Allowed

Sri. Raj Kumar Surana v. The Government of Andhra Pradesh

Telangana HC12 Nov 2013WP/17067/2013

Case brief

AI extract

What is this about?

The Single Judge allowed writ petitions challenging the declaration of surplus land. The court held that proceedings under the Urban Land Ceiling Act lapsed because the State failed to take physical possession of the land before the Repeal Act was adopted, as held in State of U.P. vs. Hari Ram.

What did the court decide?

Declared the Urban Land Ceiling Action illegal, proceedings lapsed, and ordered return of amounts paid for regularisation.

Sri. Raj Kumar Surana Vs The Government of Andhra Pradesh — Land Acquisition | Telangana HC (2013)

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HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos.17067, 17072, 17130, 17132 and 17150 of 2013

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% 12.11.2013

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Writ Petition No.17067 of 2013

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Between: # Raj Kumar Surana, S/o Late C.L.Surana and another.

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..... Petitioners

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And: $ The Government of Andhra Pradesh, Reptd by its Principal Secretary, Revenue Department, Hyderabad and four others.

.....Respondents

< Gist:

> Head Note:

! Counsel for the Petitioner: Sri M.Ravindranath Reddy ^ Counsel for the Respondents: AGP for Revenue (Assignments)

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? Cases Referred: (2013) 4 SCC 280

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HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY

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WRIT PETITION Nos.17067, 17072, 17130, 17132 and 17150 of 2013

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Date:12.11.2013

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COMMON ORDER:

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Though there is a little variation on facts, which do not have a bearing on the out come of the cases, the issues are common in all these Writ Petitions. Hence, they are heard and being disposed of together.

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On 17.06.1976 one Qamar Hassan (for short ‘the declarant’) filed a declaration under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (for short ‘the Act’) in respect of Old Survey No.403/346 relating to T.S.Nos.1/4, 2/2, 3/1 and 4/6, Block ‘G’, Ward No.10, Road No.10, Banjara Hills, Hyderabad (for short ‘the subject land’).

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Urban Land Ceiling (ULC) proceedings reached the stage of Section 10(1) of the Act on 23.06.1980. On 28.05.1981, the declarant entered into an agreement with a society by name Bushan Housing Co-Operative Society (for short ‘the Society’) for development of the land. The Society obtained No Objection Certificate (NOC) from the District Collector, on 22.06.1983. It is the pleaded case of the petitioners, with respect to which there is no dispute, that the declarant died on 24.01.1991. The society obtained sanction of layout on 04.11.1992 and divided the land into 16 plots and raised some structures thereon. The NOC, dated 22.06.1983, was confirmed by the District Collector on 29.02.1992. Thereafter, between 03.02.1993 and 18.03.1994, the petitioners purchased some of the plots either from the legal representatives of the declarant/society or the subsequent purchasers under registered sale deeds.

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The Act was repealed by the Parliament by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short ‘the Repeal Act’). However, as the Andhra

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Pradesh State Legislature has not adopted the said Repeal Act immediately, the Act continued to be in force till 27.03.2008, when the State legislature has adopted the Repeal Act.

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On 16.09.2003, a notification under Section 10(3) of the Act was published in respect of the subject land. Some of the petitioners received notices on 07.08.2008, i.e., after the Repeal Act was adopted in the State of Andhra Pradesh, to the effect that they are in illegal occupation of the land declared as ‘surplus’ and that they should file applications under G.O.Ms.No.747, Revenue (UC.I) Department, dated 18.06.2008, for regularisation of their possession, failing which, they will be evicted without notice. Some of the petitioners pleaded that under the threat of the said notice and on wrong advice, they have submitted applications for regularisation and that later on, they have submitted representations to respondent No.2 withdrawing the said applications.

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In these Writ Petitions, the petitioners sought for a Mandamus to declare the action of the respondents in notifying their plots under the Act declaring them as ‘surplus land’ as illegal and void ab initio. The petitioners also sought for consequential declaration that the proceedings initiated under the Act in respect of the plots in their occupation as having lapsed under the Repeal Act. The petitioners sought for further direction to refund the amounts paid by them towards regularisation.

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On behalf of the respondents, separate counteraffidavits have been filed by the Special Officer and Competent Authority, Urban Land Ceiling, Hyderabad. It is, inter alia, stated in the counter-affidavits that the draft statement, dated 25.11.1977, under Section 8(1) of the Act was served on the declarant, declaring that he is

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surplus land holder to an extent of land admeasuring 13,829 square meters in Plot Nos.4 and 5 of Shaikpet Village; that the declarant has stated that he has no objection for draft statement and has communicated the same on 23.12.1977; that the order under Section 8(4) of the Act and final statement under Section 9 of the Act were issued on 28.05.1980; that the declarant has neither filed objections nor preferred any appeal against the said orders; that the notification under Section 10(1) of the Act was issued on 11.06.1980 and the same was published in the Andhra Pradesh Gazette No.2391 on 23.06.1980; that the declarant did not file any objections to this notification before the competent authority; that a declaration under Section 10(3) of the Act was issued on 13.09.2003 and the same was published in the Andhra Pradesh Gazette No.190 on 16.09.2003; and that thereby, the surplus land vested absolutely in the State Government free from all encumbrances with effect from 30.09.2003. It is further averred in the counter-affidavits that notice under Section 10(5) of the Act was issued on 16.10.2003 to the declarant to surrender his surplus land and that the same was affixed in a conspicuous place of the subject land by the Enquiry Officer on 30.12.2005; that as the declarant failed to surrender the surplus land, proceedings under Section 10(6) of the Act were issued on 08.02.2006, directing the Enquiry Officer to take over possession of the surplus land to an extent of 13,829 square meters; and that the possession was taken over under the cover of panchanama on 04.03.2008.

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The counter-affidavits further averred that the legal representatives of the declarant have not brought to the notice of the Special Officer about the death of the declarant and that as the possession of the surplus land was taken over on 04.03.2008, the ULC proceedings

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were saved by the Repeal Act. It is further averred that the State Government has issued G.O.Ms.No.747, dated 18.06.2008, issuing guidelines for regularisation of surplus land; that in order to motivate the general public to apply for regularisation, a general notice was issued to the encroachers to avail the opportunity of regularisation of surplus land which is in their occupation through the said G.O; that the petitioners have filed their applications for regularisation of the surplus land; and that in view of the order of status quo granted by this Court in WPMP.No.27927 of 2008 in Writ Petition No.21367 of 2008, the petitioners’ applications for regularisation could not be processed. The counter-affidavits admitted the petitioners filing representations withdrawing their applications for regularisation and for refund of the amounts and reiterated that as the possession of the subject land was taken on 04.03.2008 under Section 10(6) of the Act, the proceedings under the Act have not lapsed.

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At the hearing, Sri M.Ravindranath Reddy, learned counsel for the petitioners, advanced two contentions, namely; (1) that it is not in dispute that the declarant has died as far back as 24.01.1991 and therefore, the whole proceedings taken out against the dead person have lapsed; and (2) that, alternatively, the petitioners have been, admittedly, in possession of the subject land, as evident from the notices issued by the ULC authorities to some of the petitioners for regularisation in terms of G.O.Ms.No.747 and that this fact itself would show that no decision was taken under Section 10(6) of the Act by the time the Andhra Pradesh State legislature has adopted the Repeal Act on 23.07.2008. Learned counsel further submitted that the phrase “possession” referred to under Section 10(6) of the Act is construed as a de facto possession by the Apex Court in State of U.P. Vs. Hari

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Ram^[1] and that before taking such possession, it is mandatory that a notice is issued under Section 10(5) of the Act to the persons in occupation of the land, which admittedly was not given to the petitioners and that, therefore, the acquisition proceedings have lapsed with effect from 27.03.2008.

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Learned Assistant Government Pleader for Revenue (Assignments) opposed the above submissions and submitted that the respondents have followed proper procedure strictly in terms of the provisions of the Act. She has stated that a notification under Section 10(3) was published on 16.09.2003, by virtue of which, the entire surplus land stood vested in the Government and that before the Andhra Pradesh State Legislature adopted the Repeal Act, possession was taken under the panchanama on 04.03.2008, after sending the notice under Section 10(5) of the Act to the declarant and affixing the same on the subject land in a conspicuous place on 30.10.2005. She further stated that the petitioners, on realising that they are in unlawful occupation of the subject land, have applied for regularisation of the lands in their occupation on receiving the notices from the ULC authorities and that, therefore, they cannot claim refund of the amounts already paid by them towards regularisation.

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I have carefully considered the respective submissions of the learned counsel for the parties and perused the record.

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As regards the first submission of the learned counsel for the petitioners, there is no dispute that the declarant has died on 14.01.1991. However, the respondents have claimed that the legal heirs of the declarant have not informed the respondents about the death of the declarant.

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In the view this Court is proposing to take, it is not

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necessary to deal with this contention as, this Court feels that the second contention raised by the learned counsel for the petitioners is enough to dispose of the Writ Petitions.

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Now, let me consider the most crucial submission made by the learned counsel for the petitioners is that the ULC proceedings have lapsed as, the respondents have failed to take physical possession of the land under subsections (5) and (6) of Section 10 of the Act.

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Under Section 10(3) of the Act, at any time after the publication of the notification under sub-section (1) thereof, the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from the said date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the dates so specified. Under sub-section (5) of Section 10 of the Act, where any barren land is vested in the State Government under subsection (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within 30 days of the service of the notice. Under sub-section (6) thereof, if any person refuses or fails to comply with the order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the State Government concerned or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be

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necessary.

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Under Section-2 of the Repeal Act, the Principal Act has been repealed. However, Section 3 saved certain proceedings. Under sub-clause (a) of Section 3(1) of the Repeal Act, the vesting of any vacant land under subsection 3 of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority is saved from the provisions of the Repeal Act.

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In Hari Ram (supra), the Supreme Court on a detailed examination of the provisions of the principal Act and the Repeal Act, inter alia, has held as under:

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(a) vest/vested under Section 10(3), may or may not include “transfer of possession”, the meaning of which depends on the context in which it has been placed and the interpretation of various other related provisions (para-28).

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(b) Acquisition of vacant land does not take into its fold possession unless there is an indication to the contrary. under Section 10(3), what is vested is de jure possession not de facto because the expression “vested” is tested on a statutory hypothesis and such a hypothesis can be carried only to the extent necessary to achieve the legislative intent. (para-30)

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(c) The “vesting” in sub-section (3) of Section 10, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. (para-31)

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(d) sub-section 5 of Section 10 speaks of “possession” which occurs by surrendering or transfer of possession voluntarily by the person in possession, while Section 10(6) speaks of forceful dispossession i.e., where a person in possession does not respond to the notice under Section 10(5) and does not voluntarily surrender possession (paras-34 to

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36)

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(e) The requirement of giving notice under subsections 5 and 6 of Section 10 is mandate though the word “may” has been used therein.” (para-37)

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The above noted ratio laid down by the Apex Court need to be applied to the facts of this case.

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It is the pleaded case of the respondents that notice under Section 10(5) of the Act was sent to the declarant’s address and that the same was affixed at a conspicuous place of the subject land on 30.12.2005.

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Learned Assistant Government Pleader has produced the record, a perusal of which shows that the notice, dated 16.10.2003, purportedly issued under Section 10(5) of the Act sent to the declarant’s address, was returned with a postal endorsement, dated 23.10.2003, which is not decipherable. The record also contains the panchanama, dated 04.03.2008, which is on a printed proforma. It shows that three private persons who purportedly acted as panchas have affixed their signatures. The blanks in the printed proforma (in Telugu) have been filled as if to show that the land to an extent of 13,829 square meters was taken possession on 04.03.2008.

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Even ignoring the theory of notice by affixture set up by the respondents, it is not the pleaded case of the respondents that they have issued notice to any of the petitioners who are, admittedly, in possession of their plots when the purported physical possession was taken by the respondents.

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As noted above, Section 10(5) of the Act mandates service of notice to the persons in physical possession of the land. Forceful possession can be taken only if the persons in occupation of the land do not voluntarily surrender the same. As held by the Supreme Court

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forceful dispossession can be resorted to under Section 10(6) of the Act only after issuing notice under Section 10(5) of the Act which was held to be mandatory. Admittedly, the petitioners were not given notices. Therefore, the panchanama set up by the respondents, under which physical possession of the land was purportedly taken, has no legitimacy in law.

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Further more, the very theory of taking physical possession of the subject land is contradicted by the respondents’ own showing. The respondents did not dispute that the petitioners are in physical possession of the subject land. Indeed, to some of the petitioners, notices in writing were given calling upon them to apply for regularisation of possession of their lands. It is not the pleaded case of the respondents that after physical possession was taken on 04.03.2008, the petitioners have illegally occupied the subject land. Thus, the very plea set up by the respondents that they have taken physical possession of the land on 04.03.2008 is selfcontradictory and the same cannot be accepted. On the respondents’ own showing, the petitioners are continuing in physical possession of the subject land and what was evidently taken was only a symbolic possession on paper.

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As held by the Supreme Court in Hari Ram (supra), the Repeal Act will save only in such cases where the de facto possession (physical possession) was taken and mere vesting of the land under Section 10(3) of the Act or symbolic possession on paper would not save the proceedings under the Act from getting lapsed under the Repeal Act as and when the same is adopted by the respective State legislatures.

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On the above analysis, this Court has no option other than holding that the ULC proceedings initiated in respect of the subject land have lapsed as, the respondents failed to take physical possession of the

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subject land as on the date on which the Andhra Pradesh legislature has adopted the Repeal Act or even subsequent thereof. Consequently, there is no need for the petitioners to seek regularisation of their possession over the subject land. The respondents cannot retain the amounts collected from the petitioners in the name of regularisation.

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For the above-mentioned reasons, the Writ Petitions are allowed as prayed for.

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As a sequel to disposal of the Writ Petitions, W.P.M.P.Nos.20718, 20723, 20786, 20790 and 20814 of 2013 filed by the petitioners for interim relief are disposed of and WVMP.Nos.3010, 3000, 3008, 3009 and 3001 are dismissed as infructuous.

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____________________________ JUSTICE C.V.NAGARJUNA REDDY

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12^th November, 2013 Note: LR copies to be marked. B/o DR

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[1] (2013) 4 SCC 280

Sri. Raj Kumar Surana v. The Government of Andhra Pradesh

Case brief

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Sri. Raj Kumar Surana v. The Government of Andhra Pradesh

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