Andhra HC (Pre-Telangana)
D. Tara Bai And Others vs Government Of Andhra Pradesh, Rep. By ... on 16 October, 2012
Author: Noushad Ali
Bench: Noushad Ali
HON'BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.15095 of 2000 16-10-2012 D. TARA BAI AND OTHERS Government of Andhra Pradesh, rep. by its Secretary, Revenue(UL.II) Department, Secretariat, Hyderabad, and others. Counsel For the Petitioners: Sri A.K. Narasimha Rao rep Sri C. Rajendra Kumar Counsel For Respondents: Special G.P. for Assignment <Gist : Head Note : ? CITATIONS : 1. 2006 (5) ALD 132 2. 2006 (7) SCC 365 3. (1995) 5 SCC 115 4. (2010) 11 SCC 278 5. 2006 (5) ALD 132 (DB) ORDER :
1. Order of the Special Officer and Competent Authority, Urban Land Ceiling, Hyderabad, in proceedings No.B1/6012/76, dated 20.12.1992 passed under Section 8(4) and Section 9 of the Urban Land (Ceiling and Regulation) Act, 1976 (for brevity 'the Act') is challenged in this writ petition, on the ground that the order was passed without following the mandatory procedure; and against a dead person, hence a nullity; and consequently to declare the orders passed under Section 10(1), 10(3), 10(5) and 10(6) of the Act, as illegal.
2. Petitioners are daughters of one Smt. Laxmi Bai. Smt. Laxmi Bai filed declaration under Section 6(1) of the Act before the Special Officer and Competent Authority, Urban Land Ceiling, the 2nd respondent herein, declaring the lands in her possession measuring 24272 sq. meters situated in Sy.Nos.159/1, 159/2 part, 160, 161, and 162 of Guddimalkapur village, (presently Asifnagar Mandal), Hyderabad District. A provisional order under Section 8(1) of the Act together with a notice under Section 8(3) dated 4.06.1980 was served on the declarant, provisionally determining that she held 24,377.02 sq. meters in excess of the ceiling limit. The declarant filed her objection petition on 28.10.1980. Therein she indicated the names of the petitioners and others as being entitled for a separate unit each, on the ground that the lands were joint family properties acquired by her husband. Several other objections were also taken including that there were some structures on the land and the lands were agricultural lands, and hence cannot be treated as vacant land or urban land.
3. After filing the objections, the declarant died on 4.07.1991, leaving her four daughters including the three petitioners herein and one Smt. Yada Bai, a son, viz., Bansilal and two grandsons, viz., Dasaradh and Rajender through her deceased son as her legal representatives.
4. Though the declarant died on 4.07.1991, the proceedings were continued allegedly because the competent authority was not aware of the death. Thereupon a composite order was passed under Section 8 (4) and 9 of the Act on 20.10.1992. Nobody was heard in the matter. It was held that an extent of 2462.07 sq. meters of land was retainable area and an extent of 21805.28 sq. meters as excess. It is to be noted that admittedly this order was not served on the declarant; and in fact it could not have been served since she was already dead. The order was not even served on her legal representatives including the petitioners.
5. Thereupon notification under Section 10(1) was issued on 6.01.1993 and the same was published in the A.P. Gazette dated 20.01.1993 inviting objections. A draft declaration under Section 10(3) was issued as no objections were received and it was published in the A.P. Gazette dated 20.01.1994. A notice dated 4.04.1994 issued under Section 10(5) was sent to the declarant directing her to surrender the surplus land. The said notice was returned unserved on 25.11.1994 with an endorsement of the postal authority that the party expired. A revised notice was sent to Bansilal and others (not the petitioners) on 17.06.1994 on the basis of the information available in the declaration and it was acknowledged by Bansilal on 5.07.1994. Upon failure to surrender the land, notice under Section 10(6) was issued on 6.08.1994 authorizing the enquiry officer to take possession and possession was taken on 31.08.1994. In the above fact situation, the petitioners, who are the daughters of the deceased declarant, have filed this writ petition.
6. I have heard Sri A.K. Narasimha Rao representing Sri C. Rajendra Kumar, learned counsel appearing on behalf of the petitioners and the learned Special Government Pleader appearing on behalf of the respondents.
7. The impugned orders are challenged contending, -
(i) Order under Section 8(4) was passed against the dead person (declarant), hence the said order is null and void.
(ii) The petitioners acquired right over the property by inheritance as Class-I heirs being the daughters of the declarant soon after her death on 4.07.1991, long prior to the vesting of the lands in the Government under Section 10(3) of the Act. Hence order under Section 8 could not have been passed without notice to the petitioners and without a hearing as per Section 8(4).
(iii) Orders passed under Section 8(4) and 9 were not served either in the name of the declarant or to the legal representatives. Therefore it must be construed as if order under Section 8(4) and 9 were not passed; and consequently the subsequent consequential proceedings are not sustainable.
8. The contentions on behalf of the State are that,
(i) Order under Section 8(4) was passed, though after the death of the declarant, duly taking into consideration the objection filed by the declarant. Death of the declarant was not informed to the competent authority, though notices of hearing were sent to the declarant and to her advocate. Hence the respondents had no knowledge of the declarant's death. As none appeared at the hearing, the order was passed under Section 8(4) basing on the objections filed by the declarant. There is no need to provide opportunity of hearing as the opportunity was afforded to the declarant for filing objections under Section 8 (3).
(ii) Petitioners have constructive knowledge through Bansilal, who is no other than their brother and who participated in the proceedings. Petitioners are set up by their brother Bansilal, who had lost a writ petition W.P.No. 29477 of 1997 earlier.
(iii) Petitioners did not submit objections to the notification issued under Section 10(1) and the declaration under Section 10(3). Therefore the land is legally vested in the Government.
(iv) The petitioners have approached this Court after considerable lapse of time. The petitioners have set up the claim belatedly and the writ petition is therefore not liable to be entertained as it suffers from serious laches.
(v) Participation of petitioners would not have changed the result of the enquiry and hence no useful purpose would be served in setting aside the impugned orders.
(vi) Reliance is placed on Parchuri Ratnakar Rao v. State of A.P1, Government of Andhra Pradesh and others., v. M. Krishnaveni and others2, N.P. Thirugnanam (dead) by L.Rs. v. Dr. R. Jagan Mohan Rao and others3, and Indu Bhushan Dwivedi v. State of Jharkhand and another4
9. I have considered the aforesaid contentions and perused the material on record.
10. It is not in dispute that the declarant died on 4.07.1991 and a composite order under Section 8(4) and 9 was passed on 20.12.1992, i.e., long after the death of the declarant. The L.Rs. of the declarant were not brought on record nor were they put on notice. Admittedly no one including the advocate was heard in the matter. In fact, the advocate could not have represented the deceased declarant since his authority had ceased immediately after the death and if he had appeared, he would have appeared for nobody. Thus, the estate of the declarant was unrepresented. A statutory duty is enjoined upon the competent authority under Section 8(4) to pass orders only after giving the objector a reasonable opportunity of being heard which has not been done in this case. There can be no controversy as regards the well settled principle that an order passed against a dead person is a nullity and the order so passed is clearly impermissible in law. The State does not seriously contest this legal proposition. Hence, on this ground, it must be held that the order is a nullity and inoperative against the petitioners.
11. However, it is the contention of the State that the competent authority was not aware of the death, and though none was heard, the order was passed only after thoroughly considering the objections of the declarant. Therefore, according to the State, the order was passed bona fide. There is no need to provide opportunity of hearing to the declarant again after an opportunity is given for filing objections under Section 8 (3) of the Act.
12. It is not possible to accept the said contention. The scheme of the Act, in particular the provisions from 6 to 10, from the stage of filing declaration until the stage of delivery of possession, contemplates that notices should be given to the land holders with a view to safeguard their interests. The decision of competent authority under the Act is fraught with serious consequences as it would affect the constitutional rights of a person over immoveable property. Such a right cannot be allowed to be defeated by a quasi judicial authority like the competent authority in a casual and perfunctory manner. No person shall be deprived of his property save by authority of law. The law being expropriate in nature shall be strictly construed and the procedure contemplated shall be strictly followed. The authorities are not entitled to breach the procedure under any pretext.
13. As per Section 8 (3), Draft Statement shall be served on the declarant so as to enable him to file objections. If the declarant files objections, the competent authority shall consider such objections, then only it should give a reasonable opportunity of being heard. Hence, merely because opportunity was given under Section 8 (3) is not a sufficient compliance with the mandatory requirement of Section 8 (4). The competent authority is under a legal duty to not only call for objections, but also to provide an opportunity of hearing. The proceedings under Section 8 (3) is only a draft statement, where as order passed under Section 8 (4) is a final order as regards the objections. Section 8, therefore, provides two opportunities to the declarant - one for filing objections before the specified date, and the other for a hearing before passing the order under Section 8 (4). If the declarant has not availed the opportunity of filing objections, he is still entitled for a hearing under Section 8 (4) of the Act. Thus, it enables the declarant to state his objections, both at the stage of Section 8 (3) and also at the stage of Section 8 (4). The declarant is entitled to supplement his objections at the hearing and he can take any other relevant objections at that stage and the competent authority is bound to consider them. Therefore, it cannot be said that the objections filed under Section 8 (3) would suffice for passing order under Section 8 (4) of the Act.
14. It is the contention of the State that the petitioners have constructive knowledge of the proceedings, as their brother Bansilal was participating in the proceedings, and hence the petitioners cannot have independent grievance. Judgment of a Division Bench of this Court in Parchuri Ratnakar Rao v. State of A.P. and others 5 is relied upon to support the contention. The said Judgment has no bearing on the case on hand. In that case one, Velpula Laxmaiah filed declaration under Section 6 as kartha claiming the said land as belonging to joint family. His wife, four major sons and two minor sons were shown as interested persons. The sons and grandsons sold some land under a sale deed, dated 26-08-1997. The purchaser filed the above said case impugning the orders of the competent authority. By the date of purchase, all the proceedings under the Act were completed. Final order under Section 8 (4) and final statement under Section 9 of the Act were issued on 16-09-1981 after duly issuing notices to the declarant for hearing on 10-04-1981 and 03-09-1981. Then notification under Section 10 (1) was issued on 16-12-1981 and it was published in the A.P. gazette on 07-01-1982. The notification under Section 10 (3) was issued on 06- 08-1991 and it was published in the gazette on 28-08-1991. Thereupon, notice under Section 10 (5) was issued on 17-06-1992. The said notice was served on one of the sons of Laxmaiah viz., V.Laxminarayana on 26-06-1992. Thus, the action of taking possession alone remained which happened on 16-11-1998. In the fact situation, it was held that the parties had positive knowledge of the proceedings under the Act, and no separate notices need be issued to the four major sons of Lakshmaiah.
15. In the instant case, the situation is different. The declaration was filed showing Bansilal and some others (not the petitioners) as entitled to separate holdings on the ground that property was acquired by the husband of the declarant benami in her name. Bansilal was appearing in his own right as a sharer pleading that he was entitled for a separate holding. He was not representing any other sharer of the property. He too did not disclose the names of the petitioners who survived their father. In any event, it is nobody's case that Bansilal was the Kartha of the family after the demise of his father nor is it their case that Bansilal and the petitioners are residing together as members of the joint family. Even the competent authority did not accept the plea of the declarant that the lands were purchased by her husband benami in her name for the benefit of the family. On the other hand, the said plea was specifically rejected. Therefore, it is not possible to attribute constructive knowledge of the proceedings to the petitioners. For the same reasons, it is not possible to accept the contention that the petitioners are set up by Bansilal simply because he lost a writ petition. Admittedly the petitioners were not parties to the writ petition. It may be true that on a few occasions an advocate appointed by the declarant appeared on her behalf and even the advocate did not participate ever since 28-09-1991. As stated hereinbefore the advocate could not have attended as his authority had ceased on the death of the declarant. It may also be true that the competent authority was not aware of the death of the declarant and the order was passed bona fide, but it is not sufficient to save and uphold the order, which is a nullity.
16. There is yet another reason why the order should be considered as not sustainable. As rightly contended by the learned counsel for the petitioner, the petitioners being the daughters of the declarant became entitled to inherit the estate of the declarant immediately after her death. Thus, they became interested persons in the matter. The competent authority was aware of the death at least by 21-04-1994 when the notice under Section 10 (5) was returned unserved with an endorsement that the "party expired". The competent authority was also aware of the names of the petitioners as declarant had disclosed all the names including the names of the petitioners in her objections filed under Section 8 (3) of the Act. At least at this stage the competent authority ought to have taken steps to issue notices to the petitioners and bring them on record and, only then pass an appropriate order.
17. One of the contentions of the State is that the petitioners have approached this Court after a long lapse of time. Placing reliance on the judgments of the Apex Court in Govt. of A.P. v. M.Krishnaveni (2 supra) and N.P. Thirugnanam (dead) by L.Rs. v. Dr. R. Jagan Mohan Rao and others (3 supra), it is contended that the petitioners have set up claim belatedly after 8 years. The writ petition is therefore not liable to be entertained as it suffers from serious laches. Placing reliance of the judgment of the Apex Court in Indu Bhushan Dwivedi v. State of Jharkhand and another (4 supra) it is argued that there is no failure in observing principles of natural justice and no prejudice is caused to the petitioner.
18. In M. Krishnaveni's case (2 supra) there were two situations. One, 'C' was the declarant, who had three daughters viz., P, R & K, who were married before the appointed date of commencement of the Act. They were given some extent of land as per the family arrangement under the custom of 'pasupu kumkuma' in the year 1970. Two daughters R & K filed declarations, whereas the daughter 'P' did not file any statement. The Court upheld the case of the daughters R & K holding that the competent authority failed to exercise its discretion vested in it by law and consider the claim by conducting enquiry and issuing notices to 'C' before the final order was passed. The Court accordingly directed the Competent Authority to hold enquiry as per law. Insofar as daughter 'P', who did not file declaration, the claim was not accepted as her claim for an opportunity and enquiry was made after about two decades from the date of the vestment of surplus land in the State Government. The principle decided relating to the case of "R & K" in fact supports the case of the petitioners. As far as the case of "P", she was independently setting up her right and she did not file declaration. Further, there is nothing to show that she had explained the delay of 20 years in approaching the Court.
19. N.P. Thirugnanam's case (3 supra) was a case arising under Order 22, Rule 6, wherein it was held that there can be no abatement by reason of the death of a party between the conclusion of the hearing and the pronouncement of the judgment. This judgment has no bearing on the case on hand.
20. Indu Bhushan Dwivedi's case (4 supra) was a case wherein the Apex Court was examining the case of an employee who was dismissed from service based on the uncommunicated adverse remarks. It is held that no one can be condemned unheard and an adverse order cannot be passed by a public authority without affording reasonable opportunity to defend himself or represent his case. It was also held that every violation of rules of natural justice may not be sufficient for invalidating action taken by competent authority and the Court may refuse to interfere, if it is convinced that such violation has not caused prejudice to the affected person. This judgment in fact helps the petitioners who are deprived of their property without an opportunity.
21. It is well settled that the Court may not enquire into belated claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It all depends on the nature of rights of which breach is complained. Where the circumstances exist justifying the conduct of the parties in approaching the Court with delay and where the illegality is manifest, mere delay in approaching the Court cannot be a ground to refuse relief. It cannot be in dispute that no person shall be deprived of his property except by due process of law.
22. In the instant case, indisputably, the order was passed against the dead person. The petitioners had no knowledge about the proceedings pending before the respondents. The petitioners have categorically asserted that they had no knowledge about the proceedings. Their brother Bansilal also did not inform them until a Panchayat was held in the presence of the caste elders on 19.07.2000. The petitioners there upon visited the land and found that some constructions were taken up on the land. Thus they filed the writ petition in the year 2000. There is no denial of the aforesaid facts by the respondents. On the other hand, they have conceded the fact that it was on 4.04.1994 a notice under Section 10(5) was sent to the deceased declarant Smt.Laxmi Bai for surrendering surplus land and the said notice was returned unserved on 21.04.1994. Again revised notice is said to have been sent in the name of Bansilal and others (not the petitioners) on the basis of the information furnished by the declarant in the original declaration. The said revised notice was acknowledged only by Bansilal on 5.07.1994. The revised notices were not sent to the petitioners. There is no material to show that the petitioners also received notices in the year 1994. From the service of notice on Bansilal, it cannot be said that the petitioners had knowledge of the proceedings. As stated earlier, Bansilal was not representing the entire estate of the deceased declarant. He is only one of the shareholders. On the other hand, as asserted by the petitioners, the pendency of the proceedings before the respondents was not even divulged to the petitioners by Bansilal. Therefore it can safely be held that the petitioners came to be aware of the proceedings in the year 2000 and filed the instant writ petition. In the circumstances, it cannot be said that there are serious laches on the part of the petitioners in filing this writ petition.
23. It is not in dispute that orders passed under Section 8(4) and 9 were not served on the petitioners or even on Bansilal. Section 9 provides that the competent authority shall after the disposal of objections received under Section 8 (4) shall make necessary alterations in the draft statement and shall determine the vacant land held by the person concerned in excess of the ceiling limit and cause a copy of the draft statement as so ordered to be served in the manner referred to in Section 8(3). It is only after serving the said order the competent authority shall cause a notification under Section 10. Therefore before taking steps as per Section 10 service of order passed under Section 9 is mandatory. Indisputably, no such order was served on anybody including the petitioners and their brother Bansilal. It is to be noted that the proceedings under Section 10 (1) and 10 (3) are consequential proceedings and failing to submit objections to the notifications will not cure the defect. The order passed under Section 8 (4) of the Act constitutes the basis for the notifications. As hereinabove found, the said order is a nullity, since it was passed against the dead person and such an order cannot give rise to any further rights or obligations.
24. The contention that participation of the petitioners in the proceedings would not have changed the result of enquiry, is rather philosophical than legal. The said contention is stated only to be rejected.
25. For the foregoing reasons, the proceedings No.B1/6012/76, dated 20-12-1992 passed by the 2nd Respondent and the consequential orders are held void and unenforceable.
26. Accordingly, the Writ Petition is allowed. No costs.
_______________ NOUSHAD ALI, J.
16th October, 2012.