Telangana High Court
The State Rep. By The Principal ... vs Maturi Swaroopa Rani W/O. M. Lama Reddy, on 26 September, 2024
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE J.SREENIVAS RAO
W.A.Nos.1099, 1100, 1101, 1121, 1142, 1150, 1151, 1169, 1170,
1207, 1222, 1231, 1237, 1238, 1246, 1265, 1708, 1709, 1715,
1719, 1741, 1743, 1747, 1748, 1754, 1755, 1756, 1757, 1758,
1761, 1764, 1765, 1767, 1768, 1785, 1786, 1797, 1798, 1799,
1801, 1802, 1804, 1805, 1806, 1849, 1857, 1873, 1938, 1989,
2002 of 2017; 72, 326, 338 of 2018; 581 of 2020; and
W.P.Nos.30470 of 2012; 4257 and 5977 of 2014
COMMON JUDGMENT:
(Per the Hon'ble the Chief Justice Alok Aradhe) Mr. D.V.Chalapathi Rao, learned Government Pleader for Assignment for the appellants.
Mr. V.R.Avula, learned Senior Counsel for the petitioners in W.P.Nos.30470 of 2012; 4257 and 5977 of 2014 and for the unofficial respondents in W.A.Nos.1099, 1100, 1101, 1121, 1142, 1150, 1151, 1169, 1170, 1207, 1222, 1231, 1237, 1238, 1246, 1708, 1709, 1715, 1719, 1743, 1747, 1754, 1755, 1756, 1757, 1758, 1761, 1764, 1765, 1767, 1768, 1785, 1786, 1797, 1798, 1799, 1801, 1802, 1804, 1806, 1849, 1857, 1873, 1938, 1989 and 2002 of 2017; 72, 326, 338 of 2018; and 581 of 2020. 2
Mr. S.Ravi, learned Senior Counsel representing Mr. V.Naveen Kumar, learned counsel for the respondent No.1 in W.A.Nos.1222, 1237 and 1748 of 2017.
Mr. V.Narasimha Goud, learned Standing Counsel for the Hyderabad Metropolitan Development Authority (HMDA).
Ms. T.Kanya Kumari, learned counsel representing Mr. M.Dhananjay Reddy, learned Standing Counsel for Greater Hyderabad Municipal Corporation (GHMC).
2. The bunch of intra court appeals emanate from the common order dated 29.12.2016 passed in W.P.No.18316 of 2008 and batch by the learned Single Judge. The writ petitions, namely W.P.Nos.30470 of 2012 and 4257 and 5977 of 2014, have been filed challenging the final statement dated 30.08.1995 issued under Section 9 of the Urban Land (Ceiling and Regulation) Act, 1976 by the competent authority as well as G.O.Ms.No.985, dated 02.08.2008. The issue in the bunch of intra court appeals and the writ petitions being similar, the appeals as well as 3 the writ petitions were heard together and are being decided by this common judgment.
(I) FACTS:
3. Facts giving rise to filing of these appeals briefly stated are that one Mr. Abdul Rahman and Mr. Shaik Ibrahim were owners of land measuring Acs.92.21 guntas in survey Nos.148 to 155 of Hydernagar Village, Balanagar Mandal (the then Rajendranagar Taluq), Ranga Reddy District (hereinafter referred to as 'the subject land'). The said land was purchased vide registered sale deed dated 10.11.1964 by K.Seetharam Reddy, K.Yellaiah, S.Govind Reddy, G.Shankar Reddy, Abdul Aziz and Mohammed Ismail (hereinafter referred to as 'the owners'). One of the purchasers, namely Mohd. Abdul Aziz filed a declaration on 12.08.1976 under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act'). During the pendency of the proceeding before the competent authority under the Act, it appears that the owners made an application on 05.04.1979 before the competent authority under the Act. Thereupon, a 4 Certificate dated 13.08.1979 was issued by the competent authority that the land measuring Acs.93.24 guntas is situated outside the municipal limits and within the peripheral limits of agglomeration and is recorded in the revenue records as agricultural land and is being presently used for agricultural purpose. It was further certified by the competent authority that since the land is an agricultural land, the provisions of the Act are not applicable in respect of the land in question.
4. Thereafter, the owners of the subject land vide registered sale deed dated 20.05.1980 sold the land to the Gopalanagar Co-operative House Building Society Limited (hereinafter referred to as 'the Society'). The State Government issued a master plan vide G.O.Ms.No.319 dated 23.06.1980 by which the subject land was included within the master plan. After the subject land was sold by the owners of the Society on 20.05.1980, the competent authority under the Act issued a notice on 07.10.1980 by which one of the owners, namely Mr. Mohd. Abdul Aziz who was required to attend the enquiry on 14.10.1980 for 5 verification of the statement in Form-I. Thereafter, the competent authority recorded the statement of one of the owners, namely Mr. Mohd. Abdul Aziz on 13.10.1987, in which, he stated that he had purchased the subject land jointly along with five others and has sold the same to the Society. The competent authority under the Act issued a draft statement dated 27.03.1989 under Section 8(1) of the Act. Notices under Section 8(2) of the Act were issued to one of the owners, namely Mr. Mohd. Abdul Aziz. The competent authority on 30.08.1995, prepared a final statement under Section 9 of the Act was prepared. Being aggrieved, one of the owners, namely Mr. Mohd. Abdul Aziz filed an appeal which was dismissed on 04.08.2005.
5. Thereafter, notifications under Section 10(1) and 10(3) of the Act were issued on 02.09.2005 and 11.01.2006 respectively. A notice under Section 10(5) of the Act was issued on 19.01.2006 to the legal heirs of one of the owners, namely Mr. Mohd. Abdul Aziz. A panchanama was prepared on 18.03.2008 by which possession of the land was allegedly taken. Thereafter, the State Government by 6 G.O.Ms.No.985, dated 02.08.2008 allotted the land to the Hyderabad Metropolitan Development Authority (HMDA). Thereupon, writ petitions were filed in which order dated 30.08.1995 issued by the competent authority under the Act as well as the order dated 02.08.2008 issued by the State Government by which the subject land was allotted to HMDA were challenged. The learned Single Judge by a common order dated 29.12.2016 quashed the orders dated 30.08.1995 and 02.08.2008 and allowed the writ petitions. In the aforesaid factual background, these intra court appeals and writ petitions arise for our consideration. (II) SUBMISSIONS ON BEHALF OF APPELLANTS:
6. Learned Government Pleader for Assignment has submitted that the Certificate dated 13.08.1979 issued to the owners of the subject land was misused by the Society and the Society was required to seek an exemption under Section 20 of the Act. It is contended that since the Society failed to obtain exemption under Section 20 of the Act, the sale deed dated 20.05.1980 executed in favour of the Society is void ab initio. It is further submitted that the 7 Society is not a person interested within the meaning of Rule 5(2) of the Urban Land (Ceiling and Regulation) Rules, 1976 (hereinafter referred to as, "the Rules"). Therefore, no notice was required to be issued to it before proceeding further. It is also submitted that the learned Single Judge ought to have appreciated that the writ petitions suffer from delay and laches. It is contended that the learned Single Judge ought to have appreciated that the members of the Society, who were allotted plots, had no locus to question the proceeding under the Act.
7. It is argued that no attempt was made either by the Society or by its members to implead themselves in the appeal. Attention of this Court has also been invited to order dated 14.02.2014 passed in W.P.No.4257 of 2014 wherein it has been held that the question of delay and laches shall be considered at the time of hearing of the writ petition. It is contended that the name of the Society has not been recorded in the revenue records. In support of the aforesaid submissions, reliance has been placed on the decisions of the Supreme Court in State of Assam vs. 8 Bhaskar Jyoti Sarma 1, State of Uttar Pradesh vs. Adarsh Seva Sahkari Samiti Limited 2, U.A.Basheer vs. State of Karnataka 3 and State of Uttar Pradesh vs. Ehsan 4 and a decision of the Andhra Pradesh High Court in the Chitti Cooperative Buildings Society Limited vs. Government of Andhra Pradesh 5.
(III) SUBMISSIONS ON BEHALF OF RESPONDENT No.1:
8. Learned Senior Counsel for the respondent No.1 in W.A.Nos.1222 of 2017, 1237 of 2017 and 1748 of 2017 submitted that on the date of sale to the Society, the subject land was an agricultural land and a certificate was issued by the competent authority that the subject land is an agricultural land and is exempted from the provisions of the Act. It is contended that Section 20 of the Act applies after determination of land as a surplus land under the Act. It is further contended that the fact that the Society had purchased the land, was well within the knowledge of the competent authority. It is pointed out that the name of 1 (2015) 5 SCC 321 2 (2016) 12 SCC 493 3 (2021) 5 SCC 313 4 2023 SCC OnLine SC 1331 5 1984 (2) AnWR 216 9 the society was mutated in the revenue records, and no notice was issued to the Society in respect of the proceedings under the Act.
9. Learned Senior Counsel for the unofficial respondents in the remaining appeals has submitted that the subject land is an agricultural land and the bar contained in Section 5(3) of the Act does not apply. It is further submitted that the sale deed executed in favour of the Society is valid and Section 6(2) of the Act which is mandatory in nature was required to be complied with.
However, the competent authority has not complied with the mandatory provision contained in Section 6(2) of the Act. It is argued that the notice of proceeding under the Act ought to have been given to the Society. In support of his submissions, reliance has been placed on the decisions in Y.Sri Rama Krishnaiah vs. Special Officer and Competent Authority, Urban Land Ceiling, Vijayawada 6, Kothuru Babu Surendra Kumar (died) vs. Special Officer 6 1988 SCC OnLine AP 374 10 and Competent Authority, ULC, Vijayawada 7, State of West Bengal vs. Anil Ratan Banerjee 8, State of Uttar Pradesh vs. Hari Ram 9 and a Division Bench Judgment of this Court in State of Telangana vs. M.Rajendra Agarwal (W.A.No.724 of 2017, dated 19.08.2024). (IV) REJOINDER SUBMISSIONS:
10. Learned Government Pleader for Assignment, by way of rejoinder has submitted that the certificate issued by the competent authority under the Act was misused and merely on the basis of statement of one of the owners of the subject land, Mr. Mohd. Abdul Aziz, the Society cannot expect that notice of proceeding under the Act would be issued to the Society.
(V) PROVISIONS OF THE ACT:
11. We have considered the rival submissions and have perused the record. At this stage, it is apposite to take note of relevant provisions of the Act and the Rules made thereunder. Section 2(o) defines the expression 'urban
7 1999 SCC OnLine AP 813 : 2000 (4) ALD 596 8 2010 SCC OnLine Cal 1195 9 (2013) 4 SCC 280 11 land', the relevant extract of which is extracted below for the facility of reference:
"2(o). "urban land" means, --
(i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or
(ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town committee, a cantonment board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture.
12. Section 2(q) defines the expression 'vacant land', which reads as under:
"2(q) . "vacant land" means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include--
(i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated;
(ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the 12 appropriate authority and the land appurtenant to such building; and
(iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building:
Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live-stock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then, so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purposes of this clause."
13. Section 3 of the Act mandates that a person is not entitled to hold the vacant land in excess of the ceiling limit on and from the commencement of the Act. Section 4 prescribes the ceiling limit. Section 6(1) requires a person holding vacant land in excess of ceiling limit to file a statement within such period as may be prescribed.
14. Section 6(2) of the Act, which is relevant for the purpose of controversy, is extracted below for ready reference:
13
"6(2) If the competent authority is of the opinion that-
(a) in any State to which this Act applies in the first instance, any person held on or after the 17th day of February, 1975 and before the commencement of this Act or holds at such commencement; or
(b) in any State which adopts this Act under clause (1) of Article 252 of the Constitution, any person holds at the commencement of this Act, vacant land in excess of the ceiling limit, then, notwithstanding anything contained in sub-section (1), it may serve a notice upon such person requiring him to file, within such period as may be specified in the notice, the statement referred to in sub-section (1)."
15. Thus, from the perusal of Section 6(2) of the Act, it is evident that if the competent authority is of the opinion that any person holds any vacant land in excess of the ceiling limit, it is required to serve a notice on such person. Section 6(3) empowers the authority to extend the date of filing of the statement for such further period as it deems fit, provided that such period of extension shall not exceed three months.
16. Section 8 of the Act deals with preparation of draft statement as regards the vacant land in excess of ceiling limit. The said section further mandates that draft 14 statement shall be served in such manner as may be prescribed on the person concerned who may file objections to the draft statement within a period of thirty days from the service of draft statement. The competent authority thereafter, is required to give reasonable opportunity of hearing to the concerned and pass such orders as it may deem fit. Section 9 requires the competent authority to issue a final statement.
17. Section 10 of the Act deals with acquisition of vacant land in excess of ceiling limit. Sub-sections (1) to (6) of Section 10 specify the various steps which are to be taken for acquisition of the vacant land in excess of the ceiling limit and eventually provide for taking over possession of such vacant land. Section 20 of the Act deals with power to exempt. The relevant extract of Section 20 of the Act is extracted below for the facility of reference:
"20. Power to exempt:--
(1) Notwithstanding anything contained in any of the foregoing provisions of this Chapter--
(a) where any person holds vacant land in excess of the ceiling limit and the State Government is satisfied, either on its own 15 motion or otherwise, that, having regard to the location of such land, the purpose for which such land is being or is proposed to be used and such other relevant factors as the circumstances of the case may require, it is necessary or expedient in the public interest so to do, that Government may, by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter;
(b) where any person holds vacant land in excess of the ceiling limit and the State Government, either on its own motion or otherwise, is satisfied that the application of the provisions of this Chapter would cause undue hardship to such person, that Government may by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter:
Provided that no order under this clause shall be made unless the reasons for doing so are recorded in writing.
(2) If at any time the State Government is satisfied that any of the conditions subject to which any exemption under clause (a) or clause (b) of sub-
section (1) is granted is not complied with by any person, it shall be competent for the State Government to withdraw, by order, such exemption after giving a reasonable opportunity to such person for making a representation 16 against the proposed withdrawal and thereupon the provisions of this Chapter shall apply accordingly."
18. In exercise of powers conferred under Section 46(1) and (2) of the Act, the Rules, namely Urban Land (Ceiling and Regulation) Rules, 1976, have been framed. The relevant extract of Rule 5 reads as under:
"5. Particulars to be contained in draft statement as regards vacant lands and manner of service of the same:-- (1) Every draft statement prepared under sub- section (1) of Section 8 shall contain the particulars specified in Form III.
(2) (a) The draft statement shall be served, together with the notice referred to in sub-section (3) of Section 8, on -
(i) the holder of the vacant lands, and
(ii) all other persons, so far as may be known, who have, or are likely to have, any claim to, or interest in the ownership, or possession, or both, of the vacant lands, by sending the same by registered post addressed to the person concerned.
(i) in the case of the holder of the vacant
lands, to his address as given in the
statement filed in pursuance of sub-
section (1) of Section 6, and
(ii) in the case of other persons at their last
known addresses.
17
(b) Where the draft statement and the notice are returned as refused by the addressee, the same shall be deemed to have been duly served on such person.
(c) Where the effects to serve the draft statement and the notice, on the holder of the vacant lands, as the case may be, any other person referred to in (a), in the manner specified in that clause is not successful for reasons other than the reasons referred to in clause
(b), the draft statement and notice shall be served by affixing copies of the same in a conspicuous place in the office of the competent authority and also upon some conspicuous part of the house (if any) in which holder of the vacant lands or, the case may be, the other person is known to have last resided or carried on business or personally worked for gain.
Draft statement not to be served on all interested persons:- If a person could not be said to be an aggrieved person under Section 33(1) of the Central Act, he would not be entitled to notice under Rule 5 (2) of the Rules the requirement of notice under Rule 5 (2) of the Rules must be tested with reference to the nature of the adverse interest the person has, who is required to be given notice. State differently, if a person has no adverse interest vis-a-vis that of the declarant, he is not entitled to notice.
Person interested:- When a transfer converted by Section 4 (4) (a) of the Central Act is liable to be ignored for purposes of the Act, the Society cannot contend that it is entitled for a notice as required under the Rules as a 'person interested'. The land in question was sought to be transferred after 17-2-1975 under an unregistered ante dated agreement of sale which cannot take shelter 18 under the decree of the Civil Court in O.S.No.208/1991 as the same is non est in law as per Section 42 of the Central Act. Though a suit for specific performance is maintainable against the declarant, the same has to be ignored for purpose of the Act under Section 4(4) (a) of the Central Act and the land so transferred has to be computed, for arriving at the excess vacant land held by the declarant. Hence the society cannot contend that it is entitled for a notice as required under Rules as a 'person interested'."
19. Relevant extract of Rule 5(2) of the Rules reads as under:
5. Particulars to be contained in draft statement as regards vacant lands and manner of service of the same: (1) xxx xxx (2) (a) the draft statement shall be served, together with the notice referred to in sub-section 3) of Section 8, on-
(i) the holder of the vacant lands, and
(ii) all other persons, so far as may be known, who have, or are likely to have, any claim to, or interest in the ownership, or possession, or both, of the vacant lands, by sending the same by registered post addressed to the person concerned,
(i) in the case of the holder of the vacant lands, to his address as given in the statement filed in pursuance of sub-
section (1) of Section 6, and 19
(ii) in the case of other persons at their last known addresses.
Thus, Rule 5 of the Rules provides that the draft statement referred to in Section 8(3) of the Act shall be served on holder of the vacant lands and on all other persons as far as may be known who have or likely to have any claim who are interest in ownership, or possession, or both of the vacant lands by sending the same to them by registered post.
20. The provisions of the Act have been repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999. The provisions of the Repeal Act were adopted by the erstwhile State of Andhra Pradesh w.e.f. 27.03.2008. (VI) ANALYSIS:
21. In the instant case, one of the owners, namely Mr. Mohd. Abdul Aziz filed a declaration under Section 6(1) of the Act. During the pendency of the proceeding, the owners including the aforesaid Mr. Mohd. Abdul Aziz, had made an application on 05.04.1979 before the competent authority under the Act seeking a certificate that the 20 subject land is agricultural land. Thereupon, the competent authority issued a certificate on 13.08.1979 stating that the subject land is situate outside the municipal limits and is within the peripheral limits of agglomeration. It was further stated that the subject land is recorded in the revenue record as agricultural land and is being used for agricultural purposes. The competent authority certified that the subject land is exempted from the provisions of the Act under Section 20 of the Act as long as the land continues to be used for agriculture and not for any other purpose.
22. The owners of the subject land vide registered sale deeds dated 20.05.1980 sold the subject land to the Society. A statement of one of the co-owners, namely Mr. Mohd. Abdul Aziz was recorded before the competent authority on 13.10.1987. In his statement, the aforesaid Mr. Mohd. Abdul Aziz stated that the subject land has been sold to the Society. Thus, the fact that the sale of the subject land to the Society was brought to the notice of the competent authority. However, the competent authority, if 21 it was of the opinion that the Society or its members held the vacant land in excess of the ceiling limit within the urban agglomeration ought to have issued notice either to the Society or to its members. However, the competent authority did not issue any notice either to the Society or to its members. The Supreme Court in T.V.Antony vs. State of Tamil Nadu 10 has held as under:
"10. In the light of the scheme of the Act as preferred above, even if there is any contravention of section 6, the bonafide purchasers have some protections as per the provisions of Sections 9, 10 and 11 of the Act. In other words, even if there is any contravention of Section 6, a duty is cast on the competent authority to issue notice to all the persons concerned or all the claimants of the persons interested in such excess land and consider the same in accordance with law. No doubt, it is true that in para 5 of the counter affidavit, it is stated that the third respondent has informed the purchaser that the sale having been done in violation of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 will be treated as null and void. The petitioner was not given proper and adequate opportunity to put forth his claim in consideration of competent authority with regard to (a) nature of the lands, (b) construction of an industry in terms of Schedule III of the Act."
10 2019 SCC OnLine SC 1486 22 Thus, Section 6(2) casts a duty on the competent authority to issue a notice to the persons who have or may have a claim or interest or may be in possession of land. The aforesaid mandatory requirement was not followed in the instant case.
23. The competent authority after a period of eight and a half years issued a draft statement on 27.03.1989 and notice of draft statement was issued to one of the co- owners, namely Mr. Mohd. Abdul Aziz. It is pertinent to mention here that in the draft statement, the competent authority recorded the fact that the land has been sold to the Society. The relevant extract reads as under:
"The declarant and his co-owners have obtained a Certificate under Section 2(o) of the Act for the entire land of 92.21 Acres vide S.O. & C.A. Lr.No.C/1264/79, dated 13.08.1979 and disposed of in favour of Gokul Cooperative Housing Society Limited in the year 1980-81 for housing purpose. As the Certificate obtained under Section 2(o) of the Act was misused by the declarant the transactions stated to have been done with the said Society is treated as null and void."23
24. Thus, the competent authority at the stage of issuance of draft statement also, was aware that the subject land has been sold to the Society. However, the notice of draft statement was not issued either to the Society or to its members. On 30.08.1995, a final statement under Section 9 of the Act was issued and thereafter, the notifications under Section 10(1) and 10(3) of the Act were issued on 02.09.2005 and 11.01.2006 respectively, which was followed by a notice under Section 10(5) of the Act which was issued on 19.01.2006 to the legal heirs of one of the owners, namely Mr. Mohd. Abdul Aziz. A panchanama was prepared on 18.02.2008, by which possession of the subject land was allegedly taken. The subject land, vide G.O.Ms.No.985, dated 02.08.2008, was allotted to the Hyderabad Metropolitan Development Authority.
25. It is pertinent to note that even though the Society as well as its members had purchased the subject land much prior to preparation of draft statement and the factum of purchase of the subject land by the Society was well within 24 the knowledge of the competent authority. However, the competent authority did not follow the mandate of Section 6(2) of the Act and did not serve either the draft statement under Section 8 or the final statement under Section 9 of the Act on the Society or its members, who had a claim/interest in the ownership of the subject land and were in possession of the subject land by virtue of allotment of plots to them by the Society. The competent authority did not also issue any notice of proceeding under Section 10 of the Act either to the Society or to its members. Thus, the entire proceeding under the Act conducted behind the back of the Society and its members and in flagrant violation of Section 6(2) of the Act as well as in violation of Rule 5(2) of the Rules. The proceeding under the Act qua the Society and its members, therefore, does not have any legal sanctity.
26. We may advert to the issue whether delay and laches on the part of some of the writ petitioners disentitles them to any relief in exercise of powers under Article 226 of the Constitution of India. It is trite law that extraordinary 25 jurisdiction of this Court under Article 226 of the Constitution of India is discretionary in nature and question of delay and laches in all kinds of cases would not disentitle a party to invoke the jurisdiction under Article 226 of the Constitution of India. It is equally well settled legal position that test while ascertaining the delay, is not of physical running of time and when circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches (see M/s.Dehri Rohtas Light Railway Company Limited vs. District Board, Bhojpur 11). In Tukaram Kana Joshi vs. Maharashtra Industrial Development Corporation 12, the Supreme Court dealing with the issue of delay in approaching the Court under Article 226 of the Constitution of India has held as under:
"13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the courts to exercise their 11 (1992) 2 SCC 598 12 (2013) 1 SCC 353 26 powers under Article 226, nor is it that there can never be a case where the courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable. (Vide P.S. Sadasivaswamy v. State of T.N. [(1975) 1 SCC 152 :
1975 SCC (L&S) 22 : AIR 1974 SC 2271] , State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251] and Tridip Kumar Dingal v. State of W.B. [(2009) 1 SCC 768 : (2009) 2 SCC (L&S) 119] )
14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches.
Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- 27
deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769], Collector (LA) v. Katiji [(1987) 2 SCC 107 : 1989 SCC (Tax) 172 : AIR 1987 SC 1353] , Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [(1992) 2 SCC 598 : AIR 1993 SC 802] , Dayal Singh v. Union of India [(2003) 2 SCC 593 : AIR 2003 SC 1140] and Shankara Coop. Housing Society Ltd. v. M. Prabhakar [(2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56 :
AIR 2011 SC 2161] .)"
The principle laid down in Tukaram Kana Joshi (supra) has been quoted with approval in Union of India vs. N.Murugesan 13. Thus, the issue of delay has to be decided on the basis of facts and circumstances of each case.
27. In the backdrop of the aforesaid well settled legal principles, we may advert to the facts of the case in hand. In these bunch of writ appeals as well as the writ petitions, common issue with regard to the validity of the proceedings under the Act as well as the validity of the order of 13 (2022) 2 SCC 25 28 allotment dated 02.08.2008 made by the State Government in favour of HMDA is involved. One of the writ petitions, namely W.P.No.18316 of 2008, and other writ petitions were filed in 2012, from which the present bunch of appears emanate were filed in 2008 and 2012 itself. The aforesaid writ petitions do not suffer from any delay and laches. As stated supra, since the issue being common in the writ appeals and the writ petitions and since the same is being dealt with on merits, in the peculiar facts of the case, we are not inclined to dismiss the writ petitions, on the ground of delay and laches.
28. It is also pertinent to note that there is no material on record to establish whether any identification or any demarcation of subject land was held as per Section 17 of the Survey and Boundaries Act, 1923. Similarly, there is no material on record to suggest that the land jointly purchased by the owners was subjected to partition. Therefore, it was not possible to take possession of the land which fell to the share of one of the owners namely 29 Mr. Mohd. Abdul Aziz. The learned Single Judge, therefore, has rightly discarded the panchanama.
29. The competent authority had issued a certificate on 13.08.1979 stating that the subject land is an agricultural land and, therefore, provisions of the Act do not apply to the subject land as long as the same is used for agricultural purposes. Merely because, subsequently, the subject land was used for non-agricultural purposes, the sale deed executed in favour of the Society cannot be termed as ab initio void. The contention that the Society and its members were not the persons interested within the meaning of Rule 5(2) of the Rules is also sans substance. Therefore, the contention that either the Society or its members had no locus to question the proceeding under the Act is misconceived.
30. For the aforementioned reasons, we do not find any ground to differ with the conclusion arrived at by the learned Single Judge.
30
In the result, the writ appeals fail and are hereby dismissed, whereas the writ petitions challenging the final statement dated 30.08.1995 as well as the G.O.Ms.No.985, dated 02.08.2008 are allowed.
Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
______________________________________ ALOK ARADHE, CJ ______________________________________ J.SREENIVAS RAO, J 26.09.2024 Pln