Telangana High Court
Tahsildar vs M/S A.P. Electrical Equipment ... on 14 February, 2023
Bench: Ujjal Bhuyan, C.V. Bhaskar Reddy
* THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
+ W.A. Nos.665 AND 670 OF 2022
% Date:14-02-2023
# Tahsildar, Balanagar Mandal, Ranga Reddy District
And others.
... Petitioner
v.
$ M/s.A.P.Electrical Equipment Corporation
... Respondents
! Counsel for the Appellants : Mr. Raju Ramachandran, learned
Senior Counsel for learned Advocate General
^ Counsel for respondents : Mr. V.Ramesh, learned counsel
for Mr. A.Chandra Shaker, learned counsel
< GIST:
HEAD NOTE :
? CASES REFERRED:
1. (2009) 10 SCC 501
2. (2010) 13 SCC 158
3. (2013) 4 SCC 280
4. (2014) 12 SCC 523
5. (2015) 5 SCC 321
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT APPEAL Nos.665 AND 670 OF 2022
COMMON JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
This judgment will dispose of both writ appeal
Nos.665 and 670 of 2022.
2. We have heard Mr. Raju Ramachandran, learned
Senior Counsel representing learned Advocate General,
State of Telangana for the appellants and
Mr. V.Ramesh, learned counsel for Mr. A.Chandra Shaker,
learned counsel representing the respondent.
3. Writ appeal No.665 of 2022 arises out of
W.P.No.11293 of 2009 filed by the respondent as the writ
petitioner, whereas writ appeal No.670 of 2022 arises out
of W.P.No.23477 of 2010 also filed by the respondent.
4. For the sake of convenience, we shall refer to the
parties as per their status in the writ appeals, i.e.,
appellants and respondent.
5. At the outset, we may advert to the facts as pleaded
in the writ proceedings. Writ petition No.11293 of 2009 was
filed by the respondent seeking a declaration that the
action of the Tahsildar, Balanagar Mandal in interfering
with the peaceful possession and enjoyment of the subject
property without any reason or proceeding is arbitrary and
highhanded. Consequently, a direction was sought for to
the Tahsildar not to interfere with the peaceful possession
of the respondent in respect of the property admeasuring
30,181.10 square yards in survey No.76, Fathenagar
village, Balanagar mandal in Ranga Reddy district (referred
to as 'subject land', hereinafter).
6. In the writ affidavit, respondent stated that it was the
owner of the subject land by virtue of sale deed bearing
No.1005 of 1965 dated 15.04.1965. After purchase of the
subject land, respondent is in possession of the same
without any hindrance from any quarter. It was mentioned
that respondent is also having property to an extent of
56,730.57 square meters in survey Nos.74/P and 75/P at
Sanathnagar, Hyderabad for the purpose of construction of
houses for weaker sections under group housing scheme.
In this connection, respondent had entered into a
development agreement dated 21.09.2007 with
M/s.S.P.Real Estate Developers and M/s.Janapriya
Engineering Syndicate Limited. Disputes arose between the
respondent and the developers leading to litigation before
the city civil court at Hyderabad.
7. In order to protect the subject land from illegal
encroachment, respondent decided to fence the same.
When the fencing work was going on, the Mandal Surveyor
and some local people tried to interfere with the fencing
work. Respondent was asked to remove the fence and
vacate the premises on the ground that it was in illegal
occupation. Mandal Surveyor had directed the respondent
to produce relevant documents and materials to show that
respondent is the absolute owner and possessor of the
subject land. Pursuant to such direction, respondent
attended the office of the Mandal Surveyor and furnished
documentary evidence. In this connection, respondent also
submitted a representation dated 30.05.2009 before the
Tahsildar. On being satisfied, Tahsildar gave liberty to the
respondent to proceed with the fencing work.
8. When the respondent resumed fencing work, some
anti-social elements and a few local political leaders again
tried to interfere and threatened officials of the respondent
with dire consequences. Respondent approached the
Station House Officer, Sanathnagar Police Station for police
protection which was granted by the Station House Officer.
9. To the utter dismay of the respondent, officials from
the office of Tahsildar again came to the site and asked the
respondent to remove the fence and to vacate the subject
land.
10. Assailing such action of Tahsildar, respondent had
filed the related writ petition being W.P.No.11293 of 2009.
11. This Court while admitting W.P.No.11293 of 2009 on
29.06.2009 had passed an order granting interim
injunction.
12. The writ petition was contested by the Tahsildar by
filing counter affidavit. Stand taken in the counter affidavit
was that respondent had filed a declaration under Section
6(1) of the Urban Land (Ceiling and Regulation) Act, 1976
(briefly, 'the ULC Act' hereinafter) in respect of the following
properties at Fathenagar village in Balanagar mandal:
Sy.No. Extent (Sq.Mt)
74 25,100.00
76 25,230.00
74 23,880.00
75 17,620.00
74 13,760.00
78&79 51,580.00
Total 1,57,170.00
12.1. Respondent had also filed a declaration under
Section 21(1) of the ULC Act for utilisation of excess land
for construction of dwelling units for accommodation of
weaker sections to an extent of 56,730.57 square meters
out of the aforesaid land. Accordingly, permission was
accorded by special officer and competent authority under
Section 21(1) of the ULC Act on 04.02.2001. While
according permission, a condition was imposed that
construction of the dwelling units for the weaker sections
should be completed within five years. It was alleged that
respondent had not constructed the dwelling units within
the specified period; thus violated the condition imposed
while according permission under Section 21(1) of the ULC
Act. However, respondent started fencing in survey No.76
for which no orders were passed by the ULC authority.
12.2. As land in survey No.76 was declared by the
respondent under Section 21 of the ULC Act, the
competent authority under the said Act had to first decide
whether such land was exempted from ceiling or not. Till
such time, respondent had no right to fence the land in
survey No.76.
12.3. Tahsildar had denied the allegation made by the
respondent regarding interference with the peaceful
possession by the Tahsildar over the subject land. It was
stated that it was the duty of the Tahsildar to protect the
property declared under Section 21 of the ULC Act until
final orders were passed.
12.4. Reference was made to writ petition No.24373 of
1995 filed by the respondent in the then Andhra Pradesh
High Court on the subject matter, exemption of land from
ceiling, on the ground that said land was being reserved for
providing dwelling quarters to workmen. The said writ
petition was disposed of by the Andhra Pradesh High Court
on 07.08.1997 directing the authority to take a decision on
the question of exemption. Scheduled Caste, Scheduled
Tribe and Backward Class Welfare Sangh had also filed a
writ petition being W.P.No.6396 of 2002 in the Andhra
Pradesh High Court seeking implementation of the order
passed by the special officer and competent authority dated
04.02.2001. Writ petition was disposed of vide the order
dated 24.08.2007 giving liberty to the writ petitioner to
approach the special officer for necessary redressal.
12.5. Though lands covered by the two writ petitions i.e.,
W.P.No.24373 of 1995 and W.P.No.6396 of 2002 are
situated in survey Nos.74 and 75, the exemption regarding
the surplus land in survey No.76 depended upon the
conditions imposed regarding utilisation of the land for
construction of dwelling units in survey Nos.74 and 75,
further contending that respondent had not carried out the
conditions mentioned in the order dated 04.02.2001.
13. Respondent had filed writ petition No.23477 of 2010
taking exception to the panchanama proceedings dated
08.02.2008 to show alleged taking over of possession
admeasuring 46,538 square meters in survey Nos.74 to 76
on 08.02.2008 and the attempt by the appellants in trying
to physically dispossess the respondent from the aforesaid
subject land and the building standing thereon even after
repeal of the ULC Act. Such an action has been assailed as
being arbitrary and violative of Article 14 read with Article
300A of the Constitution of India as well as provisions of
the Urban Land (Ceiling and Regulation) Repeal Act, 1999
(briefly, 'the Repeal Act' hereinafter). Further, a direction
was sought for to the appellants not to interfere with the
possession of the respondent over the subject land and not
to make any claim of ownership over the subject land and
building standing thereon.
13.1. Respondent stated that it is a company under the
Companies Act, 1956 and engaged in the business of
manufacture and sale of power transformers and other
electrical equipments. For the purpose of setting up its
manufacturing unit, respondent had purchased land
admeasuring 1,63,764 square yards in survey Nos.74, 75,
76, 78 and 79 situated at Fathenagar village, Balanagar
mandal in Ranga Reddy district in the year 1965. Since
then respondent had been in possession and enjoyment of
the said land, wherein the manufacturing unit has also
been established. After enactment of the ULC Act,
respondent filed a statement in the prescribed form under
Section 6(1) of the ULC Act which declaration was taken up
as C.C.No.10571 of 1976 by the special officer and
competent authority of urban land ceiling department. It is
stated that respondent was also in possession of certain
lands in Visakhapatnam which was also the subject matter
of the declaration.
13.2. Lands held by the respondent at Hyderabad are as
under:
Survey Nos.78 and 79 - 57,026 Sq. Mtrs.
Survey Nos.74, 75 and 76 - 1,06,511 Sq. Mtrs.
__________________
Total - 1,63,679 Sq. Mtrs.
13.3. Insofar land in survey Nos.78 and 79 is concerned,
Government of Andhra Pradesh had issued G.O.
Ms.No.1729 dated 27.11.1982 exempting the entire extent
of land i.e., 57,026 square meters on the ground that
respondent had constructed a factory premises in the said
land. Insofar the remaining land in survey Nos.74, 75 and
76, government in the very same G.O.Ms.No.1729 had
exempted land admeasuring 48,859 square meters of land
subject to the condition of constructing separate factory
and other buildings on such land within the stipulated
period. For the remaining 56,730 square meters,
respondent was granted exemption under Section 21 of the
ULC Act in view of the scheme formulated for construction
of dwelling houses and such land meant for the weaker
sections of the society.
13.4. It is stated that in respect of land admeasuring 1229
square meters in survey Nos.74, 75 and 76, government
had issued G.O.Ms.No.303 dated 07.04.1990 withdrawing
the exemption granted earlier under G.O.Ms.No.1729
which is the subject matter of a separate litigation not
having any bearing insofar present litigation is concerned.
13.5. First appellant had thereafter computed land holding
of the respondent and by order dated 07.04.1992 passed
under Section 8(3) of the ULC Act, special officer and
competent authority held that respondent was holding
1,01,645 square meters of surplus land. This led to
another round of litigation. Whereafter special officer and
competent authority had passed order dated 03.04.2005
under Section 8(4) of the ULC Act computing the holding of
the respondent as follows:
Sq. Meters
(1) Total extent in Sy.Nos.74/P, 75/P, 76/P, 1,63,679.00
78 & 79 in Fatehnagar Village
(2) Extent covered by G.V.M.Road in 1,63,679-5,088=1,58,591.00
Sy.Nos.78 and 79 in T.S.Nos.3 and 6 of
Block A = 5,088.00 Sq.mtrs.
(3) Extent exempted by the Government in 1,58,591-51,580= 1,07,011.00
G.O.Ms.No.1729 dt. 23.11.1982 =
51,580.00 Sq.mtrs.
(4) Extent exempted u/s 21 under Housing 1,07,011-56,730.57 = 50,280.43
Scheme in Sy.Nos.74/P, 75/P = 56,730
Sq.mtrs.
(5) Extent effected by roads in Sy.Nos.74/P, 50,280.43 - 3,742= 46,538.43
75 & 76 as per MCH Plan = 3742.00
Sq.mtrs.
(6) Surplus extent in Sy.Nos.74/P, 75/P & = 46,538.43
76/P Fatehnagar Village
13.6. Aggrieved by the order dated 03.04.2005, respondent
had approached the appellate authority by way of an
appeal which was disposed of vide the order dated
28.07.2005 confirming the above computation subject to
verification by the special officer and competent authority.
Thereafter, special officer and competent authority passed
the order dated 20.03.2007 computing the surplus holding
of the respondent in Hyderabad at 45,538.43 square
meters in survey Nos.74/P, 75/P and 76/P in Fathenagar
village after deducing the retainable land of 1,000 square
meters.
13.7. After such computation, notification under Section
10(3) of the ULC Act was published in Andhra Pradesh
State Gazette on 03.10.2007, wherein an extent of
46,538.43 square meters in survey Nos.74/P, 75/P and
76/P of Fathenagar village in Balanagar mandal was
declared to have been acquired by the State Government
with effect from 12.07.2007. According to the respondent,
this notification failed to note that the surplus land was
only 45,538.43 square meters and not 46,538.43 square
meters. However, there was no further proceeding and no
notice of any kind was issued to the respondent under
Section 10(5) of the ULC Act nor was possession of the
subject land taken over by the appellants.
13.8. Urban Land (Ceiling and Regulation) Repeal Act,
1999 (already referred to as 'the Repeal Act') was adopted
by the State of Andhra Pradesh with effect from 27.03.2008
vide G.O.Ms.No.603 (Revenue) (UCI) Department dated
22.04.2008. Section 3(1)(a) of the Repeal Act provided that
no vesting of any vacant land under sub-section (3) of
Section 10 of the ULC Act would come into effect unless
possession of the same had been taken over by the State
Government or by any person duly authorised by the State
Government or by the competent authority. According to
the respondent, as possession of the subject land had not
been taken over by the government, the entire proceedings
under the ULC Act had abated; consequently the subject
land would remain with the respondent.
13.9. On 24.02.2009 respondent was served with
G.O.Ms.No.1534 dated 20.12.2008 whereby the
government had sought to resume surplus land to an
extent of 56,730.57 square meters which was covered
under the scheme in terms of Section 21 of the ULC Act.
Aggrieved by the said G.O.Ms.No.1534, respondent had
filed writ petition No.28649 of 2008 before this Court which
passed order dated 28.12.2008 staying all further
proceedings. It is stated that writ petition No.28649 of
2008 is still pending before this Court. In paragraph 4 of
the writ affidavit in writ petition No.28649 of 2008, it is
specifically contended that possession of the excess land of
46,538.43 square meters was not taken over by the
appellants.
13.10. While the matter stood thus, second appellant i.e.,
Tahsildar came to the transformer factory of the
respondent on 14.09.2010 stating that land admeasuring
46,538 square meters in survey Nos.74, 75 and 76 was
required to be handed over to them as land had been
declared as surplus land. Respondent was directed to
vacate the said land immediately. Respondent had objected
to the highhanded action of the appellants more
particularly the Tahsildar and had submitted that in view
of the Repeal Act, there can be no further taking over of
possession of the subject land of the respondent. It was at
this stage that the Tahsildar had handed over the
panchanama dated 08.02.2008 whereby it was stated that
notice under Section 10(5) of the ULC Act was issued on
05.01.2008 and that possession of the subject land was
taken over on 08.02.2008 under Section 10(6) of the ULC
Act.
13.11. Respondent contended that the period of thirty days
as prescribed under Section 10(5) of the ULC Act was not
yet complete before alleged possession was taken over.
Adverting to the panchanama, it was averred that Section
10(5) notice dated 05.01.2008 was issued by the competent
authority to the respondent and the respondent had not
delivered possession of the subject land within thirty days.
It was alleged that thirty days period would have elapsed
on 07.02.2008 whereas the panchanama showed that the
order under Section 10(6) was made on 05.02.2008 even
before expiry of the thirty days period. That apart,
respondent contended that no notice under Section 10(5) of
the ULC Act was ever received by the respondent. Contents
of the panchanama has also been disputed and denied.
13.12. Elaborating further, it was stated that respondent is
running a transformer factory in the alleged surplus land.
Entire land is enclosed by way of a compound wall and
barbed wire fencing. The factory building is in survey No.75
over an area of 1229.93 square meters. Watchman at the
factory gate would not permit any outsider to enter into the
factory premises without appropriate permission.
Therefore, question of taking over possession of the subject
land under Section 10(6) by the competent authority or by
persons authorised by him did not arise. The land claimed
by the appellants as surplus vacant land is in fact not so
as the respondent is running a factory manufacturing
transformers therein. The fact that the transformer factory
is operational would be evident from documents issued by
various statutory authorities including the central excise
authorities. It was asserted that respondent is in absolute
possession of the subject land even as on date. Alleged
panchanama proceedings dated 08.02.2008 are a made up
affair to support the case of the appellants whereas the fact
is that there was no transfer of possession from the hands
of the respondent.
13.13. Respondent also assailed the panchnama on various
grounds such as lack of particulars of the surplus land,
identity of the panchas and witnesses etc. Therefore, it is
contended that action of the appellants in allegedly taking
over possession of the subject land on 08.02.2008 under
the cover of the so called panchas is wholly illegal and
arbitrary besides being violative of Article 300A of the
Constitution of India as well as provisions of the Repeal
Act. It was in that context writ petition No.23477 of 2010
came to be filed before this Court.
14. On 22.09.2010, this Court while admitting writ
petition No.23477 of 2010 for hearing had granted interim
order of stay. Appellants were restrained from
dispossessing the respondent if it was in physical
possession of the subject land as on 22.09.2010.
15. Appellants had filed counter affidavit through special
officer and competent authority. It was stated that
respondent had filed a statement in Form-I under Section
6(1) of the ULC Act declaring the properties held by it. After
enquiry, the final holding of the declarant i.e., respondent
in Hyderabad Urban Agglomeration was determined as
follows:
Sl.No. Nature of the Location Total Extent in
Property Sq. Mtrs.
HYDERABAD URBAN AGGLOMERATION - 'B' CATEGORY
1 Vacant land Sy.No.78/P, 79/P, 500.00
T.S.No.3, Fathenagar
Sy.No.74/P, 75/P 102145.00
and 76/P, T.S.No.2 &
15.1. G.O.Ms.No.931 was issued by the Revenue (UC)
Department on 12.08.1976 laying down the procedure for
industries applying for exemption under the ULC Act. In
accordance with G.O.Ms.No.931, respondent had filed
representation before the government seeking exemption of
its land from the provisions of the ULC Act.
15.2. Government vide G.O.Ms.No.1729 of the Revenue
(UC.III) Department dated 27.11.1982 had granted
exemption under Section 20 of the ULC Act for the vacant
land measuring an extent of 51,580.00 square meters in
survey Nos.78 and 79 of Fathenagar to run the existing
industry for manufacturing electrical meters and another
extent of 48,859.50 square meters in survey Nos.74, 75
and 76 of Fathenagar within Hyderabad Urban
Agglomeration for industrial use subject to certain
conditions. One of which was that land should be utilised
for the purpose for which it was retained within three years
from the date of granting exemption, failing which the
exemption granted would stand cancelled, whereafter the
land would be subject to provisions of the ULC Act.
15.3. Respondent had also filed a representation under
Section 21 of the ULC Act to retain an extent of 40,436.00
square yards in survey Nos.74/P, 75/P and 79/P at
Fathenagar village for construction of dwelling units to
accommodate members of weaker sections. Accordingly
permission under Section 21 of the ULC Act was granted to
retain the above extent of land vide order dated
12.11.1980. Subsequently, on request of the respondent,
the extent of land exempted was revised, whereafter vide
order dated 09.12.1981 of the special officer and competent
authority, respondent was permitted to retain 56,730.57
square meters in survey Nos.74/P and 75/P of Fathenagar
village for constructing dwelling units for weaker sections.
Revised order also contained certain conditions. One of the
conditions was that the construction of dwelling units
should be completed within five years, for which
respondent was required to submit quarterly progress
reports.
15.4. It was alleged that respondent had not commenced
construction of dwelling units, besides respondent had also
not submitted quarterly progress reports. Therefore, after
giving show cause notice and personal hearing, orders
issued under Section 21 of the ULC Act were revoked by
the special officer and competent authority on 03.04.1992.
That apart, government had issued G.O.Ms.No.303 dated
07.04.1990 withdrawing exemption granted for running of
factory to an extent of 48,859.50 square meters of land in
survey Nos.74/P, 75/P and 76/P of Fathenagar village for
non-utilisation of the land for the purpose for which
exemption was granted. Thereafter, respondent was
declared as excess holder to an extent of 46,538.43 square
meters vide proceedings dated 20.03.2007 and possession
was taken on 08.02.2008. It was asserted that the land
exempted under Section 21(1) is different from the land
declared as surplus in survey Nos.74/P, 75/P and 76/P.
15.5. It was stated that preliminary orders under Section
8(1) of the ULC Act were issued by the special officer and
competent authority on 07.04.1992 provisionally
determining the respondent as surplus land holder to an
extent of 1,73,167.63 square meters. Respondent raised
objection to the draft statement so prepared. Finally,
special officer and competent authority issued order under
Section 8(4) of the ULC Act dated 03.04.2005 determining
the respondent as excess land holder in Hyderabad Urban
Agglomeration in the following manner:
Properties held by the Company at Hyderabad Urban Agglomeration:
Sq.Mtrs.
(1) Total extent in Sy.Nos.74/P, 75/P, 76/P, 1,63,679.00
78 & 79 in Fathenagar Village
(2) Extent covered by G.V.M.Road in 1,63,679-5,088=1,58,591.00
Sy.Nos.78 and 79 in T.S.Nos.3 and 6 of
Block = 5,088.00 Sq.mtrs.
(3) Extent exempted by the Government u/s 1,58,591-51,580= 1,07,011.00
20(1)(a) vide G.O.Ms.No.1729 dt.
23.11.1982 = 51,580.00 Sq.mtrs.
(4) Extent exempted u/s 21 under Housing 1,07,011-56,730.57 = 50,280.43
Scheme in Sy.Nos.74/P, 75/P =
56,730.57 Sq.mtrs.
(5) Total extent exempted i.e., (108310.57
Sq.Mtrs)
(6) Extent effected by roads in Sy.Nos.74/P, 50,280.43 - 3,742= 46,538.43
75 & 76 as per MCH Plan = 3742.00
Sq.mtrs out of 50283.00 Sq.mtrs
(7) Surplus extent in Sy.Nos.74/P, 75/P & 46,538.43
76/P in Fathenagar Village
15.6. Stating that out of 46,538.43 square meters,
respondent was eligible to retain 1000 square meters under
Section 4(1)(b) of the ULC Act, the balance of surplus
vacant hand was estimated at 45,538.43 square meters.
15.7. Aggrieved by the order of the special officer and
competent authority, respondent filed appeal before the
appellate authority under Section 33 of the ULC Act.
Appellate authority vide the order dated 28.07.2005 set
aside the order appealed against and remanded the matter
back to the special officer and competent authority. After
due enquiry, revised order under Section 8(4) of the ULC
Act and final statement under Section 9 of the ULC Act
were issued on 20.03.2007. Thus, the surplus land was
determined at 46,538.43 square meters which was
separate from the land exempted under Section 21 of the
ULC Act.
15.8. It is stated that after completion of formalities,
notification under Section 10(1) of the ULC Act was issued
on 07.07.2007, whereafter declaration under Section 10(3)
was made on 24.09.2007 vesting the land with the
government free from all encumbrances. Possession of the
surplus land admeasuring 46,538.43 square meters
forming part of survey Nos.74/P, 75/P and 76/P of
Fathenagar, Hyderabad was taken over on 08.02.2008 by
following the laid down procedure. Possession of the
subject land was taken over much before the Repeal Act
was made applicable to the State of Andhra Pradesh on
27.03.2008. Respondent filed an application on 09.07.2007
seeking extension of time by five years for constructing
dwelling units for weaker sections. However, the
government decided to resume the surplus land to an
extent of 56,730.57 square meters in survey Nos.74/P and
75/P vide the order dated 20.12.2008 directing the special
officer and competent authority to take possession of the
said land. Accordingly, possession of the said land was
taken over on 20.12.2008. However, respondent had filed
writ petition No.28644 of 2008 wherein interim directions
were issued by this Court restraining dispossession of the
respondent from the land admeasuring 56,730.67 square
meters in survey Nos.74/P and 75/P. The said writ petition
is pending. The said land is different from the land
declared as surplus in survey Nos.74/P, 75/P and 76/P to
the extent of 46,538.43 square meters of Fathenagar village
in respect of which possession was taken over under
Section 10(6) of the ULC Act on 08.02.2008.
16. Notice under Section 10(5) of the ULC Act was issued
on 05.01.2008 calling upon the respondent to surrender
the excess vacant land within thirty days. Since the
respondent was under lockout, the said notice was affixed
on the main door on 08.01.2008. Time stipulated in the
notice expired but the declarant failed to surrender its
land. Hence order under Section 10(6) of the ULC Act was
issued on 05.02.2008 authorising enquiry officer to take
over possession of the surplus land. Consequently, enquiry
officer took over possession of the surplus land on
08.02.2008 to an extent of 46,538.43 square meters in
survey Nos.74/P, 75/P and 76/P in Fathenagar village,
Balanagar mandal, Ranga Reddy district.
17. Respondent had filed rejoinder to the counter
affidavit of the appellants. It is stated that insofar writ
petition No.23477 of 2010 was concerned, it is related to
land admeasuring 46,538 square meters in survey Nos.74,
75 and 76 in Hyderabad Urban Agglomeration. The lands
in Hyderabad Urban Agglomeration was dealt with by the
competent authority in his order dated 07.04.1992 under
Section 8(3) of the ULC Act which was confirmed twelve
years thereafter by the competent authority vide the order
dated 03.04.2004 passed under Section 8(4) of the ULC
Act.
17.1. The aforesaid order of the competent authority dated
03.04.2004 was challenged before the appellate authority
under Section 33 of the ULC Act. Appellate authority by the
order dated 28.07.2005 had set aside the entire order of
the competent authority by allowing the appeal. Competent
authority was directed to re-compute the excess vacant
lands by excluding certain structures and appurtenant
area. However, there was no re-computation of the vacant
land in the Hyderabad Urban Agglomeration. It is stated
that the order of the competent authority on remand dated
20.03.2007 was not in conformity with the order passed by
the appellate authority on 28.07.2005. When the order
dated 20.03.2007 was not in conformity with the order of
the appellate authority, appellants would not be right in
contending that they had acquired the excess vacant land
and had taken over possession of the same. In this
connection, respondent reiterated that it was in possession
of the land till the time the ULC Act was repealed and it
continued to be in possession thereof till date.
17.2. Claim of the appellants that notice under Section
10(5) was issued on 05.01.2008 was denied by the
respondent. 05.01.2008 was a Saturday. It was the duty of
the appellants to establish that 05.01.2008 was a working
day and that notice dated 05.01.2008 was despatched from
the office on a working day. It is also the duty of the
competent authority to establish the exact date of service of
notice under Section 10(5) and service on the noticee were
conspicuously absent in the counter affidavit. Appellants
merely stated that notice under Section 10(5) was issued
on 05.01.2008. Since the respondent was under lockout,
the notice was affixed on the main door on 08.01.2008. In
the absence of despatch of notice by registered post with
acknowledgement due, the service would be deemed to be
in violation in terms of Rule 5 of the Urban Land (Ceiling
and Regulation) Rules, 1976 (briefly, 'the ULC Rules'
hereinafter). That apart, it was reiterated that there was no
lockout in the establishment of the respondent at the
relevant point of time; rather it was fully operational for
which respondent relied upon various documentary
evidence including returns filed before the Employees' State
Insurance Corporation for the period from 01.10.2007 to
31.03.2008.
17.3. While denying that notice under Section 10(5) was
served on 08.01.2008 as claimed by the appellants, it was
averred that the thirty days period mentioned in the said
notice to surrender possession voluntarily would have
expired only on 07.02.2008. Right of the competent
authority to take further action under Section 10(6) would
accrue only after 08.02.2008. Therefore, no reliance could
be placed on the alleged order dated 05.02.2008 passed
under Section 10(6) of the ULC Act. That apart, order dated
05.02.2008 containing more than one date with overwriting
did not inspire any confidence at all.
17.4. Further attempt by the appellants to show that they
had taken over possession of the excess vacant land on
08.02.2008 by relying on the purported panchanama does
not inspire any confidence. It is contended that when the
order under Section 10(6) of the ULC Act dated 05.02.2008
was of no legal consequence, the alleged taking over of
possession on 08.02.2008 on the strength of the order
dated 05.02.2008 would also be of no consequence.
Besides, a bare perusal of the panchanama would reveal
that it was prepared in a printed format to suit the case of
the appellants. A careful reading of the panchanama itself
would indicate that it was a fabricated document without
furnishing details of the three panchas, as a result of
which the panchas were not identifiable.
17.5. Appellants claimed to have taken over possession of
46,538.43 square meters on 08.02.2008 which included
1000 square meters of land conferred on the respondent
under Section 4(1) of the ULC Act. This only goes to show
that appellants had not applied their mind and had just
produced some documents to show that they had taken
over possession.
17.6. Respondent's name was shown as owner in
possession and enjoyment of the lands including the excess
vacant land in the revenue record which only goes to show
possession of the respondent, besides pahanis stand in the
name of the respondent in respect of the subject land.
Therefore, the theory of possession put forth by the
appellants is contrary to the record.
18. Learned Single Judge after narrating the relevant
facts and after adverting to the submissions made by
learned counsel for the parties had examined various
provisions of the ULC Act, more particularly Sections 10(1),
10(3), 10(5) and 10(6) of the ULC Act as well as the Repeal
Act which was adopted by the Government of undivided
Andhra Pradesh on 27.03.2008 vide G.O.Ms.No.603 dated
22.04.2008. Learned Single Judge examined the claim of
the appellants of having taken over possession of the
subject land under Section 10(6) of the ULC Act as well as
the contents of the panchanama observed that whenever a
panchanama is prepared, the same has to be done duly
putting the actual owner/interested person on notice;
panchas should be reputed and respectable persons of the
locality; date and time on which the panchanama was
prepared as well as the name, age and address of the
panchas should be mentioned in the panchanama.
Thereafter, learned Single Judge held that unless and until
actual physical possession of the subject land was taken
over, the taking over proceedings under the ULC Act would
stand abated on coming into force of the Repeal Act. After
referring to various decisions, learned Single Judge held
that after issuing notice under Sections 10(1) and 10(3) of
the ULC Act, competent authority under the said Act would
have to issue notice under Section 10(5) directing the party
to surrender possession of the excess land within a period
of thirty days. If voluntary possession of the same is not
given, then the authorities are under obligation to issue
notice under Section 10(6) and thereafter take possession.
Mere issuance of notice under Section 10(3) would not
automatically entitle the authorities to take over possession
of the notified lands; the authorities would have to
necessarily issue notice under Section 10(5) of the ULC Act
to the land owner or any other interested person. Taking
over of possession has to be actual physical possession and
not mere de jure possession.
18.1. After referring to the alleged anomalies noticeable in
Section 10(6) notice, learned Single Judge came to the
conclusion that very admission on the part of the
appellants that the notice was served on 08.01.2008,
whereafter Section 10(6) order was passed on 05.02.2008
would clearly show that the mandatory period of thirty
days between the two provisions was not met. Learned
Single Judge further noted that there was no explanation
forthcoming as to how the date "01.10.2008" appeared in
the Section 10(6) notice. Thus, learned Single Judge vide
the judgment and order dated 03.01.2022 came to the
conclusion that physical possession of the subject land was
still with the respondent. There was no cogent and
convincing evidence to show that State Government had
taken over physical possession of the subject land. That
apart, learned Single Judge found that the panchanama
dated 08.02.2008 did not inspire the confidence of the
Court. Further, from the documentary evidence, it was
proved beyond any doubt that the factory of the respondent
was still functional, a number of apartments had been
constructed. Therefore, physical possession of the subject
land had not been taken over by the government but was
still with the respondent. Learned Single Judge also
referred to an order of this Court dated 26.10.2009 in writ
petition No.3140 of 2009, whereby government sought to
resume the surplus land of the respondent by issuing
G.O.Ms.No.1534 dated 20.12.2008. In the said order, this
Court had set aside G.O.Ms.No.1534 holding that
possession of the subject land was not taken over by the
government. Accordingly, both the writ petitions were
allowed and the panchanama dated 08.02.2008 was set
aside.
19. Mr. Raju Ramachandran, learned Senior Counsel for
the appellants submits that learned Single Judge was not
at all justified in setting aside the panchanama proceedings
dated 08.02.2008 and interfering with the action of the
State in taking over possession of the surplus land of the
respondent under the ULC Act. In the course of his
arguments, learned Senior Counsel for the appellants has
placed before the Court a flow chart of land belonging to
the respondent covered by the final statement made under
Section 8(4) of the ULC Act. He submits that respondent
had declared under Section 6(1) of the ULC Act a total of
1,63,679 square meters of land in Survey Nos.74/P, 75/P,
76, 78 and 79. Out of the aforesaid land, 5,088 square
meters was covered by GVM Road leaving land to the
extent of 1,58,591 square meters. By G.O.Ms.No.1729, an
extent of land measuring 51,580 square meters in Survey
Nos.78 and 79 was allowed to be retained by the
respondent to run the industry for manufacturing electrical
meters. Though an extent of land admeasuring 48,859.90
square meters was allowed to be retained by the
respondent for establishing fan factory, later on the
exemption was withdrawn vide G.O.Ms.No.303. Excluding
51,580 square meters from the total extent of 1,58,591
square meters surplus excess land with the respondent
was quantified at 1,07,011 square meters. Out of this
extent, 56,730.57 square meters in Survey Nos.74, 75 and
76 was exempted under Section 21 of the ULC Act leaving
balance extent of 50,280.43 square meters for computation
under Section 8(4) of the ULC Act. After excluding an
extent of 3,742 square meters, which was affected by road,
the extent of surplus land quantified by the competent
authority under the ULC Act was estimated at 46,538.43
square meters as per revised order of the competent
authority dated 20.03.2007.
19.1. Because of clerical mistakes, learned Single Judge
ought not to have disbelieved the notice issued under
Section 10(5) of the ULC Act as well as the order passed
under Section 10(6) of the ULC Act, more so when learned
Single Judge did not requisition the record. While
admitting that appearance of the date "01.10.2008" in the
order dated 05.02.2008 is inexplicable, Mr. Raju
Ramachandran, learned Senior Counsel for the appellants
submits that that by itself would not justify the conclusion
reached by the learned Single Judge that the aforesaid
notice and order were antedated and thus discarded. He
submits that learned Single Judge was also not justified in
disbelieving the panchanama dated 08.02.2008 and
thereafter declaring the notices under Section 10(5) and
10(6) as well as the panchanama as void ab initio. He
further submits that learned Single Judge committed a
manifest error in holding that physical possession of the
surplus vacant land had not been taken over by the
appellants.
19.2. Mr. Raju Ramachandran, learned Senior Counsel for
the appellants submits that recording of a panchanama is
a recognized mode of taking possession of large tracts of
land. In this connection, he has placed reliance on Sita Ram
Bhandar Society, New Delhi v. Lieutenant Governor, Government
of NCT, Delhi1, which was reiterated in Omprakash Verma v.
1 (2009) 10 SCC 501
State of Andhra Pradesh2. Though he has placed reliance on
the decisions of the Supreme Court in State of Uttar Pradesh
v. Hari Ram3 and Gajanan Kamlya Patil v. Additional Collector
and Competent Authority (ULC)4, he has however placed
emphasis on the later decision of the Supreme Court in
State of Assam v. Bhaskar Jyoti Sarma5 wherefrom he submits
that Section 10(5) of the ULC Act prescribes an ordinary
and logical course of action that ought to be followed before
the authorities decide to use force to dispossess the
occupant under Section 10(6) of the ULC Act. He, therefore,
submits that learned Single Judge had erred on facts as
well as in law in interfering with the ULC proceedings
initiated by the State for taking over the surplus vacant
land of the respondent.
20. Per contra, Mr. V.Ramesh, learned counsel for the
respondent has meticulously taken the Court to the
judgment of the learned Single Judge as well as to the
materials on record. He has referred to the notice dated
05.01.2008 purportedly issued by the special officer and
2 (2010) 13 SCC 158
3 (2013) 4 SCC 280
4 (2014) 12 SCC 523
5 (2015) 5 SCC 321
competent authority under sub-section (5) of Section 10 of
the ULC Act and submits therefrom that the handwritten
endorsement at the bottom of that notice which says that
the notice was affixed on the outer door clearly reveals
overwriting of the date. While the figure '8' is written in
dark ink to mean the date as 08.01.2008, there appears to
be another date below the overwritten figure of '8'.
Adverting to page 234 of the paper book (W.A.No.670 of
2022), he submits that the order issued under Section
10(6) of the ULC Act does not inspire any confidence. While
on the date 05.02.2008, both 5 and 8 appeared to be
written twice, if not overwritten; beneath 05.02.2008 the
figure '8' is also written. If the notice under Section 10(5) of
the ULC Act was pasted on the outer door of the premises
on 08.01.2008, the period of thirty days was not over when
the order under Section 10(6) of the ULC Act was passed.
There is no proof or materials on record to show that the
notice dated 05.01.2008 was sent by registered post with
acknowledgement due to the respondent. Therefore, no
credence can be taken of any suggestion that the notice
dated 05.01.2008 was sent to the respondent by registered
post with acknowledgment due on 05.01.2008 itself. That
apart, in the body of the order it was mentioned that the
thirty days period given in the notice under Section 10(5) of
the ULC Act had expired on 01.10.2008. There is no
corrigendum or any explanation as to how the date
01.10.2008 appeared in the order dated 05.02.2008.
20.1. Therefore, it was evident that possession of the
subject land was not taken over by the appellants. It
continued to remain with the respondent. Adverting to the
panchanama, he submits that learned Single Judge was
wholly justified in disbelieving the contents of the
panchanama.
20.2. Learned counsel for the respondent has submitted a
compilation of judgments wherefrom he has placed special
emphasis on the decision of the Supreme Court in Hari Ram
(supra). He submits that insofar sub-section (3) of Section
10 of ULC Act is concerned, what is vested is de jure
possession and not de facto possession. Section 10(6) of
the ULC Act provides for forceful dispossession in an
eventuality where a person refuses or fails to comply with
Section 10(5) of the ULC Act. Since it is a question of
divesting a person of his lawful property, it must be done
strictly in accordance with law and Article 300A of the
Constitution of India. It is in this context that Supreme
Court in Hari Ram (supra) has made it abundantly clear
that requirement of giving notice both under sub-sections
(5) and (6) of Section 10 of the ULC Act is mandatory.
Adverting to the repeal Act, he submits that mere vesting of
the land under sub-section (3) of Section 10 of the ULC Act
would not confer any right on the State Government to
have de facto possession unless there is voluntary
surrender. It is the State which has to establish that there
had been a voluntary surrender of vacant land or
surrender and delivery of peaceful possession under sub-
section (5) of Section 10 or forceful dispossession under
sub-section (6) of Section 10 of the ULC Act. If the State
fails to establish any of these situations, the landholder or
owner can claim the benefit of Section 3 of the Repeal Act.
20.3. He submits that decision of the Supreme Court in
Bhaskar Jyoti Sarma (supra) is not applicable to the facts of
the present case. In fact, the said decision has been
distinguished by the Madras High Court in Principal
Commissioner and Commissioner of Land Reforms, Chepauk,
Chennai v. Assistant Commissioner/Competent Authority, Urban
Land Ceiling (W.A.No.3632 of 2019, decided on 20.01.2020).
Learned counsel has also placed reliance on a Division
Bench decision of this Court dated 21.07.2022 passed in
W.A.No.1975 of 2017 (State of Telangana v. M/s. Southern
Steels Limited) which has held that notice under Section
10(5) of the ULC Act as well as order under Section 10(6) of
the aforesaid Act are required to be served on the persons
who are in possession as well as named in the declaration.
If there is non-service of notice, the entire proceedings shall
fall through.
20.4. Finally, learned counsel for the respondent has
drawn the attention of the Court to relevant portions of the
record and points out the inconsistencies therein. Many of
the pages, he submits, have got multiple paginations with
overwritings. The panchanama at page 235 is in printed
form with names filled in with correction in the date. Thus,
from a complete analysis of the facts on record he submits
that the view taken by the learned Single Judge can only be
the logical view, no other view is possible. Therefore, the
appeals filed by the State are liable to be dismissed.
21. Submissions made by learned counsel for the parties
have received the due consideration of the Court. Also
perused the materials on record.
22. At the outset, we may advert to the relevant
provisions of the statute.
23. The ULC Act was enacted to provide for imposition of
a ceiling on vacant land in urban agglomerations and for
acquisition of such land in excess of the ceiling limit so as
to regulate the construction of buildings on such land and
for matters connected therewith. The ULC Act sought to
prevent concentration of urban land in the hands of a few
persons leading to speculation and profiteering therein and
with a view to bringing about an equitable distribution of
land in urban agglomerations to sub-serve the common
good.
23.1. Section 6 of the ULC Act more particularly sub-
section (1) thereof required every person holding vacant
land in excess of the ceiling limit at the commencement of
the ULC Act to file a statement within the prescribed period
before the jurisdictional competent authority specifying the
location, extent, value and such other particulars as may
be prescribed of all the vacant land and of any other land
on which there is a building and also specifying the vacant
land within the ceiling limit which he desires to retain.
23.2. Section 8 deals with preparation of draft statement as
regards vacant land held in excess of ceiling limit. As per
sub-section (1), on the basis of the statement filed under
Section 6 and after such inquiry as the competent
authority may deem fit, the competent authority shall
prepare a draft statement in respect of the person who had
filed the statement under Section 6. As per sub-section (3),
the draft statement shall be served in such manner as may
be prescribed on the person concerned together with a
notice stating that any objection to the draft statement
shall be preferred within thirty days of service thereof. In
terms of sub-section (4), the competent authority shall duly
consider any objection received whereafter the competent
authority may pass such order(s) as it deems fit but after
giving the objector a reasonable opportunity of being heard.
23.3. Section 9 provides that after completion of the
exercise under sub-section (4) of Section 8, the competent
authority shall make the necessary alterations in the draft
statement and shall determine the vacant land held by the
person concerned in excess of the ceiling limit. A copy of
the draft statement as so altered shall be served in the
manner referred to in sub-section (3) of Section 8 on the
concerned person.
23.4. Section 10 deals with acquisition of vacant land in
excess of ceiling limit. Sub-section (1) says that as soon as
the service of the statement under Section 9 on the person
concerned is carried out, the competent authority shall
cause a notification giving the particulars of the vacant
land held by such person in excess of the ceiling limit,
further stating that such vacant land is to be acquired by
the State Government and that claims of all persons
interested in such vacant land may be made by giving
particulars of the nature of their interests in such land.
Sub-section (3) is relevant which is extracted hereunder:
10. Acquisition of vacant land in excess of
ceiling limit:-
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) At any time after the publication of the
notification under sub-section (1) the competent
authority may, by notification published in the Official
Gazette of the State concerned, declare that the excess
vacant land referred to in the notification published
under sub-section (1) shall, with effect from such date
as may be specified in the declaration, be deemed to
have been acquired by the State Government and
upon the publication of such declaration, such land
shall be deemed to have vested absolutely in the State
Government free from all encumbrances with effect
from the date so specified.
23.5. Thus, what sub-section (3) contemplates is that after
publication of the notification under sub-section (1), the
competent authority by notification published in the
Official Gazette of the concerned State, declare that the
excess vacant land referred to in the notification shall with
effect from such date as may be specified in the declaration
be deemed to have been acquired by the State Government
and upon publication of such declaration, such land shall
be deemed to have vested absolutely in the State
Government free from all encumbrances with effect from
the date so specified.
23.6. This brings us to sub-sections (5) and (6) of Section
10 of the ULC Act which are relevant and hence are
extracted hereunder:
10. Acquisition of vacant land in excess of
ceiling limit:-
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) xxx xxx xxx
(4) xxx xxx xxx
(5) Where any vacant land is vested in the
State Government under sub-section (3), the
competent authority may, by notice in writing, order
any person who may be in possession of it to
surrender or deliver possession thereof to the State
Government or to any person duly authorised by the
State Government in this behalf within thirty days of
the service of the notice.
(6) If any person refuses or fails to comply
with an order made under sub-section (5), the
competent authority may take possession of the
vacant land or cause it to be given to the concerned
State Government or to any person duly authorised by
such State Government in this behalf and may for
that purpose use such force as may be necessary.
Explanation.- In this section, in sub-section (1)
of section 11 and in sections 14 and 23, "State
Government", in relation to-
(a) any vacant land owned by the
Central Government, means the
Central Government;
(b) any vacant land owned by any
State Government and situated in
the Union Territory or within the
local limits of a cantonment
declared as such under Section 3
of the Cantonments Act, 1924 (2
of 1924), means that State
Government.
23.7. Thus, what sub-section (5) provides for is that where
any vacant land is vested in the State Government under
sub-section (3), the competent authority may by notice in
writing order any person who shall be in possession of it to
surrender or deliver possession thereof to the State
Government or to any person duly authorised by the State
Government in this behalf within thirty days of service of
the notice. As per sub-section (6), if any person refuses or
fails to comply with an order made under sub-section (5),
the competent authority may take possession of the vacant
land or cause it to be given to the concerned State
Government or to any person duly authorised by such
State Government in this behalf and may, for that purpose,
use such force as may be necessary.
23.8. As sub-sections (5) and (6) of Section 10 are central
to the case, a more detailed analysis is called for.
23.9. Once any vacant excess land is vested in the State
Government under sub-section (3) of Section 10, the
competent authority under the ULC Act is required to issue
a notice in writing calling upon the person in possession of
the vested land to surrender or deliver possession to the
State Government within thirty days of service of notice.
Therefore, first and foremost, there must be vesting of
vacant excess land with the State Government under sub-
section (3) of Section 10. Thereafter, the competent
authority has to issue notice in writing to the person in
possession of such land. This notice must be served upon
such a person. The person in possession has to surrender
or deliver possession of the vacant excess land vested with
the State Government to the State Government within
thirty days of service of the written notice. Therefore,
issuance and service of written notice on the person in
possession of the vested land becomes extremely
important. This is because property of which land is an
important constituent though no longer a fundamental
right is still a valuable constitutional right protected under
Article 300A of the Constitution of India. Consequence of
non-compliance to sub-section (5) of Section 10 would
result in forceful taking over of possession of the vacant
excess land vested with the State Government and to
handover possession of the same to the concerned State
Government for which purpose use of force would be
permissible. In other words, if the person in possession of
the vacant land refuses to surrender or deliver possession
of such land to the State Government, then as per mandate
of sub-section (6) of Section 10, the State Government
would be entitled to use force to take over forceful
possession of such land. Therefore, viewed from the
perspective of sub-section (6), requirement of both issuance
and service of notice under sub-section (5) assumes critical
importance.
24. In exercise of the powers conferred by sub-section (1)
read with sub-section (2) of Section 46 of the ULC Act, the
Central Government made the Urban Land (Ceiling and
Regulation) Rules, 1976 (already referred to as 'the ULC
Rules' hereinabove). Rule 5 lays down the particulars to be
contained in the draft statement as regard vacant lands
and the manner of service of the same. Rule 5 deals with
service of draft statement under sub-section (1) of Section
8 and notice under sub-section (3) of Section 8 on the
person concerned. As per Rule 5(2)(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. Further, as per Rule 5(2)(c), if the
above method of service is not successful other than
refusal by the addressee, then 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 land or as the case may be,
the other person is known to have last resided or carried
on business or personally worked for gain.
24.1. Rule 6 provides for manner of publication of
notification under sub-section (1) of Section 10. In addition
to publication in the Official Gazette of the concerned State
Government, the notification shall be placed in a
conspicuous place in the office of the competent authority
and also in a conspicuous place in the office of the District
Collector, Tahsildar and Municipal Commissioner within
the local limits of whose jurisdiction the vacant land to
which the notification relates to is situated.
24.2. From a thorough examination of the Rules, we do not
find any provision therein regarding issuance and service of
notice under sub-section (5) of Section 10. The rules are
silent as regards issuance or service of notice upon the
person in possession of the vacant land under sub-section
(5) of Section 10.
25. It may be mentioned that by the Urban Land (Ceiling
and Regulation) Repeal Act, 1999 (already referred to as
'the Repeal Act' hereinabove), the ULC Act stood repealed.
Section 1(2) says that at the first instance, the Repeal Act
was applicable to the State of Haryana and Punjab as well
as all the union territories. It would apply to such other
states which would adopt the Repeal Act by resolution
passed in that behalf under clause (2) of Article 252 of the
Constitution. While Section 3 is the savings clause which is
relevant, Section 4 says that all proceedings relating to any
order made or purported to be made under the principal
Act pending immediately before the commencement of the
ULC Act before any court, tribunal or other authority shall
abate. Section 3 of the Repeal Act reads as follows:
3. Saving.- (1) The repeal of the principal Act shall not
affect-
(a) the vesting of any vacant land under sub-section
(3) of Section 10, possession of which has been
taken over the State Government or any person
duly authorised by the State Government in this
behalf or by the competent authority;
(b) the validity of any order granting exemption
under sub-section (1) of Section 20 or any action
taken thereunder, notwithstanding any
judgment of any court to the contrary;
(c) any payment made to the State Government as a
condition for granting exemption under sub-
section (1) of Section 20.
(2) Where-
(a) any land is deemed to have vested in the State
Government under sub-section (3) of Section 10
of the principal Act but possession of which has
not been taken over by the State Government or
any person duly authorised by the State
Government in this behalf or by the competent
authority; and
(b) any amount has been paid by the State
Government with respect to such land
then, such land shall not be restored unless the
amount paid, if any, has been refunded to the State
Government.
25.1. Since in this case, we are primarily concerned with
Section 10 of the ULC Act, we will confine the provisions of
Section 3 of the Repeal Act to Section 10 of the ULC Act. As
per Section 3(1)(a), repeal of the ULC Act would not affect
vesting of any vacant land under sub-section (3) of Section
10, possession of which has been taken over by the State
Government or by any person duly authorised by the State
Government in this behalf or by the competent authority.
Section 3(2)(a) says that where any land is deemed to have
vested in the State Government under sub-section (3) of
Section 10 of the ULC Act but possession of which has not
been taken over by the State Government or by any person
duly authorised by the State Government in this behalf or
by the competent authority, possession of such land would
be saved. However, as per Section 3(2)(b), where any
amount has been paid by the State Government with
respect to such land, then such land shall not be restored
unless the amount paid, if any, has been refunded back to
the State Government. The position, therefore, is that if
possession has been taken over by the State Government,
repeal of the ULC Act would not affect taking over of
possession by the State Government. If on the other hand,
possession could not be taken over by the State
Government, though the land is deemed to have been
vested with the State Government, then such possession of
the person concerned would be saved. On the other hand,
in such a situation, if any payment has been made by the
State Government with respect to such land, unless the
payment is refunded to the State Government, there would
be no restoration of the land to the person concerned.
26. Having surveyed the statutory framework, let us now
advert to the facts of the present case.
27. From the pleadings and materials on record, the
following facts are deducible.
27.1. Respondent had filed the statement under sub-
section (1) of Section 6 of the ULC Act which was registered
as C.C.No.10571 of 1976. After a long hiatus, the
competent authority prepared the draft statement under
sub-section (1) of Section 8 and issued the notice under
Section 8(3) of the ULC Act on 07.04.1992. It was
thereafter that order under Section 8(4) of the ULC Act was
passed by the competent authority on 03.04.2005, as per
which, the vacant excess land was quantified at 46,538.43
square meters in survey No.74/P, 75/P and 76/P at
Fathenagar village in Balanagar mandal in the district of
Ranga Reddy. It appears that respondent had questioned
the aforesaid order before the appellate authority which
passed an order on 28.07.2005 calling upon the competent
authority to pass fresh order after due verification. It was
thereafter that competent authority passed the revised
order under Section 8(4) of the ULC Act on 20.03.2007
confirming the extent of vacant surplus land as quantified
earlier vide the order dated 03.04.2005. According to the
respondent, this quantification is erroneous inasmuch as
respondent was entitled to retain 1000 square meters of
the said land under Section 4(1)(b) of the ULC Act; thus the
balance of surplus vacant land should have been
45,538.43 square meters. Be that as it may, notification
under Section 10(1) of the ULC Act was issued on
07.07.2007. Thereafter competent authority issued the
notification under Section 10(3) of the ULC Act on
24.09.2007 declaring that the excess vacant land be
deemed to have been acquired by the State Government
with effect from 17.07.2007. It was published in the
Andhra Pradesh Gazette on 03.10.2007. Be it stated that
the excess vacant land was declared at 46,538.43 square
meters.
27.2. Till this point of time, there appears to be more or
less unanimity in so far the various dates are concerned. It
is thereafter that the dates become highly disputed and
contentious.
27.3. According to the respondent, on 14.09.2010 a copy of
panchanama dated 08.02.2008 was handed over to it,
wherefrom it was discernible that notice under Section
10(5) of the ULC Act was issued on 05.01.2008 and
possession was allegedly taken over on 08.02.2008 under
Section 10(6) of the ULC Act. However, it was the
contention of the respondent that actual possession of the
excess vacant land was never taken over by the
government or by the competent authority. It remained
throughout with the respondent. In the meanwhile,
G.O.Ms.No.603 dated 22.04.2008 was issued by the
Government of Andhra Pradesh repealing the ULC Act with
effect from 27.03.2008. Therefore, it was contended that
respondent was entitled to the benefit of Section 3 of the
Repeal Act.
27.4. On the other hand, according to the appellants,
notice under Section 10(5) of the ULC Act was issued on
05.01.2008. The company i.e. respondent was under
lockout. Therefore, the said notice was affixed on the main
door on 08.01.2008. Order under Section 10(6) of the ULC
Act was issued on 05.02.2008. Enquiry officer took over
possession of the excess surplus land on 08.02.2008 which
would be evident from the panchanama.
28. Let us now examine relevant portions of the judgment
and order of the learned Single Judge.
29. After referring to various provisions of the ULC Act as
well as the Repeal Act and the G.O.Ms.No.603, learned
Single Judge summed up the legal position as to Section
10(5) and (6) of the ULC Act in the following manner:
21. xxx xxx xxx xxx After service of the
notice under Section 10(5), if the land owner fails to
surrender the possession of the land voluntarily, then
the procedure contemplated under Section 10 (6) of
the Act will be adapted. Section 10(6) postulates that
the authorities must go to the land physically and
take physical possession of the land duly putting the
owner or person in possession on notice. A combined
reading of Sections 10(5) and 10(6) makes it
abundantly clear that the land holder in possession
the vacant land will have to handover the physical
possession voluntarily and in case, he fails to do so,
the physical possession will be taken forcibly by the
authorities. The said exercise of taking possession
under Section 10(6) of the ULC Act has to be done in a
cogent and convincing manner duly putting the
parties on notice. The panchanama has to be
prepared in the presence of the land owner, duly
measuring the excess vacant land, which is sought to
be taken over, with the help of the Mandal Surveyor or
any other competent person in the presence of
panchas, and along with the panchanama the site
map also needs to be prepared, and both the
panchanama as well as the plan shall have be attested
not only by the panchas and the person preparing the
same but also by the land owner.
29.1. According to the learned Single Judge, after service of
notice under Section 10(5) if the land owner fails to
surrender the possession of the excess vacant land
voluntarily then the procedure contemplated under Section
10(6) would be attracted. Section 10(6) postulates that the
authorities must go to the land physically and take
physical possession of the land duly putting the owner or
person in possession of the land on notice. The exercise
contemplated under Section 10(6) would have to be done in
a cogent and convincing manner duly putting the parties
on notice. Learned Single Judge thereafter proceeds to deal
with preparation of panchanama. According to the learned
Single Judge, while preparing the panchanama in the
presence of panchas, the site map also needs to be
prepared; both the panchanama as well as the plan would
have to be attested not only by the panchas and the person
preparing the same but also by the land owner.
29.2. We have already extracted the provisions of sub-
sections (5) and (6) of Section 10 of the ULC Act and made
an analysis of the same. Section 10(5) contemplates service
of notice calling upon the person in possession of the
excess vacant land to surrender or deliver possession
thereof to the State Government within thirty days of
service of notice. If he fails to do so then under sub-section
(6) of Section 10, the competent authority may take over
possession of the excess vacant land for which purpose
such force as may be necessary may be used. Though
issuance and service of notice on the person in possession
of the excess vacant land under sub-section (5) of
Section10 is mandatory as held by the Supreme Court in
Hari Ram (supra) however, sub-section (6) of Section 10
nowhere says that after the period of thirty days of service
of notice under Section 10(5), another order has to be
passed or another notice has to be given. Question of once
again putting the parties on notice at the stage of sub-
section (6) of Section 10 is not statutorily provided.
Therefore, learned Single Judge fell in error in taking the
view that at the stage of Section 10(6), the owner or person
in possession of the excess vacant land has to be again put
on notice. There is no such legal requirement.
29.3. Insofar preparation of panchanama is concerned, the
same is not statutorily provided either in the ULC Act or in
the ULC Rules. Therefore, we fail to understand as to how
learned Single Judge came to the conclusion that while
preparing the panchanama the site map also needs to be
prepared and both would have to be attested not only by
the panchas and the person preparing the same but also
by the land owner. We are afraid learned Single Judge fell
in complete error in coming to the aforesaid conclusion as
there is no such statutory prescription. The panchanama
comes into the picture at the stage of Section 10(6) when
the owner or person in possession of the excess vacant
land fails to comply with the notice under Section 10(5).
Therefore, to expect such a person to put his signature on
the panchanama is wholly unrealistic.
29.4. In fact, in Sita Ram Bhandar Society, New Delhi (supra)
Supreme Court in the context of the Land Acquisition Act,
1894, after referring to previous judgments held that one of
the accepted modes of taking over possession of the
acquired land is recording of a memorandum or
panchanama by the land acquisition officer in the presence
of witnesses signed by them and that would constitute
taking possession of the land. It is difficult to take physical
possession of the land under compulsory acquisition. The
normal mode of taking possession is drafting the
panchanama in the presence of panchas, taking possession
and giving delivery to the beneficiaries which is the
accepted mode of taking possession of the land. While
taking possession of a large area of land, a pragmatic and
realistic approach has to be taken. One of the methods of
taking possession and handing it over to the beneficiary
department is the recording of a panchanama which can in
itself constitute evidence of the fact that possession had
been taken and that the land had vested absolutely in the
government.
29.5. This position has been reiterated by the Supreme
Court in Omprakash Verma (supra). This was a case under
the ULC Act. In the facts of that case, Supreme Court
reiterated that it is settled law that where possession is to
be taken of a large tract of land then it is permissible to
take possession by a properly executed panchanama.
30. Proceeding further, we find that in paragraph 30 of
the judgment and order, learned Single Judge once again
reiterated that after expiry of the period of thirty days as
contemplated under sub-section (5) of Section 10, if
voluntary possession of excess vacant land is not handed
over then the authorities are obligated to issue notice
under Section 10(6) to the land owner and then take
possession. Having held so, learned Single Judge
proceeded to frame the question as to whether notifications
issued under Section 10(5) and 10(6) by the authorities
and the panchanama would stand to legal scrutiny.
30.1. As already discussed above, there is no statutory
requirement under sub-section (6) of Section 10 to once
again put the defaulting owner or the person in possession
on notice. After the thirty days period following service of
notice under Section 10(5) of the ULC Act is over, it is open
to the authority to take over possession of the excess
vacant land forcibly, if necessary even by using force.
Therefore, the very basis of the learned Single Judge
framing the above question does not stand to legal
scrutiny, the same being contrary to the legal requirement
which has vitiated the impugned judgment and order.
31. In paragraph 31 of the judgment under appeal,
learned Single Judge has mentioned that the notice issued
under Section 10(6) of the ULC Act has two dates in it i.e.,
05.02.2008 and 08.02.2008. As already mentioned above,
there is no legal requirement for passing any order or
issuing further notice under Section 10(6) of the ULC Act.
Therefore, the order dated 05.02.2008 at page 234 of the
paper book (W.A.No.670 of 2022) is really not material; in
fact the same is of no legal consequence. Though below the
date 05.02.2008, '08' is written, who has written it is not
known. There is also no initial by the side of the figure '08'.
But one thing is certain; there is no date '08.02.2008',
therebeing only one date i.e., 05.02.2008. However, what is
evident therefrom is that notice under Section 10(5) is
dated 05.01.2008. If we contrast this notice at page 234 of
the paper book with the order (notice) dated 05.02.2008 at
page 334 of the paper book (W.A.No.670 of 2022), there is
no figure '08' below 05.02.2008. This is a signed order of
the special officer and competent authority which is
missing at page 234. Besides, this document is attested by
the Special Tahsildar, Urban Land Ceiling (Wing), Medchal
Malkajgiri District. Be that as it may, there is one date
which has remained unexplained. As a matter of fact, Mr.
Raju Ramachandran, learned Senior Counsel for the
appellants frankly told the Court that it is inexplicable as
to how the date '01.10.2008' appears in the last paragraph
of the order (notice) dated 05.02.2008. Appearance of this
date cannot be explained. The last paragraph of the order
(notice) dated 05.02.2008 says that thirty days time given
in the notice under Section 10(5) expired on '01.10.2008'.
As seen from the aforesaid order (notice) itself, notice under
Section 10(5) is dated 05.01.2008. As such, there is no
question of expiry of thirty days period on '01.10.2008'. In
any case, the order or notice dated 05.02.2008 does not
have any legal sanction or even necessity as Section 10(6)
does not require issuance of a fresh order or a notice before
taking forcible possession. Therefore, either the order dated
05.02.2008 can be ignored or if taken at its face value, it
does not convey an irregularity or illegality of a magnitude
which may render taking over of forcible possession invalid.
32. Again, in paragraph 32 of the judgment, learned
Single Judge recorded as under:
32. Even if the contention of the official respondents
that the 10 (5) notice dated 05.01.2008 is sent
through registered post is taken to be true, it will take
minimum two or three days time for the said notice to
reach the office of the petitioner. As per the
requirement of ULC Act, the time period of thirty days
is prescribed for issuance of 10 (6) notice after
issuance of 10 (5) notice. If that be so, the 10 (6)
notice should be dated 08.02.2008. But a perusal of
the 10 (6) notice shows that two dates are written on
the said notice i.e. the dates of 05.02.2008 and
08.02.2008, which clearly shows that the date 10 (6)
notice has been prepared even before the expiry of 30
days. xxx xxx xxx
32.1. It is not the contention of the appellants that they
had sent the notice issued under Section 10(5) dated
05.01.2008 to the respondent through registered post.
Therefore, it is not known from where and how learned
Single Judge proceeded on the basis that the notice under
Section 10(5) was sent through registered post and then
observing that even if contention of the appellants that the
said notice was sent through registered post is taken to be
true, it would take minimum two to three days time to
reach the office of the respondent; presuming that the
notice reached the respondent through registered post on
08.01.2008, the thirty days period would be over only on
08.02.2008 and therefore, the Section 10(6) notice should
be dated 08.02.2008. We are afraid, such conclusions of
the learned Single Judge is based entirely on surmises and
conjectures without any supporting material. Insofar the
two alleged dates i.e. 05.02.2008 and 08.02.2008
appearing in Section 10(6) notice are concerned, the same
has already been discussed above. In fact, there are no two
dates. Below the date 05.02.2008, only '08' is scribbled in
one version of the document presented by the respondent
(page 234 of the paper book (W.A.No.670 of 2022)). On the
other hand, even that '08' is not there at page 334 of the
paper book (W.A.No.670 of 2022) which is a signed copy of
the order (notice) dated 05.02.2008 also attested by the
Special Tahsildar.
32.2. Shockingly, learned Single Judge thereafter records
as under:
33. The above extracted portion of the 10 (6) notice
clearly reveals that the notices are back-dated for the
purpose of preparing the said notice and
panchanama. It is beyond comprehension and not
understandable as to how the date of 01.10.2008 can
be mentioned while calculating the expiry date of
thirty days from either 05.01.2008 or 08.01.2008, as
the case may be. Evidently the person who was
preparing the 10 (6) notice did so after the Repeal Act
was enacted and adopted by the then Government of
Andhra Pradesh.
32.3. We fail to understand as to how learned Single Judge
could come to such a conclusion that all the notices are
backdated and that the person who had prepared the
Section 10(6) notice did so after the Repeal Act was
enacted. In our considered opinion, there was no material
at all to justify such a sweeping conclusion reached by the
learned Single Judge.
33. That apart, learned Single Judge in paragraph 34 of the
judgment under appeal held that Section 10(5) notice was
not served on the petitioner but was affixed on the gate of
the factory only on 08.01.2008, further holding that there
was no signature on the said notice as to who had received
the same except scribbling of a name. Here also it is the
case of the appellants that notice under Section 10(5) dated
05.01.2008 was affixed on the outer door of the factory
premises on 08.01.2008. When the notice is affixed, there
is no question of anyone receiving the same. As we have
already discussed above, the ULC Act as well as the ULC
Rules are silent as regards service of notice under Section
10(5) of the ULC Act. Therefore, no fault can be found with
the service of notice by way of affixture which is an
accepted mode of service of notice. Proceeding further,
learned Single Judge then came to the conclusion that the
notice under Section 10(6) and panchanama dated
08.02.2008 have to be taken as bogus and fabricated. We
are afraid, such a conclusion of the learned Single Judge
cannot at all be justified. It is based on a complete
misreading of the provisions of the ULC Act and the ULC
Rules as well as on surmises and conjectures.
34. Though Mr. Ramesh, learned counsel for the
respondent had pointed out certain discrepancies in the
record like multiple paginations, use of different inks etc,
we are of the view that on the basis thereof, no conclusion
can be reached that the notice dated 05.01.2008 and the
panchanama dated 08.02.2008 are bogus and fabricated.
35. This brings us as to how learned Single Judge dealt
with the panchanama dated 08.02.2008. Learned Single
Judge held as under:
34. xxx xxx xxx xxx xxx The panchanama
dated 08.02.2008, on which the independent
witnesses are stated to have affixed their signatures,
relied by the official respondents to substantiate that
the officials went to the site and taken physical
possession, do not contain either the addresses of the
panchas or their description and do not instill any
confidence in the Court that they are genuine. The
official respondents did not even bother to file
affidavits of the so-called panchas to show that they
were present at the site and the panchanama was
prepared in their presence. Admittedly, there is no
signature of the land owner on the alleged
panchanama dated 08.02.2008 or the site map
annexed thereto. Even the description of the panchas
or their addresses or even their temporary addresses
are not shown therein. In the absence of the
signatures of the land owner on the panchanama, the
panchanama and the site map will have to be
considered as having been prepared behind the back
of the petitioner and in the office of the authorities.
The documents filed by the petitioner establish
beyond any doubt that the factory is still running,
number of apartments are constructed in part of the
land and that the physical possession has not been
taken over by the Government, as contended, but the
same is still with the petitioner Company. No affidavit
of any of the panchas has been filed to show that the
authorities have physically gone to the subject land
and taken over the possession in the presence of the
owner. The entire exercise of affixing signatures and
taking over the possession of the land appears to have
been done sitting in the office of the authorities and
only on paper.
35.1. According to the learned Single Judge, the
panchanama does not contain the addresses of the
panchas or their description. Affidavits of the panchas were
not filed, describing the panchas as so called panchas.
Further, according to the learned Single Judge, there was
no signature of the land owner in the panchanama.
Therefore, such a panchanama would have to be
considered having been prepared behind the back of the
respondent and in the office of the authorities.
35.2. We have already held that neither the ULC Act nor
the ULC Rules provide for the procedure for service of
notice under Section 10(5) of the ULC Act. However, as
discussed above, it is judicially recognised that taking over
of possession of large tracts of land by way of panchanama
is an acceptable mode. There is no requirement under the
statute for obtaining the signature of the land owner in the
panchanama or filing of affidavits by the panchas. Such
finding of the learned Single Judge in our considered
opinion is not based on any materials on record.
36. Having said so, we may examine the panchanama
which is at pages 89 to 91 of the paper book (W.A.No.670
of 2022). While page 89 is the Telugu and original version
of the panchanama, the translation copy thereof is at page
90 and page 91 contains the site plan. A reading of the
panchanama would go to show that the same was prepared
by the Deputy Tahsildar and Enquiry Officer in presence of
three panchas viz., 1) Ramayya, 2) Viswanadham and
3) Jagdish, whose addresses were mentioned in the
panchanama. Two persons by name Venkateshwar Rao
and Mallayya stood as witnesses. As per the panchanama,
notice under Section 10(5) dated 05.01.2008 was served
upon the land owner. When possession was not handed
over to the Government even after expiry of the time limit,
order was passed by the competent authority on
05.02.2008 directing the Deputy Tahsildar and Enquiry
Officer to take over possession. Pursuant to such order, the
Enquiry Officer had taken over possession of the land to
the extent of 46,538.43 square meters on 08.02.2008 after
identification and fixation of boundary by the surveyor in
presence of the panchas, who certified that the
panchanama was prepared in their presence.
37. As already discussed above, there was no requirement
of passing an order or issuing further notice under Section
10(6) of the ULC Act. Therefore, the order or notice dated
05.02.2008 is of no legal consequence. But the fact
remains that according to the version of the appellants,
Section 10(5) notice is dated 05.01.2008 which was affixed
at a conspicuous place of the premises on 08.01.2008,
whereafter possession was taken over on 08.02.2008 as per
the panchanama dated 08.02.2008. Therefore, there was
no breach of the thirty days period. To our mind, learned
Single Judge committed a manifest error in declaring the
notice under Section 10(5) as well as the panchanama as
void ab initio and non est in the eye of law. If the
correctness or genuineness of the same were disputed by
the respondent, then it would be a case of disputed and
contentious facts. A proceeding under Article 226 of the
Constitution of India is not the proper forum to adjudicate
such disputed and contentious facts. As pointed out by the
Supreme Court in Bhaskar Jyoti Sarma (supra), such
seriously disputed questions of fact would not be amenable
to a satisfactory determination by the High Court in
exercise of its writ jurisdiction.
38. That being the position, we have no hesitation in our
mind that learned Single Judge had erred on facts as well
as in law in declaring the notice dated 05.01.2008 under
Section 10(5) of the ULC Act as well as the panchanama
dated 08.02.2008 being void ab initio and non est in the eye
of law and thereafter in setting aside the panchanama.
39. Consequently, we set aside the judgment and order
dated 03.01.2002 and dismiss writ petition Nos.11293 of
2009 and 23477 of 2010.
40. Resultantly, the two writ appeals are allowed.
However, there shall be no order as to costs.
Miscellaneous petitions, pending if any, shall stand
closed.
______________________________________
UJJAL BHUYAN, CJ
______________________________________
C.V.BHASKAR REDDY, J
14.02.2023
Note: LR copy be marked.
(By order)
Pln
