Allowed

Mrs. Neelima Lele v. The State of Telangana

Telangana HC13 Apr 2022WP/12798/2021

Case brief

AI extract

What is this about?

The High Court declared proceedings declaring land as surplus under the Urban Land (Ceiling and Regulation) Act void ab initio due to notice issuance in the name of a deceased person. It held the proceedings abated under the Repeal Act and ordered a refund.

What did the court decide?

Impugned proceedings set aside and declaration made that they are abated, illegal and void. Respondents directed to refund regularization fees paid by petitioners.

Mrs. Neelima Lele Vs The State of Telangana — Land Acquisition | Telangana HC (2022)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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WEDNESDAY, THE THIRTEENTH DAY OF APRIL TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

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Between:

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WRIT PETITION NO: 12798 OF 2021

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1 \4.rs^{Ngqllma Lele, WoDuritahara Lete,Age 42} No 417 Serenity Mist Dr, Chapel Hill, NC 27516, USA

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2 lVrs..Arthi lreddy, Wo Phani tr,4ora, Age 40 F/o 30 post Oak Road, Cary, NC 27519, USA,

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Represented by their G.P.A.holder,Smt Maniula lreddv w/o.Raiender lreddvAged abou_t 61Yrs.,Occ- House Wife R/o. H.'No. 1-1_52911 Gre'en Block 50i, I\ily Home Rainbow Apadments, Tolichowki, Shaikpetnala *rd"i:.Or?qr?p"t%Tj

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AND

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1 The State of Telangana, Rgn bV its principal Secretary, Department of Revenue, Secretariat Building, Hyderabad

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2 The State of Telangana, Rep. by-special chief secretary, Revenue U.L.C. qept, State of Telangana, Sbcrdtaiiat, Hyderabad.

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J The.Special Officer Competent Authority, The District Collector, Urban Land Ceiling Wing, Ranga Reddy District.

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1. The Commissioner, Meerpet tVunicipal Corporation Hyderabad - 500079

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...RESPONDENTS

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Petition under Article 226 of the constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High court may be pleased to issue writ, order or Direction more particularly one in the nature of wRlr oF MANDAlvus declaring the action of the respondent No 3 notifying the plots of the petitioners comprising of Plot Nos. 81 , F.2, 83 and 84 admeasuring 1454.65 sq yards under the Act as "surplus land" as abated, illegal, void ab initio and consequently to declare the proceedings initiated under chapter-lll of the Act by including the plots in occupation of petitioners as having lapsed under the Urban Land (Ceiling and Regulation) Repeal Act,^.l 999 and further direct the respondent to refund Rs 7,36,976/- paid by petitioners along with applications Nos. 26379, 26380 dated 1910212014 and 2510212014 with interest (copies of acknowledgment for the payments made and issued by ULC for regularization) paid towards regularization as per G.o.ttils No 747 even though the petitioners

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plots were exempted under G.O.Ms No 733 relying on dicta held in Raj Kumar Surana Vs. The Government of Andhra Pradesh (copy enclosed)

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fANO:¹ OF 2021

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the Chapter-lll proceedings issued in File No. CC J219984/76 by the respondent No.3 under Urban Land (Ceiling and Regulation) Act, 1976 relating to the orders passed under Section 8(4) dated 29-4-1989, 1O(1) dated nil-9-2002, 10(3) dated 5-12-2006, 1o(5) dated 3/1/2007 and.t0(6) dated 61312007 issued in the name of the dead declarant who expired on 6/9/1987 which were abated and lapsed, by directing the respondent No.4 to receive the application and grant permission for construction without insisting for NOC from 3rd respondent in respect of the land in Sy.Nos. 55, 56 of Jillelaguda (V) and LRS by ignoring the prohibited properties list in respect of Sy.Nos. 55 and 56 of Jillelaguda to enable the petitioners to proceed with the development of the property in their plots Bl, 82, 83 and 84 at Raghavendra Nagar Colony in Sy.Nos. 55 and 56 of Jillelaguda (V) Saroornagar Mandal, Ranga Reddy District pending disposal of the Writ petitio n

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(Prayer is amended as per Court Order dated 22.06.2021 in l.A.No.2 ot 20211 Counsel for the Petitioners: Dr. J. VIJAYALAXMI

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Counsel for Respondents: SRI HARENDER PERSHAD,

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SPECIAL GOVERNMENT PLEADER

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The Court made the following: ORDER

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THE HON'BLE SRI JUSTICE^{B. VIJAYSENREDDY}

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WRIT PETITION No.12798 of²⁰²¹

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9BqEB:

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This writ petition is filed to^{declarethe proceedingsin} CC.No.l219984 /76 as^{abated, lapsedand the action of the} respondent No.3 in CC,^{No. B2l9984176 nolifying and including the} land belonging to the^{petitioners comprisingoF Plot Nos.B1,B2, 83} and 84 admeasuring 1454'65^{sq. yards in'B'Block of Raghavendra} Colony in Sy.Nos.55 and 56^{of JillelagudaVillage,Saroornagar} tvlandal, Hyderabad^{(later numberedas No.J219984176)as surplus} excess tand under Chapter III^{of the Urban Land (Ceilingand} Regulation) Act, t976, as^{void ab initio and non esf in the eye of} law, illegal, arbitrary and^{withoutjurisdiction.}

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It is the claim of the^{petitioners that they are absolute} owners and^possessors of^{the subject land having purchased the} same under registered^{sale deed bearingdocument Nos.16060and} 16065 of 1990 from the^{legal heirs and children of the original} possessor and pattadar Late Smt. Habeebunissa^{8egum. The father} of the petitioners^gifted Plot^{No.B1 admeasuring463 sq' yards and} the petitioner No.2 9ifted^{northern part of Plot No.82 admeasuring} 165 sq. yards to the^{petitionerNo.1 under document Nos.3114 and} 3115 of 2OO7 dated^{27.02.2OO7 respectively' Since then,} the petitioner No.1 is in^{possessionand enjoyment of the property'}

The subject property admeasuring r4s4.6s sq. yards was originalry owned by late Smt. Habeebunissa Begum. She was the pattadar of Sy.Nos.33 to 36 of Jillelaguda Village, whjch was under the possession of'tenants, namery, Chira r{alramma and six others, The ownership.rights in respect of the entire rand in sy.Nos.33 to 36 was transferred to the tenants in terms of compromise as per the decree dated 30.08.1979 in CRp,No.873 of 1979. After the death of Habeebunnisa Begum, the ownership of the land in Sy.Nos.55 and 56 was mutated in the names of the petitioners, vendor Mirza Habeebullah Baig and eleven others, who were legal heirs of Smt. Habeebunnisa Begum. The mutation proceedings were issued in their favour vide proceedings No,B/20l1989 dated 21.03.1989.

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Smt. Habeebunnisa Begum filed declaration vide

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CC. No. B2l998 4/76 under Section 6(1) of the Urban Land (Ceiting and Reguration) Act, 1976 (for short 'the Act,). Her four sons and two daughters also filed declarations vide CC./No.B Z/99g5/76 to 82/9990/76 claiming equal shares along with their mother as per Hiba for the entire extent of land admeasuring Ac.49.04 in Sy.Nos.55, 56, 33 to 36 of Jillelaguda Village, as the compromise was not effected in CRp.No.B73 of 1979 between the pattedar and tenants by the time of filing of their declarations. While the

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proceedings were pending before the^{respondent No'3,} Smt. Habeebunnisa Begum^{diedon 06'09.1987.}

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The respondent No.3^{(SpecialOfficer, Competent Authority,} Urban Land Ceiling) disposed^{of CC.No.B2l9984/76to 8219990176} by a common order dated^{29.04.1989rejecting the claim of the} children of Smt. Habeebunnisa^{Begum and the compromisedecree} in CRP.No.873 of t979 holding^{that the compromise waseffected} after the commencement of^{the Act and computedthe total extent} of the land in Sy.Nos.55,^{56 and 33 to 36 to the holdingof late} Smt. Habeebunnisa Begum. It^{is statedthat the respondent No'3} has pointed out in the order^{passed under Section8(4) of the Act} dated 29.04.1989 that^{the declarant,Late HabeebunnisaBegum,} has filed objections on 22.04'^{1988, which shows non-applicationof} mind as the declarant died^{on 06.09.1987, The respondentNo 3 in} the order at clause^{(f) held that the declarant is entitledfor} exemption of Ac.5.00 of^{land as per G,O.Ms.No'733dated} 31.10.1988, which was^{issued under Section 20(1)of the ULC Act,} 1976. Having regard to^{G.O.Ms.No'733, the legal heirs of the} declarant sold the^{plots as per approved layoutandexecuted} registered sale deeds on^{06.12,1990in respect of the subject} property in favour of the petitioner No.2 and the^{fatherof the} petitioner No.1. There is a recital in clause^{9 of the sale deeds to}

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the effect that the land is exempted under G.O.Ms.No.733 dated 31.10.1988

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The petitioners have constructed three shops and a house with tin roof in plot No.B1 bearing H.No.6_204134 /A/l andthe said house has erectricity connection and the peutioners have been paying property tax. While so, it is stated that in the year 2014, the officers of the respondent Nos.3 and 4 surprised the petitioners holding that they are in iilegar possession of prot Nos.B1 to 84. The petitioners were threatened that they would be evicted if they do not file applications and pay requisite fee for regularizing their plots under G.O.Ms.No.747 dated 1g.06.200g. Due to pressure exerted by the officers, though the Iand being covered under G.O.Ms.No.733 dated 31.10.1998, they paid an amount of Rs.7,36,976.50 to the ULC Authorities for regutarization vide applications No,26379, 26380 dated t9.OZ.2O:4 and 25.02.2014 vide DD.Nos,06t7B,7724 and t726.

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In the meanwhile, the petitioners came to know that a letter No.J/2759/2013 dated 24.O3.20t7 is addressed from the office of the respondent No.3 to respondent No.2 requesting the Government of Telangana to withdraw G.O. Ms. No.947 dated 02.08.2008 allotting 18000 sq. meters (Ac.4.13 guntas) on paper to APHB without giving boundaries or creating sub divisional records

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showing the allotted land has no vacant land on ground and the entire land in Sy.Nos.33 to 36, 55 and 56 of Jillelaguda Village are covered by pucca structures. The GPA of the petitioners applied for building permission. However, the respondent No.4 refused to receive the application and insisted for NOC from the respondent No.3 and further stated that the subject survey numbers are included in the list of the prohibited properties as surplus land. The petitioners obtained copies of the proceedings under the Act vide application under the Right to Information Act and came to know that the order was passed under Section B(4) of the act and notification under Section 10(5) of the Act was issued on 03.01.2007 in the name of the declarant, who died on 06.09.1987 to hand over the surplus land. Similarly, notificatlon under Section 10(6) was issued on 06.03.2007 in the name of the dead declarant in spite of being aware that she is not alive.

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Dr. J. Vijayalakshmi, learned counsel for the petitioners, submitted that the impugned proceedings arc void ab intio and the notification under Section 10(5) of the Act was issued against a dead person. The panchanama proceedings purporting to have taken possession of the subject vacant land contradicts the entries in the revenue record, which shows that the land is converted into plots in the year 1986 itself as per the pahanies for the year 198687 and 1987-88. The letter dated 24.03.2017 of the respondent

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No.3 states that the land^{has been madeinto plots and structures} exist on it and there^{is no vacant land. The panchanama purporting} to take^possession of the^{vacant land is only on paperas no} proceedings were conducted on the^{site. it is aproforma} panchanama created on 12.03.2007^{by filling in the blanks without} giving sub division sketch of the surplus^{land and the retainable} land of the declarant.^{The map attached to the panchanamadoes} not give the measurements^{by giving the horizontaland vertical} angles between the^{polntsas per Surveyand Settlement of} Boundaries Act, 1958^{clearly demarcatingthe surplus land and the} retainable Iand. The^{procedure prescribedunder Section 17 of the} Act read with Rule 5 of the^{Rules under the Act was not followed} before taking alleged^{possession.Theimpugned proceedings are} contrary to the law^{laid down by this Court in syED HASHIMv'} STATE OF UP^{(WP.No.20113 of 2010 dated 10.01.2020); sTATE} OF UP V. HARI^{RAM1 ANd N. LINGA RAO V. THESPECIAL} OFFICER AND COMPETENT^AUHTORITY,.

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in the counter flled by^{the respondentNo.3, it is stated that} Late Smt. Habeebunnisa^{Begumand six others havefiled statement} under Section 6(1)^{of the Act declaring an extent of 1,98,699'97} sq, meters for computation^{of their hotding.After due verification,} the draft statement^{under Section 8(1) of the Act and noticeunder} '^{(20l3) 4 scc280}

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'zorzla;eLro

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Section 8(3) of the Act was issued on 31.06.1987. Late Habeebunnisa Begum and others were provisionally determined as surplus holder to an extent of 198700.58 sq. meters in Sy.Nos.33, 34,35,36, 55 and 56 and the declarants were allowed to retain 1000 sq. each meters under Section a(1)(b) ofthe Act. The declarants filed objectlons in which the main objection was that the^judgement and decree dated 30.09.179 in CRP.No.873 of 1979 should have been accepted and that all the declarants are entitled to keep their specific (7) holdings as they are owners and possessors of their own shares. The objections submitted by the declarants were not accepted, final orders under Section B(4) of the Act and final statement under Section 9 of the Act was accordingly issued on 29.04.1989 declaring Smt. Habeebunissa Begum as surplus holding to an extent of 1,97,700.58 sq. meters. Appeal was filed by the declarants under Section 33 of the Act and the same was dismissed on 10.07.1997. Thereafter, notification under Section 10(1) of the Act and declaration under Section 10(3) of the Act were published in Gazette No.169 dated 11.09.2022 and Gazette No.401 dated 07.12.2006 and notice under Section 10(5) was issued on 03.01.2007 to hand over the surplus land. The same was affixed on the door by the enquiry officer in the presence of witnesses, as the declarant was not residing in the address and whereabouts of the declarant were not known. Thereafter.

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,-'

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the proceedings under Section 10(6) of the Act were issued and enquiry officer had taken possession of the surplus land duly conducting the panchanama on 12.03.2007.

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It is stated in the counter affidavit that the declarant Smt. Habeebunnisa Begum executed a Power of Attorney on 05.10.1981 in favour of her son Syed Muzaferuddin^yaheya. The legal heirs of the declarant, basing on the gift deed and GpA executed the Extension of Agreement of sale deed in favour of Gruhalaxmi Co-operative Housing Society on 14.07.1988. As seen from the proceedings of the lvlRO, Saroornagar in File No.A/6329/1994 dated 72.04,t99L, it is observed that the name of M/s. Gruha Lakshmi Co-op Housing Society Limited is incorporated in the possession column i.e. in column No.13 of Pahani and in column No.22 it is incorporated as plots. The said society has made plots on the land situated in Sy.Nos.55 and 56 in Balapur Village of Saroornagar Mandal and sold the same to several individuals. As the lands in question attracted by the provisions of the Act and fall under the Hyderabad Urban Agglomeration and are vacant lands, any transactions over the Iands, mutation orders issued, pattadar pass books and title deeds issued, if any, without obtaining permission under Section 26 of the Act are null and void under Sectlons 5(3) and 10(4) of the Act.

It is stated in the counter affidavit that the Government vide G.O.Ms.No.947 dated 02.08.2008 allotted the surplus landⁱⁿ Sy.Nos.33, 34,35,36,55 and 56 of Jillelaguda Village, Saroornagar lvlandal, to an extent of 18,000 sq, meters to the A'P.^Housing Board for optimum utilization of the land in the best^public interest and handed over to APHB duly conducting^panchanamaon 04.08.2008 without any sketch out of total surplus^land admeasuring 1,97,700,58 sq. meters declared as^{surplus in} CC File No.J/9980 to 9990/76. Later, having^{found discrepanciesin} the allotment regarding sub-division, boundaries, the^respondent No.3 issued letters dated 23,03.2017, 2L.08.2017, 04.09.201'7, 17.01.2019 and 06.01.2021 addressed to the CCLA^{with a request} to recommend the Government to expedite the^{action for} cancellation of G.O.Ms.No.947 dated 02.08.2008^{so as to enable} the respondent No.3 to^process the^pending applications^{in terms of} G.O.Ms.No.747 dated 18.06,2008, Applications^{for regularization} were submitted by the^{petitioners in} terms^{of G.O'Ms.No.747dated} 18.06.2008.

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It is further stated that the ULC^Repeal Act,^{1999 was} adopted in the erstwhile State of Andhra^{Pradeshwitheffectfrom} 27.03.2008 and as^per Section 4 therein,^{all proceedings under the} Act would abate, if actual^{possession was not taken by theULC} authorities by 27.03.2008.^{Tr- -possession} of^{surplus land in the}

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instant case was taken over by ULC authorities^{on 12.03.2007,} which is much before the^{Repeal Act came into force.} The petitioners, being third^party to the^{proceedings,have not} raised any objections at the time of^{issuingorders underSections} B(1) and B(4) and^publication of Gazette Notification^{underSections} 10(1) to 10(6) of the Act and taking over^{the possessionof theland} white conducting^{panchanama, The petitionersdo not have /ocus} standi io^question non-service of notice on^{dead personsi.e.,land} holder and declarant.

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Learned counsel for the^{petitioners has pointed out that the} order under Section 8(4) of the^{Act was issued on 29.04'1989.} The declarant Smt. Habeebunnisa^{Begum died on 06.09.1987.} Section 8(4) order, as^per the record^{was dispatched to all the legal} representatives of the declarant.^{Smt.HabeebunnisaBegumwas} indicated as expired in the order^{passedunder SectionB(4) of the} Act. Thus, the respondent No.3 cannot^{be permitted to contend that} the death of Smt. Habeebunnisa^{Begumis not in its knowledge.}

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As^pointed out by the^{learned counselfor the petitioners, it is} clearly shown in the order^{passed underSection8(4) order dated} 29.04.1987 that Snrt. Habeebunnisa Begum^{expired. The notice} under Section 10(5) of the Act dated 03.01.2007^{uras issued in the} name of Smt. Habeebunnisa Begum, who was dead by then.

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Section 10(5) of the Act mandates that notices snould be given to the land owner and person in possession of the property, This Court in STATE OF A.P., REVENUE DEPARTMENT v. SMT. A.

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BHARATHI3 held as u nder;

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"... Even otherwise it was brought to our notice that the statutory notices under the Act were issued in the name of dead person which is non est in the eye oF law ..."

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The legal heirs of the declarant were parties to Section 8(1) and Section 8(4) proceedings. The respondent No.3 was well aware of the death of Smt. Habeebunnisa Begum. l-lowever, for the reasons best known, the respondent No.3 has chosen to issue notice under Section 10(5) to Smt. Habeebunnisa Begum^(dead person). Thus, the notice under Section 10(5) and consequential order under Section 10(6) are vitiated and held to be void. Further, proceedings of taking over possession undcr the guise of panchanama dated 12.03.2007 is nonest in the eyc of law.

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The next issue, which arises for consideratton is whether the petitioners have got locus standi to challengt': the impugned proceedings.

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It is the case of the petitioners that their vendor purchased the land under registered sale deeds bearing docr..lment Nos.16060 and 16065 of 1990 dated 06.12.1990. The sale deeds were

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'?002 (4) ALT 334 (DB)

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registered^{as the subject land was exempted under G'O'Ms'No733} dated 31.10.1998.^{The sale deedswere registered withoutraising} any objection.^{Thus, the respondents are estopped fromcontending} that the^{petitioners do not have locus standito file this writ petition'}

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In T.^{MURALIDHAR RAO v'STATEOF A'P'a an issue} regarding^{locus standiof the petitioner, who purchasedland under} sale deed^{dated 28.05.199 byavailing exemptionunder} G.O.Ms.No.733^{dated 31.10.1998 cameup for considerationand it} was held under^{in paragraph Nos'79, 80 and 81:}

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"79. In the^{instant case, by the date the sale waseffected} by Smt. B, Suguna^{Rama Rao of the two plots in favourof} Smt. Y. Sharada^{Devi by 28 5 1998, proceedingsunder} Section 1O(l)^{alonehad been issuedon 31 12'1982'Notice} under Section^{1o(3)of the Act came to be issued on} 14.5.1999.^{'fherefore, sale by the declarantSmt B Suguna} Rama Rao in favour^{of Smt. Y. Sharada Devion 28'5 1998} was before^{the conclusion of proceedings underChapter-III} of the Act^{and suchsale was exempted and permittedby} G.O,Ms. No.733, dated^31.10.1988.

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8O. I have^{alreadynoted that the sale deed dated} 28.5.1998 contains^{specific recital in clause (10) thatthe} vacant land admeasuring^{5074 squareyardspurchasedby} the declarant^{Smt. B. Suguna RamaRao was in the} peripheral area under^{G.o.Ms.No.733 dated31'10'1988and} hence availing^{exemption granted therein she already sold} 3900 square^{yards to others and through this sale deed} dated 28.5.1998,^{she was transferring 874 square yards to}

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o 20l? (i) ALD 706

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Smt. Y. Sharada Devi. As stated above, in p.S. Rao (28 supra), the Supreme Court held that as long as proceedings under Chapter-III of the Act are pending/ the landholder can avail the exemption under Section 20 of the Act, even after vesting and the exemption would have the effect of taking the land out of the purview of the Act. Therefore, the said sale deed dated 28.5.1998 cannot be said to be null and void and consequently the sale deed in favour of the petitioners executed on 22.8.2009 also cannot be said to be n ull and vold.

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In view of the above finding, I hold that the petitioners would certainly have /ocus to file the writ petition when the petitioners were informed that the subject land was declared as surplus land under the Act.,,

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The judgment in MURALIDHAR RAO,S case (3 Supra) was confirmed by a Division Bench of this Court in W.A. No.871 of 2}ir7 vide judgment dated 03.08.2018.

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Section 10(5) of the Act reads as under:

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"(5) Where any vacant Iand is vested ln the State Government under sub-section (3), the competent authority may, by notice in writjng, 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 covernment in this behalf within thirty days of the service of the notice. "

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In W.P. No.19652 of 2007, issue No.4 and the decision thereon, respectivelyr are as under:

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"Whether before taking possession of the surplus land, the respondents were under an obligation to issue

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notices to the petitioner society and their members under the provisions of the ULC Act, who claim to be in possession and persons interested in the land? If so, then what would happen to the orders passed by respondent No.2 under the provisions of the ULC Act?"

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"Hence, it is held that the petitioner society and their members, who were in possession of the land and persons interested therein, were entitled to issuance of notices under the provisions of the ULC Act, and taking over possession of the land, without notices to them, violates the principles of natural justice, and as such, the orders passed by respondent Nos.1 and 2, affecting the rights of the petitioner society and their members in the land in question, cannot be sustained and are liable to be set aside."

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The petitioners are admittedly in possession of the property and it is even the case of the respondent authorities that applications of the petitioners for regularization under G.O.Ms.No.747 dated 18.06.2008 is under process. By virtue of the Repeal Act, as possession of the property was not taken in accordance with law, the proceedings stood abated under Section 4 of the Repeal Act, which was adopted by the erstwhile State of Andhra Pradesh on 27.03.2008.

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In the light of the above discussion, the contention of Mr. Harender Pershad, learned Special Government Pleader, that the petitioners do not have locus standi and that the sale deeds of

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the petitioners are in violation of Section 5(3) of the Act is without any merit. This Court holds that the petitioners are aggrieved and interested persons, as they claim of being in possession of the property on the strength of the sale deeds and their interest is adversely affected due to impugned ULC proceedings.

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In view of the above observations, the writ petition is allowed. The proceedings issued in File No.CC J/gg}a/76 by the respondent No.3 under the Act relating to the orders passed under section 8(4) dared 29.04.1989, Section 10(1) dated nir.09.2002, Section 10(3) dated 05.12,2006, Section 10(5) dated 03.01.2007 and Section 10(6) dated 06.03.2007 issued in the name of the dad declarant is set aside. Consequenuy, the respondents are directed to refund the amount of Rs.7,36,976l- paid towards regularization by the petitioners.

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The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.

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,, .. -.1 ,

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SdA B. SATYAVATHI DEPUTY REGISTRAR //TRUE COPY//

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SECTION OFFICER

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To,

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