Telangana High Court

The State Of Telangana vs M/S.Southern Steels Limited., on 21 July, 2022

Bench: Ujjal Bhuyan, Surepalli Nanda

      THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                                      AND
        THE HON'BLE MRS JUSTICE SUREPALLI NANDA


             WRIT APPEAL No.1975 of 2017

JUDGMENT:    (Per the Hon'ble the Chief Justice Ujjal Bhuyan)



     Heard Mr. Parsa Ananth Nageswar Rao, learned

Government Pleader for Revenue (Assignment) appearing

for the appellants and Ms. K.Mamata Choudary, learned

counsel for both the respondents.

2. This intra-court appeal has been preferred by the

State and its officials against the final order of the learned

Single Judge dated 18.07.2017 allowing W.P.No.26261 of

2008 filed by the respondents as the writ petitioners.

3. Respondent No.1 is a public limited company

incorporated under the Companies Act, 1956. It is

engaged in the business of manufacture and sale of cold

rolled steel strips and box strappings. It is the owner and

possessor of industrial land to an extent of Acs.13.70 cents

situated at Survey No.367/1 in Moulali, Industrial Area,

Hyderabad. When notice dated 25.08.2008 was issued by

appellant No.2, the related writ petition came to be filed

questioning the legality and the validity of the said notice.

Appellants were arrayed as respondents in the writ

petition. Appellants contested the writ petition by filing

counter affidavit and later on additional counter affidavit.

4. Learned Single Judge recorded a finding that there

was no proof of service of notice upon respondent No.1

issued under Section 10(5) and order under Section 10(6)

of the Urban Land (Ceiling and Regulation) Act, 1976

(briefly, 'the Act' hereinafter). Holding that respondent

No.1 was continuing its industrial activity over the land

purchased by it, it was observed that question of any illegal

occupation thereof by third parties would not arise, the

land being protected by boundary wall from all sides.

Therefore, issuance of the impugned notice dated

25.08.2008 was set aside by observing that there was total

non-application of mind on the part of appellant No.2.

5. Thereafter the present appeal has been preferred.

6. The undisputed facts of the case have been summed

up by the learned Single Judge in the order dated

18.07.2017 in the following manner:-

"The first petitioner is a Public Limited Company registered under the provisions of the Companies Act, 1956 and engaged in manufacture and sale of Cold Rolled Steel Strips and Box Strappings. It is the absolute owner and possessor of industrial land of an extent of Ac.13.70 cents situated in Survey No.367/1 in Moulali, Industrial Area, Hyderabad. The said land was initially allotted by the Government in 1970 for the purpose of establishing the manufacturing unit under the Agreement, dated 13.04.1970. Subsequently, the Government through its nodal agency, Andhra Pradesh Industrial Infrastructure Corporation Limited (APIIC), executed a sale deed on 01.11.1974 under document No.2540 of 1974. Since the said land fell within the Hyderabad Urban Agglomeration, the first petitioner submitted an application to the first respondent on 03.09.1976 seeking exemption under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 ('the Act', for brevity). The Government issued orders in G.O.Ms.No.671, Revenue Department, dated 01.06.1977 in exercise of powers conferred under clause (a) of sub-section (1) of Section 20 of the Act exempting the land admeasuring 40,000 square meters in Survey No.367/1 from the provisions of the Act. A compound wall was constructed at the time of initial purchase itself and the first petitioner has been running the manufacturing unit.

The first petitioner filed a statement under Section 6(1) of the Act and the second respondent issued a draft statement under Section 8(1) along with a notice under Section 8(3) of the Act calling for objections on 07.01.1982. While issuing the draft statement, the second respondent considered the earlier

exemption granted in respect of 40,000 square meters and prepared a draft statement taking into consideration 15,039 square meters. The first petitioner filed a declaration under Section 21 of the Act and expressing its intention to utilize the land of an extent of 14,039 square meters for construction of dwelling houses for the accommodation of weaker sections of the society and the second respondent permitted the same by order, dated 19.02.1982. Since the first petitioner could not construct the dwelling units, the orders were cancelled subsequently on 12.01.1990. Ultimately, the second respondent passed an order, on 22.11.1990 under Section 8(4) of the Act determining an extent of 14,039 square meters as excess land. Challenging the said order, the first petitioner preferred an Appeal before the Commissioner, Appeals, Urban Land Ceiling and the Appellate Authority by its order, dated 27.06.2002, dismissed the appeal confirming the orders of the second respondent. Even after dismissal of the appeal, no proceedings were taken in respect of the said land and the first petitioner continued to be in possession and enjoyment of the entire extent of Ac.13.70 cents. However, the second respondent issued a notice on 25.08.2008 calling upon the first petitioner to make an application for regularization of its possession over the land admeasuring 14,039 square meters on or before 30.08.2008. In those circumstances, the present writ petition was filed challenging the said notice as ultra vires the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 as adopted by the State of Andhra Pradesh in G.O.Ms.No.603, dated 22.04.2008."

7. In the counter affidavit filed by appellant No.2 it was

contended that following declaration made under Section

10(3) of the Act, the subject land stood vested with the

Government. In the additional counter affidavit it was

stated that notice under Section 10(5) of the Act was issued

to respondent No.1 on 22.02.2007. An order under Section

10(6) of the Act was passed on 11.03.2008. Resumption of

surplus land by the State was saved by the Urban Land

(Ceiling and Regulation) Repeal Act, 1999.

8. At the initial stage, interim directions were issued by

the learned Single Judge restraining the appellants from

interfering with the possession and enjoyment of the

subject land by the respondents. Writ petition came to be

admitted on 29.04.2009 with interim directions sought for

being granted. Relevant portion of the order of the learned

Single Judge is extracted as under:-

"Even as per the recordings made in the note file, the date of service of notice under Section 10(5) and taking possession under Section 10(6) of the Act are not available. The respondents might have taken paper possession and recorded in the records. In State of Uttar Pradesh v. Hari Ram ((2013) 4 SCC 280) and Gajanan Kamlya Patil v. Additional Collector and Competent Authority (ULC) ((2014) 12 SCC

523), the procedure with regard to dispossession and the effect of Repeal Act was considered. Now the law is well settled that the notice under Section 10(5) as well as 10(6) of the Act should be served on the persons who are in possession as well as in the declaration. There is no proof of service of such notice. On the other hand, the present Notice, dated 25.08.2008 was issued without application of mind, stating

that the petitioner is in illegal occupation of the land and the present notice was issued in a proforma. In the said notice, it was also observed that a major portion of the above land is under illegal occupation of the third parties who have constructed houses unauthorisedly over the said surplus land.

The case of the first petitioner is that he is continuing the manufacturing activity in the land originally purchased by it and there cannot be any illegal occupation by third parties when the land is covered by compound wall. It is a total non- application of mind by the second respondent. In the absence of proof of service of notice under Section 10(5) and 10(6) of the Act, and also in view of coming into force of Urban Land (Ceiling and Regulation) Repeal Act, 1999, all the proceedings against the petitioners stood abated and the impugned notice is set aside."

9. Learned Government Pleader has taken us to the

additional counter affidavit filed by the appellants in the

writ proceedings. Paragraph 2 of the additional counter

affidavit is extracted hereunder:-

"2. That I humbly submit that as stated in the earlier counter affidavit, the petitioner Industry was determined as excess land holder to an extent of 14,039.00 Sq. Mtrs. vide final orders dated 22.11.1990 U/s.8(4) of the Act, out of Sy.No.367/1, Moulali village, Malkajgiri Mandal, Ranga Reddy District in C.C.No.F2/3142/76. The statutory notification U/s.10(1) was issued on 21- 01-1991, declaration U/s.10(3) was issued on 03-09- 2002. Subsequently notice U/s.10(5) was issued to the declarants and on its non-compliance, orders U/s.10(6)

was issued authorizing the Enquiry Officer to take over possession of the above determined surplus land and accordingly the Enquiry Officer has taken over possession on 12-03-2008 under cover of panchanama. The above discussed office copies of the said statutory notices are not tagged in the file. The relevant remarks in the note file of the ceiling case lead to issue of the alleged references are reproduced hereunder to supplement the action taken in the case for proper appreciation."

10. From a perusal of the averments made in paragraph

2 of the additional counter affidavit we find that copies of

the notification under Section 10(1) of the Act dated

21.01.1991, declaration under Section 10(3) of the Act

dated 03.09.2002, notice under Section 10(5) of the Act

dated 22.02.2007 and order passed under Section 10(6) of

the Act dated 11.03.2008 were not available in the file.

11. If that be the position, we cannot find fault with the

finding recorded by the learned Single Judge that there

was no proof of service of such notices/orders on the

respondents. Relying on the decisions in State of Uttar

Pradesh v. Hari Ram1 and Gajanan Kamlya Patil v.