Allowed

Smt. Ch.Krishna Kumari, v. Greater Municipal Corporation of Hyderabad

Telangana HC28 Sept 2022WP/40656/2017

Case brief

AI extract

What is this about?

The High Court allowed two writ petitions seeking regularization of private excess land plots in Hyderabad. The court held that the State could not claim rights where possessory requirements of the ULC Act were not met post-repeal, directing regularization within eight weeks.

What did the court decide?

Direction to regularize/allot the ceiling surplus land in favour of the petitioner within eight weeks from receipt of the order.

Smt. Ch.Krishna Kumari, Vs Greater… — Pension and Retirement Benefits | Telangana HC (2022)

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

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WEDNESDAY, THE TWENTY EIGHTH DAY OF SEPTEN,,IBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

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WRIT PETITI ON NOs. 40656 AND 41 516 0F 2017

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WRIT PETITI ON NO .40656 0F 2017

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Between:

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Smt. Ch.Krishna Kumari, W/o. Ch. Krishna, aged 46 years, Occ:House wife, R/o. H.No.B-4-371, 8/96 , Saradhi Housing Co-operative Society,Borabanda, Hyderabad.

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..,PETITIONER

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AND

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Greater Municipal Corporation of Hyderabad, Rep.by its Commissioner, Head Office, Tank Bund. Road, Hyderabad.

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State of Telangana, Rep.by its Principal Secretary to Government, Revenue (UC.lV) Department, Secretariat. Buildings, Saifabad, Hyderabad.

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The District Collector, Hyderabad District at Hyderabad.

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Special Officer & Competent Authority, Urban Land Ceiling, Hyderabad.

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Tahsildar, Khairatabad Mandal, Hyderabad.

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...RESPONDENTS

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Petition under Article 226 of lhe^{Constitutionof lndia prayingthat in the} circumstances stated in^{the affidavit filed therewith,the High court may be} pteased to issue a writ order^{or direction more particularlyone in the natureof} writ of mandamus and declare^{the action of the respondents 2 to 5 in handingover} Plot No.57^{in Sy.No. 128t'lof Yousufguda'Hyderabad:to respondent No'1 for} constructionof2BHKflats,withoutimplementingtheJudgmentofthisHon'ble Court in^{WP No.4447of 2009, dated: 25'10'2010 and grant the consequenttal}

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il I

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to regularize^{Plot No 57 in} relief by^{directing thrl respondents 1and 2} name of^th,-' Petitioner^under Sy.No.128/1^{of -Yous "rfguda Hyderabadin the} Dt. 29.O7.iLOO2^orunder' Revt nue^(UC.1 )^DePartment' G.O.Ms.No⁴⁵⁵ Revet^{tue (UC- 1} )^{DePartmentDt. 18.06.2008or anY other G O} G.O:Ms.No⁷⁴⁷ issued^{by the 2nd resl ondent' herein subsequently'}

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WPM P.^{NO50464 0t2017}

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petition under ;ection^{151 cpc praying that in the circrmstances statedin} the affidavit^{filed in st pport of the petition' the HighCourt may be pleased to direct} thelstand5threspoldentshereinnottointerfereWiththepelcefulpossessionof the^{petitionerof her r)ropertybearingNo 8-4371/8/96 in Plot No 57 admeasuring} 263.54 Sq.^{Yards in SurveyNo'128/1 in the layoutof M/s'S;aradhi Co-operative} Housing Society^{Lim ted situated in Borabanda, Yousufguda'Hyderabad} '^pending disposal of the^writ P^:tition'

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WPMP.NO.5O 4650!^:2017

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Petition under Section 151^{cPC praying that in the cirrumstances stated in} the affidavit filed in s upport of the^petition, the^{HighCourt may be pleased to direct} the 1"t and Sth res rondents herein not to make any constructions within the premises of propert r bearing No.B-4-37118/96 in Plot No.57 admeasuring 263.54 Sq. Yards in Survey No.12Bl1 in the layout of M/s. Saradhi Oo-Operative Housing societv Limited, situ rted in Borabanda, yousufguda, Hyderabad, pending disposal of the writ petition.

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,A No:1 OF 20 19

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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 direct the respondents 2,3 and 4 to^{regularizethe plot} No.45^{in Sy. No.} 12811 of Yousufguda, Hyderabad^{in the name of the petitioner and issue No} Objection Certificate to the respondent^{No. 1 for granting} building^permission and LRS for the Plot of the^{petitionerpending} disposal of this Writ Petition.

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WRtT PETIflON NO.41516 0F 2017

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Between:

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Smt. Ch.Krishna Kumari, W/o. Ch. Krishna, 46 years, House wife, Fl/o. H.No.8-437118.196, Saradhi Housing (Co-Op) Society, Borabanda, Hyderabad.

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AND

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't. Greater Municipal Corporation of Hyderabad, Rep.by its Commissioner, Head Office, Tank Bund Road, Hyderabad.

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State of Telangana, Rep.by its Principal Secretary to Government, Revenue (UC.lV) Department, Secretariat Buildings, Saifabad, Hyderabad.

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The District Collector, Hyderabad District at Hyderabad.

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Special Officer & Competent Authority, Urban Land Ceiling, Hyderabad.

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Tahsildar, Khairatabad Mandal, Hyderabad.

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...RESPONDENTS

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Petition under Article 226 ot lhe Constitution of lndia^praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ Order or direction more particularly one in the nature of writ of mandamus and declare the action of the respondents 2 to 5 in handing over Plot No.45 in Sy.No. 12811 of Yousufguda, Hyderabad to respondent No.1 for construction of 2 BHK flats, without implementing the Judgment of this Hon'ble Court in WP No.4601 of 2009, dated: 25.10.2010 and grant the consequential relief by directing the respondents^'1 and 2 to regularize Plot No. 45 in Sy.No.12Bl1

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of Yousufguda, Hyderab rd in the name of the petitioner under G.O.tt/s.No 455 Revenue (UC.1) Departr rent, Dt. 29.O7.2002 or under G.O.Ms l'1c.747 Revenue (UC.1) Department Dt. 18.06.2.008 or any other G.O issu':d by the 2nd respondent herein^{subs, rquently} and issue any other approprrate, writ order or direction as this Hon'ble lourt may be^pleased to deem fit and^proper.

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WPMP. NO: 51493 OF 2)17

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Petition under Se :tion 1 51 CPC praying that in the circun slances stated in the affidavit filed in supl^,ort of the petition, the High Court may b() pleased to direct the 1st and 5th respo rdents herein not to make any constnlctions within the premises of property b( aring No. 8-4-37'1lB/107 in Plot No.57 aCmeasuring 263.54 Sq. Yards in survey N r.12811 in the layout of M/s.Saradhi Co-operative Housing Society Limited situate J in Borabanda, Yousufguda, Hyderabac, pending disposal of the writ petition.

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WPMP. NO: 51494 Ot 2017

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Petition under ljection 151 CPC praying that in the circumstances stated in the affidavit filed in sr pport of the petition, the High Court may be pleased to direct the^'l st and sth resr rondents herein not to make nay constructions within the premises of propert / bearing No. 8-4-371181107 in Plot lro. 45 admeasuring 263.54 Sq. Yards in Survey No. 12811 inthe layout of M/s. Siaradhi Co-operative Housing Society Lim ted situated in Borabanda, Yousufguda, Hyderabad, pending disposal of the writ p etition.

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lA NO: 1 OF 2019

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Petition unde' Section 151 CPC praying that in the cir.cumstances stated in the affidavit filed in ;upport of the petition, the High Court ma.y be pleased to direct

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the respondents 2,3 and 4 to regularize the plot No.45 in Sy. No. 12811 of Yousufguda, Hyderabad in the name of the petitioner and issue No Objection Certificate to the respondent No. 1 for granting building permission and LRS for the Plot of the petitioner pending disposal of this Writ Petition.

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Counsel for the Petitioner in both the Petitions: SRI DANTU SRINIVAS

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Counsel for the Respondent No.1 in both the Petitions:

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SRI PASHAM KRISHNA REDOY, S.C. FOR GHMC

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Counsel for the Respondent Nos.2 to 5 in both the Petitions:

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GP FOR ASSIGNMENTS

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The Court made the following: COMMON ORDER

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1'llE IION'I L[. SI{l ,rt]S'l'lCE A. AIllllSHltK Iilrli)D\ \/llll'P -l'll'lON Nos.-10656 and 41516 of ?(rl7

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CON'IM 0\ OltDIr,ll:

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1 ince the iss re involvecl in both these Writ l)etitions is one anrl the same, these W'it Petitions are being disposed of' b1 ihis conunon order.

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I re briel f'a:ts of the case are that the petitioner has purchased plots h -'alingt No. i7 and 45 in the layout of I\4/s.SarziClii^(ioopcrative Housing Societl t.imited, situated at Borabanda, YoLrsufgucla, Hyderabad, vide agreernent of sale dated 30.03.199C and registeled sale dee,. dated 14.10.1985, respectively, and that h: is in physical possesr.on of th,' said property since 1995 without e ny interruption. That tlre State Government had issued G.O.Ms.No"455. Revenue (U.C.I) Departnent, dated 29.07.2002, for allotment ,:rf excess land, which is under t re occupation of the third parties, un,ler Section 23 of the Urban Land (Ceiling and Regulation) Act. In view of the same, the pe itioner, in the first week of October', 2004, has filed applications unJer the said G.O. along u,ith all nec,:ssar1, documents

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before tl.re official respondents lor regLrlarizittiorr ol thc above said plots under G.O.Ms.No.455 dated 29.07 200?.. Thcrcupon, the Enquiry Officer have conducted cnquirl, and submittecl re ports recommending for regularization of the subject plots, but, the higher officials did not pass any orders. Subsequentll,, another Enquiry Officer has conducted another enquiry but, for reasons best kno'nvn to him, has recomr.nended for rejecting the applications. Thereafter the official respondents have rejected the applications ol'the petitioner on legally untenable and flimsy grounds vidc l,lcnro dated 24.10.2008. Further, it is stated that the official respondcnts have regularized several other plots falling in the very same excess area and situated in the same locality as that of the petitioner. That the Tahsildar concerned by treating the subject plots as if it is a Government land and not as an excess land ofa private individual under the provisions of the Urban Land (Ceiling and Regulation) Act, has tried to allot the same to GHMC for construction of 2-BHK housing flats. That the petitioner had paid the entire regularization fee and is in physical possession of the plots since 1985 and without considering the said fact, the rejection orders are passed in a mechanical tnanuer without

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application ol' rn^ir: ll und contrarl'^to the^{provisions ol' G.( ).Ms.No.455,} dated 19.07.2022. I hat due to the inaction of thc oflicial^respondents, the petitioner is s.rt'lcring monetary loss and also r-rnd:r'going mental agony. Evcn thour rh tl'ris llon'ble Coi,rrt in Writ Petitiorr Nos.4447 and 4601 of 2009 has clirected the olficial respondents to reconsider the regularizalion ap; lications of the petitioner, the respondent No.5 tried to hand ovcr the : rrh.iecl plots to the rcspondent No.l lbr constructiot.t of 2-lll{K housi:rg flats even though the petitioner is in physical possession of the srrbject plots. Aggrieved by the san.rr:, the petitioner has filed the prest ut Writ Petitions.

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W.P. No.4, )656 of 20i7 filed in respect of ;r1ot No.57 was admitted by this Court on 04.12.201'7 and W.P. No4l516 of 2011 filed in respect o. plot No.45 was admitted on2l.02.2Ol7 and at the time of admissir,n, this Court passed interim orders directing the respondent autho'ities not to alier.rate the subject plots fcrr construction of 2-BIIK flats.

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Even thou;h several opportunities are giveir by this Court, respondent Nos 2 to 5 have not bothered to fiI,: their counter affidavits.

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.l-he respondent No.l has Illed coutlter allidavirs in both the n,rit petitions rnainly stating that thc petitioner herself has adnritted that the Govcrnr.r.rer.rt is treating the subject plots as il'belonging tt'l it undcr the category of ULC ceiling surplus lar.rd ar-rd the olflce of GI]MC does r.rot have any knowledge regarding the title to the properq/. Ilowever, the factum of allotment to the GHMC for construction ol 2BllK housing flats has also not been aifirmed br, the GFIMC bv filing any documentary proof that they have been allotted the sarne

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Ileard the Iearned counsel for the petitior.rer, the learned Government Pleader for Assigr.rments for the respolldents.

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Learned counsel for the petitioner has stated that the petitioner has purchased plot Nos.45 and 57 in the year 1985 and 1990 respectively and is in physical possession ofthe plots from the date of purchase. Thereafter, pursuant to the issuance of G.O.Ms.No.455, dated 29.01 .2002, by the Government, the petitioner has applied for regularization of the subject plots which are in her physical possession and also paid the entire regularization fee. Though the authorities concerned have initiallv recommended for allotment of the subject plots in favour ofthe petitioner, but due to wrong repoft^given

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b1', tire then MRC ' rrre said appricatiorls were rejectecr. Questioning the samc, the petirioner-lras lilcd W.p. Nos.444 7 and 4601 of 2009_ tr/icle scparate ord:rs dated 25.10.2010, this Court iras disposed of. both the writ Peti ions granting riberty to the petitione: lo pursue the regularization ap1 lications tiled by her and also directing the respondent authori ies to reconsider the applications of trre petitioner without reference to the earlier rejection orders. fhereafler, the Special Officer & Oornpetenr Authority, ULC, Hyclerabad, has submitted reporrs dated 07.12.2010 and 03. l2.2{ll to rhe Special chief Secretary & rlhief comrnissioner of Land Acquisition seeking issuance of necessar y orders' Learned counser has stated that the said reports submitted ty the Special Officer & Competent Authority show that the petitioner is in physical possession and enioyment of the plots which are sought to be regularized. Thereafter a draft proceeding for issuin g the Regularization orders was also prepared by the Collector and Di;trict Magistrate, Ffydsls[ad, based ,tn the Note File No.Ell455/l2gl05 put up by the concerned authoriries, but for reasons best known k the respondent authorities, no orders are passed thereon till date. That during the consideration ol the said

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applications, the l'ahsildar l.ras tried to handover the possessio, or'the subjcct plots 1o respondent No.1-GFIN4C lor construction o1'2-UHK housing flats and therefore, the pctitioner was constrained to lllc thc present w'rit petitions.

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I-earned counsel for tl.re petitioner has further stated that tl-re petitioner is in physical possession of the subject plots even as oll datc. The learned counsel has drawn the attention of the Court to the electricity consumption charges receipts, application nrade to I{yderabad Metropolitan Water Supply & Sewerage Board 1br providing water and sewerage conncction and property tax receipts ir.r respect of the subject plots to show that the petitioner is in physical possession and enjoyment of the subject plots as on date. Furlher, it is stated by the learned counsel for the petitioner that in respect of similarly situated persons in the very same area, the Govemment has issued the regularization orders regularizing the possession of the persons who have applied under G.O.Ms.No.455 and other relevant GOs by issuing the following Government Orders:

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l) G.O.Ms.No.49 Revenue^(U.C-N) Department^{dated 19.01.2006;} 2) G.O.Ms.No.l48 Revenue (U.C-N) Department dated 10.02.2006;

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G.(). .'l s. rr',^,.?60 Il*,erruc^(1.1.(-lV) l)cpartment dated^{2lJ.0].20t)6:} 4) C.().{s.N,,. 1 207 lle-i,enue (U.u-t') l)epartment dated 2.i.08.2()06; 5) G-O.\4s.Nr .l186 l{cvenLre (tJ.(l-l\i1 Dcpartment dated 0l).09.2{)06; 6) G.O.N4s.Nr .li70 ltevenue ([-I.C-IV) Deparrment dated l!t.09.2006; 7) G.O.N4s.Nr .185 Ilevenue (U.('-lV) I)epartment dated 17.)2.20(\7: 8) G.O. Ms.Nr .508 Revenue (U.C- lV) Department dated. 2 1.) 4.20(17 ; 9) G.O.Ms.N< .635 Rcvenue (U.C-N) Department dated I i.05.2007; l0) G.O.Ms.Ni .1503 Revenue (U.C-lV) Depa(ment d.atetl114.12.2007; I l) G.O.Ms.N<.i:3 Rcvenuc (ti.C-lV) Department dated l7.t)3.2008: l2) G.O.Ms.Nc 373 Revenue (Lr.C-tV) l)cpartment dated 24.{)3.2008; l3) G.O.Ms.Nc 427 Revenue (U.C-IV) Department dated 26.03.2008; 14) G.O.Ms.Nr,.1348 Revenue (U.C-IV) Department dated 211.1 1.2008; l5) G.O.Ms.No 574 llevenue (U.C-lV) Department dated 08.tt6.2009; 16) G.O.Ms.No 588 Revenue (U.C-IV) Department dated 10.(t6.2009; l7) G.O.Ms.No 694 Revenue (U.C-IV) Department dated 13.07.20091' l8) G.O.Ms.No 696 Revenue (U.C-IV) Department dated 13.(7.2009; l9) G.O.Ms.No 391 Revenue (U.C-IV) Department dated 30.C4.2010; and 20) G.O.Ms.No 424 Revenue (U.CIV) Department dated 12.05.2010;

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Even thougl the counter has been filed by res)ondent No.l, there is no whispe' in the said counter regarding the handing over of the possession of he subject plots to the GHMC for the pulpose of construction of 2.BHK housing flats. Therefbre, it has to be

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necessaril)/ herd that the subject piots lrave ,ever been handed over to the GHMC for construcrion of 2_BIIK housing flats.

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A perusal ol the docurnents filed by the petitioner shows that the petitioner has purchased the plots from the original owner, who had been declared as excess land owner under the provisions of the ULC Act' The documents filed by the petitioner further show that the petitioner is in physical possession of the subject plots, even as on date. Even though the petitioner has made applications seeking regularization of the subject plots and paid substantial amount to the Government towards regularization charges, for reasons best known, no orders have been passed thereon, till date, in spite of the specific direction of this Court in W.P. Nos.4447 and⁴⁶⁰¹ of^{2009 dated} 2s.10.2010.

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Admittedly, the^{UrbanLand (Ceiling & Regulation) Act has} been repealed^{w.e.f.21'03'2008' This Courtas well as the Hon'ble} Supreme^{Court on number of occasionshaveheld that unless the} actual^{physicalpossession of the land has been taken after the} issuance^{ofthe Noticeunder Sections10 (5) and 10 (6) ofthe Act' the} proceedings^{under the ULC Act will automatically stand abated on}

coming into fbrc-, ol thc- f{epeal Act an<l the⁽ ioycrrrinent \,ili uot have any right ov:r the said lands.

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f'he Hon,b e Supreme Court in State of (lttar prudeslt vs, Hsri Rqmt wrile intelpreting Section l0 (3) of the Act ha:; crearry herd as under:

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Thc Ac provides fbr ti tt'' bur onry when fairs to con pl.v rvitrr an o,.,1 ''toottttsion a p( rs.n refuses o' ncler sub-scction t;;;; ro section . o ugrr, .r.or,.l .l u-', oot'",nn' -t,.;;rr, ;;';;,J:.::ffi,::] fairs to cc npr.v rvith rn" under sub- seclion {5r, the comperent aurhorilv rral ,on. oo.r".Ltl-t' -',,iade the vacant land to be si'er ro rhe Stare Governmer,;.,,";,;;, ;.:::or secrion (6) ,n"=a, be neccs:ary - ca, be used. subcomply wir r thc order under """,.1i,],,j:':'..::.T*^{'-- - r'rudt,on} ot a person relir iing or fails lo autrrorirynrr,r*"oor..,,,on'ln:::::::l^{inrhceventoruhiclr} rrrecornpslsnl lhererore, j; being resoned "* "'^torce Forcible dirposse: "-,.1 * *j: rlilr:il,:,;:^{il ;T:illr: ffi #:::tili;} ,:."'":,".::,1'i]#fl"{':i"-T::-:"',T"T:J;{::;3;il-l; (6)ofSectirn ,0. '--""" 'u (5)' than "r"".nrr oirpoir.r.,; ;;::r::H,"J

ffiffffi

t eor 3) 4 scc 2s0

i9. Above-rnentioncd dir.cctives nlakc ir cleal tltat sub-section (j) takes in only dc -jurc^{possessionand not de l'acto possession.} thcrelbre, if the land owner is not surrendering posscssion voluntarilv under sub-section (j) of Section I0, or surrendering or delivering posscssion after noticc, under Section I0(5) or disposscssion by usc of force, it cannot be said that the State Govcmment has taken possession ofthe vacant lald.

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10..

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Let us now exanrine the cffect ofSeclion 3 ofthe llcpeal Act l5 of 1999 on sub-section (3) to Section l0 olthe Acr.'[he Repeal Act 1999 has expressly repealed the Act l3 ol 1976. l-he Object and Reasons of the Repeal Act has already been referred to in thc earlicr pad of this Judgmcnt. Repeal Act has. hou,ever, retained a saving clause. 1'he ques(ion whether a right has been acquired or liability incurred undcr a statule before it is repealcd will in each case depend on the conslruction oithe st,rlutc and the facts ofthe pa|1icular case.

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The mere vcsting of the land under sub-section (3) of Section l0 would not confer any right on the Stale Government to havc de facto^{possessionof the} vacant land unless there has been a voluntary sulrcnder of vacant land before 18.3.1999- State has to establish that there has^{been a voluntarysurrender of} vacant Iand or surrender and delivery of^{peaceful possessionunder sub-scction} (5) of Section 10 or forccful dispossession under^{sub-section(6) of Sectionl0'} On failure to establish any ol^{thosesituations,the land owneror holder can claim} the beneltt of Section 3 of^{the RepealAct.The StateGovemment in this appeal} could not establish any^{of those situationsand hence theHigh Courtis right in} holding that the^{r€spondent is entitled to g€t the benefitof Section 3 ofthe Repeal} Act.

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In Mangalsen^{vs. State of [Jttar Pratlesh2'the Hon'ble}

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Supreme^{Court heldas under:}

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"We may^{addthat the mannerin which thecompetentauthority and the} respondents^{exercisedpowerunderthe19?6Act leaves much to be desiredTill the} stage of^{issuingnotificationunder Sectionlo(l)' th€ authoriryconcemedhadacted} withsufficientpromptnessbut,thereafter,everybodywentinslumber.The notification^{under section l0(3)wasissuedaflcra gapof atmost3 years'The notice}

, (2014) 15 SCC 332

I I

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LrnJcr S(rlion l0^j) rL.r: is-ctrcJ Illcr .ll(rth('r^- lDoltlts bLlt \it: n!r .cr! j ul, )| tlta .tppclhnl. Ih('p )jscssion ccrlitlc.llc rras prc;rarql ahcr a ti le slF ll l .citf: Jnd I rDonths urd noti( I undcr Seclion ll(8) \,as issUcd aRcr nore lhtlt orrc Ll, (ad(. Not r)nl! thi5. the xllt licxrioo liled by thc rpIc111111 q1n,1", section 2 ) uas , [ ,iccii]erl till rhc Il lins ,,1'lhc rr rit pctition in the \ ear 1008

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Adnrittedly as evidenced by the documents filcci along with the Writ Petitio,, the petitioner is in physical possessio, a,d enjoyment of the subject pk,ts, as on date. Therefore, the Gov,:rnment cannot claim to ha'e any right over thc ULC rands nor c.rr rhey i,terfere with the possessic n of the petitioner over the subject plots.

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However, having regard to the fact that the petilioner has paicl substantial amou. lts towards the regularization/allolnrent of subject lands and the authorities have already reco m mended for regularization/allctment and they need to only pass n,:cessary orders in favour of the pr:titioner, which act is onry ministeriar in nature, this Court is of'the op nion that the prayer sought by the pertitioner can be allowed. Moreo,,er, it is to be seen that in respeot of similarly situated persons r:gularization orders have arready be,en issued and the petitioner cann rt alone be discriminated

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Having rega.d to the above_stated reasons and the lacts and crrcumstances of the case the respondents are clirr:cted to pass

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1,2 \ \il

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necessary orders for re gLrlarizing/allotnre nt of the cciling surplus lancl in favour of the petitioner, as expeditiously as possible, preferably, within a period ol eight rveeks form the date of receipt of a copy of this order, duly taking consideration the fact that the ULC Act itself has been repealed and that the Government has issued several regularization orders, rnentioned supra, in respect of various other plots.

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Accordingly, both the Writ Petitions are allowed to the extent indicated above.

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Miscellaneous applicatiorts, il an1^{pending, shall stand closed.}

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There shall be no order as^{to costs.}

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SD/.K.ON IM DEPUTY^REGI

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//TRUE^COPY// SECTTON FFTCER

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