The State Rep. By The Principal ... vs Maturi Swaroopa Rani W/O. M. Lama Reddy,
2024 Latest Caselaw 3953 Tel

Telangana High Court

The State Rep. By The Principal ... vs Maturi Swaroopa Rani W/O. M. Lama Reddy, on 26 September, 2024

        THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
                                   AND
          THE HON'BLE SRI JUSTICE J.SREENIVAS RAO


W.A.Nos.1099, 1100, 1101, 1121, 1142, 1150, 1151, 1169, 1170,
 1207, 1222, 1231, 1237, 1238, 1246, 1265, 1708, 1709, 1715,
 1719, 1741, 1743, 1747, 1748, 1754, 1755, 1756, 1757, 1758,
 1761, 1764, 1765, 1767, 1768, 1785, 1786, 1797, 1798, 1799,
 1801, 1802, 1804, 1805, 1806, 1849, 1857, 1873, 1938, 1989,
      2002 of 2017; 72, 326, 338 of 2018; 581 of 2020; and
          W.P.Nos.30470 of 2012; 4257 and 5977 of 2014



COMMON JUDGMENT:

(Per the Hon'ble the Chief Justice Alok Aradhe)

Mr. D.V.Chalapathi Rao, learned Government Pleader

for Assignment for the appellants.

Mr. V.R.Avula, learned Senior Counsel for the

petitioners in W.P.Nos.30470 of 2012; 4257 and 5977 of

2014 and for the unofficial respondents in W.A.Nos.1099,

1100, 1101, 1121, 1142, 1150, 1151, 1169, 1170, 1207,

1222, 1231, 1237, 1238, 1246, 1708, 1709, 1715, 1719,

1743, 1747, 1754, 1755, 1756, 1757, 1758, 1761, 1764,

1765, 1767, 1768, 1785, 1786, 1797, 1798, 1799, 1801,

1802, 1804, 1806, 1849, 1857, 1873, 1938, 1989 and

2002 of 2017; 72, 326, 338 of 2018; and 581 of 2020.

Mr. S.Ravi, learned Senior Counsel representing

Mr. V.Naveen Kumar, learned counsel for the respondent

No.1 in W.A.Nos.1222, 1237 and 1748 of 2017.

Mr. V.Narasimha Goud, learned Standing Counsel for

the Hyderabad Metropolitan Development Authority

(HMDA).

Ms. T.Kanya Kumari, learned counsel representing

Mr. M.Dhananjay Reddy, learned Standing Counsel for

Greater Hyderabad Municipal Corporation (GHMC).

2. The bunch of intra court appeals emanate from the

common order dated 29.12.2016 passed in W.P.No.18316

of 2008 and batch by the learned Single Judge. The writ

petitions, namely W.P.Nos.30470 of 2012 and 4257 and

5977 of 2014, have been filed challenging the final

statement dated 30.08.1995 issued under Section 9 of the

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

competent authority as well as G.O.Ms.No.985, dated

02.08.2008. The issue in the bunch of intra court appeals

and the writ petitions being similar, the appeals as well as

the writ petitions were heard together and are being

decided by this common judgment.

(I) FACTS:

3. Facts giving rise to filing of these appeals briefly

stated are that one Mr. Abdul Rahman and Mr. Shaik

Ibrahim were owners of land measuring Acs.92.21 guntas

in survey Nos.148 to 155 of Hydernagar Village, Balanagar

Mandal (the then Rajendranagar Taluq), Ranga Reddy

District (hereinafter referred to as 'the subject land'). The

said land was purchased vide registered sale deed dated

10.11.1964 by K.Seetharam Reddy, K.Yellaiah, S.Govind

Reddy, G.Shankar Reddy, Abdul Aziz and Mohammed

Ismail (hereinafter referred to as 'the owners'). One of the

purchasers, namely Mohd. Abdul Aziz filed a declaration on

12.08.1976 under Section 6(1) of the Urban Land (Ceiling

and Regulation) Act, 1976 (hereinafter referred to as 'the

Act'). During the pendency of the proceeding before the

competent authority under the Act, it appears that the

owners made an application on 05.04.1979 before the

competent authority under the Act. Thereupon, a

Certificate dated 13.08.1979 was issued by the competent

authority that the land measuring Acs.93.24 guntas is

situated outside the municipal limits and within the

peripheral limits of agglomeration and is recorded in the

revenue records as agricultural land and is being presently

used for agricultural purpose. It was further certified by

the competent authority that since the land is an

agricultural land, the provisions of the Act are not

applicable in respect of the land in question.

4. Thereafter, the owners of the subject land vide

registered sale deed dated 20.05.1980 sold the land to the

Gopalanagar Co-operative House Building Society Limited

(hereinafter referred to as 'the Society'). The State

Government issued a master plan vide G.O.Ms.No.319

dated 23.06.1980 by which the subject land was included

within the master plan. After the subject land was sold by

the owners of the Society on 20.05.1980, the competent

authority under the Act issued a notice on 07.10.1980 by

which one of the owners, namely Mr. Mohd. Abdul Aziz

who was required to attend the enquiry on 14.10.1980 for

verification of the statement in Form-I. Thereafter, the

competent authority recorded the statement of one of the

owners, namely Mr. Mohd. Abdul Aziz on 13.10.1987, in

which, he stated that he had purchased the subject land

jointly along with five others and has sold the same to the

Society. The competent authority under the Act issued a

draft statement dated 27.03.1989 under Section 8(1) of the

Act. Notices under Section 8(2) of the Act were issued to

one of the owners, namely Mr. Mohd. Abdul Aziz. The

competent authority on 30.08.1995, prepared a final

statement under Section 9 of the Act was prepared. Being

aggrieved, one of the owners, namely Mr. Mohd. Abdul Aziz

filed an appeal which was dismissed on 04.08.2005.

5. Thereafter, notifications under Section 10(1) and

10(3) of the Act were issued on 02.09.2005 and 11.01.2006

respectively. A notice under Section 10(5) of the Act was

issued on 19.01.2006 to the legal heirs of one of the

owners, namely Mr. Mohd. Abdul Aziz. A panchanama was

prepared on 18.03.2008 by which possession of the land

was allegedly taken. Thereafter, the State Government by

G.O.Ms.No.985, dated 02.08.2008 allotted the land to the

Hyderabad Metropolitan Development Authority (HMDA).

Thereupon, writ petitions were filed in which order dated

30.08.1995 issued by the competent authority under the

Act as well as the order dated 02.08.2008 issued by the

State Government by which the subject land was allotted

to HMDA were challenged. The learned Single Judge by a

common order dated 29.12.2016 quashed the orders dated

30.08.1995 and 02.08.2008 and allowed the writ petitions.

In the aforesaid factual background, these intra court

appeals and writ petitions arise for our consideration.

(II) SUBMISSIONS ON BEHALF OF APPELLANTS:

6. Learned Government Pleader for Assignment has

submitted that the Certificate dated 13.08.1979 issued to

the owners of the subject land was misused by the Society

and the Society was required to seek an exemption under

Section 20 of the Act. It is contended that since the Society

failed to obtain exemption under Section 20 of the Act, the

sale deed dated 20.05.1980 executed in favour of the

Society is void ab initio. It is further submitted that the

Society is not a person interested within the meaning of

Rule 5(2) of the Urban Land (Ceiling and Regulation) Rules,

1976 (hereinafter referred to as, "the Rules"). Therefore, no

notice was required to be issued to it before proceeding

further. It is also submitted that the learned Single Judge

ought to have appreciated that the writ petitions suffer

from delay and laches. It is contended that the learned

Single Judge ought to have appreciated that the members

of the Society, who were allotted plots, had no locus to

question the proceeding under the Act.

7. It is argued that no attempt was made either by the

Society or by its members to implead themselves in the

appeal. Attention of this Court has also been invited to

order dated 14.02.2014 passed in W.P.No.4257 of 2014

wherein it has been held that the question of delay and

laches shall be considered at the time of hearing of the writ

petition. It is contended that the name of the Society has

not been recorded in the revenue records. In support of the

aforesaid submissions, reliance has been placed on the

decisions of the Supreme Court in State of Assam vs.

Bhaskar Jyoti Sarma 1, State of Uttar Pradesh vs.

Adarsh Seva Sahkari Samiti Limited 2, U.A.Basheer vs.

State of Karnataka 3 and State of Uttar Pradesh vs.

Ehsan 4 and a decision of the Andhra Pradesh High Court

in the Chitti Cooperative Buildings Society Limited vs.

Government of Andhra Pradesh 5.

(III) SUBMISSIONS ON BEHALF OF RESPONDENT No.1:

8. Learned Senior Counsel for the respondent No.1 in

W.A.Nos.1222 of 2017, 1237 of 2017 and 1748 of 2017

submitted that on the date of sale to the Society, the

subject land was an agricultural land and a certificate was

issued by the competent authority that the subject land is

an agricultural land and is exempted from the provisions of

the Act. It is contended that Section 20 of the Act applies

after determination of land as a surplus land under the

Act. It is further contended that the fact that the Society

had purchased the land, was well within the knowledge of

the competent authority. It is pointed out that the name of

1 (2015) 5 SCC 321 2 (2016) 12 SCC 493 3 (2021) 5 SCC 313 4 2023 SCC OnLine SC 1331 5 1984 (2) AnWR 216

the society was mutated in the revenue records, and no

notice was issued to the Society in respect of the

proceedings under the Act.

9. Learned Senior Counsel for the unofficial

respondents in the remaining appeals has submitted that

the subject land is an agricultural land and the bar

contained in Section 5(3) of the Act does not apply. It is

further submitted that the sale deed executed in favour of

the Society is valid and Section 6(2) of the Act which is

mandatory in nature was required to be complied with.

However, the competent authority has not complied with

the mandatory provision contained in Section 6(2) of the

Act. It is argued that the notice of proceeding under the Act

ought to have been given to the Society. In support of his

submissions, reliance has been placed on the decisions in

Y.Sri Rama Krishnaiah vs. Special Officer and

Competent Authority, Urban Land Ceiling, Vijayawada 6,

Kothuru Babu Surendra Kumar (died) vs. Special Officer

6 1988 SCC OnLine AP 374

and Competent Authority, ULC, Vijayawada 7, State of

West Bengal vs. Anil Ratan Banerjee 8, State of Uttar

Pradesh vs. Hari Ram 9 and a Division Bench Judgment of

this Court in State of Telangana vs. M.Rajendra Agarwal

(W.A.No.724 of 2017, dated 19.08.2024).

(IV) REJOINDER SUBMISSIONS:

10. Learned Government Pleader for Assignment, by way

of rejoinder has submitted that the certificate issued by the

competent authority under the Act was misused and

merely on the basis of statement of one of the owners of the

subject land, Mr. Mohd. Abdul Aziz, the Society cannot

expect that notice of proceeding under the Act would be

issued to the Society.

(V) PROVISIONS OF THE ACT:

11. We have considered the rival submissions and have

perused the record. At this stage, it is apposite to take note

of relevant provisions of the Act and the Rules made

thereunder. Section 2(o) defines the expression 'urban

7 1999 SCC OnLine AP 813 : 2000 (4) ALD 596 8 2010 SCC OnLine Cal 1195 9 (2013) 4 SCC 280

land', the relevant extract of which is extracted below for

the facility of reference:

"2(o). "urban land" means, --

(i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or

(ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town committee, a cantonment board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture.

12. Section 2(q) defines the expression 'vacant land',

which reads as under:

"2(q) . "vacant land" means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include--

(i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated;

(ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the

appropriate authority and the land appurtenant to such building; and

(iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building:

Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live-stock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then, so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purposes of this clause."

13. Section 3 of the Act mandates that a person is not

entitled to hold the vacant land in excess of the ceiling limit

on and from the commencement of the Act. Section 4

prescribes the ceiling limit. Section 6(1) requires a person

holding vacant land in excess of ceiling limit to file a

statement within such period as may be prescribed.

14. Section 6(2) of the Act, which is relevant for the

purpose of controversy, is extracted below for ready

reference:

"6(2) If the competent authority is of the opinion that-

(a) in any State to which this Act applies in the first instance, any person held on or after the 17th day of February, 1975 and before the commencement of this Act or holds at such commencement; or

(b) in any State which adopts this Act under clause (1) of Article 252 of the Constitution, any person holds at the commencement of this Act, vacant land in excess of the ceiling limit, then, notwithstanding anything contained in sub-section (1), it may serve a notice upon such person requiring him to file, within such period as may be specified in the notice, the statement referred to in sub-section (1)."

15. Thus, from the perusal of Section 6(2) of the Act, it is

evident that if the competent authority is of the opinion

that any person holds any vacant land in excess of the

ceiling limit, it is required to serve a notice on such person.

Section 6(3) empowers the authority to extend the date of

filing of the statement for such further period as it deems

fit, provided that such period of extension shall not exceed

three months.

16. Section 8 of the Act deals with preparation of draft

statement as regards the vacant land in excess of ceiling

limit. The said section further mandates that draft

statement shall be served in such manner as may be

prescribed on the person concerned who may file

objections to the draft statement within a period of thirty

days from the service of draft statement. The competent

authority thereafter, is required to give reasonable

opportunity of hearing to the concerned and pass such

orders as it may deem fit. Section 9 requires the competent

authority to issue a final statement.

17. Section 10 of the Act deals with acquisition of vacant

land in excess of ceiling limit. Sub-sections (1) to (6) of

Section 10 specify the various steps which are to be taken

for acquisition of the vacant land in excess of the ceiling

limit and eventually provide for taking over possession of

such vacant land. Section 20 of the Act deals with power to

exempt. The relevant extract of Section 20 of the Act is

extracted below for the facility of reference:

"20. Power to exempt:--

(1) Notwithstanding anything contained in any of the foregoing provisions of this Chapter--

(a) where any person holds vacant land in excess of the ceiling limit and the State Government is satisfied, either on its own

motion or otherwise, that, having regard to the location of such land, the purpose for which such land is being or is proposed to be used and such other relevant factors as the circumstances of the case may require, it is necessary or expedient in the public interest so to do, that Government may, by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter;

(b) where any person holds vacant land in excess of the ceiling limit and the State Government, either on its own motion or otherwise, is satisfied that the application of the provisions of this Chapter would cause undue hardship to such person, that Government may by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter:

Provided that no order under this clause shall be made unless the reasons for doing so are recorded in writing.

(2) If at any time the State Government is satisfied that any of the conditions subject to which any exemption under clause (a) or clause (b) of sub-

section (1) is granted is not complied with by any person, it shall be competent for the State Government to withdraw, by order, such exemption after giving a reasonable opportunity to such person for making a representation

against the proposed withdrawal and thereupon the provisions of this Chapter shall apply accordingly."

18. In exercise of powers conferred under Section 46(1)

and (2) of the Act, the Rules, namely Urban Land (Ceiling

and Regulation) Rules, 1976, have been framed. The

relevant extract of Rule 5 reads as under:

"5. Particulars to be contained in draft statement as regards vacant lands and manner of service of the same:-- (1) Every draft statement prepared under sub- section (1) of Section 8 shall contain the particulars specified in Form III.

(2) (a) The draft statement shall be served, together with the notice referred to in sub-section (3) of Section 8, on -

(i) the holder of the vacant lands, and

(ii) all other persons, so far as may be known, who have, or are likely to have, any claim to, or interest in the ownership, or possession, or both, of the vacant lands, by sending the same by registered post addressed to the person concerned.

             (i)     in the case of the holder of the vacant
                     lands, to his address as given in the
                     statement    filed in    pursuance    of sub-
                     section (1) of Section 6, and
             (ii)    in the case of other persons at their last
                     known addresses.

(b) Where the draft statement and the notice are returned as refused by the addressee, the same shall be deemed to have been duly served on such person.

(c) Where the effects to serve the draft statement and the notice, on the holder of the vacant lands, as the case may be, any other person referred to in (a), in the manner specified in that clause is not successful for reasons other than the reasons referred to in clause

(b), the draft statement and notice shall be served by affixing copies of the same in a conspicuous place in the office of the competent authority and also upon some conspicuous part of the house (if any) in which holder of the vacant lands or, the case may be, the other person is known to have last resided or carried on business or personally worked for gain.

Draft statement not to be served on all interested persons:- If a person could not be said to be an aggrieved person under Section 33(1) of the Central Act, he would not be entitled to notice under Rule 5 (2) of the Rules the requirement of notice under Rule 5 (2) of the Rules must be tested with reference to the nature of the adverse interest the person has, who is required to be given notice. State differently, if a person has no adverse interest vis-a-vis that of the declarant, he is not entitled to notice.

Person interested:- When a transfer converted by Section 4 (4) (a) of the Central Act is liable to be ignored for purposes of the Act, the Society cannot contend that it is entitled for a notice as required under the Rules as a 'person interested'. The land in question was sought to be transferred after 17-2-1975 under an unregistered ante dated agreement of sale which cannot take shelter

under the decree of the Civil Court in O.S.No.208/1991 as the same is non est in law as per Section 42 of the Central Act. Though a suit for specific performance is maintainable against the declarant, the same has to be ignored for purpose of the Act under Section 4(4) (a) of the Central Act and the land so transferred has to be computed, for arriving at the excess vacant land held by the declarant. Hence the society cannot contend that it is entitled for a notice as required under Rules as a 'person interested'."

19. Relevant extract of Rule 5(2) of the Rules reads as

under:

5. Particulars to be contained in draft statement as regards vacant lands and manner of service of the same: (1) xxx xxx

(2) (a) the draft statement shall be served, together with the notice referred to in sub-section 3) of Section 8, on-

(i) the holder of the vacant lands, and

(ii) all other persons, so far as may be known, who have, or are likely to have, any claim to, or interest in the ownership, or possession, or both, of the vacant lands, by sending the same by registered post addressed to the person concerned,

(i) in the case of the holder of the vacant lands, to his address as given in the statement filed in pursuance of sub-

section (1) of Section 6, and

(ii) in the case of other persons at their last known addresses.

Thus, Rule 5 of the Rules provides that the draft

statement referred to in Section 8(3) of the Act shall be

served on holder of the vacant lands and on all other

persons as far as may be known who have or likely to have

any claim who are interest in ownership, or possession, or

both of the vacant lands by sending the same to them by

registered post.

20. The provisions of the Act have been repealed by the

Urban Land (Ceiling and Regulation) Repeal Act, 1999. The

provisions of the Repeal Act were adopted by the erstwhile

State of Andhra Pradesh w.e.f. 27.03.2008.

(VI) ANALYSIS:

21. In the instant case, one of the owners, namely

Mr. Mohd. Abdul Aziz filed a declaration under Section 6(1)

of the Act. During the pendency of the proceeding, the

owners including the aforesaid Mr. Mohd. Abdul Aziz, had

made an application on 05.04.1979 before the competent

authority under the Act seeking a certificate that the

subject land is agricultural land. Thereupon, the

competent authority issued a certificate on 13.08.1979

stating that the subject land is situate outside the

municipal limits and is within the peripheral limits of

agglomeration. It was further stated that the subject land

is recorded in the revenue record as agricultural land and

is being used for agricultural purposes. The competent

authority certified that the subject land is exempted from

the provisions of the Act under Section 20 of the Act as

long as the land continues to be used for agriculture and

not for any other purpose.

22. The owners of the subject land vide registered sale

deeds dated 20.05.1980 sold the subject land to the

Society. A statement of one of the co-owners, namely

Mr. Mohd. Abdul Aziz was recorded before the competent

authority on 13.10.1987. In his statement, the aforesaid

Mr. Mohd. Abdul Aziz stated that the subject land has been

sold to the Society. Thus, the fact that the sale of the

subject land to the Society was brought to the notice of the

competent authority. However, the competent authority, if

it was of the opinion that the Society or its members held

the vacant land in excess of the ceiling limit within the

urban agglomeration ought to have issued notice either to

the Society or to its members. However, the competent

authority did not issue any notice either to the Society or to

its members. The Supreme Court in T.V.Antony vs. State

of Tamil Nadu 10 has held as under:

"10. In the light of the scheme of the Act as preferred above, even if there is any contravention of section 6, the bonafide purchasers have some protections as per the provisions of Sections 9, 10 and 11 of the Act. In other words, even if there is any contravention of Section 6, a duty is cast on the competent authority to issue notice to all the persons concerned or all the claimants of the persons interested in such excess land and consider the same in accordance with law. No doubt, it is true that in para 5 of the counter affidavit, it is stated that the third respondent has informed the purchaser that the sale having been done in violation of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 will be treated as null and void. The petitioner was not given proper and adequate opportunity to put forth his claim in consideration of competent authority with regard to (a) nature of the lands, (b) construction of an industry in terms of Schedule III of the Act."

10 2019 SCC OnLine SC 1486

Thus, Section 6(2) casts a duty on the competent

authority to issue a notice to the persons who have or may

have a claim or interest or may be in possession of land.

The aforesaid mandatory requirement was not followed in

the instant case.

23. The competent authority after a period of eight and a

half years issued a draft statement on 27.03.1989 and

notice of draft statement was issued to one of the co-

owners, namely Mr. Mohd. Abdul Aziz. It is pertinent to

mention here that in the draft statement, the competent

authority recorded the fact that the land has been sold to

the Society. The relevant extract reads as under:

"The declarant and his co-owners have obtained a Certificate under Section 2(o) of the Act for the entire land of 92.21 Acres vide S.O. & C.A. Lr.No.C/1264/79, dated 13.08.1979 and disposed of in favour of Gokul Cooperative Housing Society Limited in the year 1980-81 for housing purpose. As the Certificate obtained under Section 2(o) of the Act was misused by the declarant the transactions stated to have been done with the said Society is treated as null and void."

24. Thus, the competent authority at the stage of

issuance of draft statement also, was aware that the

subject land has been sold to the Society. However, the

notice of draft statement was not issued either to the

Society or to its members. On 30.08.1995, a final

statement under Section 9 of the Act was issued and

thereafter, the notifications under Section 10(1) and 10(3)

of the Act were issued on 02.09.2005 and 11.01.2006

respectively, which was followed by a notice under Section

10(5) of the Act which was issued on 19.01.2006 to the

legal heirs of one of the owners, namely Mr. Mohd. Abdul

Aziz. A panchanama was prepared on 18.02.2008, by

which possession of the subject land was allegedly taken.

The subject land, vide G.O.Ms.No.985, dated 02.08.2008,

was allotted to the Hyderabad Metropolitan Development

Authority.

25. It is pertinent to note that even though the Society as

well as its members had purchased the subject land much

prior to preparation of draft statement and the factum of

purchase of the subject land by the Society was well within

the knowledge of the competent authority. However, the

competent authority did not follow the mandate of Section

6(2) of the Act and did not serve either the draft statement

under Section 8 or the final statement under Section 9 of

the Act on the Society or its members, who had a

claim/interest in the ownership of the subject land and

were in possession of the subject land by virtue of

allotment of plots to them by the Society. The competent

authority did not also issue any notice of proceeding under

Section 10 of the Act either to the Society or to its

members. Thus, the entire proceeding under the Act

conducted behind the back of the Society and its members

and in flagrant violation of Section 6(2) of the Act as well as

in violation of Rule 5(2) of the Rules. The proceeding under

the Act qua the Society and its members, therefore, does

not have any legal sanctity.

26. We may advert to the issue whether delay and laches

on the part of some of the writ petitioners disentitles them

to any relief in exercise of powers under Article 226 of the

Constitution of India. It is trite law that extraordinary

jurisdiction of this Court under Article 226 of the

Constitution of India is discretionary in nature and

question of delay and laches in all kinds of cases would not

disentitle a party to invoke the jurisdiction under Article

226 of the Constitution of India. It is equally well settled

legal position that test while ascertaining the delay, is not

of physical running of time and when circumstances

justifying the conduct exists, the illegality which is

manifest cannot be sustained on the sole ground of laches

(see M/s.Dehri Rohtas Light Railway Company Limited

vs. District Board, Bhojpur 11). In Tukaram Kana Joshi

vs. Maharashtra Industrial Development Corporation 12,

the Supreme Court dealing with the issue of delay in

approaching the Court under Article 226 of the

Constitution of India has held as under:

"13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the courts to exercise their

11 (1992) 2 SCC 598 12 (2013) 1 SCC 353

powers under Article 226, nor is it that there can never be a case where the courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable. (Vide P.S. Sadasivaswamy v. State of T.N. [(1975) 1 SCC 152 :

1975 SCC (L&S) 22 : AIR 1974 SC 2271] , State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251] and Tridip Kumar Dingal v. State of W.B. [(2009) 1 SCC 768 : (2009) 2 SCC (L&S) 119] )

14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches.

Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-

deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769], Collector (LA) v. Katiji [(1987) 2 SCC 107 : 1989 SCC (Tax) 172 : AIR 1987 SC 1353] , Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [(1992) 2 SCC 598 : AIR 1993 SC 802] , Dayal Singh v. Union of India [(2003) 2 SCC 593 : AIR 2003 SC 1140] and Shankara Coop. Housing Society Ltd. v. M. Prabhakar [(2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56 :

AIR 2011 SC 2161] .)"

The principle laid down in Tukaram Kana Joshi

(supra) has been quoted with approval in Union of India

vs. N.Murugesan 13. Thus, the issue of delay has to be

decided on the basis of facts and circumstances of each

case.

27. In the backdrop of the aforesaid well settled legal

principles, we may advert to the facts of the case in hand.

In these bunch of writ appeals as well as the writ petitions,

common issue with regard to the validity of the proceedings

under the Act as well as the validity of the order of

13 (2022) 2 SCC 25

allotment dated 02.08.2008 made by the State Government

in favour of HMDA is involved. One of the writ petitions,

namely W.P.No.18316 of 2008, and other writ petitions

were filed in 2012, from which the present bunch of

appears emanate were filed in 2008 and 2012 itself. The

aforesaid writ petitions do not suffer from any delay and

laches. As stated supra, since the issue being common in

the writ appeals and the writ petitions and since the same

is being dealt with on merits, in the peculiar facts of the

case, we are not inclined to dismiss the writ petitions, on

the ground of delay and laches.

28. It is also pertinent to note that there is no material on

record to establish whether any identification or any

demarcation of subject land was held as per Section 17 of

the Survey and Boundaries Act, 1923. Similarly, there is

no material on record to suggest that the land jointly

purchased by the owners was subjected to partition.

Therefore, it was not possible to take possession of the land

which fell to the share of one of the owners namely

Mr. Mohd. Abdul Aziz. The learned Single Judge, therefore,

has rightly discarded the panchanama.

29. The competent authority had issued a certificate on

13.08.1979 stating that the subject land is an agricultural

land and, therefore, provisions of the Act do not apply to

the subject land as long as the same is used for

agricultural purposes. Merely because, subsequently, the

subject land was used for non-agricultural purposes, the

sale deed executed in favour of the Society cannot be

termed as ab initio void. The contention that the Society

and its members were not the persons interested within

the meaning of Rule 5(2) of the Rules is also sans

substance. Therefore, the contention that either the Society

or its members had no locus to question the proceeding

under the Act is misconceived.

30. For the aforementioned reasons, we do not find any

ground to differ with the conclusion arrived at by the

learned Single Judge.

In the result, the writ appeals fail and are hereby

dismissed, whereas the writ petitions challenging the final

statement dated 30.08.1995 as well as the G.O.Ms.No.985,

dated 02.08.2008 are allowed.

Miscellaneous applications pending, if any, shall

stand closed. However, there shall be no order as to costs.

______________________________________ ALOK ARADHE, CJ

______________________________________ J.SREENIVAS RAO, J

26.09.2024 Pln