Telangana High Court
Klsr Urban Properties Pvt Ltd., vs Prl.Secy., Ulc Hyd., 7 Others, on 15 July, 2022
Author: B. Vijaysen Reddy
Bench: B. Vijaysen Reddy
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
WRIT PETITION No.12046 of 2014
ORDER:
This writ petition is filed challenging the ULC proceedings in File No.H2/12203/76 including orders passed under Section 8(4) dated 04.04.1994 and all consequential orders therein holding that the land in Sy.No.451 of Puppalaguda village to an extent of Ac.9.16 guntas is surplus land belonging to Late S. Mallaiah and trying to take possession of the land from the petitioner-company as being illegal, arbitrary and contrary to the provisions of the Repeal Act 1999.
2. The background facts, as pleaded in the writ affidavit, are as under:
(a) Originally one S. Mallaiah, S/o Swamy, R/o Khajaguda Village was the owner and possessor of agricultural land in an extent of Ac.9.16 guntas in Sy.No.451 of Puppalaguda Village.
During his lifetime, he sold the said land in favour of one Menga Narsimha S/o. Sarvaiah R/o. Shaikpet, Hyderabad and executed a registered sale deed bearing document No.617 of 1969 dated 23.09.1969. The sale is reflected in the encumbrance certificate of the year 1969. The said Narsimha passed away and his legal heirs, respondents No.6 and 7, have sold the land in favour of the respondent No.8 and its group of companies under registered sale 2 deeds bearing document No.6840 of 1994 dated 10.08.1994 and document No.6811 of 1994 dated 09.08.1994 and ever since, the respondent No.8 was in possession and enjoyment of the said land.
(b) It is stated that even after sale of land by Mallaiah under registered sale deed dated 23.09.1969 in favour of the father of the respondents No.6 and 7, in spite of losing title over the land, for the reasons best known to him he filed declaration before the ULC authority declaring that the land in Sy.No.451 is his land without disclosing the alienation made by him in the year 1969. When a statement was filed under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (for short 'the ULC Act'), the respondent No.2 was bound to make enquiry under Section 8(1) of the ULC Act. However, without making any proper enquiry and without noticing the alienation in the year 1969, the respondent No.2 blindly believed the declaration filed by Mallaiah and proceeded in the matter and declared him as surplus holder.
(c) It is stated that the respondent No.8, in the course of its business, went into liquidation and an official liquidator was appointed by this Court. The subject property was put to auction by this Court in C.P.No.39 of 2000. The petitioner-company participated and was declared as the highest bidder. Accordingly, a sale deed was executed in favour of the petitioner-company vide 3 registered document bearing No.1881 of 2012 on 03.05.2012. The petitioner-company purchased the subject property for a sum of Rs.18 crores and ever since the petitioner-company is in possession and enjoyment of the subject property. The petitioner got their name mutated in the revenue records vide proceedings No.D/642/2012 dated 21.09.2012.
(d) In spite of the respondent No.5, being aware that the subject property does not belong to the Government, at his instance, the respondent No.4 took up the matter under Section 5(5) of the A.P. Rights in Land and Pattadar Pass Books Act, 1971 for cancellation of the mutation proceedings of the petitioner- company through proceedings No.C/394/2014 on the premise that the subject property is surplus land. It is stated that to the knowledge of the petitioner-company, Mallaiah died long back and notices under Sections 10(5) and 10(6) of the ULC Act were taken on a dead person. In reality, possession was not taken over as the land was never in possession of Mallaiah or his legal heirs. At any rate, the person, who sold the subject property (Mallaiah) much prior to the commencement of the ULC Act, cannot file declaration as the subject property was never in his possession. The declaration was blindly accepted by the respondent No.2. The total approach of the respondent No.2 is illegal and does not stand to reason. There was an attempt made by the respondents No.4 and 5 to dispossess 4 the petitioner from the land on 09.04.2014. WP.No.8604 of 2014 was filed by the petitioner questioning the proceedings impugned in this writ petition. However, it was withdrawn on 21.03.2014 with a liberty to file a fresh writ petition.
3. It is the case of the respondents that Mallaiah submitted declaration in Form I under Section 6(1) of the ULC Act declaring the vacant land in Sy.No.131/1, Khajaguda Village, in an extent of Ac.2.34 guntas (11,527.72 sq. meters), vacant land in Sy.No.451 of Puppalaguda Village in an extent of Ac.9.16 guntas (38037.74 sq. meters); 250 sq. yards house property bearing H.No.1-14, Khajaguda Village and 400 sq. yards house property bearing H.No.1-100, Durga Hussain Shavalli, as properties held by him under the provisions of the Act. Mallaiah was purchaser of the land admeasuring Ac.2.34 guntas situated in Sy.No.131/1, Khajaguda Village, from one K. Paramaiah under oral agreement prior to the ULC Act came into force. The said land was earmarked for conservation purpose as per the proceedings vide letter No.2528 of 1991 dated 14.03.1991 by the Hyderabad Urban Development Authority (HUDA) and as per the pahanies for the year 1976-77 and 1991-92, Mallaiah and one Dattaiah were shown as occupants and no agricultural operations were notice. Hence, the entire extent of Ac.2.34 guntas equivalent to 11527.72 sq. meters was computed to the holding of the declarant treating it as vacant land under Section 5 2(q) of the ULC Act. With regard to land in Sy.No.451 of Puppalaguda Village, an extent of Ac.9.16 guntas was purchased by the declarant and the land use mentioned as per the proceedings in letter No.10759 of 1991, PSD, dated 04.09.1991 of HUDA, it is reserved for conservative purpose. With regard to properties located at H.No.1-14, admeasuring 250 sq. yards at Khajaguda village and another H.No.1-100, admeasuring 400 sq. yards at Dargah Hussain Shavalli village, which existed prior to the commencement of the Act for dwelling purpose, was protected under Section 4(11) of the ULC Act.
4. It is stated that a draft statement under Section 8(1) and Notice under Section 8(3) of the ULC Act was issued on 04.04.1994 and the declarant was exempted to hold an extent of Ac.5.05 guntas equivalent to 20,235 sq. meters as per the exemption provided by the Government vide G.O.Ms.No.733 dated 31.10.1988 and eligible for 1000 sq. meters under Section 4(1)(b) of the Act as retainable area of the declarant. Further, the declarant was declared as excess land owner of 28,320.46 sq. meters in Sy.No.451 of Puppalaguda village and the same was served on declarant on 13.04.1994 and notice under Section 6(2) of the ULC Act was issued to K. Paramaiah, pattadar of Sy.No.131/1 of Khajaguda village separately. As per the statement under Section 6(1) of the ULC Act, the declarant disclosed in his statement dated 6 12.01.1971 stating that he does not own any other property other than the properties shown in the declaration and he has not disposed of any of the land or building on or after 17.02.1975 and there are no litigations whatsoever pending. Accordingly, the orders under Section 8(4) and final statement under Section 9 of the ULC Act were issued on 19.08.1994 confirming the draft statement under Section 8(1) and notice under Section 8(3) of the ULC Act without any alterations. Thereafter, notification under Section 10(1) of the ULC Act was issued on 01.10.1994 and the same was published in the A.P. Gazette No.34-A dated 05.10.1995 and a notice was issued to the declarant on 10.11.1994 to attend the office in person or through an authorized agent on 18.11.1994 for the purpose of identification of the property at the time of sub-division work and the same was received by the declaration.
5. It is stated that a declaration under Section 10(3) of the ULC Act was issued on 02.02.1996 and the same was published in A.P. Gazette No.18 dated 02.02.1996. Further, a notice was issued under Section 10(5) of the ULC Act dated 17.06.1997 in the name of the declarant to surrender/deliver possession of the surplus land to the Enquiry Officer and on the notice, it is attested by the Enquiry Officer on 05.08.1997 that the neighbours of the declarant informed that the declarant expired and his son is residing in Hyderabad city. Therefore, the Enquiry Officer has chosen to effect 7 the service of notice by affixing it to the house of the declarant bearing premises No.1-14, Khajaguda Village, in the presence of the witnesses and notice was affixed in conspicuous places. The enquiry officer submitted report on 14.10.1997 informing that the subject land is an open land covered with fencing and gate and a small room belonged to the declarant. The declarant expired three years back and his wife viz. Smt. Laxmamma, aged about 58 years and his son viz. Sri S. Ashok, aged about 40 years, are residing at Raidurg village. At no point of time either the declarant or the persons claiming through the declarant filed any application brining to the notice of the competent authority about the expiry of the declarant. The procedure, as prescribed under the ULC Act, has been followed and the notices have been duly served on the declarant by affixing the same on the house of the declarant. In pursuance of the orders of the enquiry officer, a notice under Section 10(6) of the ULC Act was issued on 16.10.1997 duly maintaining the name of the declarant as S. Mallaiah (died) per LRs. Smt. Laxmamma and Sri S. Ashok and the enquiry officer has taken over the possession of the land. Thereafter, the subject land was handed over to the Mandal Revenue Inspector, Rajendranagar Mandal on 28.11.1997 duly conducting panchanama.
6. It is further stated that by the respondents that the land was already vested with the Government free from all encumbrances. 8 The declarant is entitled to notice under Section 11(8) of the ULC Act for payment of compensation, for which notice was issued on 28.01.1998, 23.03.1998 and 02.05.1998 addressed in the name of S. Mallaiah died per LRs Smt. Laxmamma to appear in person or through an authorized agent for receiving compensation as they have failed to file any memo intimating their residential address. As per orders under Section 11 of the ULC Act dated 12.06.1998 as there were no claims and objections from any interested persons; Smt. Laxmamma, wife and Sri S. Ashok, son, were declared entitled persons for an amount of Rs.7082.62 towards compensation payable for the surplus vacant land and the same was sent through registered post, which was returned as refused on 04.07.1998 and 08.07.1998. Thereafter, the enquiry officer was instructed to serve the above order and it was reported that the residents of H.No.1-14, Khajaguda village i.e. LRs viz. Smt. Laxmamma and Sri S. Ashok, are not residing in the house and the notice was affixed on the said premises.
7. The respondents contended that S. Mallaiah never sold the land vide registered sale deed in the year 1969. The same was not brought on record and none of the persons including the LRs of the declarant claimed rights over the land nor did they object to the proceedings initiated under the ULC Act. The alleged purchaser, Menga Narsimha, nor his legal heirs filed any declaration as 9 required under the ULC Act and never filed any objections against the proceedings initiated under the ULC Act against the declaration filed by S. Mallaiah. The alleged sale made by the declarant in the year 1969 was not implemented in the revenue records and as per Sections 5(3) and 10(4) of the ULC Act, any transfer of land after commencement of the Act is null and void. As per the statement of the declarant dated 12.01.1977 he has not disposed of any land. Once the property is vested in the Government, free of all encumbrances, the petitioner does not acquire any title to the property. The declaration under Section 10(1) of the ULC Act was published in the Gazette on 01.05.1997 i.e. much prior to the execution of alleged registered sale deed bearing document No.1881 of 2012 dated 03.05.2012. The mutation was effected in the year 2012 much after the Repeal Act came into force. In order to knock away valuable property, vested in the Government, the petitioner has created a story of execution of sale deed in the year 1969. The petitioner, for the first time, came up with a plea of purchase of the subject land from the declarant nearly after 45 years of filing of declaration. The alleged sale by the predecessor of the petitioner is not genuine.
8. Mr. O. Manohar Reddy, learned counsel for the petitioner, submitted that the alleged declaration filed by S. Mallaiah in respect of the subject property situated in Puppalaguda village was illegal. 10 Without conducting any proper enquiry, in spite of the declarant having sold the land and lost title in the year 1969, the respondent No.2 computed the subject land to the holding of the declarant. The land was purchased by the predecessor of the petitioner under registered sale deed in the year 1969 from S. Mallaiah and therefore, the question of land being declared by him under the ULC Act would not arise. The declaration under Section 6(1) of the ULC Act, orders under Sections 8(1) and 8(4) of the ULC Act and all consequential proceedings are null, void and non-est in the eye of law.
9. On the other hand, Mr. Harender Pershad, learned Special Government Pleader, submitted that the petitioner never raised any objection for Section 8(1) and Section 8(4) proceedings. The name of the petitioner was not implemented in the revenue records until 2012. Based on enquiry, including field inspection, the land was found to be in possession of S. Mallaiah and therefore, the declaration of S. Mallaiah was accepted and enquiry was conducted and computed the said land to the holding of S. Mallaiah. The land was declared surplus and by following procedure under the provisions of the ULC Act, Section 10(1) and Section 10(3) proceedings were issued and notice under Section 10(5) of the ULC Act was issued to the declarant. During the local enquiry, it was found that the declarant died, notice was affixed in 11 conspicuous places at the house of the declarant. Thereafter, Section (6) proceedings were issued. Thus, there is no illegality in the proceedings issued by the respondents.
10. Heard learned counsel for the petitioner and learned Special Government Pleader. Perused the record.
11. There is no dispute that under the registered sale deed bearing document No.617 of 1969 dated 23.09.1969, the said S. Mallaiah, sold an extent of Ac.9.16 guntas in Sy.No.451 of Puppalaguda, in favour of Menga Narsimha for valuable consideration. The same was entered in the encumbrance record. Later, under registered sale deeds bearing document No.6840 of 1994 dated 10.08.1994 and document No.6811 of 1994 dated 09.08.1994, the legal heirs of Menga Narsimha, who are respondents No.6 and 7 herein, sold the said land to the respondent No.8. Subsequently, as evident from the sale deed bearing document No.1881 of 2012 dated 03.05.2012, the respondent through official liquidator appointed in terms of Section 450 of the Companies Act, 1956, sold the land in favour of the petitioner. Physical possession of the land was delivered by the Advocate Commissioner to the petitioner under the said sale deed.
12. It is not the contention of the learned Special Government Pleader that the sale deed dated 23.09.1969 is an invalid document 12 or that possession of the subject property was not delivered to the purchaser Menga Narsimha. The subsequent sales under sale deeds dated 10.08.1994 and 09.08.1994 followed by sale deed dated 03.05.2012 is also not disputed by the learned Special Government Pleader. So also there is no contention raised that the subsequent purchasers including the petitioner do not have valid title to the land in question.
13. The contention of the learned Special Government Pleader that the subject land was not mutated in the revenue records and mutation was effected after the ULC Act came into force and therefore, the same has to be treated as transfer of title, and that it is in violation of Section 5(3) of the ULC Act, is without any basis. The transfer of title is under registered sale deed dated 23.09.1969 whereunder the declarant, S. Mallaiah, sold the land to Menga Narsimha. It is relevant to note that mutation effected is only for limited purpose of entering the name of the purchaser in the revenue records and for the purpose of recognising the purchaser as owner in the official records.
14. Learned Special Government Pleader has also not brought to the notice of this Court any provision of law that for want of mutation proceedings, the ULC authorities can treat the subject property as holding of declarant even if the declarant sold the land under registered sale deed in the year 1969.
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15. In STATE OF AP, REVENUE DEPARTMENT v. SMT A. BHARATHI1, the learned Division Bench was dealing with a case arising out of the ULC Act, 1976 wherein the writ petitioner was put into possession of the land in question on the date of agreement of sale entered on 01.12.29175 and subsequently, sale deed was executed on 05.12.1976 (see para 6). Taking note of recitals in the sale deed that possession of the land has been handed over under the agreement of sale and that declarant/vendor did not hold possession of the land in question on the date when the ULC Act came into force, the following observations were made:
"...The crux of the issue is whether the declarant was holding the property, which is the subject matter of agreement of sale and subsequent registered sale deed, when the Urban Land Ceiling Act came into force. The Apex Court in Government of Andhra Pradesh V. HEH, the Nizam, Hyderabad (referred to 1 supra) has held that the phrase 'to hold'? connotes two concepts i.e., physical possession or legal title to the vacant land and that both the concepts stand attracted to the concept "hold" under the Land Ceiling Act. Even as on the date of the Act coming into force, the vendor of the writ petitioner has parted with possession of the land under the agreement of sale and subsequently the registered sale deed, executed after issuing the statutory notice under Section 26 of the Urban Land Ceiling Act, confers absolute title on the writ petitioner ... Therefore, it has to be held that the original vendor did not hold possession of the land in question as on the date of coming 1 2002 (4) ALT 334 (DB) 14 into force of the Urban Land Ceiling Act and that therefore the said land cannot be included in his declaration."
16. The judgment in RITESH TEWARI v. STATE OF UTTAR PRADESH2 relied upon by the learned Special Government Pleader is not applicable to the facts of the case. In the said case, sale of the land in question by the declarants/tenure holders was on 20.04.1982 (see para 4) i.e. after the ULC Act came into force and was held to be void as per Section 5(3) of the ULC Act. In the present case, the declarant sold the land to Menga Narsimha in the year 1969, much before the ULC Act came into force and thus, computing the said land to the holding Mallaiah is illegal and as evident from the record, the same is done without conducting proper enquiry. It is not as if every land declared by a person should be computed to his holding. After statement under Section 6(1) or 6(2), as the case may be, reasonable enquiry should have been conducted. It was incumbent upon the respondent No.2 to verify the sale deeds and encumbrance record as to whether there was any transfer of title or encumbrance in respect of the subject land. The said exercise was not done by the respondent No.2 and proceedings were conducted negligently issuing Section 8(1) and 8(4) orders in the name of Mallaiah, who was not the owner by the date when declaration was filed and such orders were passed. 2 (2010) 10 SCC 677 15
17. Another illegality noticed in the impugned proceedings is in regard to service of notice under Section 10(5) of the ULC Act on a dead person. The notice was stated to have been affixed on the house of the declarant at Khajaguda and even when the LRs of the declarant i.e. wife and son were found to have shifted their residence to Raidurg. Under Section 10(5) of the ULC Act, notice should have been issued to the person who was in possession, which is mandatory and is lacking in this case. In SMT A. BHARATHI's case (1 supra), with regard to the statutory notices, it was observed that:
"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."
However, as the substantive proceedings under Sections 6, 8(1) and 8(4) of the ULC Act are held to be illegal and non-est, the issue of service of Section 10(5) notice on the dead person would be insignificant.
18. For the foregoing reasons, the writ petition is allowed. The impugned proceedings are held to be illegal, void and non-est in the eye of law and accordingly set aside.
The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
____________________ B. VIJAYSEN REDDY, J July 15, 2022/DSK