of society. Thereafter exemption was sought in terms of G.O.Ms.No.136 Rev (UC-II) Department dated 28.01.1981. After examining the request, the then Government of Andhra Pradesh rejected the same vide memo dated 26.09.1997. Thereafter, society has approached Hon'ble Court by way of filing W.P.No.30085 of 1997 and this Court by order dated 18.11.1997 allowed the writ petition and remitted the matter back to the Government of Andhra Pradesh for fresh consideration in accordance with law. Thereafter, society again approached this Court by way of this writ petition challenging the HCJ (AAJ) & NVSKJ 18 W.A. No.508 of 2011 and batch proceedings dated 31.08.1999 refusing grant of exemption and by interim orders dated 28.01.2000 this Court granted status quo to be maintained with regard to the possession of the land in Sy.No.222/4, Gudimalkapur Village existing as on that date. Thereafter, a common order was passed pertaining to the subject land in W.P.Nos.26524, 75 of 1999 and 8374 of 2000 stating as follows:
"The Government shall now consider the matter relating to the exemption application filed by the petitioner and also the owners of the land in question in this regard and take appropriate decision in the matter. It is also to be noted that by virtue of G.O., the petitioner filed an application seeking exemption and admittedly, the petitioner is a house building society considering of members and to whom the allotments are yet to be made and the same was held up on account of the litigation pending in various courts. It is necessary that the Government shall consider the matter in proper perspective keeping in view the objects and guidelines contained in G.O. and pass appropriate orders."
30. Thereafter, it has been noted that the petitioner society has filed a suit in O.S.No.1209 of 1993 on the file of II Senior Civil Judge, City Civil Court, Hyderabad, seeking specific performance of the Agreement of Sale executed in its favour by the owners of the land in Sy.No.222/4, Gudimalkapur Village, wherein trial Court granted interim injunction in its favour altering the nature thereof. Thereafter, the society and land owners have entered into Memorandum of Understanding on 22.11.1990 which is in violation of the provisions of HCJ (AAJ) & NVSKJ 19 W.A. No.508 of 2011 and batch G.O.Ms.No.136 dated 28.01.1981. Thereafter, the Government vide G.O.Ms.No.640 Rev (UC-II) Department dated 28.05.2003 issued orders relaxing paras 4(e) to (h) of G.O.Ms.No.455 issued in respect of 49 plots of land of M/s.Thirumala Venkateswara Cooperative Housing Ltd. Thus, plots were reported to be vacant and free from encroachments. The proposals for regularization under G.O.Ms.No.455 dated 29.07.2002 in respect of 36 plots were submitted to Government on 29.01.2007. Thereafter, there was another association during the year 2003 under name and style of M/s.Srinivasa Nagar Welfare Association and accordingly applications were submitted for regularization under G.O.Ms.No.455 dated 29.07.2002 which were forwarded to Government of Andhra Pradesh for necessary consideration and decision. The applications submitted by them will be considered in their own right and on their own merits.
31. It is further submitted that the land claimed by the petitioners is separate and distinct from the land claimed by the society and accordingly consideration of applications by various parties under G.O.Ms.No.455 dated 29.07.2002 in respect of their distinct land holdings shall be considered on their own merits and in view of the pendency of the writ petition, no action was taken by the Government.
32. All the W.A. Nos.508, 657 and 734 of 2011 and 979 of 2013 have been preferred assailing the order dated 29.04.2011 passed in W.P. No.7762 of 2007 by the learned Single Judge. The W.P. No.12572 of 2023 has been filed challenging the HCJ (AAJ) & NVSKJ 20 W.A. No.508 of 2011 and batch G.O.Ms.No.640 dated 28.05.2003, which has been issued by the Revenue (UC.II) Department regularising the plots held by the members of the Sri Tirumala Venkateshwara Co.Operative House Building Society Limited, who is respondent No.20 in W.P. No.7762 of 2007, as amended in G.O. Ms. No.653 dated 31.05.2003 wherein an amendment was made for G.O.Ms.No.636 Revenue (UC.II) Department dated 28.05.2003, wherein orders were issued for regularisation of the plots held by the members of the Society by way of allotment under Section 23(4) of the ULC Act. The C.C. No.1084 of 2021 has been filed for disobeying the orders of this Court passed in WAMP. No.1524 of 2011 in W.A. No.657 of 2011 on 19.11.2011.
33. Since all the aforementioned appeals, writ petition and the contempt case are relating to the very same subject property and between the very same parties, all these matters were heard analogously and are being decided by this common judgment. Facts of the case in W.P. No.7762 of 2007:
34. The petitioners/respondents No.1 and 2 herein, Manu Bhai Shankar Bhai Patel and Nattu Bhai Shankar Bhai Patel, filed W.P. No.7762 of 2007 assailing the order dated 15.12.2006 passed in ULC Appeal No.Hyd.59/2005 by the Commissioner, Appeals, Office of the Chief Commissioner of Land Administration, Andhra Pradesh, Hyderabad, by the first respondent/appellant herein, whereunder the HCJ (AAJ) & NVSKJ 21 W.A. No.508 of 2011 and batch statutory appeals preferred by both the petitioners/respondents No.1 and 2 herein, were dismissed while confirming the proceedings bearing Nos.B1/11240/76 dated 24.02.1993 and B1/11241/76 dated 17.02.1993 issued by the Special Officer and Competent Authority, Urban Land Ceiling, Hyderabad, the second respondent/appellant herein, in respect of the petitioners' lands in Survey Nos.222/3 to 5 and 236/2 admeasuring 20,943.23 square meters and 21,868.13 square meters respectively situated at Gudimalkapur Village, Golconda Mandal, Hyderabad District.
35. It is the case of the petitioners/respondents No.1 and 2 herein, that they had filed declarations in the year 1976 under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short, 'the ULC Act'). However, the competent authority/second respondent/appellant herein, after a long lapse of 17 years, declared that the first petitioner/ 1st respondent herein, is holding excess land in an extent of 18,375.29 square meters by his order dated 24.02.1993 in proceedings No.B2/11240/76 and the second petitioner/2nd respondent herein, is holding excess vacant land in an extent of 20,368.83 square meters by his order dated 17.02.1993 in proceedings No.B2/11241/76.
36. Being aggrieved by the said orders, the petitioners/respondents herein have preferred statutory appeals under Section 33 of the ULC Act before the appellate authority/first respondent/appellant herein. The appellate authority granted status quo order on 16.04.1993 in Appeal No.Hyd/76/93 filed by the first petitioner/respondent herein.
HCJ (AAJ) & NVSKJ 22 W.A. No.508 of 2011 and batch Thereafter, both the appeals were dismissed by his order dated 27.06.2002.
37. Challenging the same, the petitioners/respondents herein had filed Writ Petition No.18851 of 2003 before this Court. Initially this Court granted order of status quo on 17.09.2003. Subsequently, by order dated 08.08.2005 this Court allowed the said writ petition remitting the matter to the first respondent/appellant herein for disposal afresh after hearing both the parties. However, this Court made it clear that the status quo as on 08.08.2005 should be continued till the disposal of the matter afresh by the appellate authority/first respondent/appellant herein. Pursuant thereto, the first respondent/appellant herein once again dismissed the said appeals by his order dated 15.12.2006 duly confirming the orders passed by the second respondent/appellant herein.
38. The competent authority/second respondent/appellant herein did not choose to file a counter.
39. However, the appellate authority/first respondent/appellant herein had filed a counter stating that there is no irregularity or illegality in the impugned order passed by it. It is further averred therein that the petitioners/respondents herein have filed their declarations under Section 6(1) of the ULC Act and after due enquiry draft statement under Section 8(1) and notice under Section 8(3) of the ULC Act were issued on 21.05.1982 and after considering the HCJ (AAJ) & NVSKJ 23 W.A. No.508 of 2011 and batch objections filed by the declarants, the competent authority/first respondent/ appellant herein issued orders under Section 8(4) and final statement under Section 9 of the ULC Act determining the declarants as surplus vacant land holders to an extent of 18,375.29 square meters and 20,368.83 square meters respectively in Sy.Nos.222/4, 236/2 and 222/3 of Gudimalkapur village and the appeals filed by them were dismissed on 27.06.2002 on the ground that there are status quo orders of this Court covering the entire subject land and therefore the first respondent/appellant herein could not adjudicate the matter till the disposal of the said case by this Court. Aggrieved thereby, the petitioners/respondents No.1 and 2 herein have filed Writ Petition No.18851 of 2003 before this Court. This Court, by order dated 08.08.2005, set aside the above order of the first respondent/ appellant herein and remanded the matter to the appellate authority for disposal afresh. Pursuant thereto, notice was issued to the petitioners/respondents No.1 and 2 herein, to appear for hearing.
40. While so, respondents No.4 to 20 in the impugned order herein have filed various implead petitions on 21.12.2005 on the ground that they have purchased the land from the owners for a valuable consideration and that they have also paid the requisite amount under G.O.Ms.No.455 dated 29.07.2002 for regularization of plots. The implead petitions filed by respondents No.4 to 20 were ordered and the counsels representing them prayed for dismissal of the HCJ (AAJ) & NVSKJ 24 W.A. No.508 of 2011 and batch appeals. The impleaded respondents stated that they have been in possession in respect of their individual plots and their applications under G.O.Ms.No.455 dated 29.07.2002 were pending consideration and thus there are no merits in the appeals as the competent authority/first respondent/appellant herein after due consideration of the case determined an extent of 18,375.29 square meters in respect of premises bearing No.13-6-342 in Sy.Nos.222/3 and 222/4 of Gudimalkapur as surplus land held by the first petitioner/respondent herein after excluding the protected area of 558.66 square meters under Section 4(9) of the ULC Act and the retainable vacant land of 1000 square meters under Section 4(1)(b) of the ULC Act. Similarly, the second petitioner/respondent herein was declared as having surplus vacant land in an extent of 20,368.83 square meters in Sy.No.222/3 of Gudimalkapur after excluding the protected area of 262.08 square meters under Section 4(9) of the Act and the retainable vacant land of 1,000 square meters under Section 4(1)(b) of the Act. The petitioners/respondents No.1 and 2 herein in their grounds of appeal mainly contended that the land is a recreation zone and no construction is possible. They have sold the land to various purchasers, but trying to prolong the process by not attending the Court even after issuance of notices and the first respondent/ appellant herein provided all the benefits available under the ULC Act to the petitioners/respondents No.1 and 2 herein. The appellate authority/first respondent/appellant herein, after considering the contentions raised by the respective parties, dismissed both the HCJ (AAJ) & NVSKJ 25 W.A. No.508 of 2011 and batch appeals by observing that there are no grounds to interfere with the orders passed by the competent authority/second respondent/ appellant herein. Accordingly prayed for dismissal of the writ petition.
41. Respondent No.20-M/s.Tirumala Venkateswara Cooperative Housing Society Limited filed a counter stating that they have entered into an agreement of sale in the month of March, 1982 with the owners of the subject land. It is further stated that on conclusion of the ULC proceedings under Sections 10(1) and 10(5) of the ULC Act, the Government had taken possession of the surplus land under a cover of Panchanama dated 04.11.1999. It is however stated that such taking possession of the surplus land only remained on paper as respondent No.20-Society and its members have been in physical and actual possession of their respective plots. Therefore, it is stated that the land is vested in the Government and the first respondent/ appellant herein rightly dismissed the appeals. As such, they sought for dismissal of the writ petition.
42. Respondents No.5 to 18, who also filed separate counters claiming to be the members of respondent No.4-The Srinivasa Nagar Welfare Association, raised the above similar contentions.
43. Counter was also filed by respondent No.4 averring the selfsame contentions. However, it is stated that taking over possession of surplus land remained on paper as the petitioners/respondents No.1 HCJ (AAJ) & NVSKJ 26 W.A. No.508 of 2011 and batch and 2 herein had sold in an extent of Ac.7-00 guntas of land to various individuals through their GPA Holder.
44. Separate reply affidavits were filed by the petitioners/ respondents No.1 and 2 herein specifically denying various allegations made by the respondents/appellants herein. It is stated therein that no possession was taken over by the second respondent/appellant herein at any point of time and the alleged panchanama dated 04.11.1999 was only on paper and the petitioners/respondents herein never executed any GPA in favour of Bhaskara Rao as claimed and the said documents were fabricated and forged and no part of the subject land is alienated to any individual and the petitioners/respondents herein have been in continuous possession and enjoyment of the subject land all along. The appellate authority/first respondent/ appellant herein granted status quo order on 16.04.1993 and ultimately the appeals were dismissed on 27.06.2002. The alleged panchanama was dated 04.11.1999 when the order of status quo was very much in force. Therefore, the alleged panchanama, if any, is of no consequence as the said proceedings were inoperative and non est in the eye of law. The physical possession remained with the petitioners/respondents herein throughout. Therefore, respondents No.4 to 20 were neither necessary nor proper parties to ULC proceedings and their claim cannot be adjudicated in the ULC proceedings in as much as respondent No.20 had already instituted a suit for specific performance in O.S.No.1209 of 1993, which was HCJ (AAJ) & NVSKJ 27 W.A. No.508 of 2011 and batch decreed by the trial Court on 14.11.2003. Questioning the said decree, appeal in CCCA No.40 of 2006 had been preferred by the petitioners/respondents herein, which was allowed by this Court. The petitioners/respondents herein therefore prayed that the writ petition be allowed.
CONTENTIONS OF THE PETITIONERS IN THE WRIT PETITION:
45. Sri D.Prakash Reddy, learned senior counsel for the petitioners/ respondents contended that the ULC proceedings were abated as per the Repealing Act by the State in the month of March 2008.
Therefore, the very contention of the first respondent/appellant herein that the land is vested in the State Government pursuant to the panchanama dated 04.11.1999 and on that basis the other respondents are claiming that the land is vested in the Government and that they have applied for regularization of their plots pursuant to G.O.Ms.No.455 dated 29.07.2002 cannot be sustained. The learned senior counsel pointed out that the alleged panchanama dated 04.11.1999 is of no consequence as the same has taken place during the pendency of the appeal, more particularly when the status quo order granted in the year 1993 was in fact in force. He further argued that the appellate authority/first respondent/appellant herein also admitted that there was status quo order right from the year 1993 upto 2002, i.e., till the dismissal of the appeals; and that the proceedings under ULC Act are in the nature of expropriatory and strict adherence is to be given to the provisions of the ULC Act and HCJ (AAJ) & NVSKJ 28 W.A. No.508 of 2011 and batch any violation thereof has to be viewed very seriously. The learned senior counsel also contended that even otherwise also, the Mandal Revenue Inspector is not authorized to take over possession under the provisions of the ULC Act and the authorized person is only the Tahsildar. Therefore, the proceedings are vitiated for the said reason and the alleged panchas were not of the same village and their detailed descriptions were not given as required. It is thus submitted that as the panchanama is drafted in the office and remained on paper only, the physical possession remained with the petitioners/respondents No.1 and 2 only. In support of his contentions, the learned senior counsel placed reliance on certain case laws.
CONTENTIONS OF THE SPECIAL GOVT. PLEADER IN THE WRIT PETITION:
46. Sri N.Sreedhan Reddy, learned Special Government Pleader, contended that the status quo order was granted by the appellate authority in the appeal filed by first petitioner/respondent herein and no possession was taken over in respect of the land in an extent of 18,375.29 square meters and whereas no status quo order was granted in respect of the appeal filed by the second petitioner/appellant herein, possession was taken in respect of the land of the second petitioner/appellant to an extent of 20,366.83 square meters and as such the land is vested in the Government and the proceedings have become final.
HCJ (AAJ) & NVSKJ 29 W.A. No.508 of 2011 and batch CONTENTIONS OF THE RESPONDENT No.20 IN THE WRIT PETITION:
47. Sri K.Rama Krishna Reddy, learned senior counsel appearing on behalf of respondent No.20, contended that in spite of the status quo order granted by the appellate authority, the State has got power to take possession in pursuance of the proceedings under Sections 10(1), 10(3) and 10(5) of the ULC Act and that accordingly the Government took over possession under a cover of panchanama and further stated that though the land is vested in the State the fourth respondent society and its members are in possession of their respective plots as stated in their counter affidavit. It is also argued that the status quo order granted by the appellate authority is not binding on the competent authority/second respondent/appellant herein. Therefore, it is contended that the proceedings of the second respondent/ appellant herein are legal.
48. The other unofficial respondents have adopted the arguments of the learned senior counsel appearing for respondent No.20.
REPLY CONTENTIONS OF THE PETITIONERS IN THE WRIT PETITION:
49. In reply thereto, Sri D.Prakash Reddy, learned senior counsel, appearing on behalf of the petitioners/respondents No.1 and 2 herein, referred to the proceedings filed by respondent No.20 along with the counter affidavit dated 02.08.2010 and stated that the said proceedings under Sections 10(1), 10(3) and 10(5) of the ULC Act are in respect of the first petitioner/respondent herein and the same were issued during the subsistence of the status quo order in the appeal HCJ (AAJ) & NVSKJ 30 W.A. No.508 of 2011 and batch filed by him. In so far as the second petitioner/respondent herein is concerned, no notifications under Sections 10(1), 10(3) and 10(5) of the ULC Act were issued. Therefore, the alleged taking over of possession of the land in respect of the second petitioner/respondent herein is illegal and unsustainable. The admission on the part of the learned Special Government Pleader to the effect that possession of the first petitioner's/respondent herein land was not taken over by the competent authority/second respondent/appellant herein goes to show that no notifications as contemplated under Sections 10(1), 10(3) and 10(5) of the ULC Act were issued. Had the notifications been issued by the competent authority/second respondent/appellant herein, nothing prevented them to produce the same before this Court to substantiate their plea. However, they failed to do so for the reasons best known to it. Further, the second respondent/appellant herein in the counter affidavit filed in the earlier writ petition categorically admitted that the appellate authority granted status quo orders in both the appeals and therefore the alleged panchanama is not legal and binding and the same is liable to be set aside.
50. The learned Single Judge, while dealing with the writ petition, had considered the various judicial pronouncements, which are extracted hereunder:
"The Supreme Court in State of Gujarat vs. Shantilal Mangaldas 1 held as follows:1
(1969) 1 SCC 509 HCJ (AAJ) & NVSKJ 31 W.A. No.508 of 2011 and batch "55. ......... for it is a settled rule of interpretation of statutes that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all: Taylor v. Taylor 2........"
In Hukam Chand Shyam Lal vs. Union of India3 the Supreme Court held thus: "18. It is well- settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided will be violative of the fundamental principles of natural justice. ........."
The High Court of Gujarat in Dahyabhai v.
Competent Authority and Addl. Collector, Vadodara 4 held thus:
"Such an interpretation would be both absurd and unreasonable Therefore it has to be avoided. The only reasonable interpretation that can be to the provisions of secs. 10(3) and 10(5) of the Act is that the vesting of the land in the Government would be subject to the result of the appeal under sec. 33 of the Act. In cases where aggrieved party may succeed in appeal and the final order passed by the Competent Authority under sec. 9 is set aside (or varied or modified) the further consequential steps under sec. 10 also will have to be taken by the Government so as to bring the same in conformity with the final order under sec. 9 of the Act. Just as the order under sec. 9 is set aside (or varied or modified) by the Urban Land Appellate 2 (1876) 1 Ch D 426 3 (1976) 2 SCC 128 4 AIR 1988 GUJARAT 52 HCJ (AAJ) & NVSKJ 32 W.A. No.508 of 2011 and batch Tribunal similarly the subsequent steps under sec. 10 of the Act will have to be taken by the Government and it will have either to set aside (or vary or modify) its earlier actions."
In D.S. Patel & Construction Co. vs. Competent Authority & Dy. Collector (ULC) Rajkot 5 the Gujarat High Court held as under:
"11. ......... Since the appeal was pending in each case, the notification under S.10(3) of the Act issued during its pendency would lose its importance or significance. It will have just to be ignored. No further action pursuant thereto could have been taken even after dismissal of the appeal for a reasonable period to enable the aggrieved land-holder to invoke the extraordinary jurisdiction of this Court under Arts. 226 and/or 227 of the Constitution of India. Applying the principle of law enunciated in the aforesaid ruling of this Court in the case of Dahyabhai Manorbhai Patel (supra), the right of invoking the extraordinary jurisdiction of this Court under Arts. 226 and/or 227 of the Constitution of India within a reasonable period from the date of the impugned orders would not be lost by issuing of the notification under S.10(3) of the Ceiling Act or any action taken pursuant thereto if issued during the pendency of appeal. In that view of the matter, even if possession pursuant to the notification under Sec. 10(3) of the Ceiling Act is taken, it will be of no consequence."
In State of Maharashtra vs. B.E. Billimoria 6 the Supreme Court held thus:
5
1997 (3) GLR 2375 6 (2003) 7 SCC 336 HCJ (AAJ) & NVSKJ 33 W.A. No.508 of 2011 and batch "22. The said Act being an expropriatory legislation is required to be construed strictly. [See DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana7]."
A Division Bench of the High Court of Allahabad in State of U.P. through Competent Authority UDC and Competent Authority, Urban Land Ceiling vs. Hari Ram son of Moti and District Judge 8 having considered the provisions of ULC Act in the context of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 held thus:
"44. We deem it appropriate deal with while considering question of applicability of Repeal Act, as to the consequence of possession of surplus land being taken unlawfully or in an illegal manner prior to enforcement of Repeal Act (i.e. 18.03.1999).
45. ......... If Court finds that one or more grounds exist which show that the process of possession, though claimed under Section 10(5) or 10(6) of the Act is unlawful or vitiated in law, then such possession will have no recognition in law and it will have to be ignored and treated as of no legal consequence. The possession envisaged under Section 3 of the Repeal Act is both de facto and de jure only.
46. We may also point out that neither in the Principal Act nor the rules framed hereunder, any mode of taking possession has been provided. In respect of one mode (referred to mode of taking possession under the Land Acquisition Act, 1894), this Court and the Apex Court have pointed out that taking of possession under the said Act cannot be symbolical or on paper 7 (2003) 5 SCC 622 8 Civil Misc.Writ Petition No.473 of 2000 dated 27.04.2005 HCJ (AAJ) & NVSKJ 34 W.A. No.508 of 2011 and batch only and it is taking of actual possession at the spot.
........."
In Sosamma Thampy vs. The Assistant
Commissioner (ULT)-cum-Competent Authority
(ULC) and others 9 a learned Judge of the High Court of Madras, while considering the effect of the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 in the backdrop of the Repeal Act, 1999, held thus:
"10. In these circumstances, it is clear that the proceedings initiated by the respondents for acquiring the lands of the petitioner under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, stood abated on the passing of the Repealing Act 20 of 1999 and therefore, the lands in question continues to be vested in the petitioner and neither the State Government nor the land Ceiling Authorities had any lien over the said properties of the petitioner."
In V.Gurunathan vs. Asst. Commissioner of Urban Land Tax and Ceiling, Tambaram Area, Chennai and Others 10, the High Court of Madras held thus:
"8. ......... From the records placed before this Court, it is seen that the lands in question had been taken and handed over to Firka Revenue Inspector, Alandur, on 30.06.1993. According to the provisions of the Repeal Act 20 of 1999 and based on their interpretation, as found in a series of decisions of this Court, it is clear that mere vesting of the land in the Government is not sufficient. It should be shown that actual possession was taken over. Taking of actual possession of the land and the payment of 9 (2006) 2 MLJ 664 10 (2007) 5 MLJ 103 HCJ (AAJ) & NVSKJ 35 W.A. No.508 of 2011 and batch compensation thereafter, are the crucial factors. If such taking over of possession and payment of compensation therafter, are the crucial factors. If such taking over of possession and payment of compensation is not shown to have been done, all proceedings pending with regard to the lands in question, ought to be taken as abated on coming into the force of the Tamil Nadu Urban Land (Ceiling and Regulations) Repeal Act, (20 of 1999. In such view of the matter, the writ petition stands allowed. No costs."
The High Court of Gujarat in Manchiben
Thakorebhai Prabhubhai Patel vs. Competent
Authority 11 while construing the provisions of the ULC Act held as follows:
"5. ......... When there was an order of status quo to be maintained by the Court, there was no question of taking possession of the excess land thereafter. Despite the order having benefit served on the authorities, the authorities proceeded to draw panchnama and took possession of the land on 29.12.1997. Thus, the Government cannot be stated to have legally taken over the possession of the land in question from the land- holders. In fact, subsequently, this Court by an order dated 04.09.1998 quashed the order passed by the Government and remanded the proceedings of the Government for fresh consideration of the representation of the petitioners.
6. It is true that the order passed by the Competent Authority declaring total of 12099 sq. mtrs. Of ladn out of survey No.84 as excess in the declaration made by Bhikhiben and Chimiben was never challenged by the declarants. However, this Court had granted status quo as obtaining on22.10.1997. 11 Special Civil Application No.9716 of 1999 dated 13.01.2009 HCJ (AAJ) & NVSKJ 36 W.A. No.508 of 2011 and batch Admittedly the Government till then had not taken possession in part of survey No.84. Such fact loses its significance in view of the subsequent repeal of the Ceiling Act as per the provisions contained in the Repeal Act applying to all proceedings under the Ceiling Act in respect of which possession of the land was not taken over by the Government on the date of Repeal Act.
.........
9. Combined effect of these facts would be tht the Government cannot be stated to have been possession of the land from the landholders on the date when the Repeal Act became effective. Proceedings under the Ceiling Act with respect to such declaration regarding survey No.84 must be treated to have abated. The petition is therefore, allowed with the above declaration. The symbolic though unauthorized act of the Government of having taken over possession of the land is set aside. The petition is disposed of. Rule is made absolute accordingly."
In Mangalore Urban Development vs. Leelavathi 12 a Division Bench of the High Court of Karnataka, while interpreting the provisions of the ULC Act in the light of the Repeal Act, 1999, observed thus.
"9. Assuming that the Revenue Inspector took possession of the land, no document is produced to show that he was the competent authority under Section 10(6) of ULC Act to take possession of the land which is declared as surplus urban land under Section 10(3) of the Act. The language used therein is "the competent authority may take possession of the vacant 12 AIR 2009 KAR, 799 HCJ (AAJ) & NVSKJ 37 W.A. No.508 of 2011 and batch land or cause it to be given to the State Government or to any person duly authorized by such. There is no document in the original file of the State Government to show that possession of the land was taken by the competent Authority and given to the State Government. Even if the alleged mahazar is construed as the document regarding taking of possession of the land in question, possession was not given to Government but was given to Urban Development Authority. Viewed from any angle, it cannot be said that possession of the land was taken by competent authority from the owner of the land in question and given to Government. Therefore, question of vesting of the surplus land with the Government did not arise at all. In the circumstances, Section 3(1) of Repeal Act will not apply to the land in question."
A learned Judge of this Court in Bollaboni Lakshmi vs. Commissioner of Appeals, Office of the Chief, Commissioner of Land Administration, A.P., Hyderabad 13 while considering the provisions of the ULC Act held thus:
"23. ......... The possession of land, even if taken on the basis of a void order cannot be recognized as per law."
51. After taking into consideration the aforementioned various judicial pronouncements, the learned Single Judge has allowed the writ petition holding as under:
"From a conspectus of the law laid down by the Supreme Court including this Court and some other High Courts in the country, it is clear that when the 13 2009 (3) ALT 272 HCJ (AAJ) & NVSKJ 38 W.A. No.508 of 2011 and batch Repeal Act became effective, the proceedings must be treated as inoperative and non est in the eye of law and that the symbolic possession, though unauthorized act of the Government having taken over possession of the subject land, is of no consequence.
The alleged panchanama is drawn in respect of case Nos.(1)B1/11236/76; (2) B1/11237/76; (3) B1/11238/76; (4) B1/11239/76; (5) B1/11240/76; (6) B1/11241/76 and (7) B1/11242/76, and it was mentioned that wherein possession for an extent of 96,479.36 sq. meters of structures taken. No notice was issued to the persons who are found to have raised structures. Before taking panchanama the land is to be identified and sub-divided. There is no sub-division except mentioning in the printed panchanama and no sub-division numbers were assigned to the survey numbers and no record is placed to that effect. It is evident from the proceedings that no proper notice and opportunity is given at the stage of the proceedings initiated under Sections 9, 10, 10(3), 10(5) and 10(6) of the Act and the said proceedings were taken during the pendency of the statutory appeals and more so when the order of status quo is granted. Therefore, the impugned proceedings became abated.
As the presidential law relied on by the learned senior counsel for the petitioners are squarely applicable to the facts and circumstances of the present case in as much as the alleged taking over possession of the subject land in respect of the second petitioner while there was an order of status quo amounts to unauthorized act of the Government and the consequential taking over of possession, if any, becomes unlawful and taking over possession in any illegal manner will have no recognition in law and it will have to be ignored and treated as of no legal HCJ (AAJ) & NVSKJ 39 W.A. No.508 of 2011 and batch consequence. Further it is settled law that the alleged taking over possession cannot be symbolical and on paper. The Supreme Court held that in the absence of taking over of actual physical possession and payment of compensation, such proceedings will abate. It also held that the act being an expropriatory legislation is required to be construed strictly. It was also held that the authority to take possession of the vacant land or cause it to be given to the State Government or to any person duly authorized by such authority shall be as contemplated under Section 10(6) of the ULC Act. In the absence of such authority, it cannot be treated that valid possession is taken over. In the present case also, the Mandal Revenue Inspector is not an authorized person to take over the possession and even otherwise as per the pleadings of the unofficial respondents, the possession of the subject land remained only on paper and the same will lend support to the contentions raised by the learned counsel for the petitioners that no physical possession is taken over by the competent authority/second respondent. Therefore, all these facts goes to show that no legal possession is taken over by the competent authority/second respondent and the same remained only on the paper and the said panchanama and other proceedings were initiated only while pending consideration of the statutory appeals preferred under Section 33 of the ULC Act.
In the light of the above discussion and having due regard to the law laid down by the Supreme Court including this Court and some other High Courts in the country, the impugned order dated 15.12.2006 passed in ULC Appeal No.Hyd.59/2005 by the Commissioner, Appeals, Office of the Chief Commissioner of Land Administration, Andhra Pradesh, Hyderabad, the first HCJ (AAJ) & NVSKJ 40 W.A. No.508 of 2011 and batch respondent herein, is set aside and as a sequel thereto, the statutory appeals preferred by both the petitioners under Section 33 of the Act stand allowed and the panchanama is set aside.
The Writ Petition is accordingly allowed. In the peculiar facts and circumstances of the case, parties shall bear their own costs."
52. Assailing the said order, the present appeals have been preferred by the appellants on the following grounds:
SUBMISSIONS OF THE APPELLANTS IN W.A. No.508 of 2011
53. The learned Special Government Pleader Sri Harender Pershad representing the State submitted that the learned Single Judge has went beyond the pleadings in the writ petition with regard to the mode and manner of the proceedings of the Special Officer and Competent Authority and in taking over possession and granted the relief which was not asked for. He would further submit that the learned Single Judge ought to have seen that even if the order of status quo was binding, the same has merged in the final order of dismissal by the appellate authority and the writ petitioners have never urged with regard to the same either in the earlier round of litigation before this Court or in the present lis and therefore, the learned Single Judge ought not to have declared that the proceedings were in the teeth of the order of the status quo granted by the appellate authority. He would further submit that the ULC Repeal Act could not be made applicable to the facts of the present case as the possession of the HCJ (AAJ) & NVSKJ 41 W.A. No.508 of 2011 and batch land was taken over by the authorities under the ULC Act much prior to the repeal Act coming into force.
54. He would further submit that despite the repeal of the Principal Act of 1976 by the Urban Land (Ceiling and Regulation) Repeal Act, 1999, the possession that has been taken over by the State Government under the Principal Act will not be affected.
55. He would further submit that in respect of the taking over possession by the State authorities, they have gone to the spot and prepared panchanama showing delivery of possession which is sufficient for recording a finding that actual possession of the entire land had been taken.
56. To substantiate the arguments of the appellants in W.A. No.508 of 2011, the learned Special Government Pleader placed reliance in the case of State of U.P. and another Vs. Ehsan and another 14, State of U.P. Vs. Hari Ram and others 15, State of Assam Vs. Bhaskar Jyoti Sarma and others 16 and Banda Development Authority Vs. Motilal Agarwal and others 17.
57. The Hon'ble Supreme Court in the case of Bhaskar Jyoti (supra) wherein held that despite the repeal of the Principal Act of 1976 by the Urban Land (Ceiling and Regulation ) Repeal Act, 1999, the possession that has been taken over by the State Government 14 2023 SCC OnLine SC 1331 15 (1983) 4 SCC 453 16 (2015) 5 SCC 321 17 (2011) 5 SCC 394 HCJ (AAJ) & NVSKJ 42 W.A. No.508 of 2011 and batch under the Principal Act will not be affected. The relevant portion is extracted hereunder.
11. Section 3 of the Repeal Act postulates that vesting of any vacant land under sub-section (3) of Section 10, is subject to the condition that possession thereof has been taken over by the competent authority or by the State Government or any person duly authorised by the State Government. The expression "possession" used in Section 3 (supra) has been interpreted to mean "actual physical possession"
of the surplus land and not just possession that goes with the vesting of excess land in terms of Section 10(3) of the Act. The question, however, is whether actual physical possession of the land in dispute has been taken over in the case at hand by the competent authority or by the State Government or an officer authorised in that behalf by the State Government. The case of the appellant is that actual physical possession of the land was taken over on 7th December, 1991 no matter unilaterally and without notice to the erstwhile land owner. That assertion is stoutly denied by the respondents giving rise to seriously disputed question of fact which may not be amenable to a satisfactory determination by the High Court in exercise of its writ jurisdiction. But assuming that any such determination is possible even in proceedings under Article 226 of the constitution, what needs examination is whether the failure of the Government or the authorised officer or the competent authority to issue a notice to the land owners in terms of Section 10(5) would by itself mean that such dispossession is no dispossession in the eye of law and hence insufficient to attract Section 3 of the Repeal Act. Our answer to that question is in the negative. We say so because in the ordinary course HCJ (AAJ) & NVSKJ 43 W.A. No.508 of 2011 and batch actual physical possession can be taken from the person in occupation only after notice under Section 10(5) is issued to him to surrender such possession to the State Government, or the authorised officer or the competent authority. There is enough good sense in that procedure inasmuch as the need for using force to dispossess a person in possession should ordinarily arise only if the person concerned refuses to cooperate and surrender or deliver possession of the lands in question. That is the rationale behind Sections 10(5) and 10(6) of the Act. But what would be the position if for any reason the competent authority or the Government or the authorised officer resorts to forcible dispossession of the erstwhile owner even without exploring the possibility of a voluntary surrender or delivery of such possession on demand. Could such use of force vitiate the dispossession itself or would it only amount to an irregularity that would give rise to a cause of action for the aggrieved owner or the person in possession to seek restoration only to be dispossessed again after issuing a notice to him. It is this aspect that has to an extent bothered us. The High Court has held that the alleged dispossession was not preceded by any notice under Section 10(5) of the Act. Assuming that to be the case all that it would mean is that on 7th December, 1991 when the erstwhile owner was dispossessed from the land in question, he could have made a grievance based on Section 10(5) and even sought restoration of possession to him no matter he would upon such restoration once again be liable to be evicted under Sections 10(5) and 10(6) of the Act upon his failure to deliver or surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the boundaries thereof or any other circumstance of a HCJ (AAJ) & NVSKJ 44 W.A. No.508 of 2011 and batch similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as prescribed, it may still be not enough for him to retain the land for the authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5). It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that no notice under Section 10(5) had been served upon him.
12. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted HCJ (AAJ) & NVSKJ 45 W.A. No.508 of 2011 and batch him to raise the issue regarding his dispossession being in violation of the prescribed procedure.
58. In respect of issue of Panchanama, the learned Special Government Pleader has placed reliance in the case of Banda Development Authority (supra) and submitted that the Hon'ble Supreme Court had referred to various judgments of Hon'ble Supreme Court and culled out the following principles on Panchanama and concluded that the action of the concerned State authorities to go to the spot and prepare Panchanama showing delivery of possession was sufficient for recording a finding that actual possession of the entire acquired land had been taken. The relevant portion is extracted hereunder:
34. The principles which can be culled out from the above noted judgments are:
i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the concerned authority will have to give notice to the occupier of the building/structure or the person who HCJ (AAJ) & NVSKJ 46 W.A. No.508 of 2011 and batch has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken.
35. In the light of the above discussion, we hold that the action of the concerned State authorities to go to the spot and prepare panchnama showing delivery of possession was sufficient for recording a finding that actual possession of the entire acquired land had been taken and handed over to the BDA. The utilization of the major portion of the acquired land for the public purpose for which it was acquired is clearly indicative of the fact that actual possession of the acquired land had been taken by the BDA."
HCJ (AAJ) & NVSKJ 47 W.A. No.508 of 2011 and batch SUBMISSIONS OF THE RESPONDENTS No.1 & 2 IN W.A. No.508 of 2011/WRIT PETITIONERS
59. The learned Senior Counsel Sri Ravindra Shrivastava, appearing for the respondents No.1 and 2 in W.A.Nos.508, 657 and 734 of 2001, who are writ petitioners, submits that the suit for specific performance in O.S. No.1209 of 1993 was decreed on 14.11.2003 and against which an appeal in CCCA.No.40 of 2006 had been preferred, which has been allowed by this Court. He had drawn the attention of this Court to the Counter affidavit filed in W.P. No.18851 of 2003 on behalf of the Special Officer & Competent Authority, Urban Land Ceiling, who is the 3rd respondent therein, wherein it was stated as under:
"After due verification, draft statement u/s 8(1) along with notice u/s 8(3) of the Act have been issued calling for objections if any within the stipulated time for deletion of non-vacant lands as provided in the Act. The notices were served on them, received the objections from the delcarants. The objection petitions were examined thoroughly and after allowing the concessions and exemptions as provided in the Act and Rules, passed orders u/s 8(4) of the Act, determining surplus land in each CC., along with the final statement U/s 9 of the Act on 24-2-1993. The first petitioner declarant in CCNo.11241/76 declared as surplus landholder to an extent of 20,368.83 Sq.Mtrs after allowing 1000 Sq.Mtrs as retainable area. Later on the above CCs are processed upto section 10(6) stage of the Act and possession taken over on 31-8- 1999 under a cover of panchanama."
HCJ (AAJ) & NVSKJ 48 W.A. No.508 of 2011 and batch
60. He has further drawn the attention of this Court to the notice dated 15.07.1998 issued under Sub-Section (5) of Section 10 of the ULC Act, wherein directed the 1st respondent herein/writ petitioners to surrender/deliver possession of the land to the Deputy Tahsildar within thirty days of the service of the notice. However, no proof of service of notice was filed. That apart no notice was served on the respondent/petitioner No.2
61. Further, the Special & Competent Authority, Urban Land Ceiling, has issued proceedings dated 31.08.1999 intimating the 1st respondent/writ petitioner herein that the time given in the notice under Section 10(5) of the Act expired on 04.09.1998 and failed to deliver possession before the expiry date, hence authorized the Enquiry Officer, ULC, to take over possession of the land in question under Section 10(6) of the Act and hand over the same to Mandal Revenue Officer concerned and report compliance. He would submit that no appeal has been preferred against the orders passed by this Court in W.P. No.1885 of 2003 dated 08.08.2005.
62. He has also drawn the attention of this Court to the Panchanama dated 04.11.1999, wherein it is mentioned that the Deputy Tahsildar and Enquiry Officer, ULC has taken possession of the land under Section 10(6) of the ULC Act, to an extent of 96,479.36 Sq.Mts., of land relating to Natwarlal Mangaldas Patel and six others, which was declared as surplus land under ULC Act, vide proceedings of Special Officer & Competent Authority and thereafter, handed over HCJ (AAJ) & NVSKJ 49 W.A. No.508 of 2011 and batch to Mandal Revenue Inspector, Office of Mandal Revenue Officer, Asifnagar for supervision and to avoid encroachments. In this regard, the learned Senior Counsel would submit that the entire procedure was done in a mechanical manner and there are conflicting dates with respect to taking over possession of the subject lands.
63. He would further refer to the reply affidavit filed by the writ petitioners in the writ petition and submits that the writ petitioners are in continuous and uninterrupted physical possession and enjoyment of the subject lands in Sy.Nos.222/3, 222/4, 2225/5 and 236/2 as absolute owners. Therefore, the allegation that in pursuant to the order under Section 10(6) of the ULC Act dated 31.08.1999 that the ULC authorities have taken possession of the land and handed over the same to the MRI by conducting Panchanama on 04.12.1999 is totally false, bogus and created one and no physical possession has been taken over by the authorities. Further, the Mandal Revenue Inspector has no authorization to take possession on behalf of the State Government as he was not authorized as contemplated under Section 10(6) of the ULC Act. Due to illegal interference by the District Collector and Tahsildar, the writ petitioners were constrained to file the writ petition and in W.P. No.11 of 2010 this Court was pleased to permit the petitioners to fence the lands in Sy.Nos.222/3, 222/4, 222/5 and 236/2 situated at Guddimalkapur village, Asifnagar Mandal, Hyderabad District by an order dated 06.01.2010 passed in WPMP. No.11 of 2010. Further, the Tahsildar, by a letter HCJ (AAJ) & NVSKJ 50 W.A. No.508 of 2011 and batch dated 21.12.2009 in letter No.C/7479/09 addressed to the Station House Officer, Langarhouse allowing the fencing in the retainable area to an extent of 15000 sq.mtrs., to avoid the encroachments. Accordingly, the petitioners have fenced their lands and the District Collector had also filed a counter affidavit wherein admitted that in pursuant to the directions granted by this Court dated 06.01.2010 the petitioners have fenced the vacant land. Therefore, the allegation that the land is vested in the State and the possession is taken over under a cover of panchanama is false and this intra Court appeal is filed only to upset the findings of the learned Single Judge and unless the order is perverse, no interference would warrant.
64. Learned counsel for the respondents No.1 and 2/writ petitioners apart from the judgments referred to in the impugned order of learned Single Judge, has placed reliance on the following citations.
65. In Mohd.Mohiuddin Khanand others Vs. Chief Commissioner of Appeals & another 18, (The issue pertains to the possession of land said to have been taken by the Government in pursuance to the illegal order passed under the ULC Act; Relevant page 147 - Para -15).
18
2010 (6) ALT 620 HCJ (AAJ) & NVSKJ 51 W.A. No.508 of 2011 and batch
66. In Vinayak Kashinath Shilkar Vs. Deputy Collector & Competent Authority & others 19, (Wherein held that mere vesting of the land with the State Government by operation of law without actual possession is not sufficient for operation of Section 3(a) of the Repeal Act; Relevant Page-4-Para-9, 10 & 11).
67. In G.V.Mohan & Others Vs. State of Andhra Pradesh & others 20, (Wherein held that by way of taking over possession of the surplus land, pursuant to they being declared as surplus holders, the State required to follow the procedure prescribed there under, in letter and spirit, and any act of the State taking over possession of the land, in deviation or violation thereof should render its action irregular and illegal and Section 4 of the Repeal Act applies and proceedings pending abated; Relevant Paras - 44, 45, 46, 50, 56, 57, 68, 70, 72, 76, 77, 80, 88, 93, 98).
68. Also relied upon an Unreported judgment of the Division Bench of the High Court of A.P. in W.A. No.437 of 2011 (Wherein held that on an assumption that since possession was obtained after a due process pursuant to the initial determination by the Special Officer - During the pendency of the appeal under Section 33, Government said to have been any illegal possession can be restored. 19
2012 (4) SCC 718 20 2011 (1) ALD 761 HCJ (AAJ) & NVSKJ 52 W.A. No.508 of 2011 and batch
69. In Rajkumar Surana & Others Vs. Government of A.P. 21 (Wherein held that the possession must be physical possession and not symbolical possession - Section 10(5) of the Act mandates service of notice on person in physical possession of the surplus land to surrender possession to State; Relevant Volume III - Page - 23 to 29).
70. In State of Andhra Pradesh Vs. G.V.Mohan and Others 22, (Relevant Volume III, Page 30).
71. In Tanusree Basu Vs. Ishani Prasad Basu and Others 23, (The issue pertains to restoration of status-quo ante; relevant Page - 798 - Para 23).
Analysis and Conclusion:
72. Before proceeding further, following are the important dates and events to be considered for W.A. No.508 of 2011, which is the lead matter of this batch matters.
(i) Proceedings No.B2/11240/76, dated 24.02.1993 passed by the Special Officer/Competent Authority, ULC.
(ii) Proceedings No.B2/11241/76, dated 17.02.1993 passed by the Special Officer/Competent Authority, ULC.
(iii) Aggrieved by the orders passed by the competent authority/ Special Officer, Urban Land Ceiling, Hyderabad, petitioner No.1 has preferred appeal under Section 33 of Urban Land Ceiling & 21 2014 (3) ALT 167 22 2014 (3) ALT 239 (DB) 23 (2008) 4 SCC 791 HCJ (AAJ) & NVSKJ 53 W.A. No.508 of 2011 and batch Regulation Act, 1976 in the month of March, 1993 and petitioner No.2 has also preferred an appeal on the same day. The appellate authority passed interim order on 16.04.1993 directing the Special Officer and competent authority, Hyderabad to maintain status quo as on 13.04.1993 and the said interim orders were in force till 27.06.2002 when the appeals were dismissed.
(iv) Questioning the said dismissal of the appeals and other proceedings, the petitioner filed W.P.No.18851 of 2003 and interim order of status quo was granted by this Court on 17.09.2003 and thereafter the said writ petition was allowed on 08.08.2005 by setting aside the orders passed by the Commissioner of Appeals in Appeal Nos.58 and 76 of 1993 and remanded the matter back to the Appellate Authority i.e., Commissioner of Appeals and further directed that the status quo existing as on date shall continue till the disposal by the Appellate Authority. Earlier on 04.11.1999 a panchanama was conducted by Mandal Revenue Inspector, Asifnagar and said to have taken possession over an extent of 96,479.36 sq.meters. The Chief Commissioner of Appeals under ULC Act has dismissed the appeals on 15.12.2006 which has been questioned in the present writ petition i.e., W.P.No.7762 of 2007 wherein this Court has granted interim orders on 27.04.2007. During the pendency of the said writ petition, the Repeal Act has come into force repealing the Urban Land Ceiling Act, 1976 with effect from 27.03.2008 vide HCJ (AAJ) & NVSKJ 54 W.A. No.508 of 2011 and batch G.O.Ms.No.603 Revenue (UC.I) Department dated 22.04.2008. The writ petition was allowed on 29.04.2011.
(v) In the counter affidavit filed by the Chief Commissioner of Land Administration, he has not disputed the orders passed by him in Appeal or status quo order which was granted on 16.04.1993 and final orders were passed on 08.08.2005.
73. We have carefully perused the observations/findings made by the learned Single Judge. The judgments relied by the learned counsel for the appellant are not applicable to the facts of the case on hand. As per the findings of the learned Single Judge, the ULC Authorities have not taken specific possession and it is only a paper possession and even if the possession was taken by the Mandal Revenue Inspector such possession, in the absence of authority, is illegal, non-est and not a valid possession. As per the observations of the learned Single Judge, the alleged panchanama dated 04.11.1999 appears to be cyclostyled and blanks were filled up. The panchas were labourers who signed in English and the signatures were of the same handwriting. The notices issued under Section 10 of the Act during the pendency of the appeals and taking over of possession through panchanama is illegal and in violation of the status quo orders and even assuming the possession has been taken over, no prior notice was given to the writ petitioners/respondents herein.
HCJ (AAJ) & NVSKJ 55 W.A. No.508 of 2011 and batch
74. That apart, when the Repeal Act became effective, the proceedings must be treated as inoperative and non-est and the symbolic possession is of no consequence. No sub-division of land was done with no numbers assigned to the survey numbers and it was merely mentioned in the panchanama. The impugned proceedings stands abated as no proper notice was given under Section 9, 10, 10(3), 10(5) and 10(6) of the ULC Act and the proceedings took place during the pendency of the statutory appeals and during the operation of the status quo order. It is pertinent to note that it is settled law as declared by the Hon'ble Supreme Court that taking over possession cannot be symbolic on paper. In the absence of actual physical taking of possession and payment of compensation, which are crucial factors, the Act being an expropriatory legislation is required to be construed strictly. In the absence of such fact, the pending proceedings with regard to the subject lands looses its significance and the same is construed as abated on coming into force of the Repeal of the Ceiling Act.
75. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side, we are of the considered view that the learned Single Judge did not commit any error in passing the impugned order warranting interference of this Court.
HCJ (AAJ) & NVSKJ 56 W.A. No.508 of 2011 and batch
76. Accordingly, W.A. No.508 of 2011 fails and is accordingly dismissed.
W.A.No.657 of 2011
77. The arguments of respondent No.20 in the writ petition, who is the appellant herein, does not hold good as the appeal filed by the writ petitioners/respondents No.1 and 2 herein was allowed in CCCA.No.40 of 2006 against O.S. No.1209 of 1993 and the matter is pending before the Hon'ble Supreme Court.
78. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side, we are of the considered view that since the subject issue of this appeal is pending before the Hon'ble Apex Court this Court cannot pass any orders and accordingly this appeal is disposed of leaving it open to the appellants to pursue their remedy as available under law and as well before the Hon'ble Apex Court.
C.C.No.1084 of 2021
79. Consequent upon disposal of the W.A. No.657 of 2011 with a direction to the appellants therein to pursue the remedy as available under law and also taking note of the submissions made in the counter affidavits specifically noting that the authorities are maintaining a strict vigil, there are no new encroachments noticed and the alleged construction activities are without verifying the factual ground status, we are of the considered view that no further HCJ (AAJ) & NVSKJ 57 W.A. No.508 of 2011 and batch orders need to be passed in this Contempt Case and the same is accordingly closed.
W.A.No.734 of 2011
80. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side, it has been noticed that the learned counsel for the appellant has raised various factual questions with respect to the possession of its members over the subject land, which cannot be gone into by this Court in the present appeal. Further, during the course of arguments, the learned counsel for the appellant has specifically submitted that the Government was not in possession of the subject lands and its members are in actual and physical possession over the subject land. In this regard, we are of the considered view that the learned Single Judge had considerably gone into the various aspects of the subject land taking into consideration the material made available on record and also on various judicial pronouncements and decided the matter vide impugned order. Hence, we do not find any illegality or infirmity with the impugned order. However, since it is culled out from the record that the members of its Association appears to have applied for regularization of their possession over the subject land vide G.O.Ms.No.455 dated 29.07.2002, it is for the Government to take decision in the matter and pass appropriate orders in accordance with law. Accordingly, this writ appeal is HCJ (AAJ) & NVSKJ 58 W.A. No.508 of 2011 and batch disposed of leaving it open to the appellant to pursue their remedy as available under law.
W.A.No.979 of 2013
81. During the course of arguments, none of the learned counsel appearing on behalf of the appellants in other appeals have made any submissions as against the joint memo and the Review WPMP. No.31234 of 2011.
82. In view of the facts in this appeal and also the contents of the joint memo recorded herein above to the effect that there are no mutual claims as against each other as the lands owned by the appellant and the respondents No.1 and 2 herein are totally different and distinct, the writ petition i.e. W.P. No.7762 of 2007 as against the appellant herein, who is respondent No.19 in the writ petition is dismissed and the Review WPMP. No.31234 of 2011 is allowed. Consequently, this appeal is allowed.
W.P.No.12572 of 2003
83. Before proceeding further, it is apt to consider the contents of the G.O.Ms.No.455, dated 29.07.2002. The Government has issued the G.O.Ms.No.455 to create a centralized pool of excess vacant lands taken over by the Government under the provisions of ULC Act, while indicating the priorities for allotting such excess vacant lands, after meeting the needs of the Government Departments. The Government having noticed that there are certain interested parties HCJ (AAJ) & NVSKJ 59 W.A. No.508 of 2011 and batch questioning the determination of excess land, which resulted in continuous litigation even for decades and by taking advantage of long drawn litigation the excess land holders have resorted to sell the excess land to third parties by entering various transactions unknown to the law. The High Court of Andhra Pradesh has dealt with in detail in its order dated 03.02.1997 in W.P. No.19344 of 1995. The Government, while keeping in view the observations of High Court and after careful consideration and taking into account the ground realities and the difficulties encountered in the strict enforcement of the law, has decided to allot the excess lands to such respective third parties in occupation under Section 23 of the ULC Act subject to certain conditions. Certain important conditions are that the transactions of purchase of excess lands that took place prior to the date of the G.O. alone will be considered; a person shall be considered to be falling in the category of below poverty line; persons occupying a respective areas where such areas are covered by structures. This G.O. also stipulated maximum extent of allotment per person/family subject to amount payable in respect of the excess land as per the rates indicated in the schedule and there is also time period prescribed for making an application for allotment and that the Government is competent to refuse or reject any case of allotment of excess land and the Government decision in this regard shall be final.
HCJ (AAJ) & NVSKJ 60 W.A. No.508 of 2011 and batch
84. At this juncture, it is not out of place to note that challenging the G.O.Ms.No.640 dated 28.05.2003, which has been issued by the Department regularizing the plots held by the members of the 3rd respondent/Sri Tirumala Venkateswara Cooperative Housing Society Limited, present writ petition has been filed by the petitioners. It appears from the record that the petitioners have purchased the subject land and have been in possession of the property by paying the taxes over the property. While so, having coming to know about the ULC proceedings pending on the subject property and with respect to the G.O.Ms.No.455 dated 29.07.2002 filed an application on 11.03.2003 seeking for benefits under the G.O.Ms.No.455 dated 29.07.2002 and the same is pending before the respondent authorities.
85. Further it appears that the 3rd respondent also made an application on 03.02.2003 seeking benefits under G.O.Ms.No.455 dated 29.07.2002 and the Government called for report from the second respondent authorities, who submitted their report. Inspite of bringing notice all the facts including pending of the suit in O.S.No.1209 of 1993, the Government without considering the report submitted by the second respondent in a proper perspective had issued G.O.Ms.No.640 dated 28.05.2003 as amended in G.O.Ms.No.653 dated 31.05.2003 in further modification to G.O.Ms.No.455 dated 29.07.2002 by observing that the Government intended to extend the benefits of G.O.Ms.No.455 by allotting 49 plots HCJ (AAJ) & NVSKJ 61 W.A. No.508 of 2011 and batch to the alleged members of the society and directed the Special Officer to submit the proposal and called further report from the second respondent terming all other occupants/third parties as encroachers including the petitioners vide Memo dated 28.05.2003 without considering the application dated 11.03.2003 of the petitioners.
86. It is specifically averred in the counter affidavit that the G.O.Ms.No.640 dated 28.05.2003 has been issued relaxing paras 4(e) to (h) of G.O.Ms.No.455 in respect of 49 plots of land of the 3rd respondent, thus the plots were reported to be vacant and free from encorachements. Thereafter, proposals for regularization under G.O.Ms.No.455 dated 29.07.2002 in respect of 36 plots were submitted to the Government on 29.01.2007 and the same are pending for consideration.
87. It is also averred in the counter affidavit that the land claimed by the petitioners is separate and distinct from the land claimed by the society and accordingly consideration of applications by various parties under G.O.Ms.No.455 dated 29.07.2002 in respect of their distinct land holdings shall be considered on their own merits and in view of the pendency of the writ petition no action was taken by the Government.
88. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side, it is pertinent to note that the application dated 11.03.2003, stated to HCJ (AAJ) & NVSKJ 62 W.A. No.508 of 2011 and batch have been made by the petitioners seeking benefit under the G.O.Ms.No.455 dated 29.07.2002, is pending. The suit in O.S.No.1209/1993, which was decreed in favour of the 3rd respondent society and thereafter, the owners have preferred an appeal vide CCCA No.40 of 2006 and the same was allowed and questioning the same, the 3rd respondent society filed Special Leave Petition before the Hon'ble Supreme Court and also recording the specific averment made in the counter affidavit to the effect that the land claimed by the petitioners is separate and distinct from the land claimed by the 3rd respondent Society, we deem it appropriate to hold that it is for the Government to consider the pending applications before it to extend the benefit under G.O.Ms.No.455 dated 29.07.2002 on its own merits and pass appropriate orders in accordance with law. Hence, this writ petition is disposed of leaving it open to either of the parties to pursue their remedy as available under law.
89. The appeals in W.A. No.657 of 2011 and W.A. No.734 of 2011 and W.A. No.979 of 2013 preferred by the unofficial respondents, who were impleaded in the W.P. No.7762 of 2007 by putting forward their individual claims in the writ petition are examined in the context of ULC proceedings only. As such it is made clear that the observations made in this batch of writ appeals are only confined to the findings of the learned Single Judge made in the impugned order dated 29.04.2011 passed in W.P. No.7762 of 2007 with respect to the HCJ (AAJ) & NVSKJ 63 W.A. No.508 of 2011 and batch ULC proceedings. It is further made clear that this Court by way of this common judgment has not expressed any opinion on the rights of the parties in the above proceedings.
90. In the result,
(i) W.A.No.508 of 2011 is dismissed,
(ii) W.A.No.657 of 2011 is disposed of,
(iii) C.C.No.1084 of 2021 is closed,
(iv) W.A. No.734 of 2011 is disposed of,
(v) W.A. No.979 of 2013 is allowed and
(vi) W.P. No.12572 of 2003 is disposed of.
There shall be no order as to costs.
As a sequel, miscellaneous applications, if any pending, shall stand closed.
___________________________ ALOK ARADHE, CJ ___________________________ N.V. SHRAVAN KUMAR, J Date: 24-01-2024 Note: L.R. copy be marked.
B/o.
LSK