Telangana High Court

T.Anuradha R.R District And 3 Others vs The Commissioner Appeals Hyderabad And ... on 18 March, 2024

     THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
                                  AND
     THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI

                WRIT APPEAL No.1224 OF 2008


JUDGMENT:

(per the Hon'ble Shri Justice Anil Kumar Jukanti)

Mr. C. Hanumantha Rao, learned counsel appears for

the appellants.

Ms. Dr. J. Vijayalaxmi, learned Government Pleader for

Revenue (Assignment) for the respondents.

2. This intra court appeal is filed against the order dated

30.08.2007 passed by the learned Single Judge in

W.P.No.13363 of 2002.

3. Brief facts:

The appellants are legal heirs of writ petitioner

Mr. T. Kishan Singh, who succeeded to agricultural land in

Survey Nos.153 and 154 situated at Kandikal Village to an

extent of 45,520 sq. meters along with other survey numbers.

CJ & JAK, J W.A.No.1224 OF 2008

Father of Mr. T. Kishan Singh was original owner and he filed

a declaration under Section 6(1) of the Urban Land (Ceiling

and Regulation) Act, 1976 (for short, 'the Act, 1976') claiming

that subject land is agricultural land and not urban vacant

land. The respondent No.2 passed final orders under Section

8(4) of Act, 1976. Notice and Notification under Sections

10(1) and 10(3) of the Act, 1976 were issued by the

respondent No.2. Against notice dated 10.07.1998 issued

under Section 10(5) of the Act, 1976 writ petitioner preferred

an appeal before the respondent No.1 contending that subject

land was agricultural land as on the date of coming into force

of the Act, 1976 and the area was included in the master plan

in 1980 and the same cannot be treated as vacant land for

the purpose of the Act, 1976.

3.1. The respondent No.1 by order dated 29.12.2000

rejected holding that, "the lands in Sy.Nos.153 and 154 of

Kandikal are in Municipal limits and are covered by statutory

Master Plan as on the appointed day. The land use of CJ & JAK, J W.A.No.1224 OF 2008

Sy.No.153 is other than Agriculture (Residential) and that of

Sy.No.154 is major part recreational minor part residential and

partly effected by 150' wide ring road". Aggrieved by the

order, writ petitioner filed W.P.No.13363 of 2002. The

learned Single Judge by applying the law as declared by Apex

Court in State of A.P. v. Audikesava Reddy 1, dismissed the

writ petition vide order dated 30.08.2007. The said order is

impugned in this appeal.

4. It is submitted by learned counsel appearing on behalf

of the appellants that appellants are legal heirs of writ

petitioner and that father of writ petitioner was protected

tenant in respect of Survey Nos.153 and 154 and that land in

Survey No.154 and lands in other survey numbers of

Kandikal village admeasuring to an extent of Acs.34.08

guntas were acquired for establishment of Defence Research

& Development Laboratory (DRDL) by Government of India.

Pursuant to acquisition, DRDL was set up. It is submitted

that notices were issued under Section 7(1) of the

(2002) 1 SCC 227 CJ & JAK, J W.A.No.1224 OF 2008

Requisitioning and Acquisition of Immovable Property Act,

1952 (for short, 'the RAIP Act') and due to delay in finalizing

the proceedings, land owners filed writ petitions, and the

notifications were quashed leaving it open to the Government

for issuance of fresh notices. It is further submitted that writ

appeals were filed by Government which were dismissed and

the matter was carried to Apex Court and Apex Court vide

order dated 14.01.1997 dismissed S.L.P.Nos.1196 to 1198 of

1997 and Review Petitions were also dismissed on

21.08.1997.

4.1. It is submitted that the writ petitioner had filed a

declaration under Section 6(1) of the Act, 1976 claiming that

subject land is agricultural land and the same is not vacant

land for the purposes of Act, 1976 and the respondent No.2

had passed final orders under Section 8 (4) of the Act, 1976.

It is submitted that pursuant to the said final orders, notice

and notification under Sections 10(1) and 10(3) of the Act,

1976 were issued and also a notice under Section 10(5) of the CJ & JAK, J W.A.No.1224 OF 2008

Act, 1976 was issued on 10.07.1998. It is further submitted

that writ petitioner preferred an appeal vide ULC Appeal

No.128/1998 before the respondent No.1 and that by order

dated 29.12.2000 appellate authority passed orders.

4.2. It is submitted that challenging the order dated

26.12.2000, writ petition was filed and the learned Single

Judge has passed the order without appreciating facts on

record. It is further submitted that the learned Single Judge

erred in coming to a conclusion and in not considering the

fact that as on the date of commencement of Act, 1976 the

land held was not vacant land for the purposes of the Act,

1976 and the same could not have been included in the

master plan by unilateral act of authorities.

4.3. It is submitted that Government issued G.O.Ms.No.153

dated 05.02.1991 granting exemption to lands from

provisions of Act, 1976 except land in Survey No.154 and that

lands in Survey No.153 and 154 of Kandikal village were

having fruit bearing trees and in the proceedings of the CJ & JAK, J W.A.No.1224 OF 2008

authorities, it was shown that the land was having fruit

bearing trees. That land in Survey No.154 is to be treated as

agricultural land but not as vacant under the Act, 1976.

4.4. It is submitted by the learned counsel for the appellants

that the appellants are entitled for compensation for the

deprivation of acquired land and that they are entitled for

higher compensation as exemption has been granted under

Act, 1976. It is further submitted that mere vesting of land

would not confer a right on the State to have a de facto

possession and that if there is any delay in a notice issued

under the Act, 1976 and issuance of possession certificate

needs to be explained. It is also submitted that when a

certain power vested with an authority to be exercised in a

particular manner, the same cannot be exercised contrarily. It

is contended that State being a virtuous litigant cannot put

forth false, frivolous, vexatious contentions. It is further

contended that if the land acquired remains in possession of

the owner and if the State has not attempted to take over the CJ & JAK, J W.A.No.1224 OF 2008

land, the same would stand abated and it is also contended

that if an Act, 1976 is repealed and if the State Government

does not take over the land under the old Act, the

proceedings stand abated. It is submitted that the

authorities have not acted in accordance with law and for the

said above propositions, reliance has been placed on the

following judgments:

1. T.R. Thandur v. Union of India and Others 2.

2. Govt. of A.P. v. H.E.H., The Nizam, Hyderabad 3

3. State of Uttar Pradesh v. Hari Ram 4

4. Mangalsen v. State of Uttar Pradesh and

Another 5

5. Commissioner of Income Tax, Mumbai vs. Anjum

M.H. Ghaswala and Others 6

6. Urban Improvement Trust, Bikaner v. Mohan Lal 7

(1996) 3 SCC 690

(1996) 3 SCC 282

(2013) 4 SCC 280

(2014) 15 SCC 332

(2002) 1 SCC 633

(2010) 1 SCC 512 CJ & JAK, J W.A.No.1224 OF 2008

7. Vinayak Kashinath Shilkar v. Deputy Collector

and Competent Authority and Others 8

8. Smt. Angoori Devi v. State of U.P. & Ors. 9

5. It is submitted by learned counsel appearing on behalf

of respondent - State that originally subject lands were inam

lands and Occupancy Rights Certificate were issued in favour

of writ petitioner vide ORC.No.E/7933/80, dated 16.01.1990

to an extent of Acs.11.29 guntas of Kandikal village, Ac.1.35

guntas in Survey No.153 and Acs.9.35 guntas in Survey

No.154. It is submitted that Town Survey Land Record was

implemented in Hyderabad and subject land is correlated to

TS.No.1, Block B, Ward No.276 admeasuring 48.552 sq.

meters. It is further submitted that provisional orders were

issued under Sections 8(1) and 8(3) on 27.05.1996

determining an extent of 45,528.60 sq. meters as excess land

and the same was served on the declarant on 13.08.1996

under acknowledgment and objections were called and that

(2012) 4 SCC 718

JT 2000 (Supp.1) SC 295 CJ & JAK, J W.A.No.1224 OF 2008

no objections were received and final orders under Section

8 (4) and 9 were passed and served on declarants through

Registered Post with Acknowledgment Due on 02.11.1996. It

is also submitted that further steps were initiated up to

Section 10(6) of the Act, 1976 and possession of surplus land

was taken over on 09.09.1999 and handed to Mandal

Revenue Officer by conducting panchanama.

5.1. It is submitted that aggrieved by notice issued under

Section 10(5) of the Act, 1976 dated 10.07.1998, an appeal

was preferred vide appeal No.Hyd/128/98.

5.2. It is submitted that pursuant to orders of appellate

authority, the Special Officer and Competent Authority (SO

& CA) issued revise notification under Section 10(1) of the

Act, 1976 dated 05.07.1999 and declaration under Section

10(3) of the Act, 1976 for surplus land admeasuring an extent

of 19,783.60 sq.mts., dated 31.08.2001 was issued. It is

further submitted that notice under Section 10(5) of the Act,

1976 was issued by SO & CA on 15.05.2002 and served on CJ & JAK, J W.A.No.1224 OF 2008

mother of declarant on 14.06.2002, with a direction to

surrender the surplus land to an extent of 19,783.60 sq.mts.

It is also submitted that SO & CA issued proceedings under

Section 10(6) of the Act, 1976 on 11.02.2008 authorizing the

enquiry officer to take possession of surplus land and the

enquiry officer took the possession of surplus land

on 07.03.2008, the same was handed over to the Tahsildar,

Bandlaguda Mandal on 02.06.2008 after conducting

panchanama.

5.3. The learned counsel for official respondents has

supported the order of the learned Single Judge and

submitted that the learned Single Judge has rightly

dismissed the writ petition filed by applying the law declared

in Audikesava Reddy (1 supra). Hence, no interference is

necessitated.

6. Heard learned counsels, perused the record and

considered the rival submissions.

CJ & JAK, J W.A.No.1224 OF 2008

7. We may refer to the relevant facts. The lands in

Sy.Nos.20, 57, 58, 33, 41/2/1, 56/1, 68 of Kanchanbagh

Village and Survey No.154 of Kandikal Village were

requisitioned by Government of India between March and

November, 1978. The possession of the same was taken on

various dates from the years 1978 to 1982 under the RAIP

Act. The issue which arises for consideration is whether

lands in Survey Nos.153 and 154 of Kandikal Village are

outside the purview of the Act, 1976 or not and whether the

same are covered under master plan or not. It is not disputed

that notices were issued to the appellants and the same were

challenged by way of writ petitions and the matter travelled

upto the Supreme Court and in review petitions, the Supreme

Court granted time to complete the acquisition by

20.11.1997. Thereafter, fresh proceedings were initiated and

were concluded. The appellants are seeking compensation

on ground that exemption has been granted vide

G.O.Ms.No.153, dated 05.02.1991 from provisions of chapter

III of the Act, 1976.

CJ & JAK, J W.A.No.1224 OF 2008

8. It is evident from the order of the appellate authority

that G.O.Ms.No.153 dated 12.02.1991 is not applicable and

the contention that the same is applicable to the subject

lands is devoid of merits, as the appellate authority held as

follows:

"The lands in Sy.Nos.153 and 154 of Kandikal are in Municipal limits and are covered by statutory Master Plan as on the appointed day. The land use of Sy.No.153 is other than Agriculture (Residential) and that of Sy.No.154 is major part recreational minor part residential and partly effected by 150' wide ring road."

9. Hence, the Appellate Authority has modified the orders

of the SO & CA under Section 8 (4) and 9 while deleting the

extent of 25,745.00 sq. mts., from the computation of the

vacant land held on the appointed date from the total excess

land arrived earlier. Finally, Appellate authority decided that

the petitioner is holding excess vacant land of 19,783.63 sq.

mts., in respect of Sy.Nos.153 and 154 of Kandikal Village.

CJ & JAK, J W.A.No.1224 OF 2008

10. The appellate authority in its order further held as follows:

"As for the plea that exemption was granted in G.O.Ms.No.153, dt.12.02.1991 exempting the lands in Sy.Nos.20, 57 and 58 of Kanchanbagh among other lands from the provisions of chapter III of the Act, to enable acquisition, I am of the considered view that the G.O. has no relevance at all for the simple reason that the excess of otherwise has to be determined by the authorities under the Act as on 17.02.1976 (the date of commencement of the Act) and on this date there were no acquisition proceedings whatsoever and the declarants continued to be owners of the lands. This plea is accordingly rejected.

... ...

In this appeal, the determination of excess land of 45,528.60 sq.mts., in Sy.Nos.153 part and 154 of Kandikal (V) in CC Nos.13598/96 and 13599/76 is assailed. Out of these Sy.Nos. only Sy.No.154 is covered by the directions of Hon'ble High Court dated 23.07.1999.

The lands in Sy.No.153 and 154 of Kandikal are in Municipal limits and are covered by Statutory Master Plan as on the appointed day. The land use of Sy.No.153 is other than Agriculture (Residential) and that of No.154 is major part recreational minor part residential and partly effected by 150' wide ring road. As in the case of certain Sy.Nos., covered in the Appeal No. Hyd./110/96, in this CJ & JAK, J W.A.No.1224 OF 2008

case too, the extent falling under each category of land use in respect of Sy.No.154 is not shown in the land use certificate issued by the H.U.D.A. Therefore, the respondent SO was asked to furnish details of extents falling under each land use category with reference to the records of Master Plan. They are accordingly furnished which are as under:

   Sy.No.        Total Extent          Land Use            Extent
     154         Ac.10-14 gts.         Residential        16,140
                   = 41,885            150'   wide        Sq.Mts.
                    Sq.Mts.            road               2,200
                                       Recreation         Sq.Mts.
                                                          23,545
                                                          Sq.Mts.
                                       Total:             41,885
                                                          Sq.Mts.

As per Section 2(q) (i) of the Act, "Vacant land" does not include land on which construction of building is not permissible. In view of these provisions, the extents of 2,200 sq.mts., (covered by land use of 150' road) and vacant land. But, the S.O. treated the entire land of Sy.No.10.14 as vacant land and arrived at the excess extent which is not correct. I, therefore, order to delete the said extents totaling to 25,745 sq.mts., from computation of vacant land held on the appointed day. In the result, the excess extent of 45,528.60 sq.mts., determined by the S.O., get reduced to (45,528-60 sq.mts., Minus 25,745 sq.mts.,) 19,783.60 sq.mts. The orders of the respondent Special Officer and Competent Authority, ULC, Hyderabad CJ & JAK, J W.A.No.1224 OF 2008

u/s. 8(4) & 9 of the Act and all subsequent proceedings stands modified to the extent accordingly. Thus, the appeal No.128/98 is partly allowed."

11. The fact that only Survey No.154 is covered by

directions issued by High Court in W.P.Nos.1077 of 1988 and

batch, on 23.07.1999 is not disputed. This Court cannot lose

sight of the finding recorded by the appellate authority in its

order, that land use in Survey No.153 is other than

Agriculture (Residential) and that land in Survey No.154 of

which major part is recreational, minor part residential and

partly effected by 150 wide ring road. Reliance placed on

various judgments is misconceived, as the same are not

applicable to the facts and circumstances of the case.

12. We have perused the entire record. We are of the