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