Andhra HC (Pre-Telangana)
State Of Andhra Pradesh And Anr. vs B. Komaraiah And Anr. on 4 January, 2002
Equivalent citations: 2002(2)ALD253, 2002(1)ALT787, 2002 A I H C 898, (2002) 2 ANDHLD 253 (2002) 1 ANDH LT 787, (2002) 1 ANDH LT 787
JUDGMENT L. Narasimha Reddy, J.
1. In this writ appeal, the State of Andhra Pradesh challenges the order of the learned single Judge in WP.No.3219/95 dated 13-1-1995.
2. Briefly stated, the relevant facts are as under:
3. The respondents jointly owned an extent of Ac.6-06 cents of agricultural land in Sy.No.578 of Uppal Kalan Revenue Village of Ranga Reddy district. The Urban Land (Ceiling and Regulation) Act 1976 (hereinafter referred to as 'the Act') became applicable to the State of Andhra Pradesh with effect from 17-2-1996. Hyderabad is one of the Urban Agglomerations declared under the Act in the State of Andhra Pradesh as is evident from Schedule 1 appended to the Act. The land of the respondents fell within the urban agglomeration. The respondents claimed that they are using the said land for the purpose of agriculture. However, since the land is within the urban agglomeration, they filed a declaration as required under Section 6 of the Act.
4. The declaration filed by the respondents was processed by the 2nd appellant and ultimately an order under Section 8(4) of the Act was passed by him on 7-4-1990 deciding that the respondents hold an extent of 11439 sq.mts. in excess of ceiling limits. On the same day, the statement under Section 9 of the Act was also issued in terms of order under Section 8(4) of the Act.The respondents filed an appeal before the appellate authority under section 33 of the Act. The appellate authority rejected the appeal through orders dated 22-1-1991. The respondents filed W.P.No.3219/95 challenging the validity of the order of the 2nd appellant dated 7-4-1990 under Section 8(4) of the Act.
5. The principal contention of the respondents was that their land was not covered by master plan that was existing as on 17-2-1976 (hereinafter referred to as 'the relevant date') when the Act was made applicable in the State of Andhra Pradesh, that the land was being put to agricultural use and as such was not liable to be treated as vacant land and the order passed by the 2nd respondent cannot be sustained either on facts or in law. They placed reliance upon the judgment of the Hon'ble Supreme Court in ATIA MOHAMMADI BEGUM (SMT) Vs. STATE OF U.P. & ORS. (1) (Hereinafter referred to as Atia Begum's case).
6. Following the judgment of the Hon'ble Supreme Court in Atia Begum's case, the learned single Judge allowed the writ petition. The learned single Judge held that though the land in question is within the urban agglomeration of Hyderabad, it continued to be agricultural land and not a vacant land and that this land was not included in the master plan of Hyderabad existing as on the relevant date. After recording these findings, it was held that the provisions of the Act are not applicable to the land in question at all and the order challenged in the writ petition was set aside.
7. The learned Government Pleader for Revenue, appearing for the appellants, submits that the order of the learned single Judge is based upon the ratio of the Hon'ble Supreme Court in Atia Begum's case and that since the Hon'ble Supreme Court in its decision in STATE OF A.P. & ORS. Vs. A.AUDIKESAVA REDDY & ORS. (2) (Hereinafter referred to as Audikesava Reddy's case) took the view that Atia Begum's case was not correctly decided, the order is liable to be set aside and that the writ petition be dismissed.
8. Sri C.Hanumantha Rao, the learned counsel for the respondents, on the hand, submits that even if the ratio laid down by the Hon'ble Supreme in Audikesava Reddy's case is to be applied, the fact remains that as on the relevant date the master plan of Hyderabad did not include the land of the respondents and it was only at a later date that the master plan was extended covering these lands. According to him, though the master plan extended at a later date, the holdings of the respondents were decided with reference to the relevant date and the same is not permissible in law.
9. The Act imposes restrictions on persons on their holding of land in excess of ceiling limits, in certain identified urban areas. Section 3 of the Act, in a way, spells out the object underlying the Act, which reads as under:
"Persons not entitled to hold vacant land in excess of the ceiling limit.
Except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which this Act applies under sub-section (2) of section 1."
10. The Act is made applicable to the State of Andhra Pradesh with effect from the relevant date i.e., 17-2-1976. The restriction imposed by this Section is, on holding "vacant" land in excess of ceiling limit. Ceiling limits are specified in Section 4 depending on the category of the townships.
11. So far as the nature of land in the context of the Act is concerned, three definitions deserve to be noted, viz.,. (1) Urban Agglomeration; (2) Urban land; and (3) Vacant land.
12. Urban Agglomeration is defined under Section 2(n) of the Act to mean the area specified in the corresponding entry in column (2) thereof of Schedule I and also includes the peripheral area specified in the corresponding entry in column (3) thereof. The urban agglomeration includes not only the territorial limits of the concerned local authority, such as, Corporation, Municipality, etc, but also some peripheral areas.
Urban land is defined under Section 2(o) of the Act as under:
"2(o)"urban land" means,--
(i) Any 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."
The other important expression is "vacant land", which is defined under Section 2(q) of the Act as under:--
"2(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 the approval of the appropriate authority and the land appurtenant to such building;
(iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building;"
13. From a combined reading of these three definitions, it is evident that urban agglomeration comprises of larger area. The nature of use to which the land within such limit is put; is irrelevant in this context. Urban land is such of the land within the urban agglomeration, which is covered by master plan. The connotation of vacant land is still narrow, in that, it is only such a land which is not meant for the purpose of agriculture and on which construction of a building is not permissible, etc as is evident from the above definition.The definition of urban land is incomplete without reference to the expression 'master plan', which in turn is defined in section 2(h) of the Act as under:
"2(h)'master plan' in relation to an area within an urban agglomeration or any part thereof, means the plan (by whatever name called) prepared under any law for the time being in force or in pursuance of an order made by the State Government for the development of such area or part thereof and providing for the stages by which such development shall be carried out."
14. Till the Hon'ble Supreme Court decided the Atia Begum's case, every land within the urban agglomeration used to be treated as urban land irrespective of the fact whether the master plan of the concerned urban agglomeration covers the whole or part of the area. The Hon'ble Supreme Court declared that it is only such land within the urban agglomeration which is covered by the master plan existing as on the relevant date applicable to the respective States; that is liable to be treated as urban land or vacant land as the case may be and that the Act has no application for the land which is not covered by the master plan though it is situated within the urban agglomeration.
15. The effect of the judgment of the Hon'ble Supreme Court in Atia Begum's case was that the coverage of an urban agglomeration by any master plan should be frozen with respect to the relevant date vis--vis the provisions of the Act. In other words, any subsequent extensions of the master plans or notifications of new master plans with reference to an urban agglomeration will not have the effect of bringing the area covered under the extended or new master plan within the fold of the Act.
Feeling aggrieved by such an outcome, some of the State Governments were able to convince the Hon'ble Supreme Court to reconsider the judgment in Atia Begum's case, which was decided by two Judges of the Hon'ble Supreme Court. It is in this context that Audikesava Reddy's case came to be decided by a bench comprising of three Judges of the Hon'ble Supreme Court. The question as to whether any land which was not vacant earlier, on account of it not having been covered by the master plan existing as on the relevant date can become vacant at a subsequent stage was dealt with by the Hon'ble Supreme Court in Audikesava Reddy's case and it was held as under:
"The observations that the authorities by their subsequent action after 17th February, 1976 cannot alter or introduce the master plan which has the effect of increasing the area of excess vacant land do not represent the correct view of law. The aforesaid explanation to Section 6(1), inter alia, provides that where any land, not being vacant land, situated in a State in which this Act is in force has become vacant land by any reason whatsoever, the date on which such land becomes vacant land would be the date of the commencement of the Act as regards such land.
Developments and town planning are ongoing process and they go on changing from time to time depending upon the local needs. That apart, the definition of the "master plan" in Section 2(h) is very significant. It reads as under:
'2(h)'master plan' in relation to an area within an urban agglomeration or any part thereof, means the plan (by whatever name called) prepared under any law for the time being in force or in pursuance of an order made by the State Government for the development of such area or part thereof and providing for the stages by which such development shall be carried out.' The above provision, inter alia, contemplates the master plan prepared under any law for the time being in force for development of an area. The plan shall also provide for the stages by which such development shall be carried out. It is evident from the aforesaid definition of master plan that it takes in view any plan prepared even subsequent to the coming into force of the Act Further, the explanation to Section 6(1), as noticed above, very significantly provides that every person holding vacant land in excess of the ceiling limit at the commencement of the Act shall file a statement before the competent authority and "the commencement of the Act" under clause (2) would be when the land becomes vacant for any reason whatsoever. Therefore, the date of commencement of the Act in a case where the land, which was not vacant earlier, would be the date on which such land becomes vacant land. It, thus, contemplates a situation of land, not being vacant, becoming vacant due to preparation of a master plan subsequent to 17th February, 1976. Further, the provisions of the Act require filing of a statement under Sections 6, 7, 15 and 16 from time to time as and when land acquires the character of a vacant land. Obligation to file statement under the Act arises when a person comes to hold any vacant land in excess of the ceiling limit, which date necessarily may not be 17th February, 1976. It would all depend on the facts and circumstances of each case."
Their Lordships ultimately held as under:
"Accordingly, we hold that the master plan prepared as per law in force even subsequent to enforcement of the Act is to be taken into consideration to determine whether a particular piece of land is vacant land or not and, to this extent, Atia Begum is not correctly decided."
16. Reverting to the facts of the present case, it is to be noted that admittedly as on the relevant date, the master plan of Hyderabad city did not include the land in question.It is only under the master plan issued under G.O.Ms.No.391 which was published in the Gazette on 29-9-1980 that the land in question came to be included in the master plan. In view of the judgment of the Hon'ble Supreme Court in Audikesava Reddy's case, it cannot be said that the land of the respondents cannot be treated as vacant land at all and that it was not covered by the provisions of the Act.
17. This, however, does not resolve the controversy. The next and important question is as to the date with effect from which the land can be said to have become vacant land. This becomes relevant and important for the reason that it is with reference to certain dates that the holdings of the persons are to be determined under the Act. This question was not dealt with directly by the Hon'ble Supreme Court in Audikesava Reddy's case. In a way, it was left open, as is evident from the following observation:
"In these matters, however, we are not concerned with the question as to the consequences of filing of a statement by a person under a wrong impression that the vacant land held by him is in excess of ceiling limit if it was not so when he filed a statement. This aspect is left open to be decided in an appropriate case."
18. However, the discussion, which was undertaken by the Hon'ble Supreme Court, provides sufficient guidance for arriving at a conclusion on this aspect.
The learned Government Pleader on behalf of the appellants submits that once a new master plan was published, it automatically dates back to 17-2-1976 and the holdings are to be decided with reference to that date. On the other hand, the learned counsel for the respondents submits that the master plan has to be operated only prospectively and it is only with reference to the date of publication of the new master plan that the land covered by it becomes urban or vacant as the case may be and the holdings of the persons have to be decided with reference to that date and not with reference to any date anterior to that.
19. It is evident from a reading of Section 3 of the Act that the holdings of the persons are to be decided with reference to "the date of commencement of the Act". Ordinarily, there will be only one date of commencement of any Act. Some times, the date may vary depending on the extension of the provisions of the Act to certain other areas or subject matters.
20. The obligation under Section 6 of the Act to file a declaration is with reference to holding of the vacant land "at the commencement of this Act". The expression "commencement of this Act" is explained and in a way defined in Explanation to this section. The Explanation reads as under:
"Explanation,-- In this section, "commencement of this Act" means,--
(i) the date on which this Act comes into force in any State;
(ii) where any land, not being vacant land, situated in a State in which this Act is in force has become vacant land by any reason whatsoever, the date on which such land becomes vacant land;
(iii) where any notification has been issued under Cl.(n) of Sec.2 in respect of any area in a State in which this Act is in force, the date of publication of such notification."
21. A reading of Explanation (ii) clearly indicates that whenever a land which was not vacant at the time of commencement of the Act has become later vacant land by any reason whatsoever (which, obviously includes the publication of a revised or new master plan), commencement of this Act, qua such land shall be the date on which it so becomes. If a master plan is published at a later date, as in the present case, the land covered by such a master plan would become vacant and thereby get attracted by the provisions of the Act only with effect from the date on which the master plan is published. In fact, the Hon'ble Supreme Court in Audikesava Reddy's case placed heavy reliance on this provision to arrive at a conclusion that the Act does not preclude the possibility of a land, which was not vacant at the time of commencement of the Act, becoming vacant at a later stage. The same is evident from the portion of the judgment of the Hon'ble Supreme Court extracted supra. Therefore, the contention of the appellants runs contrary to the express provisions of the Act and the law laid down by the Hon'ble Supreme Court .
22. The plea that irrespective of the date of its publication, the master plan should date back to the commencement of the Act i.e., 17-2-1976 is liable to be rejected on other grounds also.
23. The master plans in the State of Andhra Pradesh are issued under the provisions of the A.P.Urban Areas (Development) Act, 1975. Chapter 3 of this Act provides for preparation, publication, modification, etc of master plans. A detailed procedure is prescribed for the preparation of master plans. Section 10 which speaks about the date of operation of the plan reads as under:
"10. Date of operation of plan:-- Immediately after a plan has been approved by the Government, the Authority shall publish in such manner as may be determined by regulations, a notice stating that a plan has been approved and naming a place where a copy of the plan may be inspected during the specified hours and upon the date of the first publication of the aforesaid notice, the plan shall come into operation."
24. This Section does not leave any doubt as to the date of commencement of the master plan. It is the date of its publication. Admittedly, in the present case, the plan was published on 29-9-1980. Therefore, it is not possible or permissible to enforce the master plan in question with effect from any date anterior to 29-9-1980.
25. The object underlying the Act to decide the holdings of the persons with reference to the date of commencement as stated in Explanation (ii) to Section 6 is also not without significance. The holdings under the Act are to be decided and determined with reference to "person". The word "person" is defined under Section 2(i) of the Act as under:
"2(i) "person" includes an individual, a family, a firm, a company, or an association or body of individuals, whether incorporated or not."
26. It is defined in the widest possible connotations. It includesnatural as well as juristic persons. Juristic persons would in turn are not confined only to incorporated companies or registered societies and associations. As on 17-2-1976, which is the relevant date, a particular person or set of persons, be it natural or juristic, may hold the land within the urban agglomeration. By the time the revised master plan is issued with reference to a particular urban agglomeration, the holding with reference to the persons may undergo substantial change. New persons may come into existence and those who were in existence, may cease to exist. It can be on account of partition in joint families, on account of birth of persons in a family unit, incorporation of companies, coming into existence of partnership firms, formation of associations or body of individuals, etc. When such changes take place in between the relevant date and the date on which new master plan is published, deciding the holding with reference to 17-2-1976 would defeat the provisions of the Act, in that, the persons; whether natural or juristic, who come into existence between these dates would be deprived of their entitlement under the Act. The Act being exproprietory in nature cannot be given an interpretation, which would defeat the rights of the citizens, only by implication.
27. Further, there is another reason why the revision of the master plan or publication of a new one should operate prospectively. For instance, a person submits declaration with reference to his land in the year 1976.If the land is not covered by the master plan, the competent authority under the Act will decide the holding and pass appropriate orders under Section 8(4) of the Act. If after passing of orders under Section 8(4) of the Act, a revised or new master plan is issued with reference to the concerned urban agglomeration as is usually done, it would result in anomalous situation if the subsequent master plans are to be given effect to from 17-2-1976.
28. Lastly, the learned Government Pleader placed reliance upon the judgment of this Courtin P.S.RAO vs. SPECIAL OFFICER & COMPETENT AUTHORITY, URBAN LAND CEILING, HYDERABAD (3). It was a judgment in the writ petition rendered by one of us (S.R.Nayak, J.) sitting single. The same was confirmed by a Division Bench in WA.No.1696/98 and the SLP filed against it was also dismissed. That case related to the operation of a GO, which was issued under the provisions of Section 20(1)(a) of the Act. The Government issued G.O.Ms.No.733 dated 31-10-1988 providing for exemption of certain extent of lands situated in the peripheral areas. This G.O. was issued by the State Government in exercise of the power under Section 20(1)(a), which reads as under:
"20 Power to exempt.
(i) Notwithstanding anything contained in any of the foregoing provisions of this chapter, --
(a)where any person holds vacant land in excess of the ceiling limit and the State Government is satisfied, either on its own motion or otherwise, that, having regard to the location of such land, the purpose for which such land is being used or is proposed to be used and such other relevant factors as the circumstances of the case may require, it is necessary or expedient in the public interest so to do, that Government may, by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this chapter;"
29. By its very nature, the exercise of the power was to relieve the hardships of the holders of the land.Unlike Section 10 of the A.P.Urban Land (Development) Act, the Urban Land (Ceiling and Regulation) Act, 1976 did not make stipulation that any orders passed by the Government in exercise of Section 20(1)(a) of the Act shall be operative from the date of its issue. It was in this context that it was observed in the said decision as under:
"On that count itself, even accepting the argument of the learned Government Pleader for Revenue that the G.O. is applicable prospectively and not retrospectively, even then the petitioner is entitled to exemption inasmuch as he has assailed the validity of the action taken under Section 10(5) of the Act calling upon him to deliver the excess land determined by the second respondent. Added to this, it is well settled position in law that once a statutory authority by exercise of its delegated power frames rules or issues notifications exercising power of exemption, such exemption would form part of the statute itself and such exemption is required to be implemented and worked out with effect from the date of the statute itself."
30. Inasmuch as the master plan was issued not under the Urban Land (Ceiling and Regulation) Act, 1976, but under the A.P.Urban Areas (Development) Act, 1975, which in clear terms under Section 10 states that the notification shall be effective from the date of publication, the ratio in that decision is not applicable to the facts of the present case.
31. Even assuming that there exists a legal proposition and concept that any notification issued under an Act at a later point of time should be effective from the date of coming into force of the Act, the Courts are not powerless to apply the principle in such a manner as to advance the ends of justice. DIAS in his treatise on Jurisprudence summed up the principle as under:
"The meaning of legal concepts may vary in different contexts according to the demands of justice."
32. He elicited this by taking the aid of two decided cases by English Courts, which are as under:
"In Dodworth v Dale, Amarried B in 1927 and was allowed a deduction in income tax. The marriage was later declared null and void. When the Inland Revenue authorities claimed to re-assess the tax payable by him, it was held that he had been 'married' during that period and their claim therefore failed. On the other hand, in Re Dewhirst, Flower v Dewhirst, A left money to his widow for as long as she did not re-marry. She did re-marry, but the marriage was declared void. It was held that this was not 'marriage' and she accordingly kept the money."
33. From a reading of the cases referred to above, it is evident that in both the cases the marriages were declared null and void.However, in the 1st case, the declaration was held to be prospective in operation, while in the latter, it was held that the declaration dates back to the marriage itself. The justification from this variation was once again explained by the author as under:
"Entire new doctrines owe their origin to broad sentiments of justice, eg., equity, quasi-contract and various other special rules."
34. The principle applies with a great vigour when it comes to the conclusion of implementation of exproprietory legislation. The reason is that in a society governed by rule of law, rights of the citizens cannot be permitted to be taken away except through the known procedure and express provisions of law.
35. Therefore, the only conclusion that can be arrived is that as and when any land which was not vacant at the time of commencement of the Act becomes vacant on a subsequent date, the holdings of the persons have to be decided with reference to the subsequent date on which the land becomes vacant. Any adjudcation in respect of such lands with reference to the date of commencement of the Act cannot be sustained. Admittedly, in the present case, the land in question came to be treated as vacant land with effect from 29-9-1980 on which date the new master plan was published. It is not in dispute that the holdings of the respondents were decided with reference to 17-2-1976 i.e., the date of commencement of the Act. Therefore, the order passed by the 2nd respondent under Section 8(4) of the Act dated 7-4-1990 as well as the order passed by the appellate authority on 22-1-1991 are set aside.
36. The 2nd respondent shall decide the matter afresh. He shall decide the holdings and entitlements of the respondents with reference to 29-9-1980. The 2nd respondent shall assertain as to whether there was any change of ownership or emergence of persons; whether through birth, partition and other similar factors, vis--vis the land.For this purpose, the appellant may either call for further information or require the respondents to file declaration under Section 6 of the Act afresh.
37. In the above view of the matter, the writ appeal is partly allowed. The order of the learned single Judge shall stand modified to the extent indicated above. But, in the circumstances of the case, there shall be no order as to costs.