Andhra HC (Pre-Telangana)
Government Of Andhra Pradesh And Ors. vs V. Sudarsanam And Ors. on 14 February, 2002
Equivalent citations: 2002(3)ALD236, 2002 A I H C 2192, (2002) 3 ANDHLD 236 (2002) 2 LACC 134, (2002) 2 LACC 134
JUDGMENT L. Narasimha Reddy, J.
1. In this batch of two writ appeals and 24 writ petitions, a common question arises for consideration. Therefore, they are disposed of by a common judgment.
2. All these matters arise under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act'). The subject-matter of all these cases except WA No. 1497 of 1996 is the land admeasuring 145 acres in Sy Nos. 196 and 200 to 207 situated at Kondapur village of Ranga Reddy District. The subject-matter of WA No. 1497 of 1996 is the land admeasuring 25 acres in Sy. Nos. 297/1/1, 297/2/1 and 298/1 Gudi of Malkapur village, Golconda Mandal, Hyderabad District.
3. The genesis of these proceedings is as under:
The original pattedar and owner of land in Sy. Nos. 196 and 200 to 297 of Kondapur village filed declaration under Section 6 of the Act in the year 1981. The declaration was submitted on behalf of the pattedar and other members of the family. It is not evident from the record as to what prompted him to file the declaration only in the year 1981. Having filed the declaration, they did not take any steps whatever except going on requesting time on one pretext or the other. The ULC authorities, on their part, proceeded by issuing draft statement under Section 8(1) of the Act, wherein it was indicated that the declarant is entitled to retain 1000 sq.mts and the remaining about 145 acres is liable to be surrendered. When the declarant did not submit any objections, the Special Officer and Competent Authority ultimately passed an order under Section 8(4) on 28-10-1985 holding that the declarant is liable to surrender the said land. This was followed by the statement under Section 9 and notice under Section 10 of the Act, etc.
4. If it were to have been a matter concerning the declarant alone, no such problem would have arisen. However, by the time he filed declaration, he entered into agreements with Co-operative Housing Societies, received substantial consideration and delivered possession. It is only after the proceedings under the Act crossed the stages one after the other he woke up and filed WP No. 6397 of 1987, in that, he had impleaded the Government, the Special Officer, Urban Land Ceilings, the District Collector as well as the three Co-operative Housing Societies and two individuals with whom he entered into agreements of sales, received consideration and delivered possession, even by the date of filing declaration.
5. One of the principal contentions in the writ petition was that the land in question was not covered by the master plan as on 17-2-1976, the date on which the Act came into force in the State of Andhra Pradesh, and it was only in September, 1980 that the revised master plan was issued covering this land and in view of the judgment of the Hon'ble Supreme Court in Atia Mohammadi Begum v. State of U.P. , the provisions of the Act did not apply to the land. Following the judgment in Atia Begum's case (supra), the learned single Judge allowed the writ petition through order dated 16-2-1996. WA No. 1457 of 1996 is filed by the State against the same.
6. Several individuals filed the writ petitions claiming that they have purchased the plots from various Co-operative Housing Societies, who in their turn, purchased from the declarant i.e., V. Sudershan and his family members. They claimed protection under the judgment of the Hon'ble Supreme Court in Atia Begum's case (supra) apart from raising various contentions.
7. So far as WA No. 1497 of 1996 is concerned, the 1st respondent therein is the Co-operative Society which purchased an extent of Ac.25-00 of land in Gudi Malkapur village. As on the date when the land was purchased, it was earmarked for recreation purposes under the master plan and it was only through G.O. Ms. No. 65 dated 1-2-1992 that the said land was classified into residential zone. The 1st respondent filed WP No. 18184 of 1994, seeking a declaration that the said land cannot be treated as vacant land for the purpose of the Act. It is their case that till the land was converted into residential zone, it was not vacant land within the meaning of Section 2(q) of the Act, thereby was not amenable to be proceeded under the Act as on the date of its coming into force, and the judgment of the Hon'ble Supreme Court in Atia Begum's case (supra) applies. The writ petition was allowed by a learned single Judge of this Court through order dated 4-6-1996, applying the ratio laid down by the Hon'ble Supreme Court in Atia Begum's case (supra). The State filed WA No. 1497 of 1996 against the same.
8. It is evident that bom the judgments which are under appeal were rendered by the respective learned single Judges by applying the principle laid down by the Hon'ble supreme Court in Atia Begum's case (supra).
9. The learned Advocate-General submits that in view of the judgment of the Hon'ble Supreme Court in State of A.P. v. Audikeshava Reddy, 2001 (8) Supreme 158, the judgments under appeals cannot be sustained and the writ petitions are liable to be dismissed. According to him, once it is held by the Hon'ble Supreme Court that not only the lands which are covered by the master plan as vacant within the meaning of Section 2(q) as on 17-2-1976, but also those which are included in the master plan or become vacant at a later date also, the lands which have become vacant subsequent to 17-2-1976 have to be dealt with under the provisions of the Act. It is his further contention that the agreements of sale or sale deeds that have taken place subsequent to 17-2-1976 do not alter the application of law and, therefore, the respondents in the writ appeals and the petitioners in the various writ petitions derive no right out of such transactions.
10. Sri M.R.K. Chowdry, learned senior Counsel, Sri V. Rajgopat Reddy, Sri J.V. Prasad, and Sri C. Hanumanth Rao, the learned Counsel, on the other hand, submit that in view of the judgment of this Court in WA No. 512 of 1998 dated 4-1-2002 in State of A.P. v. B. Komaraiah, , even where the land in a particular urban agglomeration is included in the master plan at a later date, he holdings of the persons in respect of such land have to be decided with reference to the date on which such land is included in the master plan and accordingly any transfer that have taken place prior to such inclusion cannot be ignored. They also rely upon Section 19 of the Act and contend that where the lands are possessed by the Co-operative Housing Societies, such lands are exempted from Chapter 3 of the Act.
11. A further contention is advanced which is to be effect that under G.O. Ms. No. 733 dated 31-10-1988, the Government provided for exemption of 5 acres of land (excluding the land covered by the roads etc.,) in the peripheral areas within urban agglomeration and for this purpose neither any application nor any decision is contemplated. They submit that the lands in both the cases are situated in the peripheral areas and each person holding title to the land is entitled for the exemption to the extent of 5 acres and the same was not at all taken into account by the authorities while treating the said land as excess and taking further steps.
12. The contention raised by the learned Additional Advocate-General that in view of the judgment of the Hon'ble Supreme Court in Atia Begum's case (supra), the judgments under the appeals are liable to be set aside, needs no discussion or elaboration. In Audikeshava Reddy's case (supra), the Hon'ble Supreme Court took the view that Atia Begum's case (supra) was not correctly decided. Inasmuch as the orders under appeals are passed only following the judgment of the Hon'ble Supreme Court in Atia Begum's case (supra), hey have to be set aside.
13. The next important question that remains to be decided is whether the orders that were challenged in the writ petitions can be sustained. It was specifically contended in WP No. 6397 of 1987 (subject-matter of WA No. 1457 of 1996) that the land came to be included in the urban agglomeration in view of the extended master plan published in G.O. Ms. No. 391 MA dated 29-9-1980. It was on that basis that the learned single Judge applied the principle laid down in Atia Begum's case (supra). Once it is held by the Supreme Court that the lands which were included in the master plan at a later point of time are also liable to be treated as vacant land, the next question would be as to with reference to what date the holdings have to be decided?
14. Almost is identical situation, this Court in B. Komaraiah's case (supra), after referring to the judgments of the Hon'ble Supreme Court, the relevant provisions of the Act and the Urban Areas Development Act, held as under :
"Therefore, the only conclusion that can be arrived at is that as and when any land, which was not vacant at the time of commencement of the Act becomes vacant on a subsequent date, the holdings of the persons have to be decided with reference to the subsequent date on which the land becomes vacant. Any adjudication in respect of such lands with reference to the date of commencement of the Act cannot be sustained."
Since in that case also the inclusion of the lands was through the master plan published in G.O. Ms. No. 391 dated 29-9-1980, as in this case, the orders passed under Section 4 of the Act, etc., were set aside and the following directions were issued.
"The 2nd respondent shall decide the matter afresh. He shall decide the holdings and entitlements of the respondents with reference to 29-9-1980. The 2nd respondent shall ascertain as to whether there was any change of ownership or emergence of persons; whether through birth, partition and other similar factors, vis-a-vis the land. For this purpose, the appellant may either call for further information or require the respondents to file declaration under Section 6 of the Act afresh."
We are of the view that having regard to the similarity of the facts, the same result should ensure in these cases also.
15. The manner in which the land in WA No. 1497 of 1996 became vacant at a late date is somewhat different. The land was within the urban agglomeration and included in the master plan. However, it was included in the recreation zone where it is not permissible for any one to make any construction. In view of the definition of Section 2(q)(1), the same cannot be treated as vacant land. Section 2(q) (1) reads as under:
" Vacant land" means land not being land mainly used for purpose of agriculture, in an urban agglomeration, but does not include-
(i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated;......."
It was only through G.O. Ms. No. 65, MA dated 1-2-1992 that this land was included in the residential zone. With the change of land use tinder the said orders, the land became "vacant land' within the meaning Section 2(q) whereby the provisions of Chapter 3 of the Act get attracted. This is the result of operation of Section 6 of the Act. As per explanation 2 to Section 6(1) of the Act, the date of commencement of the Act vis-a-vis such lands shall be the date on which the land became vacant. The said explanation reads as tinder:
"Explanation :--In this sub-section "Commissioner of the Act" means,--
(i) the date of which this Act comes into force in any State;
(ii) where any land, not being vacant land situated in a State in which this Act is in force has become vacant land by any reason whatsoever, the date on which such land becomes vacant land;"
Therefore, for the purpose of the Act, the date of commencement vis-a-vis this land is 1-2-1992 and it is with reference to that date that the holdings are to be decided. In that view of the matter, the orders passed by the authorities under Section 8(4) of the Act and further proceedings deserve to be set aside and the matter needs to be adjudicated afresh.
16. Coming to the submissions of the learned Counsel for the respondents as well as the writ petitioners that the lands arc situated in peripheral areas and that the Co-operative Housing Societies are entitled for the benefit under Section 19 of the Act, we do not propose to express any opinion in these matters, for two reasons, viz., (1) when matters are being remitted for fresh adjudication by the Special Officer and Competent Authority, it is not proper to express any opinion; and (2) whether the lands are situated in the peripheral area, if so, who are the persons or institutions that are entitled for the benefit of G.O.Ms.No. 733, whether the Co-operative Housing Societies were in possession of the lands at the relevant dates, if so, the nature of possession, etc., are all questions, which can be decided only on the basis of certain facts which need to be pleaded and established.
In view of the foregoing discussions, the writ appeals and writ petitions are partly allowed, to the following extent:
(1) The orders that are under challenge in the writ appeals are set aside;
(2) The orders that are passed by the Special Officer and Competent Authority under Section 8(4) and other further proceedings which are challenged in the writ petitions are also set aside;
(3) The Special Officer and Competent Authority shall decide the matters afresh and compute the holdings with reference to the date on which the lands became vacant, as indicated above;
(4) The respondents in the writ appeals and the petitioners in the writ petitions shall be entitled to submit their claims before the Special Officer and Competent Authority within one month form the date of this judgment;
(5) The Special Officer and Competent Authority shall take into account the various claims put forward before it and shall pass orders under Section 8(4) of the Act in which the matters relating to the exemption under G.O.Ms.No. 733 dated 31-10-1988 and the rights of the Co-operative Housing Societies under Section 39 of the Act shall also be decided. The order shall be passed as expeditiously as possible and not later than 4 months from the date of receipt of a copy of this judgment.
In the circumstances of the cases, there shall be no order as to costs.