Dismissed

The State of Ap v. Sanapala Lakshmi Narasimham

Andhra Pradesh HC22 Feb 2024WA/234/2023

Case brief

AI extract

What is this about?

Writ appeal against deletion of surplus urban ceiling land from the prohibitory list. The court held that the State's own records showed possession was never taken under Section 10(6), so under Section 3 of the Repeal Act the land remained vested in the respondent. Appeal dismissed; single judge's order affirmed.

What the court decided

AI extract

The State of Ap Vs Sanapala Lakshmi Narasimham — Land Acquisition | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI HON‟BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE

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HON‟BLE MR. JUSTICE R. RAGHUNANDAN RAO

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WRIT APPEAL No.234 of 2023

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Between: The State of Andhra Pradesh, Revenue Department, Secretariat, Velagapudi, Guntur District & 3 others.

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…Appellants

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Versus

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Sanapala Lakshmi Narasimham, S/o.Late Suryanarayana, R/o.D.No.39-16-38, Madhavadhara, Visakhapatnam.

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			…Respo	ndent
Counsel for the Appellants	:Sri B. learned attached learned General.	Sesi Govern to the Additio	Bhusha ment office nal A	n Rao, Pleader of the dvocate
Counsel for respondent	: Sri O. M Senior Co	anoher unsel.	Reddy,	learned

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JUDGMENT

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Dt:. 23.02.2024

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(per Hon‟ble Sri Justice R.Raghunandan Rao)

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Heard Sri B. Seshi Bhushan Rao, the learned

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Government Pleader attached to the office of the learned Additional Advocate General appearing for the appellants, and Sri O. Manoher Reddy, learned Senior Counsel appearing for the respondent.

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The father of the respondent, who was owning land in Sy.No.41 of Madhavadhara Village, Gopalapatnam Mandal, Visakhapatnam District, had filed a declaration, under the Urban Land (Ceiling and Regulation) Act, 1976 ( for short „the Regulation Act‟), setting out the extent of land in his land holding. After due enquiry, the father of the respondent was held to be holding excess land, including the vacant land of 894 Sq. meters in Sy.No.41/1B of Madhavadhara Village, Gopalapatnam Mandal. There is a controversy as to whether the land is vacant or is occupied by a dwelling unit. This issue need not detain this court, as this issue would not be relevant for deciding the lis.

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After the demise of his father, the respondent claimed ownership over the land. At a later point of time, the respondent having come to know that the aforesaid 894 sq. meters of land had been included in the prohibitory list, maintained under Section 22-A of the Registration Act, had made a representation, dated 21.10.2021, to the 3^rd appellant herein, for deletion of the said land

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from the prohibitory list. As the said land was not being deleted from the prohibitory list, the respondent approached this Court, by way of W.P.No.8198 of 2022 for a direction to the 3^rd appellant herein to delete the lands from the prohibited list.

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The appellants had filed counter affidavits in which it was contended that the land in question was declared as surplus land and the possession of the land was taken over on 28.12.2007, under Section 10(6) of the Urban Land Ceiling Act, and consequently the land had vested in the Government. The appellants contended that on account of the possession being taken, the said land became Government land and the question of deleting the land from the prohibitory list does not arise.

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On the other hand, the respondent took the plea that the Urban Land Ceiling Regulation Act had been repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short „the Repeal Act‟). It is further submitted that Section 3 of the Repeal Act stipulated that any land found to be surplus land would continue to remain vested in the owner of the land unless possession of the land, under Section 10(6) of the Urban land Ceiling Act, had been taken over by the State. The respondent contended that no steps had been taken at any stage for taking over the land of the respondent and consequently the respondent, who remained in continuous

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possession of the land, would continue to be the owner of the land and the lands should be deleted from the prohibitory list. The learned Single Judge after hearing both sides, agreed with the contentions of the respondent and allowed the Writ Petition by an order dated 29.09.2022. Aggrieved by the said order, the appellants have moved the present appeal.

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The Special Government Pleader, appearing for the appellants, would contend that the learned Single Judge had not taken into account the specific proceedings of the Special Officer and Urban Land Ceiling, Visakhapatnam bearing C.C.No.5278/76/C2/Dt.28.12.2007 wherein directions had been given for taking over the possession of the land. He would further submit that the question of whether the land had been taken possession or not is a disputed question of fact which could not have been decided by this Court, under Article 226 of the Constitution of India. He would rely upon a Judgment of the Hon‟ble Supreme Court in the case of State of U.P & Another Vs Ehsan & Another¹ .

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Sri B. Sesi Bhushan Rao relies upon the paragraph 35 of the said Judgment which reads as follows:

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“In view of the discussion above and having regard to the following: (a) that there was a serious dispute with regard to

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1 2023 Law Suit (SC)1019

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taking of possession of the surplus land; (b) that there was a delay of about seven years in filing the first writ petition from the date when possession was allegedly taken by the State, after publication of the vesting notification; (c) that no documentary evidence such as a Khasra or Khatauni of the period between alleged date of taking possession and filing of the first writ petition was filed by the original petitioner; (d) that in the earlier two rounds of litigation, the High Court refrained from deciding the issue of possession of the surplus land even though that issue had arisen directly between the parties; and (e) that infraction of the prescribed statutory procedure for taking possession cannot be the sole basis to discard State‟s claim of possession, when it is stated to have been taken long before the date the issue is raised, we are of the considered view that the High Court should have refrained from deciding the issue with regard to taking of actual possession of the surplus land prior to the cutoff date specified in the Repeal Act, 1999. Instead, the writ petitioner should have been relegated to a suit.”

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Sri B. Sesi Bhushan Rao, submits that the facts of the

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present case are similar to the facts in the case set out above. He submits that possession of the land in the present case was taken in the year 2007 and the respondent had approached the authorities only in the year 2021. He would submit that the question of whether possession had been taken or not is also the subject matter of a dispute in the present case. Sri B. Sesi Bhushan Rao submits that in view of these similarities, the Judgment of the Hon‟ble Supreme Court, cited above, would apply and the learned Single Judge ought

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to have, at best, left it open to the respondent to approach a civil Court and the learned Single Judge erred in allowing the writ petition.

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Sri O. Manoher Reddy, learned Senior Counsel appearing for the respondent would submit that the appellants have not produced any material before this Court to show that possession of the land had been taken over by the respondents. He relies upon the proceedings of the Special Officer dated 28.12.2007 as well as the proceedings of the Joint Collector and Competent Authority, Urban Land Ceiling, Visakhapatnam dated 22.11.2018 to contend that the documents produced by the appellants themselves would show that possession of the land had never been taken from the respondent.

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Section 3 of the Repeal Act reads as follows:

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3. Saving :- (1) The repeal of the principal Act shall not affect-

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(a) the vesting of any vacant land under sub-section (3) of section 10, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority;

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(b) the validity of any order granting exemption under sub-section (1) of section 20 or any action taken there under, notwithstanding any judgment of any court to the contrary;

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(2) Where-

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(a) any land is deemed to have vested in the State Government under sub-section (3) of section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and

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(b) any amount has been paid by the State Government with respect to such land,

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then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.

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This Act was brought into force, for the State of Andhra Pradesh on 27.03.2000. By virtue of the above provision, the land would vest in the State, if the possession of the land had been taken over, by the State, under section 10(6) of the Urban Land Ceiling Act, before the Repeal Act came into force. In the absence of any such possession being taken, the land would continue to vest in the father of the Respondent and subsequently in the heirs of the father of the Respondent. The controversy can be resolved by ascertaining whether the State took possession of the land or not.

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The order of the Special Officer, Urban Land Ceiling, Visakhapatnam dated 28.12.2007 reads as follows:

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“Whereas the land mentioned in the schedule below vested absolutely with the Government of Andhra Pradesh free from all encumbrances by virtue of declaration published

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U/s.10(3) of Urban Land (C&R) Act, 1976 in the A.P. Gazette extraordinary dt.06.04.1993.

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Whereas the Notice U/s.10(5) of the Urban Land (C&R) Act, 1976 was issued to the declarant Sri Sanapala Varadharajulu, S/o.(late) Suryanarayana, D.No.39-11-54, Muralinagar Junction, Madhavadhara, Visakhapatnam on 28.07.1994 to hand over the surplus land to the concerned Revenue Inspector.

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It is not known whether the land was taken possession from the declarant by the Tahsildar and his staff or not.

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Therefore, the Spl.Dy.Tahsildar (C) and the Spl.Rev.Inspector of the office of the Special Officer & Competent Authority, Urban Land Ceiling, Visakhapatnam are hereby authorized to take possession of the surplus land, if not already taken over, using such force as may be necessary and submit their compliance report urgently. Copy of the SubDivision Record is herewith enclosed for ready reference.

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This proceeding reveals that, the possession of the land

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was not taken till 28.12.2007. This proceeding also shows that nothing was done for 13 years after the notice under Section 10(5) of the Urban Land Ceiling Act had been issued in July. The proceedings also state that the Special Officer and Competent Authority had authorized the Special Deputy Tahsildar and Special Revenue Inspector, Urban Land Ceiling, Visakhapatnam to take possession of the surplus land. It is the pleading of the appelants that the possession of the land was taken over on the same day as the

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proceedings dated 28.12.2007. However, there is no further document to show that possession of the land had been taken over. In the absence of any document showing that possession of the land had been taken over, it would have to be held that the appellants have not demonstrated that possession of the land had been taken over.

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In the Judgment cited above, the Urban Land Ceiling Authority had produced documents to show that the land had been taken over, in that case, while the land holders, in that case, disputed the genuineness of the said proceedings. In the present case, no such document has been placed before this Court. To that extent, the facts of the case differ totally and the said Judgment cannot be pressed into service.

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The question of whether possession has been taken or not is also made clear from the Memo of the Joint Collector-cumCompetent Authority bearing Sl.No.2589/2018/SA/11/11/2018, dated 22.11.2018. The normal procedure followed in cases where possession is taken is to demarcate the land in question and prepare a sub division record whereby a fresh survey number is assigned to the land in question and then the land is taken over. The Joint Collector, is said to have addressed the Memo, mentioned above, to the Special Surveyor, Urban Land Ceiling Office to prepare a SubDivision record for the above surplus land and to submit a

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scrutinized record so as to take further action in the matter. The Memo also says that the proceedings in the Urban land Ceiling Case were taken up to Section 10(6) stage, but the sub-division statement had not been prepared. This would clearly indicate that proceedings had gone up only to the stage of Section 10(6) and possession, under Section 10(6), was not taken over.

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It may also be noted that the Special Surveyor, after receiving the request of the Joint Collector, had conducted a survey and filed a report dated 05.12.2018. The Special Surveyor, after visiting the land in Sy.No.41-1 had stated that there were houses in the land, in question, bearing D.No.39-16-39, No.39-16-42 and No.3916-40 due to which proper survey and sub-division proceedings could not be taken up. This survey report also shows that it is the respondent who remains in possession of the land.

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The aforesaid proceedings of the appellant authorities themselves show that the respondent and his family members have remained in possession of the land and no document showing actual taking over the physical possession of the land, by the appellants, has been produced before this Court.

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It is true that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, does not go into

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disputed questions of fact. However, in this case, no disputed questions of fact present themselves before this Court. Except the allegation of the appellants that possession had been taken over, no material or document has been placed before this Court to show that such possession had been taken over. Further, the documents produced by the appellants themselves show that no possession of the land had been taken over by the appellants.

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In view of Section 3 of the Repeal Act, the disputed piece of land has to be treated as the property which remains vested in the respondent and consequently the said land cannot be retained in the prohibitory list maintained under Section 22-A of the Registration Act.

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