Andhra HC (Pre-Telangana)
Mir Sardar Ali And Ors. vs Mandal Revenue Officer, Kesera Mandal ... on 9 February, 2004
Equivalent citations: 2004(2)ALD526, 2004(4)ALT443
ORDER A. Gopal Reddy, J.
1. The short question that falls for consideration in this writ petition is whether on the advent of Urban Land (Ceiling and Regulation) Act, 1976 (Act 33/ 1976) and on issuance of G.O. Ms. No. 319 Municipal Administration, dated 23-6-1980 extending the master plan to the lands in the peripheral area will have the effect of ceasing the operation of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (Act 21/1950) to the lands covered by extended master plan.
2. The 1st respondent granted succession of agricultural lands in favour of Respondents 2 to 9 over the lands in Sy.Nos.154, 155, 156, 157 and 158 admeasuring Ac.30.23 gts. of Kapra Village which is the subject-matter of challenge in this writ petition. Against the said order though statutory appeal lies to the Collector and further revision to the High Court, petitioners justified their action in invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India contending that in view of overriding effect given to the provisions of Act 33/ 1976 once the master plan is extended to the lands no enquiry can be proceeded nor any order can be passed under the Act 21/1950 for granting succession over the said lands.
3. Brief facts, which are necessary for due adjudication of the writ petition, are as under:
4. Respondents 2 to 9 filed an application before the MRO-1st respondent to grant succession over the suit schedule lands stating that late Donka Ramaswamy s/o Narsaiah was the protected tenant of the above lands of which Mir Gulam All and Mir Mehdi Ali are the Pattadars. On the death of Ramaswamy his son-Donka Jangaiah succeeded to the tenancy rights and he also died in the year 1997 leaving the Respondents 2 to 9 herein as successors and lineal descendants to the property. The same was contested by the petitioners as well as Bhavanarushi Co-operative House Building Society on various grounds admitting that the name of Donka Ramaswamy was recorded as protected tenant of the land as he was the eldest son of Donka Narsaiah and in the family settlement among the brothers of Ramaswamy, he was provided with the lands at Dammaiguda Village for relinquishing his rights over the tenancy lands and after the demise of Ramaswamy a Memorandum of Agreement was signed by Jangaiah on 29-12-1983 who surrendered their protected tenancy rights over the lands of which Society purchased the total extent and the said lands were registered in the name of the society. The lands in question are Inam lands; therefore, provisions of tenancy Act have no application. The MRO by the impugned proceedings dated 30-6-2003 held that Donka Ramaswamy was alone the protected tenant and the Respondents 2 to 9 who are the legal heirs and lineal descendants of the deceased protected tenant and accordingly succession was granted in their favour under Section 40 of Act 21/1950.
5. In the affidavit filed in support of the writ petition it is contended that respondents who have purchased the lands from the petitioners under agreement of sale dated 17-4-1983; 17-5-1986, 22-5-1986, and 3-8-1986. The 2nd respondent has failed to pay the balance consideration on or before 17-4-1984, which is a condition precedent to get the land surveyed and demarcated. Unless the lands are divided and identified, the alleged agreement dated 17-5-1986 is hit by Sections 30 and 38 of Act 21/1950 and the same is applicable to subsequent agreements dated 22-5-1986, 3-8-1986. The General Power of Attorney (GPA) dated 16-7-1988 cannot be looked into, as the property for which the GPA was given is not identifiable and is hit by Article 42(c) of Indian Stamp Act. In view of the same, no importance can be attached to the sale deed dated 17-8-1990 which is said to have been executed in favour of respondent No. 2, since the document is silent as to the name of the executant. Sections 30 and 48A prohibits sale of land by a tenant Section 19 contemplates termination of tenancy as per Section 19(2)(b)(c) and (d) of Act 21/1950. Once the Kapra Village comes within the extended master plan for non-municipal areas issued in G.O. Ms. No. 319 dated 23-6-1980, the provisions of Act 33/1976 cover the lands. In view of overriding effect given under Section 42, the provisions of Act 21/1950 have no application. Though the said point was argued in W.A. No. 1384 of 2002 and batch, the division Bench did not give any categorical finding regarding Act 33/1976 and uphold the order of Joint Collector.
6. Learned Senior Counsel, Sri K. Subrahmanya Reddy appearing on behalf of the petitioners urged that once Act 33/ 1976 is made applicable to the lands covered by extended master plan by virtue of Section 42, operation of other acts are excluded to the said lands. In view of Sections 8, 9 and 10 of the A.P. Urban Areas (Development) Act, 1975, MRO will not have jurisdiction to entertain the application filed under Section 40 of Act 21/ 1950 nor can grant succession over the said property. The rights of the parties, if any, have to be worked out under Act 33/1976 but not otherwise. Learned Senior Counsel further urged that once the final statement as contemplated under Sections 8(4) and 9 and notification under Section 10(3)(5) of Act 33/1976 is issued, any person aggrieved by such declaration can file appeal under Section 12 and in fact, Act 33/1976 which is a self contained code. The revenue officials are precluded from conducting any sort of enquiry over the lands covered under Act 33/1976. To buttress his submissions he placed reliance on the following judgments:
1. Dattatraya v. State of Maharashtra, .
2. State of Gujarat v. Parshottamdas, .
3. Spl. Officer, Urban Land Ceiling v. P. Ramanamma, (DB).
4. K.V.V. Satyanarayana v. Y.Subba Rao,
5. Galib Bin Awaz v. Mohd. Abdul Khader, .
6. Shivgonda Anna Patil v. State of Maharashtra, .
7. Islamia Arabic College v. Sgabta Bai, 1988 (2) ALT 74.
8. State of A. P. v. S.B. Komraiah, (DB).
9. State of A.P. v. N. Audikesava Reddy, .
10. Government of A.P. v. J.Sridevi, .
He also relied upon the definitions; 'ceiling limit', 'person', 'to hold' and 'urban land' as defined under Sections 2(c), (i), (I) and (o) of Act 33/1976, which read thus:
(c) "ceiling limit" means the ceiling limit specified in Section 4:
(i) "person" includes an individual, a family, a firm, a company, or an association or body of individuals, whether incorporated or not; (I) "to hold" with its grammatical variations, in relation to any vacant land, means--
(i) to own such land; or
(ii) to possess such land as owner or as tenant or as mortgagee or under an irrevocable power of attorney or under a lure-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities.
(o) "urban land" means,--
(i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or
(ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town committee, a cantonment board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture. (A) "agriculture" includes horticulture, but does not include--
(i) raising of grass,
(ii) dairy farming
(iii) Poultry farming,
(iv) breeding of live-stock, and
(v) such cultivation, or the growing of such plant, as may be prescribed;
(B) land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture:
Provided that where on any land which is entered in the revenue or land records before the appointed day as for the purpose of agriculture, there is a building which is not in the nature of a farm-house, then, so much of the extent of such land as is occupied by the building shall not be deemed to be used mainly for the purpose of agriculture; Provided further that if any question arises whether any building is in the nature of a farm-house, such question shall be referred to the State Government and the decision of the State Government thereon shall be final;
(c) notwithstanding anything contained in Clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture;
7. Reference in this connection may be made to a Constitutional Bench judgment of the Apex Court in Union of India v. Valluri Basavaiah Chaudhary, , wherein it was pointed out that the primary object and the purpose of the Act as the long title and preamble show, is to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein, and with a view to bringing about an equitable distribution of land in urban agglomerations to sub-serve the common good, in furtherance of the Directive Principles of Article 39(b) and (c) of the Constitution. The object and the purpose of the Act have been reiterated in State of Gujarat v. Parshottamdas Ramdas Patel, .
8. Once the Act 33/1976 is made applicable to any lands, any person who holds the vacant land in excess of the ceiling limit is under obligation to file declaration under Section 6: The expression 'commencement of the Act' as defined in explanation (i) to Sub-section (1) of Section 6 the date on which the Act comes into force in any State; (ii) where any land, not being vacant land situated in a State in which the Act 33/1976 is in force has become vacant land by any reason whatsoever, the date on which such land becomes vacant land; and (iii) where any notification has been issued under Clause (n) of Section 2 in respect of any area in a State in which Act 33/1976 is in force the date of publication of such notification is the relevant date for extending the Act. Section 3 prohibits holding of vacant land in excess of ceiling limit by any person where the Act applies under Sub-section (2) of Section 1. The entire Chapter-III, which contemplates for determination of ceiling area, will not be applied to certain vacant lands held by Co-operative Societies in view of Section 19 of the Act 33/1976. Wherever the Act is made applicable, the person holding the excess land is under obligation to file declaration under Section-6, as referred to above. On filing such declaration a draft statement with regard to vacant land held by the person in excess of ceiling limit would be prepared and served on the person who filed such declaration and if the person filed any objection to the said draft statement, after considering the same the competent authority will determine the excess vacant held by such declarant followed by final statement' under Section 9. On issuance of such final statement the competent authority shall cause a notification giving particulars of the vacant land held by such person in excess of the ceiling limit under Section 10 and on issuance of notification under Section 10(i), if any person having interest over the properly can file his claim and only after considering such claim a notification will be published under Sub-section (3) of Section 10 and any transfer during the enquiry under Sub-section (2) of Section 10 will be null and void and will not bind on the competent authority. Any person aggrieved by such notification can file an appeal under Section 33 of the Act 33/ 1976. After notification, determining the excess vacant land, is issued it is open for the competent authority to take possession of the said vacant land on payment of compensation as specified under Section 11 of the Act 33/1976. When the person aggrieved by an order under Section 11 may appeal to the Tribunal and further appeal to the High Court under Sections 12 and 13 respectively. Notwithstanding anything contained from Sections 3 to 19, any person who holds in excess of the ceiling limit and the State Government is satisfied have the power to exempt by recording reasons and any person who holds the excess vacant land intends to utilize the said land for the construction of building units, for the accommodation of the weaker sections of the society in accordance with any scheme approved by such authority as the State Government notified in the Official Gazette specified in that behalf, the competent authority after making such enquiry declare such land not to be excess land. Section 42 of the Act 33/1976 shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or any custom, usage or agreement or decree or order of a Court, Tribunal or other authority.
9. The entire scheme of the Act, as referred to above, is intended for determination of the vacant land held by any person within the urban agglomeration where the Act applies, vesting of the said excess land in the Government and prohibition of alienation of excess vacant land after the notified date from the date of commencement of the Act till final statement is made. In view of overriding effect given to the provisions of the ULC Act, ,the person who holds excess vacant land is prohibited to transfer of any such vacant land or part thereof by way of sale or mortgage, gift, lease or otherwise until the holder of the land files declaration under Section 6 and a notification regarding the excess vacant land held by him has been published under subsection (1) of Section 10 and any transaction in contravention of Section 5 is null and void. During the period commencing on the date of publication of the notification under Sub-section (2) and ending with the date specified in the declaration made under Sub-section (3) of Section 10 prohibits transfer of such land. It is not out of place to notice any person who holds excess vacant land can seek exemption under Section 20. The Government of Andhra Pradesh also in G.O. Ms. No. 733, dated 30-10-1988 granted general exemption exempting 5 acres of land after excluding the areas which were required for roads, open areas and other purposes in the master plan from the purview of Act 33/1976.
10. In view of the same, the rights of the parties who can succeed the property, or entitled to succession under the Act 21/1 1950 is beyond the scope of enquiry contemplated under the provisions of Act 33/ 1976. Incidentally, the competent authority may decide whether the land held by him as owner or as tenant or partly in one of such j capacity or same is for the determination of the excess land held by him but not otherwise. In the entire pleading it is not stated nor contended before the MRO that particular land was earmarked under the master plan for a specific purpose for enabling the owner to file a declaration as per the explanation (ii) and (iii) of Sub-section (1) of Section 6. The definition of 'vacant land' as defined under Section 2(q) excludes the land mainly used for purpose of agriculture, in an urban agglomeration, and other land as mentioned in clauses (i), (ii) and (iii) of Section 2(q) and the proviso to Section 2(q) envisages that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live-stock, on any and situated in a village within an urban agglomeration such of the extent shall not be deemed to be vacant land if that part of the land generally used for agricultural purpose in the master plan where the construction of the building activities is not permissible under building regulations as per the said master plan cannot be treated as vacant land. More so, the Respondents 3 to 9 who obtained succession can also claim exemption of such lands either under general exemption granted by the Government through G.O. Ms. No. 733 dated 31-10-1988 or under Section 20 as the case may be. In the entire pleadings it is nowhere stated that either the petitioners or the Respondents 2 to 9 have filed declarations under Section 6 of Act 33/1976 and there was any determination of excess vacant land. In the absence of the same, it is not open for the petitioners to plead that the Act is made applicable to the lands to which succession is granted.
11. For the discussion undertaken as above and the reasons aforementioned, I do not see any force in the submission made by the learned Senior Counsel that once the provisions of Act 33/1976 are applicable to the lands, the MRO will not have jurisdiction to enquire and grant succession to the tenants, and the provisions of the Act 21/1950 cannot be made applicable to the lands covered by the provisions of Act 33/1976 is a fallacy.
12. Learned Senior Counsel further urged that in view of Section 102(a) of Act 21/1950 the provisions of Act are not applicable to the areas notified as being reserved for urban, non-agricultural or industrial development and placed reliance on Roshan Ali Khan v. Raja Kishendas, 1968 (2) ALT 66.
13. In the above case, this Court held that notification issued and published in the Zareeda (Gazette) under Hyderabad Municipal Council Act, 1932 Fasli, will be sufficient for excluding all the lands.
14. This Court in the case of Islamia Arabic College (supra) held that Section 102(e) postulates of issuance of a notification reserving them for urban development. Thereby, the issue of a notification expressly reserving any land in an urban area for urban development is a condition precedent for exclusion of the jurisdiction of the tenancy Courts. Mere inclusion of agricultural lands within the municipal limits does not become urban land. It is common knowledge that even within municipal limits several lands are used for agricultural or horticultural purpose. Even the urban land Ceiling Act expressly excludes the agricultural lands from its purview. Accordingly, held that mere inclusion of land in the municipal limits does not per se become urban land to claim benefit of Section 102(e) of Act 21/1950.
15. In view of the same, I do not see any ground to entertain the writ petition for bypassing the statutory appeal and revision remedies against the impugned order. The writ petition is accordingly dismissed. However, it is always open for the petitioners to challenge the said order in appeal as contemplated under the provisions of the Act 21/1950.