Andhra HC (Pre-Telangana)
Government Of A.P. And Others vs J. Sridevi And Others on 22 October, 1998
Equivalent citations: 1998(6)ALD738, 1999(1)ALT6, 1999 A I H C 911, (1998) 6 ANDHLD 738 (1999) 1 ANDH LT 6, (1999) 1 ANDH LT 6
ORDER N.Y. Hanumanthappa, J.
1. In this writ appeal, the ranks of the parties mentioned in the writ petition.
2. This appeal is by respondents 1, 2 and 4 in W.P.No.5929 of 1997 aggrieved by the order of the learned single Judge of this Court allowing the writ petition filed by the petitioners who sought reliefs of writ of mandamus directing the 2nd respondent authority to declare the land of 1000 sq. metres of each of the petitioners is outside the purview of the provisions of the Urban Land Ceiling and Regulation Act 1976; to direct the 3rd respondent for sanction of the layout and also to direct the 4th respondent for entertaining the registration of the sale-deeds.
3. A few facts which are necessary to dispose of this appeal are as follows:
The petitioners purchased each an extent of 10 guntas or 1000 sq. metres from the pattadars of the land in S.No.79 part of Madapur village, Strilingampally Mandal, Rangareddy District. At the time of purchase, the land in question was an agricultural land. As per the plan dated 21-8-1978 prepared by the competent authorities of Survey and Land Records, Urban Land Ceiling Hyderabad, the municipal limits of Hyderabad and Secunderabad is shown as 5 kilo metres away from the peripheral boundary which is the limit for Hyderabad Urban Agglomeration and the same was demarcated. Thus, the peripheral area starts from the border of the Municipal boundary at 5th k.m. As on the date of purchase of sites by the petitioners there was no legal restriction for transfer of agricultural land situated in the area mentioned above. In view of the Government Memo N0.132831/UC-I/88, dated 22-12-1988, there was also no bar for registration of such land by the Sub-Registrar. Sale-deeds were executed in number of cases. The land in S.No.79 in which a portion of the petitioners' lands are situated in Madapur was not urban land either at the time of coming into force of the A.P. Urban Land (Ceiling & Regulation) Act, 1976 hereinafter referred to as "the Act 1976", which came into effect w.e.f. 17-2-1976 or when the master plan was amended or subsequent to that. The village Guttala Begumpet situated prior to Madapur village is not shown in Hyderabad Agglomeration map of Hyderabad and Secunderabad. When there was cloud as to the inclusion of S.No.79 of Madapur, out Smt. K. Leela Kumari, sought clarification from the Government whether Guttala Begumpet village is situated in core area or peripheral area of Hyderabad Agglomeration.
The Government after satisfying with the report of its Subordinates including survey officers, in Memo No. 13940/UC-II(2)/88-4, dated 18-4-1989 informed Smt. Leela Kumari that Guttala Bcgumpet village is in the peripheral area w.e.f. 16-10-1978. The Government by its order in memo No.50885/ UC-II-I/90, dated 4-6-1990 stated that the excess vacant land upto Ac.5.00 ^eluding roads etc., in S.Nos12 and 13 situated at Guttala Begumpet village, Hyderabad Urban Agglomeration is within the peripheral area. Thus, there is no need to issue separate orders upto Ac.5.00 after excluding the area required for roads, exempting the land in S.Nos.12 and 13 of Guttala Bcgumpet village from the provisions of the Act, 1976. At no time Madapur village was shown in Col.2 of Schedule-I. As per the Government Memo No.l39040/UC-n(2)/88-4, dated 18-4-1980, the Government of A.P. observed that Madapur village is in the peripheral area of Hyderabad agglomeration. The Government by its G.O.Ms.No.467 M.A, dated 3-9-1996 informed that the land in question situated in the peripheral area of Hyderabad Agglomeration.
4. As per the provisions of Section 14 of the A.P. Urban Areas Development Act, 1975, hereinafter referred to as 'the Act 1975' to complete the sale one has to get clearance from the Urban Land Ceiling authorities if the extent exceeds the ceiling limit. As the land purchased by the each petitioner was about 1000 sq.metres, there was no necessity for seeking clearance certificate. However, they filed declarations. It is also their case that when all the formalities were completed, the issuing of clearance certificate became just as a formality. But the authorities have slept over the matter. Hence this writ petition.
5. The 2nd respondent filed counter contending that the village Madapur forms part of Moosapet Panchayat which is included in the Table at Sl.No.1(1) under Section 2(n) of the Act called Urban Agglomeration area as specified in Col.No.(2) of the table in Schedule-I of the Act. The said village is within the Urban Agglomeration area. As per the entries made in the Pahani even earlier to 1992-93, S.No.79 was already converted as house plots. As per explanation (ii) to Section 6(1) of the Act, the land in question became vacant land and as such hit by the provision of Section 5(3) reference with Section 28(a) of the 1976 Act. The land owner colluded with the petitioners and effected sales dividing the land into bits only with an intention to circumvent the provision of the Act. A notice was sent to the petitioners to file statement under Section 6(1), but they did not comply with the same. There was no master plan in respect of Madapur village as on the appointed date i.e., 28-1-1976 but the land in question is covered by Schedule-I of the Act. Since die nature of the land use has been changed from agriculture to residential use even prior to the date of sale in the year 1995, the provisions of the Act 1976 apply as per explanation (ii) and Section 6(1) of the Act. This was also upheld by the Division Bench of this Court in W.P. No.10103 of 1985. The Government granted conversion subject to the condition of applicability of the Act 1976. This does not mean that the owner of such lands precluded from filing the declaration. The petitioners have no locus standi to file the present petition as they are neither the holders nor they are pattadars of the land in question. The petitioners are not the owners of the land as the sale is hit by Section 5(3) of the Act and as such issuing of certificate to the petitioners does not arise. The petitioners and the land owners violated the conditions imposed by the Government in G.O.Ms.No.467 MA and UD (ZI) Department dated 3-9-1996.
6. The petitioners filed reply affidavit reiterating the same averments as in the affidavit filed in support of the writ petition. In addition they pleaded that the land in question is neither an urban land nor a vacant land, as such the provisions of the Act 1976 do not apply. The petitioners or the original owners (vendors) of the land never violated the conditions of G.O.Ms.No.467. But in fact they acted as per the terms of the said GO. Even in the extended master plan, the classification of the land in S.No.79 is shown as agriculture (conservation). The petitioners contended that on the application of the petitioners the land use was changed and the land use was converted by the Government through G.O.Ms. No.467. The Special Officer and Competent Authority under Urban Land Ceiling Act has no jurisdiction to invoke the provisions under Section 6(2) of the Act on the land in question. The petitioners are not the holders of any vacant land in excess of the ceiling limit. The clause in G.O. Ms.No.467, namely that 'subject to the condition of applicability of Urban Land Ceiling Act' does not give scope to the authorities to say that the land is a vacant land. The original owners of the land never violated the provisions of the Act 1976. According to the petitioners, that on the application of the petitioners, the 2nd respondent endorsed stating that the agricultural lands held by the vendors of the petitioners are not covered by any statutory master plan as on 28-1-1976. Though it was endorsed as such on 23-10-1996, but the 2nd respondent did not communicate the same to the 3rd and 4th respondent inspite of the orders of this Court in WPMP No.7069 of 1997 in WP No.5929 of 1997, dated 19-6-1997. The 2nd respondent wantonly dragged on the matter with a view to harass the petitioners.
7. The learned single Judge considering the provisions of the Acts 1975, 1976 and some of the GOs. issued by the Government time and again with regard to the applicability of the provisions of both the Acts', when the provisions of the Acts will apply to the lands particularly the disputed lands, and also considering the law laid down by the Supreme Court and this Court in several decisions, namely Atia Mohammadi Begum v. State of U.P., ; Meera Gupta v. State of West Bengal, ; Kamal Kanti Mukherjee v. Competent Authority, and S. Sulakshana Bat v. State of A.P., 1996 (2) ALT 557 (DB), by holding that the attitude of the respondents in not considering the request of the petitioners is incorrect, granted the relief sought by the petitioners. In the impugned order, the learned single Judge observed that urban land means the land which is situated within the limits of urban agglomeration and it shall find a place in the master plan, but not the one used for agricultural purpose. According to the learned single Judge, the land in question is not situated within the urban agglomeration area and not covered by the master plan existing as on 21-8-1976. Also observed that the land in question is not vacant land and as such the provisions of the Act 1976 have no application. He found that the extension of the master plan by way of amendment to a particular area which was not included when the Act came into force, cannot alter the original nature of the land. According to him, the master plan which was amended by 28-6-1996 has no application. Even in the said amendment the lands were shown as conservation zone only. Further the lands were converted into residential zone as per the G.O. Ms.No.467, dated 3-9-1996. According to the learned single Judge, if position of the land is examined in the light of Section 2(o) of the Act 1976, the lands in question are not vacant lands. He also took into consideration the entries made in the Pahanies in respect of the lands in question for the year 1965-66, 1970-71, 1975-76 and 1985-86. Cols.23 and 24 of the said Pahanies show different crops raised in the said lands. The learned single Judge observed that when the petitioners made application before the Special Officer-cum-Competent Authority, the petitioners were owning only 1000 Sq.metres each which was within the ceiling limit. This was also endorsed by the Competent Authority under the ULC Act. Thus on the date of change of the land from agriculture to the non-agriculture, the petitioners were holding 1000 sq.mtrs, which was within the statutory limit. Even according to the certificate issued by the HUDA and the amended master plan dated 29-6-1985, the land use was changed from conservation zone to residential zone. So also by G.O.Ms.No.467, dated 3-9-1996. The land was not at all included in Col.No.2 of Schedule -1 of the ULC Act on 184-1989 and earlier Notification dated 16-10-1978. Moosapet and Fathenagar Gram Panchayats were reconstituted by excluding Madapur and Guttala Begumpet villages from their jurisdiction. Thus a new Madapur Gram Panchayat with Madapur and Guttala Begumpet villages were constituted which fell outside the purview of urban agglomeration. By memo No. 132831/ULI/88-1, dated 22-12-1988 it was informed that there was no prohibition or restriction from the Urban Land Ceiling point of view for alienation of the land not falling within the purview of the Act. Even the Inspector-General of Registration and Stamps was requested to direct all the registering authorities to register the lands classified for agricultural use in the master plan after satisfying whether the lands to be registered are included in survey number villages-wise. The Government by its memo dated 4-4-1990 informed that as per G.O.Ms.No.733 Revenue (UCII) Department, dated 31-10-1988, excess vacant land up to Ac. 5.00 excluding the area required for roads etc., lying in the peripheral area of urban agglomeration lias been exempted from the 1976 Act. The learned single Judge also referred to Government of India's letter No. 11/ 8 of 1995 UCU, Ministry of Urban Affairs and Employment (Department of Urban Development), dated 1-8-1996 advising all the State Governments to follow the judgment rendered by the Supreme Court in Atia Mohammadi Begum's case in letter and spirit until the same is reviewed by the Supreme Court. The learned single Judge found that both the Government and the HUDA in their endorsements and certificates issued earlier held that the petitioners' lands are agricultural lands and well within the ceiling limit. By the time the land use was changed, the holding of each petitioner was just Ac.00.10 guntas in other words 1000 Sq. metres. According to the learned single Judge the principles laid down by the Supreme Court in the cases of Atia Mohammadi Begum and Meera Gupta and also in the judgment rendered by the Division Bench of this Court in the case of Ashok Rao apply to the case of the petitioners. He found that on facts the law laid down by this Court in Sulakshana Bai's case and for the reasons given therein, has no application to the case on hand. One more reason for the learned single Judge to hold that the principles laid down in Sulakshana Bais's case are not applicable was that the holding of the petitioners herein was about Ac.0.10 guntas and thus it is less than the ceiling limit. The learned single Judge also observed that on the date of coming into force of the 1976 Act, the land in question was situated out side the master plan of Hyderabad city and further it was less than the ceiling limit. As such the Act has no application,
8. The learned Advocate-General contended as follows : (1) the findings of the learned single Judge are quite incorrect and arbitrary, (2) learned single Judge did not take into consideration Schedule-1 of ULC Act. (3) Madapur was part of Moosapet on the notification dated i.e., 1-1-1976. (4) By mere correspondence between the parties, the area once notified cannot be excluded from the provisions of the Act 1976. (5) There was no order on 23-10-1996 passed in favour of the petitioners. (6) On facts the principles laid down in the case of Sulakshana Bai's case and so also in WPNo. 19 of 95 rendered by the Division Bench of this Court apply and not the principles laid down either in Atia Mohammadi Begum's case or in Ashok Rao 's case. (6) The land in question was converted into non-agricultural purpose in the year 1993. As such, the same should have been taken note of by the learned single Judge, (7) The events that took place subsequent to the coming into force of the ULC Act shall be taken into consideration. (8) Madapur has been excluded in Schedule I to the Act. (9) Before seeking clearance certificate the concerned landowner should have filed an application before the Urban Land Ceiling Authority seeking exemption. But no such application was filed either by the vendors of the petitioners or by the petitioners. As such the authorities under the Urban Land Ceiling were right in issuing notice under Section 6 of the Act. (10) Whether the master plan was applicable or the provisions of the Act are applicable to the land in question and Madapur village outside the purview of Section 4(a) of the Act are all the questions to be considered and decided by the Urban Land Ceiling Authorities and not by this Court. (11) The nature and use of the land lias been changed from agriculture to the house sites. As such the Act 1976 applies. (12) Neither the change of use nor explanation under Section 6 of the ULC Act liad come up for consideration in Alia Mohammadi Begum's case. As such the principles laid down in the said case have no application to the case on hand. (13) At page Nos.46 and 47 of the counter-affidavit, the State has taken a clear-cut stand as to the applicability or otherwise of the provisions of the 1976 Act and how the petitioners are not entitled for seeking clearance certificate. Thus arguing he sought the appeal be allowed.
9. Sri Subba Reddy, learned Counsel appearing for the HUDA adopted the arguments of the learned Advocate-General.
10. As an answer to these contentions, Sri E. Manohar, learned senior Counsel for the petitioners contended as follows : (1) the petitioners before purchasing Ac.0.10 guntas of land each in the year 1995 from 27 persons who were members of the Hindu Joint Family, requested the HUDA on 24-6-1995 to inform them about the use of the land in question, (2) on 29-6-1995, the HUDA informed the petitioners that the land was used for conservation (agriculture); (3) on 1-9-1995, the petitioners sent an application to the Government to grant permission for change of the land use, by exercising tlie powers conferred under 1975 Act, (4) on 21-5-1996, the HUDA informed the petitioners that it has no objection to obtain clearance certificate, but the petitioners haw to pay a sum of Rs.2,97,128/-
towards developmental charges which was already remitted; (5) on 3-8-1996, the Government issued a draft variation notification; (6) on 9-8-1996, the HUDA directed the petitioners to pay Ihe amount of Rs.2,97,128/- to the HUDA as directed earlier;
(7) on 19-8-1996, the HUDA informed the petitioners that it has received the amount as developmental charges at the rate of Rs.20/-per sq.mctre for an area of 48,568 sq.metres;
(8) in fact the Government in G.O.Ms.No.467 dated 3-9-1996 ordered the change of land use and described the land in dispute as residential zone; (9) the petitioners are 49 in number each holding 1000 Sq.metres and, thus their holding comes within the ceiling limit; (10) on the date of coming into force of the Act 1976, i.e., 17-12-1976, Madapur was not included in the master plan of Hyderabad, (11) on 16-10-1978, Madapur was bifurcated from Moosapct Gram panchayat and constituted as Madapur Gram Panchayat including Madapur and Guttala Begumpet Villages; (12) on 23-6-1980 the master plan of Hyderabad was amended extending the same to Madapur village with effect from 23-6-1980. Madapur ceased to be the part of Moosapet Panchayat; (13) on 22-12-1988, the Government issued a memo informing that sale of agricultural lands without the Special Officer's permission or clearance where master plan is extended is permissible; (14) the Government also instructed the authorities to dispense with the production of clearance certificate, in respect of such lands: (15) the Government directed the registering authorities to register the documents wherever the lands sought to be registered which are not covered by ULC Act; (16) the Government by its memo dated 18-4-1989 informed that Guttala Begumpet is within the peripheral area but not in core area as on 16-10-1978 and thus Madapur which is 2 kms. away from Guttala Begumpet was not included in the core area; (17) on 31-10-1988, exemption was ordered to alienate an extent of Ac.5.00 (18) in G.O.Ms.No.289, dated 1-6-1989 additional extent of 40% for lay out and for other purposes i.e., Ac. 1.23 equivalent to 5+2+1.33 acres (8.33 acres) were permitted; (19) as the lands in question arc within the ceiling limit, there is no necessity to obtain permission; (20) when ULC Act has no application, there was no prohibition in purchasing the land measuring an extent of Ac. 0.10 guntas by each petitioner, (21) on 27-3-1997, the petitioners submitted an application to the HUDA seeking permission to form group housing scheme and they also paid Rs.35,300/-, but incorrectly the HUDA started insisting the petitioners to produce the'no objection certificate' or clearance certificate' obtained from the Special Officer, (22) on 17-10-1986, the petitioners approached the Special Officer and requested him to issue necessary certificate, but he remained silent; (23) the principles laid down by the Supreme Court in Alia Mohammadi Begum's case and this Court in Ashok Rao 's case sqarely apply to the facts of the case on hand, whereas the principles laid down in Sulakshana Bai's case and in Agarwal's case , on facts have no application; (24) the principles laid down in Sulakshana's case can be held as obiter and so also the decision rendered by the Division Bench of this Court in WP No. 19 of 1995; (25) as far as the principles laid down by the Supreme Court in Agarwal's case is concerned that was a case where the village is situated in Nagar Mahapalika. and the land was used as a vacant land. (26) Even subsequent to the filing of the writ petition, HUDA granted permission in respect of the land in S.No.70/2 and 71 of Madapur village in favour of one T. Mahesh Babu and another. Though the case of the petitioners is similarly placed, the HUDA took a different attitude. As such it is nothing but either misusing or abusing of powers conferred on HUDA; (27) The stand of the respondents runs contrary to the G.O.Ms.No.733, dated 31-10-1988 which was issued granting exemption to transfer the land upto an extent of Ac.5.00 held by the holder as excess vacant land. Thus arguing, he sought the appeal be dismissed.
11. In order to understand the correct position, it is to be borne in mind the object of the Central Act 1 of 1976 and some of the sections of the Act as defined.
12. The object of the Central Act as laid down by the Supreme Court in the case of Union of India v. Valluri Basavaiah Choudhary, , is to provide for the imposition of ceiling on vacant land in urban agglomerations for the acquisition of such land in excess of the ceiling limit to regulate the constructions of the building on such land and for matters connected therewith with a view to prevent the concentration of urban land in the hands of a few persons so as to check-mate speculations and profiteering therein on the one hand and to bring about equitable distribution of land among the urban population i.e., the urban agglomeration to subserve the common good, infurtherance of the Directive Principles of State Policy under Article 39(b) and (c) of the Constitution of India. Thus, the purpose is to distribute the material wealth of the society to surbserve common good. The applicability of the provisions of the Central Act is to be understood in the background of the following considerations that the vacant land must be situated in urban area and while giving effect to the object of the Act die procedure to be followed by the authorities shall be beneficial for both sides and it shall not be confiscatory in nature.
13. The Central Act came into force in the State of Andhra Pradesh on 17-2-1976. Section 2(h) of the Act deals about "Master Plan" in relation to area within urban agglomeration. Section 2(1) defines about "to hold" with its grammatical variation 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 hire-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities.
Section 2(n) deals about "Urban Agglomeration":
(A) in relation to any state or Union territory specified in column (1) of Schedule-I means:
(i) the urban agglomeration specified in the corresponding entry in Column (2) thereof and include the peripheral area specified in the corresponding entry in Column (3) thereof, and
(ii) any other area which the State Government may with the previous approval of the Central Government having regard to its location, population (population being more than one lakh) and such other relevant factors as the circumstances of the case may require, by notification in the official gazette, declare to be an urban agglomeration and any agglomeration so declared shall be deemed to belong to category D in that schedule and peripheral area therefor shall be one kilometer;
(B) in relation to any other State or Union Territory means any area which the State may with the previous approval of the Central Government, having regard to its location, population (Population being more than one lakh) and such other relevant factors as the circumstances of the case may require by notification in the official gazette declare to be an urban agglomeration and any agglomeration so declared shall be deemed to be belonging to category in Schedule I and the peripheral area therefor shall be one kilometer.
(0) "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 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.
Explanation :--For the purpose of this clause and clause (q) (A) "agriculture" includes horticulture, but docs 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 the explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master p!an for a purpose other than agriculture.;
(p) "urbanisible land" means land situated within an urban land;
(q) "vacant land" means land not being land mainly used for the 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;
(ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed, on the appointed day with approval of the appropriate authority and the land appurtenant to such building; and
(iii) in an area where there are no building regulations, the land occupied any building which has been constructed before, or is being constructed, on the appointed day and the land appurtenant to such building:
Provided that there 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 land situated in a village within an urban agglomeration (described as a "village" in the revenue records) then so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purposes of this clause.
14. Section 3 speaks about the persons who are not entitled to hold vacant land in excess of the ceiling limit. Section 5 speaks about the transfer of vacant land. Section 6 deals about the persons holding vacant land in excess of ceiling limit to file statement, before the competent authority. Section 7 speaks about filing of statements in cases where vacant land by a person is situated within the jurisdiction of two or more competent authorities. Section 8 deals about preparation of drafts as regards vacant land held in excess of ceiling limit. Section 9 deals about final statement. Section 10 deals about acquisition of vacant land in excess of ceiling limit. Section 10(3) speaks about publishing of notification declaring about excess vacant land vested with the State Government free from all encumbrances. Section 10(5) directs the person in possession of excess land which is vested with the State Government to surrender or deliver its possession to the State Government in this behalf. Section 10(6) speaks about how-delivery of possession is to be made in case of refusal to surrender.
15. Chapter IV of the Act deals about the regulation of transfer and use of urban property. Section 28 deals about the regulation of registration of documents in certain cases which envisages that any transfer to be registered only after obtaining permission of the competent authority. Section 34 speaks about revisional powers of the State Government. Section 38 of the Act deals about the offences and punishments in case of violation of the Act. Section 45 of the Act deals with the correction of clerical errors.
16. Master Plan presupposes that the land in question shall be situated within urban agglomeration prepared pursuant to any law in force or the order made by the State Government for the purpose of development of such area. The land can be held by any person as owner or even as an irrecoverable power of attorney holder. Urban agglomeration is the one which is specified in the Schedule-I and extends its jurisdiction over one kilo metre of the peripheral area. Urban land means the land which is situated within the urban agglomeration and finds place in the master plan. If there is no master plan prepared, the area which is situated within urban agglomeation and situated in the municipal limits will come under the purview of the Central Act. Normally the Act does not apply to the land which is agricultural. The word "agriculture" as defined under Section 2(o)(A) of the Act includes horitculture but excludes raising of grass, dairy farming, poultry farming, breeding of live-stock and any other cultivation excluded by the State. The Central Act applies when the land is not exclusively used for agriculture and does not find place in the revenue or land revenue records before the appointed day as an agricultural one. Thus it is "the science and art of cultivating the soil". Thus every land which is presently or prospectively capable of cultivation can be said to be agricultural land. This has been further explained by this Court in the following cases Officer-Incharge (Court of Wards) Paigah v. Commissioner of Wealth Tax, A.P. Hyderabad, , Gayatri Salt Works v. Government of Andhra Pradesh, AIR 1975 AP 265, wherein it was held as follows:
"If it is shown that the land is actually cultivated cither presently or in the immediate past or if it is capable of being cultivated, so long as the land has not been actually diverted to purposes other than agricultural purposes by construction of building thereon and other operations which render the land itself incapable of being cultivated and without undertaking some other operations for making it fit for carrying on agricultural operations, it can be said to answer the description of agricultural land in its widest significance.''
17. Similar view as taken by Calcutta High Court in the case of Bishnu Kumar Mitra v. Sub-divisional Officer, Howrah, AIR 1979 NOC 129.
18. As per Section 2(q) 'vacant land' means the land referred as urban land as mentioned in the master plan but it does not include the land which is meant for agricultural purposes. Some times the land shown in the agriculture can also be included in the master plan if that land is not shown in the revenue records as an agriculture under cultivation. Vacant land includes the land which on the date of coming into force of the Central Act is shown in non-agricultural zone. If it is shown as agricultural zone it excludes from the operation of the Urban Land Ceiling Act.
19. While explaining ' about the applicability of the Act and effect of the master plan with reference to explanation (c) of Section 2(o) of the Act the Supreme Court in Atia Mohammadi Begum v. State of U.P., (supra) held as follows:
"The scheme of the Act supports the construction that the explanation (c) to Section 2(o) means that if the land has been specified in the master plan existing at the time of commencement of the Act for a purpose other than agriculture, men the land shall not be deemed to be mainly used for the purpose of agriculture by virtue of the explanation and not if the land is specified in a master plan prepared after the commencement of the Act. The plain language of explanation (c) bears mis construction and requires it to be so construed in order to harmonise it with other provisions and scheme of the Act. Just as the holder of the land cannot by his subsequent actions reduce the area of the vacant land in excess of the ceiling limit, the authorities too cannot by any subsequent action increase the area of the excess vacant land by a similar action."
20. With the above information if we examine the nature of the land as on the date of coming into force of the Central Act the conclusion is that the land in question is an agricultural land and not vacant or urban land and situated outside the urban agglomeration for the reason that as on the date of coming into force of the Act, S.No.79 of Madapur village of Serilingampalle Mandal of Rangareddi district was outside the pripheral limits of Hyderabad city. The said survey number was not shown in the master plan. The revenue records, like record of rights and land revenue records for the period 1965-66, 1970-71, 1975-76 and 1985-86 produced, by the petitioners show the land as agricultural land under cultivation. When once there is entry in the revenue records the presumption is that such lands are cultivable and they are agricultural lands. To deny this no rebuttal evidence was adduced by the State. Any Attempt to extend master plan to this survey number by bringing an amendment to the master plan in the year 1980 will not confer any jurisdiction on the competent authority to bring it within the purview of Central Act as the crucial date will be the date on which the Act came into force. Further any amendment shall always be meant as prospective and not retrospective unless it is so intended by the farmers of the Act or the makers of the law.
21. While dealing with the scope of some of the sections of the Act 1976 particularly Section 2(h), 2(o) (ii) so also Section 10(3) (c) of the Act defining about the 'vacant land' in the case of N. Narasinga Rao v. Special Officer & C.A., U.L. Ceiling, Hyderabad, 1994 (1) LS 47, the Division Bench of this Court referring to the principles laid down in Alia Mohammadi Begum's case (supra) particularly with reference to the lands situated in Kukatpalli and Moosapet of Hyderabad and other villages held as follows:
"The question then arises on what date the position with regard to any land as 'vacant land' has to be taken into consideration to determine whether the land is a vacant land for purposes of the Act. In a recent judgment of the Supreme Court reported in Alia Mohammadi Begum v. Stale of U.P. it is laid down that "Master Plan" defined in Section 2(h) and referred to in the definition of 'Urban land' in Section 2(o), including Explanation (C) therein, is a master plan prepared and in existence at the time of commencement of the Act when by virtue of Section 3 rights of the holder of the land under the Act get crystallised and extinguish his right to hold any vacant land in excess of the ceiling limit. Their Lordships have observed that the proceedings for determining the vacant land in excess of the ceiling limit, according to the machinery provisions in the Act, is merely for quantification and to effectuate the rights and liabilities which have crystalised at the time of commencement of the Act. Their Lordships have further observed that just as the holder of the land cannot by his subsequent actions reduce the area of the vacant land in excess of the ceiling limit, the authorities too cannot by any subsequent action increase the area of the excess vacant land by a similar action. In that case, the master plan was not in existence on the date of commencement of the Act, so it was held that the agricultural land specified in the master plan which was prepared after the commencement of the Act, for the purpose other than agriculture, could not by virtue of the Explanation (C) be deemed to be mainly used for the purpose other than agriculture. In our State, though the master plan was in existence on the date of commencement of the Act, the lands in question were included in the master plan. They were included by way of extention of the master plan in G.O. Ms.No.391, Municipal Administration dated 23-6-1980, which was published in the official Gazette on 29-9-1980. It is, therefore, obvious that on the date of commencement of the Act the lands in question were not included in the master plan for a purpose other than agriculture and they were also not within the municipal limits so by extention of the master plan, the authorities cannot convert the agricultural land into vacant land by their unilateral act."
22. In the case of Nalla - Yakoob v. The Government of A.P., 1992 (3) ALT 473 wherein this Court while dealing with Section 20 and G.O, Ms.No.733 Rev.(UC.2), dated 31-10-1988, held as follows:
"Urban Land (Ceiling and Regulation) Act, 1976 Section 20 and G.O.Ms.No.733, Revenue (UC.2) dated 31-10-1988 - G.O. issued by Government in exercise of powers under Section 20(1)(a) of the Act Liability to surrender excess land be determined in the context of the said G.O. and not of earlier G.O. Ms.No.323, MA, dated 17-5-1977 which required proof that the land is put to agricultural use General exemption granted under the G.O. exemption is automatic without application subject to conditions that the excess land is in peripheral area and that the extent is five acres exclusive of land set apart towards roads, open spaces, school and hospital Conditions, are satisfied in this case and hence impugned order being contrary to the G.O. liable to be set aside."
23. Similar is the view taken by this Court in the case of M. Chandraiah v. Commissioner, L.R. & Urban Land Ceiling, , wherein it was held as follows:
"Urban Land (Ceiling and Regulation) Act, 1976 and G.O. Ms.No.733, Revenue (UC-III) Department, dated 31-10-1988 -Exemption of land in peripheral area - No application need be filed for exemption where GO grants general exemption -Total extent of land exempt is Ac.5-00 if excess land holder desires to retain it as it is - If he wants to lay it out into plots for sale, he is entitled to claim exemption of a clear extent of Ac.5-00 excluding area required for roads, hospitals and other public use."
24. The Division Bench of this Court in the case of Sulakshana Bai v. State of A.P., (DB) (supra) explaining the scope of Section 2(o), 2(q) and 6(1) of the Act, 1976 including Explanation clause n, held as follows:
"The Act came into force from 17-2-1976. The definition of 'urban land' under Section 2(o) of the Act, no doubt excludes lands which are mainly used for the purpose of agriculture. A 'vacant land' is defined by Section 2(q) of the Act as land not being land mainly used for purpose of agriculture, in an urban agglomeration. Section 3 of the Act enjoins that with effect from the date of the commencement of the Act, no person shall be entitled to hold vacant land in excess of the ceiling limit. In respect of city of Hyderabad the ceiling limit fixed is 1000 sq.mtrs. The land which was certified to be an agricultural land, when the Act came into force, could not continue to retain its identity as agricultural land even after its user was changed. It would not be treated as urban land so long as as it was mainly used for purpose of agriculture. When once the user was changed, it would become automatically vacant land within the meaning of Section 2(q) of the Act.
By virtue of the Explanation to Section 6 of the Act, when the land in question ceased to be an agricultural land it assumed the character of vacant land and therefore the owner was under a legal obligation to make a declaration under Section 6 of the Act. There is no dispute regarding the fact that the entire land was divided into small plots of 300 sq. mtrs. each and sold to several persons. From the nature of the use to which the land was put, there can be no doubt that it ceased to be an agricultural land."
25. The principles laid down by the Court in Sulakshana Bai's case have no application for the reason that in that case by the time the Act, 1976 had come into force there was a change in the land use from agriculture to non-agriculture and the entire land was convered into small bits and started using the same for building houses. Again the principles laid down by this Court in Smt. Padmavati v. Government of A.P., (W.P.No.19/95, dated 24-4-1998) on facts have no application to the present case. Further several G.Os. and correspondence cited in the case on hand were not produced in Smt. Padmavathi '$ case. Accordingly, an observation was made in the said case as follows: that if an application for exemption under Section 20 of the ULC Act, 1976 is made, the Government shall consider the same in view of the perular circumstances existing in [he said case. The relevant portion is extracted herein:
"There is a dispute as to the nature of the land as on the date of coining into force of the 1976 Act and extension of the master plan, When the Government allowed sale trasanctions for a considerable period in respect of different areas in the same survey number of Saroomagar, the respondents before taking a stand that the said land has been already vested in the Government and thus it docs not belong to the petitioner and it does not deserve to be registered, the authorities should have notified the same and heard the petitioner in the matter. If any application seeking exemption under Section 20 of the 1976 Act has been filed or was pending, the authorities also should have taken into consideration the effect of declaration filed under the 1976 Act and orders if any passed by the land Reforms Tribunal on earlier declaration filed either by Papa Raju or his vendor in respect of total extent of Ac.40 and odd. Showing the land in question as a Government land without enquiry and without giving an opportunity to hear the petitioner and other persons interested that too after allowing the persons concerned to enjoy the property for more than a decade and resorting to deny their titles unilaterally is quite incorrect and illegal.
Since we have reached the conclusion that under Section 71 of the Registration Act the authority has got power to instruct his subordinate officers not to register the sale-deeds what further action has to be taken, depends upon the decision to be taken by the Government under the 1976 Act.
There are some important questions to be considered in this writ petition. It is not sufficient if only some questions relating to the factual position, as to the applicability of the Act to the land in question, its inclusion in the peripheral limits, the date of extension of amended master plan, eligibility to seek exemption if any in view of its long possession and enjoyment by the petitioners. Without expressing any opinion on the rival contentions we think it appropriate to direct the respondents to consider the case of the petitioners whether the land in their possession is a vacant land or agricultural land or urban land. In case the Government comes to the conclusion that the land is an urban land, the petitioner's request to grant exemption under Section 20 of the 1976 Act shall be considered favourbly by affording the petitioner an opportunity to give representation to the Government. If an application seeking exemption under Section 20 of the 1976 Act is not yet filed, the petitioners to file such an application within thirty days from this date. When the Government has already given exemption in respect of other portions of the same S.No.8 to several persons who were similarly placed, the same cannot be refused to the petitioners unless their case comes within the prohibited area. If it is established that the area in question is situated outside the municipal limits then any decision as to registration of the sale-deeds or refusal shall be subject to the result of the decision to be taken by the Government under the 1976 Act."
26. The learned Advocate-General placed reliance on the decision of the Supreme Court in State of U.P. v. Nand Kumar Aggarwal, , wherein the Supreme Court while explaining the scope of Section 2(o) Expln.(A), 2(n) and 2(h) and 6 of the Act, 1976 held as follows:
"Urban Land (Ceiling and Regulation) Act, 1976 - Sections 2(o) Expln. (A), 2(n) & 2(h) and 6 - Land falling within the boundary of Municipal Corporation and within urban agglomeration but mainly used for operating 'bhatta' for brick kiln business - Held, an 'urban land' within the meaning of Section 2(o) being not saved by the exception clause "but docs not include any such land which is mainly used for the purpose of agriculture" - Merely because the land was entered in the revenue records and shown in Master Plan as agricultural, it would not mean that it was being mainly used for agricultural purposes - It is not material if a small portion of the land was being used for the purpose of agriculture as well."
But on facts, the said decision has no application to the case on hand for the simple reason that that was a case where in the master plan itself the area in the question was shown as agriculture. The said land falls within the urban agglomeration and situated within the peripheral area of Municipal Corporation of Lucknow. One more circumstance which distinguishes the case on hand is that the land involved in the above case was the one in which 'bhatta' was existing (brick kiln). The same was not included within the definition of agriculture. Thus, the said brick kiln was covering an area of 16 bighas 1 biswa 7 biswansis out of which brick kiln was actually operating in about 7 to 8 bighas with brick kiln structure in 2 bighas and 8 bighas of land was still available for earth digging for purpose of brick kiln. That was a case where the Court was requested to consider the applicability of ULC Act in respect of the land held by the 1st respondent therein, which according to him was agricultural land situated in the village Para falling within the boundary of Lucknow Nagara Maphapalika. Thus, according to the 1st respondent therein, he is entitled for exemption from the provisions of ULC Act, 1976. But the Court took into consideration the nature of the land, inclusion of the land in the master plan and its situation within the boundaries of Mahanagara Palika and user of the land, and held that the provisions of the Act are applicable to the said land. The facts in the above case are altogether different to the case on hand. As such the said decision has no application.
27. From the above it is clear that though the amended master plan of 1980 covered the land in question, but the land was earmarked for agricultural use. As such the petitioners submitted their applications on 1-9-1995 to the Government seeking conversion of the land use from agriculture (conservation) use to non-agriculture use. The Hyderabad Urban Development Authority collected Rs.2,97,128/- towards developmental charges and Rs.20,000/- towards processing charges to change the land use. The Government in its G.O.Ms.No.467, Municipal Administration Department, dated 3-9-1996 after satisfying that the request of the petitioners is a just one ordered converting the use of the land in question from agricultural to residential one. Accordingly, the petitioners with a view to developing the land for construction of group houses approached the Urban Development Authority for sanction of necessary lay out as required under Sections 13 and 14 of A.P. Urban Areas (Development) Act, 1975. To grant permission under Sections 13 and 14 of the 1975 Act, it is necessary to obtain exemption certificate under Urban Land Ceiling Act. The petitioners approached the Special Officer-cum-Competent Authority under die ULC Act requesting for issuance of necessary certificate and also to inform the HUDA and the District Registrar, Rangareddy District that the lands of the petitioners are situated outside the purview of the provisions of the ULC Act, 1976. The non-compliance of the same, after hearing both sides, pursuaded the learned single Judge to hold that die lands of the petitioners are outside the purview of the 1976 Act with a further direction 'to HUDA that it shall sanction forthwith a lay-out for group housing scheme as applied for, without insisting upon clearance certificate of Special Officer-cum-Competent Audiority under 1976 Act and also directed the Registering Authorities to register the sale deeds as and when submitted for registration in respect of the lands in question without insisting on the clearance certificate from the Special Officer-cum-Competent Authority. The above directions the learned single Judge had to make in view of the absence of authority on the part of the respondents in insisting upon clearance certificate from the Special Officer-cum-Competent Authority for granting lay-out for group housing scheme. One more important point to be taken note of is that subsequent to the passing of the order of the learned single Judge, which is under challenge in this writ appeal, the HUDA sanctioned lay out by its order dated 3-11-1997 in favour of Mr. T. Mallesh and others in respect of S.Nos.70/2 and 71 of Madapur village, Serilingampalli Mandal under Permit No.2853 of 1997 and also in favour of M/s. Kavuri Hills. This we were able to find out from the file maintained by the HUDA which was summoned at the instance of the parties. When the HUDA granted similar request of T. Mallesh and M/s. Kavuri Hills who were similarly placed, refusing to consider the request of the writ petitioners is a clear case of the discrimination and abuse of powers by the authorities concerned. In our view the declaration made by the learned single Judge tliat the lands of the petitioners do not come under the purview of the 1976 Act and insisting on the clearance certificate by the HUDA for sanction of lay out is quite incorrect, a just one. On the other hand, the petitioners are entitled for obtaining sanction for forming of group housing scheme and the registering authorities are bound to register whenever sale-deeds are presented for registration in respect of the lands in question without insisting on any clearance or exemption certificate from the Special Officer-cum-Competent Authority under Urban Land Ceiling Act.
28. From the above information and for the following reasons that from Schedule I to the Act, the date on which the ULC Act came into force, the amended master plan, G.Os., and Memos issued by the Government and the HUDA time and again including addressing letters by HUDA to the petitioners and also by the Certifying Authorities to the petitioners, the holding of the petitioners was less than 1000 sq.Mtrs. each. In view of the law laid down by the Supreme Court in Alia Mohammadi Begum's case (supra) and the Division Bench of this Court which was rendered by us in State of A.P. v. K. Ashok Rao, (supra) and so also in Narasinga Rao's case (supra) on the applicability of the Act including no legal obligation to seek any certificate if the land held by a person is less than the ceiling limit as held by this Court in M. Chandraiah's case (supra), the petitioners were justified in seeking permission to form group housing scheme. As the Central Act has no application to the case on hand, the authorities are liable to issue the clearance certificate as the petitioners are rightly entitled for the same.
29. The facts involved in this case are quite peculiar to the fects involved in Sulakshana Bai's case and Agarwal 's case. The stand taken by the authorities in the case of the petitioners is quite unjust and arbitrary. As such, the contentions urged by the learned Advocate-General do not deserve to be considered. We find no valid reasons to interfere with the order of the learned single Judge.
30. Accordingly, the writ appeal is dismissed and the order of the learned single Judge is confirmed. There shall be no order as to costs.